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Wednesday, February 04, 2009
Title IX and the definition of sport

Having read the Wisconsin Supreme Court's decision in Noffke v. Bakke and Marc's ATL post on its Title IX implications, let me weigh in.

First, the court relied on a dictionary to define sport as an "activity involving physical exertion and skill that is governed by a set of rules or customs." This is, to my mind, far too broad a definition--more on that in a minute. The court also found that the statutory requirement that there be "physical contact" in the activity applied to more than aggressive physical contact with the opponent. It included any physical contact, with opponent or teammate, incidental or not. That seems right to me, for reasons I mentioned in an earlier post on the case--a lot of things that must be considered sport and that surely were intended to be covered by this statute (which was enacted to limit liability for sports injuries resulting from simply negligence) almost never involve direct contact with an opponent (e.g., baseball, tennis, volleyball, track, swimming).

Second, the court rejected any requirement that something be competitive in order to be a sport. And that actually makes irrelevant what I consider the central element of a meaningful definition of sport--objective scoring (as opposed to "judging") and objective determinations of winners. The court's main justification for this was the inconsistency it would produce--something would or would not be a sport depending on what the team was doing and when--whether it was practice or a game or whether the cheerleaders were leading cheers at a basketball game on Friday or participating in a competition on Saturday. This argument strikes me as silly. It would be rational enough to recognize that a team (say, the boys' basketball team) has as its central goal or purpose to engage in competition, but that practice (in which score may not be kept) is necessary to achieve that purpose. Thus the Wisconsin statute should provide immunity for all activities related to that purpose of competing in games on Saturday, including practicing on Thursday. Same with che

This also is why I somewhat depart from Marc's analysis. He makes much of the difference between those squads that engage in competitive cheerleading and those that merely are the "spirit squad" (leading cheers at games). But if competition is irrelevant to the definition of sport (assuming the Department of Education were to adopt the same definition for Title IX), it also is irrelevant whether a team engages in competitive cheering or spirit. Both are sports--activities involving physical exertion and skill, governed by a set of rules or customs. And what else falls within that broad definition? Dance team? Yes. Marching band? Why not. And with no requirement of competition or scoring, much less objective scoring, we do not even have to reach whether a particular band or team participates in competitions or not to define the activity as sport.

And that makes the Wisconsin Supreme Court's definition of sport problematic for us in Title IX. For one thing, we have to think about Title IX not only as to NCAA participation, but also for participation in high-schools and middle-schools, all of which are bound by Title IX to provide athletic opportunities to females. In fact, these schools have the real burden and obligation, because this is where a truly substantial number of girls will be able to take advantage of opportunities to play sports--they have the time, they are more likely to have the skill level (compared with the ability at the collegiate level), and the greater number of schools nationwide means greater opportunities for more girls. But any definition of sport that includes band, dance, and cheer--all worthwhile activities, to be sure--potentially undermines Title IX by helping schools out of their obligation to provide meaningful sporting opportunities for women. If a school can satisfy its Title IX obligations through band and cheerleading (activities in which women historically have participated in large (even predominant) numbers), it has no incentive to also provide new opportunities for women, such as lacrosse or tennis. Band and cheerleading and dance keep the school in Title IX compliance because schools can point to those as existing opportunities for female participation, without having to add anything new.


Please add to your last sentence, "or continuing to cut men's sports."

Anonymous Anonymous -- 2/05/2009 7:19 AM  


Great post. I think where we diverge is my very strong hunch that neither the Department of Education nor a reviewing federal court would take on the dictionary definition used by the Wisconsin Supreme Court.

As a complete aside, I continue to have a huge problem with courts using dictionary definitions of statutes when statutory intent is available. Dictionary definitions are all fine and good for when I resolve $15 disputes at SportsJudge, or maybe even when the Patent and Trademark Office goes through one of the myriad applications it gets on a daily basis. However, in the context of a court interpreting a statute, the underlying intent seems (to me at least) far more important -- not to mention the worth the additional time.

I have not seen all of the pleadings in the Wisconsin Supreme Court case, however, I would be surprised if intent did not come up there. And, I would be absolutely astonished if Congressional intent did not become a major issue in any Title IX case.

Anonymous Marc Edelman -- 2/05/2009 7:20 AM  

Actually, Anonymous, I *intentionally* left that clause out because I think it represents a false choice that schools unfortunately have made. The response to a law designed to give equal opportunity should not be to limit everyone's opportunities equally.

Blogger Howard Wasserman -- 2/05/2009 7:37 AM  

I'm with the one who wanted to add the last sentence because that is exactly what has happened. Tell it like it is.

Anonymous Anonymous -- 2/05/2009 9:14 AM  

Howard, I don't agree with your comment that the cutting of men's sports is a "false choice". The cutting of men's sports might be a "bad choice" but it is not a false one.

Put another way: Schools have two choices in how they comply with Title IX, (1) increase women's opportunites; or (2) decrease Men's. That is a choice with no other altneratives. Yes?

Blogger Paul -- 2/05/2009 3:55 PM  

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