Sunday, February 22, 2009

Cheerleaders are Jocks in Wisconsin

Cheerleaders are Jocks in Wisconsin

As we age, let us look fondly back at the cheerleaders of our high schools and colleges in the 1960’s. So sweet, wholesome and innocent in their cute outfits, as they hardly worked up a sweat in leading us in such simple yells as “Hey, hey, ho, ho, let’s get the ball and go, go, go,” “Hit’em again, harder, harder,” “Let’s get another one just like the other one,” “First and ten, do it again” “Hold that line,” and, of course, the school spell out. Steve Martin got nowhere when he tried out a new yell at Garden Grove High School: “Die, you gravy-sucking pigs.”

I have a newspaper clipping of a sweet, innocent Madonna Ciccone as a high school cheerleader in Michigan.

Many have gone on to great fame and success in politics, entertainment, and the law. Cheerleader alumni include FDR, G.W. Bush, Trent Lott, Thad Cochran, Ruth Bader Ginsburg, Ann-Margret, Paula Abdul, Halle Berre, Sandra Bullock, Deana Carter, Katie Couric, Jamie Lee Curtis, Kirk and Michael Douglas, Calista Flockhart, Samuel L. Jackson, Steve Martin, Mandy Moore, Cybil Shepperd, Aaron Spelling, Jimmy Stewart, and Vanna White.

In hindsight, there wasn’t much to get excited about.

Then, of course, we have the professional teams pioneered by the Dallas Cowboys Cheerleaders. No comment is necessary, except that Terri Hatcher was once a San Francisco 49er cheerleader.

Of course, Disney provided cheerleaders for a few months after acquiring the California Angels. That Mickey Mouse stunt was quickly aborted.

And then a quiet evolution developed. Music was introduced; dance routines choreographed, and the outfits became skimpier. The cheerleaders, both male and female, became gymnasts and then seemingly acrobats as they developed new routines and increasingly risky routines, such as the pyramid and toss. Teams competed in regional and national competitions. Cheerleader schools were established. And pulchritudinous was no longer required.

A quick Google search of cheerleaders and “falls” will uncover a number of YouTube videos showing cheerleader mishaps, presumably funny to look at. Yet, these routines and falls entail great risk to the participants.

Three cheerleaders at Holman High School in Wisconsin were practicing a new stunt, the “post-to-hands” stunt, for the first time before a basketball game. Brittany Nofke was to stand on the shoulders of the “base.” with the third cheerleader, Kevin Bakke, helping her onto the base and then standing behind her in case she fell. Instead, he went to the front of the base. Brittany fell backwards. Her head struck the tile floor which lacked mats.

Not surprisingly, Nofke sued the school district, Bakke, and the supervisory teacher.

A Wisconsin statute, covering amateur recreational activity, exempts liability for negligence for physical contact between persons in a sport. Liability can only be imposed if defendant acted recklessly or intentionally.

The statute’s laundry list of recreational activities includes hunting, fishing, trapping, camping, bowling, billiards, picnicking, exploring caves, nature study, dancing, bicycling, horseback riding, horseshoe-pitching, bird-watching, motorcycling, operating an all-terrain vehicle, ballooning, curling, throwing darts, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, participation in water sports, weight and fitness training, sight-seeing rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature, and sport shooting. Some of these are clearly oriented to Wisconsin.

In case this seemingly all-inclusive statute left anything out, it added the catchall “any other sport, game, or recreational activity.” “Cheerleading” is seemingly omitted by the legislature in this exhaustive list, but that didn’t stop the Wisconsin Supreme Court from judicially amending the statute.

The Wisconsin Supreme Court held that cheerleading is a contact sport within the meaning of the statute.

The Court premised its opinion on the basic maxim of legislative interpretation that the plain language of the statute should control.

And yet, the Court then turned to a dictionary to divine the plain words of the statute, and not even the most highly regarded dictionary, Merriam Webster’s New Unabridged. Instead, it looked to the American Heritage Dictionary of the American Language, which defined “sport” as “an activity involving physical exertion and skill that is governed by a set of rules or customs.”

The Dictionary defined contact as “coming together or touching.”

As defined therefore, “contact” doesn’t have to be between opponents but could be touchings between teammates. The Court recognized cheerleading sometimes involved stunts that “produce a forceful interaction between the participants.”

Plaintiff had argued that the statutory exemption was for contact sports between competitive teams. The statute was titled “Liability of Contact Sports Participants.” The Court dismissed this argument because titles are not part of a statute.

As the majority finished its opinion, it recognized a major issue left open by the opinion: How to treat clearly recreational sports that are non-contact, such as golf, tennis, and swimming. I would have assumed that swimming would be included within “water sports” since relays involve contact, but since the Court was not concentrating on the plain words of the statute, it might have missed that.

The Court held that the statutory immunity would apply when four conditions were met:

1) Participation in a recreational activity;
2) The recreational activity includes physical contact between persons;
3) Those parties are participating in a sport; and
4) The sport involves amateur teams.

This interpretation would probably include a common cheerleader activity involving physical conduct: sex.

While the Court held cheerleaders were athletes within the meaning of the statute, other college athletes in contact sports receive athletic scholarships while cheerleaders do not.

The final irony of the opinion is that Chief Justice Ruth Abrahamson, a liberal jurist, in her concurring opinion actually cited Justice Antonin Scalia on the misuse of dictionaries. Resort to a dictionary can be “the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.”

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