Cheerleading is a “Contact Sport” in Wisconsin?
After a week of R&R on the beaches of Jamaica with his new bride, Mrs. Guru, The Guru is back in the saddle and ready to provide you with some new coffee break reading.
In an opinion issued earlier this week by the Wisconsin Supreme Court, it was held that cheerleading is a contact sport. At least that’s what all of the sports reporters would have you believe… Who knew?… Well, certainly not the Wisconsin Appeals Court, whose decision was reversed by the Supreme Court. Now before you macho readers get all fired up and start bad mouthing cheerleading, some perspective is in order.
The case is Noffke v. Bakke and the facts are pretty straightforward. A high school cheerleader, Brittany Noffke, suffered a head injury when she fell during a warm-up. She alleges that her injury was caused by the negligent act of a fellow cheerleader, Kevin Bakke; that is, Bakke was supposed to be standing in a position that would allow him to catch her when she fell. The facts were not contested.
At issue in this case is the interpretation of Wis. Stat. § 895.525(4m)a, which provides immunity to those persons who negligently cause injury to fellow participants in an amateur sport involving physical contact. Noffke, the injured cheerleader, argued that the statute is inapplicable because cheerleading is neither a contact activity, nor a sport. Bakke argued to the contrary and the Wisconsin Supreme Court agreed. In reaching their decision, they relied upon the common dictionary definition of “sport” and “contact”. Sport being defined as, “[a]n activity involving physical exertion and skill that is governed by a set of rules or customs”, and contact as “1.a. A coming together or touching, as of objects or surfaces. b. The state or condition of touching or of immediate proximity.” Man, that was easy; straight out of the dictionary.
Clearly, the Wisconsin court applied a very literal interpretation standard to the case, as I believe that most of us would agree that cheerleading is not a “contact sport” in our culture’s traditional definition of the term. Traditionally, a contact sport is one in which relatively violent impacts between individuals are an accepted and sometimes necessary part of the game. Football, soccer, basketball and rugby are good examples of traditional contact sports. Whereas, baseball would probably not traditionally be considered as such. However, under the Noffke case it most certainly would be. After all, physical contact between individuals is a requirement of the game, in as much as it is sometimes required to tag a player out.
Given the difference between the traditional definition of “contact sport” and that which many sports reporters believe was ascribed by the Wisconsin Supreme Court, can we say that the court erred in this decision? I don’t think so. The court properly pointed out that words in a statute are to be given their plain meaning and that a dictionary may be used to ascertain such common meaning. If the statute is unambiguous using such plain meaning, no additional inquiry is necessary. The statute in this case did not contain the phrase “contact sport,” instead it says “physical contact between persons in a sport.” This is an important point. While not discussed by the court, I can’t help but think that the subtle differences between these two phrases were considered by the court. “Contact sport” conjures up a very different notion and image than “physical contact between persons in a sport.” The former being a culturally defined term, while the latter is a softer and more descriptive literal phrase. The difference in meaning and emotion between these word combinations is quite striking and intriguing. Many sports reporters seemed to miss this and ran with the “contact sport” headline. So did I, but at least I used a question mark!
The moral – don’t get your legal insite from the sports page. …unless, of course, The Guru is asked to write for ESPN.
Finally, I’ll leave you with this to think about. What about golf? What if Tiger Woods toes a drive and lays out a Vijay Singh with a shot to the back of the head on a nearby hole? Could Tiger be liable, or would the statute provide immunity? (Note: Wis. Stat. § 895.525(4m)(b) is the corollary for professional sports) Afterall, he and Vijay probably shook hands before the round – that’s physical contact, isn’t it?
Agree, disagree, or think my writing stinks? Let me hear about it.
Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.
“What if Tiger Woods toes a drive and lays out a Vijay Singh with a shot to the back of the head on a nearby hole? Could Tiger be liable, or would the statute provide immunity?”
The first step would be to decide whether Tiger “toeing” a drive that hits Vijay is a negligent act. First of all, negligence by definition is an uninentional act. So, we can assume that Tiger did not spray a ball into the opposite fairway because he had a ten shot lead and was mad at Vijay…
Running through the elements of negligence (1) duty (not sure of exact analysis here but something along the lines of Tiger is paid to compete and has a duty to perform to the best of his ability) (2) breach (assuming that Tiger’s “toe” shot was mis-hit, no breach)
(3) damage, assume Vijay suffered actual injury when hit (4) Cause in Fact, but for test fails here because no breach of duty (5) Proximate Cause, likely fails here because Tiger is the best golfer in the world and it is not foreseeable for him to injure another golfer
So, to answer the question could Tiger be liable or would the statute provide immunity I would say that in most situations Tiger would not be liable regardless of whether the statute provides immunity.
The mere fact of an accident does not establish negligence…the plaintiff must postulate how the defendant should have acted differently. In the cheeeleading case as you mentioned that Brittany Noffke, the cheerleader, alleges that “Bakke was supposed to be standing in a position that would allow him to catch her when she fell.” I don’t see what argument could me made in golf to establish a theory of negligence involving two players….especially when PGA Tour players are involved. Tiger should have not taken the club so far inside on his backswing?
This is most likely true because of the lack of physical contact associated with golf and the fact that it is an individual sport. PGA Tour players are susceptible to intentional acts (i.e. battery) but the statute would most likely be inapplicable in that situation. Or a tour player could be injured by the negligent act of tour organizer or media member (hit by camera, tripped by cord, etc.) but this would seem to fall outside of the purpose of immunity statute.
So, I would say that statute would not apply to golf but this conclusion does not really help the larger discussion of what is the definition of “sport” and is golf a sport.
Thanks for the comment Sportsnerd. Don’t think the negligence analysis is quite right though.
In a negligence analysis, Tiger’s duty would be to act in the manner of a reasonable person in the same or similar circumstances. This would be the key to the negligence analysis, as damage and causation are clear. We can assume Vijay was injured to some degree by the ball and, but for Tiger hitting the ball Vijay wouldn’t have been injured. Thus Tiger is the cause in fact. Unless, or course, he can show that his driver has a mind of it’s own and was the intervening cause of the injury…
As with many negligence cases, the key is duty. Did he act reasonably? That is a fact sensitive inquiry and my half-joking one-line fact pattern probably didn’t provide enough information. For example, where on the other hole was Vijay walking? Does the other hole immediately adjoin the present hole such that Vijay could be standing in a location that Tiger has mishit into on prior occasions? If so, maybe it’s possible that Tiger breached his duty of care. Maybe a reasonable person wouldn’t have hit the ball until Vijay had moved. Who knows — I didn’t give enough facts.
With respect to golf being a sport, based on the analysis and articulated in Bakke, it most certainly would be.
Thanks for the response,
Admittedly, my negligence analysis is not perfect and I realize that you were intending to assume that Tiger was negligent in your one-line fact pattern. I just thought it would be interesting to think about whether Tiger really could be considered negligent in such a situation and I think the main point that I was trying to convey is consistent with your thoughts.
I agree that Tiger is the “but for” cause. I was just saying that proving this is not enough for a negligence claim. And I didn’t see a situation where Tiger deciding to hit the golf ball (assuming he was intending to hit his target) would constitute a breach of his duty. I understand that you would need more facts…I just think that it is a hard case to make that it is unreasonable (especially for one of Tiger Wood’s caliber) for a golfer to decide to hit a ball when the hole they are playing is clear. And in my opinion, (a jury could think differently) the facts you added wouldn’t constitute a breach of duty. What do you think?
As with everything…I am sure there is a fact pattern that could be dreamed up that would work. To me if it is unreasonable for a golfer to hit the ball, the person in harms way would have to be on the hole that the person striking the ball is on…and if that was the case it would move towards an intentional act.
I am just saying in the normal course of golf it is much less likely for a golfer to act unreasonably (to constitute negligence) than in other sports that involve direct interaction (sliding with spikes up, leading with helmet, not spotting cheerleader, high stick).
Side note: Would Tiger be held to a reasonably prudent person standard or a reasonably prudent “professional golfer” standard?
Guru-
Great article. I’m actually doing some research right now on this statute and found your perspective quite helpful. However, the statute DOES use the phrase “contact sport.” In fact, the title to 895.525(4m) is “Liability of contact sports participants.” Perhaps then it is the legislature that got it wrong in going on to suggest a definition of contact sports as requiring only physical contact between persons in the language of 895.525(4m)(a). I agree with you that the court’s analysis was proper- but I feel as if the court was forced to deal with a very unfortunate selection of words in coming to their decision. If all that is required is physical contact between persons, then several traditionally “individual” sports have the potential of becoming contact sports as surely there is some physical contact in almost every sporting event there is. This cannot be what the legislarture intended- and yet, the words they chose have left the court with no choice but to enforce the law in this very way.
Quite a contrast to the recent Quinnipiac decision which found Cheerleading isn’t a “sport” for Title IX purposes.