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Cheerleading A Contact Sport, Court Says

Ruling may save sport, have Title IX impact

A January 2009 decision by the Wisconsin Supreme Court in the case of Noffke v. Bakke  may just have saved the sport of cheerleading. 

When a high school cheerleader, Brittany Noffke, was hurt practicing a cheerleading stunt, she sued a fellow cheerleader,  Kevin Bakke, claiming that he was guilty of negligence in failing to  "spot" her properly, and that had he used reasonable care, she would not have been injured. 

The trial court ruled that Nofke could not sue Bakke under a legal rule called the "contact sport exception", which says that an athlete injured while playing a contact sport cannot sue another person in the sport; that injuries like that are just an unfortunate part of the sport.  The only way the person can be sued is if they acted with reckless disregard for the person's safety or if they acted to hurt the athlete on purpose.

On appeal Wisconsin's intermediate appellate court  reversed the trial court, ruling that Nofke could sue Bakke.  Its reasoning was that since cheerleading did not involve "physical contact between opponents" it was not a "contact sport" and thus did not fall under the contact sport exception.

When the case got to the Wisconsin Supreme Court, it reversed again, siding with the trial court's original decision holding that cheerleading was a contact sport covered by the contact sport exception so that Nofke could not sue Bakke for negligently spotting. 

Where Legal Terminology Meets Practical Reality

The Noffke case highlights the tension between legal terminology and reality.  In most situations, the  "contact sport exception"  makes sense, as most cases of alleged player negligence involve a situation where the player accidentally injures another player by committing an act that, while it may be a penalty or foul under the rule of that sport, is an act that every reasonable person who plays the sport expects to happen and knows that they will have to deal with.  In layman's terms, I may be negligent when I commit a personal foul in a basketball game by smacking you in the eye while trying to block your shot, but everybody who plays basketball knows that there's a chance that they'll get poked in the eye during the game. Once in a very rare blue moon, some guy is going to get a detached retina. He doesn't get to sue me because he's the one in a billion guy. The "contact sports exception" applies.

Legal terminology implies that the "contact sports exception" applies to "contact sports." Heck, that's what it says.  However, there's a problem with being unbendingly rigid in the way the phrase "contact sports" is interpreted.  If we're overly rigid, we'd kill sports. The simple reality is that there are a lot of sports that are not, strictly speaking, "contact sports."  Yet, we certainly apply the "contact sports exception" to them.

The exception has been applied by courts in a number of states to activities such as softball, baseball, hockey warm-ups and even in that most American of sports, "kick the can."  In short, the "contact sports exception" is a poorly worded expression for the concept that people playing a game are going to screw up every now and then, and if they screw up in a way in which we know people playing a game can screw up, then we don't rush off to court.  The problem is that by calling it the "contact sports exception" we imply that it only applies to competitive sports and not to sports activities, and it only applies to sports where opponents hitting each other are part of the game, like ice hockey, football, or lacrosse.

The Practical Impact

The Wisconsin court's decision in Noffke will have two practical impacts. /p>

First, the decision may have saved the sport of cheerleading.  If the Wisconsin Supreme Court had ruled that a spotter could be sued for negligence and not just when he was reckless or intentionally screwed up, then nobody in their right mind would want to be a spotter (Well - that's not true. Spotters are often kids - albeit big kids - so they aren't thinking in terms of liability).  But I can bet that school districts and private cheerleading clubs as well as insurance companies would be thinking about liability. The cost of cheerleading would go up, and for some the cost increase would be prohibitive.

Second, there is a Title IX impact. While it is true that Noffke is really just a case about the true meaning of a poorly phrased rule of law, we live in the real world, where the case is generating a lot of news headlines that say things such as,  "Wisconsin High Court Says Activity Is ‘Contact Sport.'"  Headlines like that then lead to a spokesman from the National Federation of State High School Associations (NFHS) to say, "There's a lot of gray area about whether it's [cheerleading] a sport or an activity."  Well, gray area be darned, cheerleaders can now make a much stronger case that they're playing a physical and dangerous sport (of which there is, based on recent statistics, no doubt). The problem is that for Title IX purposes,  sideline cheerleading (or what many now call "Spirit") is, unlike competitive cheer, most definitely not a sport, and Noffke was injured while warming up as part of a cheerleading/spirit squad. This could lead to some legal oddities down the road.   However, those legal oddities will probably not involve the notion of whether the "contact sport exception" should apply to Spirit.

The best thing that a parent can take from this case is that if a child is playing a game - any game, not just a sport - that game has some expectations. If the child is hurt in a way that meets the expectations of the people playing the game, then a lawsuit against the kid who hurt the child may not be as successful as the parent thinks it will be. That doesn't mean that supervisors, schools and facilities operators will be off the hook, but it does mean that playmates, teammates and opponents can play without being paranoid.

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