From Matt Breeden's SportsLawGuru.com
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.
