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Sunday, December 28, 2008
The significance of defining sport

I have written on several occasions about how to define sport and what qualifies as sport, a common game among “sports-and-____” academics. A frequent response to these posts has been “so what, what difference does it make?” And, in truth, it is largely an academic exercise and a fun way to make fun of gymnastics, figure skating, and golf. But, courtesy of Matthew Mitten at the Marquette Faculty Blog, it may have practical import after all.

The Wisconsin courts msust figure out whether cheerleading is a sport, and a contact sport at that. A high-school cheerleader who fell and suffered severe head injuries while performing a maneuver sued her fellow cheerleader for negligence in failing to spot her properly. The defendant argued that he is immune under a state statute that eliminates liability for negligence (but not reckless or conduct taken with intent to cause injury) for injuries caused "in a recreational activity that includes physical contact between persons in a sport involving amateur teams." The appellate court assumed that cheerleading was a sport and acknowledged the athleticism involved in cheerleading. And, although the court did not mention, there are high-school cheerleading competitions (often seen at midnight on ESPN 8). But the court held that cheerleading was not a contact sport within the meaning of the statute because physical contact between opponents is not an element of the activity, thus the immunity did not apply. The case now is before the Wisconsin Supreme Court, which heard oral argument last fall.

I am troubled by the appellate court's approach (although not the result) because I think it might have unintentionally eliminated from the scope of the immunity activities that plainly are sports that should be covered by the statute but that do not typically involve physical contact between opponents. The first example is baseball--not much direct physical contact with opponents, only with objects thrown or hit by opponents. So could I sue the opposing pitcher for a negligently thrown beanball? Could I sue a teammate who did not get out of the way when I called for a flyball? Perhaps plays at the plate or on the base paths, involving potential collisions with opposing players, are common enough. that baseball would fall within the statute as interpreted. OK, what about tennis--it is virtually certain that physical contact with my opponent on the other side of the net is in no way part of the game. But would this mean that I could sue my doubles partner if I am injured when I crash into my him (which, frankly, is more likely than crashing into my opponent) because of his negligence? Would this also would mean that I could sue my opponent if I was injured when he negligently hit me with a ball (e.g., serving when I was not ready)? Or track and field--if I am a long-jumper, I expect no physical contact with my opponent. Could I sue him if he jumped before I had a chance to leave the pit and landed on top of me?

The statute was enacted in response to a 1993 Wisconsin Supreme Court decision arising from an injury suffered during a soccer game, so the legislature had true "contact sports" in mind. And the appellate court emphasized that cheerleading is not a contact sport in that way. But baseball, tennis, golf, track, etc., also cannot be classified as contact sports in the same way as soccer. Now maybe this was intentional and the legislature did want to treat contact sports differently from other sports. But if the legislative concern was about not wanting to chill participation in amateur (especially high school) sports (which might come with a standard of care lower than recklessness), liability in any of the situations described above would defeat that purpose. Assuming the legislature did not intend to treat contact and non-contact sports differently, a court might get around this, at least in my baseball and tennis hypos, by reading the statutory term "physical contact" to mean contact with objects propelled by an opponent. And maybe track would fall in because physical contact is at least a possible element of running side-by-side with an opponent. But this is getting somewhat difficult to maintain.

Alternatively, a court might focus on the statutory term "sport" and find a workable definition of that word--exactly what I and others have been doing as a parlor game. My current favorite standard defines sport by four elements:

1) Large motor skills.
2) Simple machines only.
3) Objective scoring or at least the possibility of determining a winner by something other than subjective judging.
4) Competition among contestants.

Cheerleading satisfies ## 1 and 2, but fails # 3 and possibly # 4 (we would need to know more about whether this team participated in competitions). But track, baseball, and tennis--the examples above--satisfy all four criteria. This gets at the result--the cheerleader's claim can go forward--without cutting large swaths of sports out of the statute.


Why do you limit "sport" to use of simple machines only?

Would you give a special carve-out for motorsports like NASCAR that satisfy the other 3 elements?

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Blogger Peter Robert Casey -- 12/30/2008 9:12 AM  

I think I disagree with #3 to an extent.

I believe diving is a sport, yet it's judged. Also, "technical figure skating" such as how perfect a figure-8 can you make, satisfies all four.

Anonymous Anonymous -- 12/30/2008 10:25 AM  

I've always applied following three criteria to differentiate between "sports" and "demonstrations of skill:"

1) Requires physical exertion of the participants (somewhat subjective but most know what this means)
2) The actions of one competitor can directly affect those of the opponent as permitted within the rules.
3) All the energy for the activity comes from the human participants.

The second criteria is the most important. It eliminates activities like golf, cheerleading, short-distance track, and field events. This is not to take away from these activities (I am an avid golfer), but ultimately these are all demonstrations of skill. I am showing that on a given day, on a given course, I can hit the golf ball better than you. It lacks the direct action/reaction of baseball, tennis, or even curling. There are a few gray areas such as distance running and cycling where pacing is an important strategy and legal, or short-track skating where limited contact is allowed, but major contact results in a re-race.

The final criteria is there to ensure a level playing field. No advantage is gained by having a better car, or horse, or fire arm (the only activity that makes it past the second criteria that would be eliminated by this would be paintball, I hope at least).

I would argue against a subjective judging requirement as many aspects of officiating are subjective. Pass interference in football, holding in hockey, the strike zone in baseball, while all objectively defined, are ultimately subjective decisions by the officials. The same argument could be made for gymnastics, figure skating, and diving which have moved to objective scoring criteria (mandatory deductions, degree of difficulty multipliers) but ultimately are subjectively applied by the officials.

Blogger Tom -- 12/30/2008 10:45 AM  

I am also troubled by any definition of sport that does not include NASCAR. Obviously, the car is of critical importance in auto racing but so are skis in skiing and bats in baseball. (Try playing without one.)

I'm not sure what the simple machine/complex machine distinction really matters since race car drivers clearly need to possess more traditional physical skills like stamina and hand-eye coordination. Most of all, the public responds to NASCAR racing in just the same way that it responds to other competitions that are clearly "sports."

To me the key problem is that cheerleading as it is normally practiced is not a form of competition. I think that an interesting question is whether or not the Wisconsin statute requires checker and chess injuries to be the product of reckless, as opposed to negligent, conduct to be actionable.

Gordon Hylton
Marquette University

Anonymous J. Gordon Hyhlton -- 12/30/2008 12:08 PM  

With respect to the subjective judging component: The distinction is between subjective "judging" and objective standards imperfectly observed. What constitutes a fumble or pass interference or a fair ball is defined according to objective criteria. There is an unavoidable subjective component tied to the perception and fallibility of the human being charged with applying that standard. But that is different than an inherently subjective question of "artistic merit" or "style". To the extent diving or figure skating are based on style or artistic merit, I would not define them as sports.

The "simple machine" criteria is in place because at some point, the machine (the car or the horse) is doing all the competitive work. Yes, eye-hand coordination and stamina are skills; but they play a role in many things that do not qualify as sport.

Gordon's point about the way we watch and respond to things is an interesting one that we might incorporate into a definition. I am trying to think of other events that we watch and respond to in similar ways--the circus comes to mind, I am trying to think of others.

Note again that I am trying to carve sport out from other forms of physical, athletic, skills competitions. What is not sport may nevertheless be athletic, skillful, and competitive.

Blogger Howard Wasserman -- 12/30/2008 6:54 PM  

Good article. I've always debated with people about what is truly a sport and what is not. Never thought about "law" and how it defines sports.

Blogger Alex James -- 1/02/2009 2:55 PM  

Can a definition of sport be crafted which would exclude the game of Billiards? To date, none of the criteria offered would achieve this goal (Although the physical exertion required is somewhat limited, a certain degree is required).

Of course, this question may be moot. Perhaps we can be comfortable treating the game of Billiards as a sport, while relegating golf, cheer leading, and nearly all forms of racing to mere demonstrations of skill...

Anonymous Nicholas R Adams -- 1/06/2009 10:41 AM  

My guess is that the physiologist from whom I stole this definition would say that billiards involves fine, rather than large, motor skills, thus it fails the first prong of the test.

Blogger Howard Wasserman -- 1/06/2009 7:33 PM  

Has anyone seen this case? I came across it today. I heard that the Iowa Supreme Court is taking it for review.

Feld v. Borkowski
Slip Copy, 2008 WL 4525837 (Table)
Iowa App.,2008

Anonymous Anonymous -- 1/07/2009 6:01 PM  

Hi folks, i've been reading this thread with interest from across the pond (I'm Head of the Sports Law Group at Staffordshire University, UK).

The problem I think with identifying what is or is not a sport, is that this process is essentially subjective and lacks any consistent criteria. For example, the US tends to define activities by reference to physical contact, where to a certain extent this is irrelevant in the UK. The other question this raises is what happens if the US decide an activity is a sport (or not!) but an opposite approach is taken by the UK and Europe?

The approach I am currently taking to tackling this definition is to look at the external recognition of the activity by the IOC. I chose the IOC because I could link back the vast majority of sports, and it is seen by many as the pinnacle of international sport. It also created arguably two of the most important cross-sport bodies in WADA and CAS.

Although this approach is not perfect by any means, I feel that it does have certain advantages, for example, by creating an international list of recognised sports (much like the WADA Anti-Doping Code), it becomes possible to harmonise sports. It also becomes possible to discriminate between legal recognition of sports and social recognition of sports as the jurisdiction specific lists will inevitably be drawn from the master IOC list. Either that or I spent way too much time playing six degrees of Kevin Bacon in the local bars!!!!!

For anyone that wanted to follow up this line of thinking, the full text of the article can be found at: 'Six degrees of sports participation: are the Olympics the common denominator for all sports?' (2008) 4 ISLR 53

Anyway, was just a thought.....


Anonymous kris -- 1/20/2009 3:35 PM  

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