Monday, February 02, 2009

Wisconsin Court Says Cheerleading Is a Contact Sport

File the Wisconsin Supreme Court's recent decision in Noffke v. Bakke under examples of cheerleading's increasing acceptance as an athletic activity.

Brittney Noffke was a high school varsity cheerleader who was injured while practicing a sideline stunt. (Cheerleading, we've noted, has a higher rate of injury than all (other) women's sports combined.) She sued, among others, a fellow cheerleader named Kevin Bakke, whose role in this particular stunt involved spotting her while she stood on the shoulders of another cheerleader. Bakke was out of position, and thus unable to catch Noffke when she fell. In his defense, Bakke argued that under a Wisconsin statute, an athlete who injures another athlete through negligence is immune from liability and cannot be sued. But for this immunity to apply to Bakke, the courts had to find that Naffke and Bakke were participants in a "recreational activity that includes physical contact between persons in a sport involving amateur teams, including...high school." In other words, Bakke was immune from suit only if cheerleading is a contact sport. The lower court agreed with Bakee that it is, but the decision was reversed on appeal. Bakke appealed to the Wisconsin Supreme Court, which reinstated cheerleading's status as a contact sport and dismissed the case against Bakke.

The court concluded that cheerleading is a sport because it involves physical exertion and skill, it is governed by a set of rules or customs, and its participants are organized and work together as a team to compete and to generate fan participation on the sidelines. Moreover, cheerleading incorporates the requisite physical contact as stunts require cheerleaders to toss and lift and have other manners of "forceful interaction" with each other. For purposes of the immunity statute, it did not matter that the accident occurred while practicing for a sideline routine rather than a competition, since the immunity rule by its terms does not turn on whether participants are in, or training for, competition.

The court's conclusion that cheerleading is a sport--and a contact sport at that--is of course limited to the immunity statute at stake in the case. It does not directly bear on whether the activity is sufficiently sporty to count as an athletic opportunity under Title IX or a contact sport that can, under the regulations, exclude a particular sex. While OCR endorses the practice of counting cheerleading for Title IX purposes if the team is treated like, and is as focused on competition, as any other athletic team, courts have not weighed in on this question or whether the contact sport exception applies to cheerleading. But for a court to recognize that cheerleading is not only a sport, but a contact sport warranting application of the same immunity rules that were written for sports like hockey and football, is not only evidence of the evolving, athletic nature of cheerleading but judicial acceptance of that fact as well -- acceptance that we could see spill over into the Title IX context.