Figure Skating Special Edition

Check out our post on the excellent Overthinking It blog on whether Figure Skating is a sport: http://www.overthinkingit.com/2014/02/10/sport-court-figure-skating/

USA GYMNASTICS v. INTERNAL REVENUE SERVICE

Cite as: 574 U.S. _____(2014)

Opinion of the Court

             NOTICE: This opinion is subject to formal revision before publication in the

      preliminary print of the United States Reports.  Readers are requested to

            notify the Reporter of Decisions, Supreme Court of the United States, Wash-

     ington, D.C. 20543, of any typographical or other formal errors, in order

      that corrections may be made before the preliminary print goes to press.

         SUPREME COURT OF THE UNITED STATES

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No. 14-001

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USA GYMNASTICS v. INTERNAL REVENUE SERVICE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[January 2, 2014]

CHIEF JUSTICE HOLT delivered the opinion of the Court.

I

USA Gymnastics relocated from Indianapolis, Indiana to New York, New York following its classification as a non-sport by the Internal Revenue Service and exempt from the Sport Taxation Post-Exportation Act.  In a motion similar to that in U.S. Figure Skating, USA Gymnastics brought suit against the Internal Revenue Service after it was classified as a “non-sport” by the agency.  The Internal Revenue Service contends that gymnastics fails to meet the fourth criterion established in National Hockey League due to the heavy reliance on judges.  

Appellant argues that, while judges are included in gymnastics, officials oversee the achievement of outlined technical components and not necessarily on the artistic interpretation of the participant.  Appellant further contends that it would prefer to voluntarily submit to the taxation scheme outlined in the aforementioned Act for the benefit of society.  An amicus brief from U.S. Figure Skating was filed in support of the appellant.

The United States District Court for the Northern District of Indiana ruled in favor of the appellee.  The United State Court of Appeals for the Seventh Circuit reversed this decision.  We granted certiorari to clarify our ruling in U.S. Figure Skating.

II

As discussed in U.S. Figure Skating, the Olympic Charter is not a compelling, definitive document when it comes to the definition of a sport, as appellant contests.  Much like figure skating, the International Gymnastics Federation considers men’s and women’s gymnastics as separate disciplines, while the Olympic Charter recognizes them as separate events within a discipline.  Furthermore, event inclusion does not automatically confer the status of sporthood, just as exclusion from the Olympics does not negate one’s sporthood.  When baseball and softball were eliminated from the 2012 London Olympics, this did not relegate these athletic events to the status of a “non-sport”.  Just the same, the inclusion of various events in the Olympic Games, such as gymnastics, does not bestow sporthood upon them.

Perhaps we should pause a moment and reflect; the Olympic Games are termed appropriately for a reason and word choice is important.  A “game” is defined by Merriam-Webster as “a physical or mental competition conducted according to rules with the participants in direct opposition to each other”.  The word “game” is derived from the Old English word “gamen”, meaning “joy, fun, or amusement” and was first applied to a “contest played according to rules” in the fourteenth century.  It can easily be seen how this definition may be applied to each event within the Olympic Games.  However, in National Hockey League, we outlined that the more stringent definition of “sport” does not apply to each included game.  We find the same here today.

III

Scores in gymnastics are based on two features: the Difficulty Score and the Execution Score.  We shall examine each in turn here.

Simply, the Difficulty Score includes “difficulty value for skills, connection value and element/compositional requirements” in evaluating the athlete.  A two person panel, known as the D Panel, is responsible for correctly calculating this portion of the score for each gymnast.  The panel evaluates each skill and assigns it the predetermined pointage based on the Code of Points for difficulty; if the participant fails to meet the technical requirements for that skill, the points are not awarded.  The connection value portion of the Difficulty Score is “awarded when specific skills or skill types are executed successfully in succession”; no points are awarded if the athlete falls in between skill types.  The final portion of the Difficulty Score, the element or compositional requirements, are five skills that must take place in the routine; maximum points are awarded if all five skills are incorporated.  Following the agreed upon score by the two judges, the coach is allowed to appeal using video replay prior to the start of the next routine.  

The Court has no grievance with the Difficulty Score, as awarding more points in gymnastics for more difficult routines does not significantly differ from rules in other sports.  In basketball, players are awarded points based somewhat on the difficulty of the shot; a three point shot is from farther away and thus is worth more points, whereas a free throw is worth one since there is no possibility for defense.  Gymnastics has merely codified similar rules into the Difficulty Score.  The difference herein lies in the ability of athletes to create new elements; however these must first be approved by the judges to receive a difficulty rating unlike in events such as slopestyle.  The connection value is similarly quantitative, in that deductions exist for objective faults, such as loss of balance and stopping between elements.  These faults bear no great distinction from similar penalties across recognized sports, such as offsides in football, hockey, and soccer.

The Execution Score begins at ten points and deductions are made from this score for “errors and faults in technique, execution and artistry”.  Neutral deductions are also made during this period for happenings outside the athlete’s performance, such as time violations and mismatched uniforms.  Disputes are not allowed for this portion of the score.  The Execution Score and Difficulty Score are then added together for a Final Score.

While the Execution Score’s deductions for “artistry” in some events should be clear enough to classify certain gymnastics events as an athletic art rather than as a sport, we shall further examine the Code of Points and deductions to support this assertion.  We shall also explore the variety within gymnastics, so as not to ignore the differences between rhythmic and artistic gymnastics.

III

Appellee cited the Neutral Deduction list as a condition for denying the usage of the term “sport” to the appellant.  Neutral deductions may consists of a variety of infractions, from “dress of the gymnast not conforming to regulations” to warming up in an incorrect location and from excessive delays to verbal communication between gymnasts during the routine.  Appellee alleges that the inclusion of these deductions could cost a gymnast or team the competition and, being in themselves unrelated to an athletic competition, should invalidate the stance of gymnastics as a sport.  However, this view fails to reflect upon the breadth and variety of penalties in sports.  In football, a penalty may be awarded for excessive celebration or unsportsmanlike conduct.  Such a penalty could place a team in an extremely disadvantageous situation and thus cost the team the game.  The existence of such penalties, to ensure adherence to the spirit of the game and to encourage fairness, do not automatically eliminate the standing of an athletic event as a sport.

IV

Rhythmic gymnastics--the most artistic-oriented of the gymnastics disciplines--is a team routine that is either performed Free (with no additional elements) or includes the use of clubs, hoop, ball, ribbon, and rope to produce a visually pleasing presentation. The Execution Score is calculated based on the unity of composition, music coordinated to movements, body expression, variety in the use of space, and technical faults.  It should be evident to even the most cursory observer that this scoring system fails to satisfy the fourth criterion outlined in National Hockey League.  In fact, “the choice of music” is specifically evaluated by the officials; a concerning criterion for assessment if we are to follow the strict standards outlined in previous cases.  The variation in spatial displays and expressive movements, along with musically coordinated athleticism, are subjective qualities that, while physically challenging, are unable to be classified and categorized impartially.

V

Artistic gymnastics consists of a variety of elements, which differ based on the sex of the participant.  Both sexes compete in Vault and Floor Exercise, men compete in Pommel Horse, Still Rings, Parallel Bars, and High Bar, and women compete in Uneven Bars and Balance Beam.  Each event conforms to the first three criteria outlined in National Hockey League: the International Federation of Gymnastics specifies the Rules and Regulations for the various events, winners and losers are decided upon, thus the events are competitive, and specialized athleticism is required of each participant in order to perform his or her prescribed task.  The fourth criterion--that of a quantitative outcome--is what is under dispute in this case.  

Vault is an event in which the athlete proceeds down a runway at speed, mount a springboard, and spring onto the vault using their hands; the gymnast then performs a series of aerial twists and spins and completes the event by landing on his feet.  For the Execution Panel, the scoring for the gymnast is strictly controlled.  Deductions are based on definite items, such as poor hip angle and bent knees or failure to attain specified turn degrees.  The International Federation of Gymnastics goes to great length to outline each specified, scored element and does not allow for subjectivity beyond slight, exactly specified form judgments (much like a baseball umpire is given discretion for an agreed upon strike zone).  Given this information and the strict rules that vaulters must follow, the Court holds that Vault as a solo event satisfies the requirements for sporthood outlined in National Hockey League.

The Women’s Floor Exercise represents a more terrestrial dispute than that which was addressed in U.S. Figure Skating.  Similar to the rules governing figure skating, the Floor Exercise is judged not on the difficulty and form of various items, but on the composition, choreography, musicality, music, and expression throughout the event.  During the routine, the athlete is judged on variations present in the performance, the “attitude and range of emotion” of the athlete, the “contribution to unity” of the chosen music, and the expressiveness, style, confidence, personality, and uniqueness present in the artistry of the performer.  In fact, scoring sheets fault an individual for an “inability to play a role or a character throughout the performance”.  The rules for the Floor Exercise are summed up by the International Federation of Gymnastics: “It is not only ‘what’ the gymnast performs, but also ‘how’ she performs her routine.”  It is clear that the Floor Exercise is better termed an athletic art for its reliance on interpretation and beauty, rather than termed a sport, as it fails to use quantitative measures to determine a victor.

Similarly, in Balance Beam, athletes are judged on the artistry of their performance, including confidence level, personal style, and uniqueness.  Again, the significant focus placed on the performer’s interpretation and style cause this event to be better classified as an athletic art rather than a sport.

The Uneven Bars in women’s artistic gymnastics caused this Court the greatest deliberation.  The scoring is certainly technical based and in the Execution Score the rules evaluate quantitative elements, such as foot placement on the beam, insufficient height, and grip position adjustment.  The sole deduction that gave this Court pause was the one described as “poor rhythm in elements”.  While one may initially be persuaded to see “rhythm” and think of the artistic implications, it should be noted that Merriam-Webster defines “rhythm” as a “regular, repeated pattern of...movements”.  Repetition is an observable, objective quality, thus we hold that the Uneven Bars do fulfill the fourth criterion outlined in National Hockey League.   

It should be noted that for team events that contain all of these various events, a part truly does override the whole.  Because a portion of the team competition is not classifiable as sport, the overriding event has an artistic, interpretative quality and thus may not properly be categorized as a sport.

VI

It must be admitted that prior to perusing the extensive Rules and Regulations governing the scoring and deductions of gymnastics, this Court believed gymnastics would closely follow the parameters established in U.S. Figure Skating.  However, the focus on artistry and interpretation within the International Federation of Gymnastics--and its affiliate, USA Gymnastics--is much less than present in the International Skating Union and its affiliate.  

In Men’s Floor Exercise, appellee brought concern about the required use of the entire floor, as this was seen as a rule established for artistic betterment.  However, the International Federation of Gymnastics, in outlining floor usage, clearly uses such a rule to establish boundaries and additional considerations for the athlete.  If there is an issue with establishing boundaries, where would tennis be without its service line and baseline? Or football and soccer without their sidelines? How would baseball operate if a runner was allowed to stray from his baseline when the defense began to close in?  Such establishments are essential to complicating the sport and maintaining the interest of its spectators.  

Appellee also contests that the description of Floor Exercise as an event consisting of strength, flexibility, balance, and “choreographic combinations all forming a harmonious rhythmic exercise” may disqualify the event’s classification as a sport.  Further, Floor Exercise, along with Pommel Horse, Still Rings, Parallel Bars, and High Bar, require the athlete to “include only elements that he can perform with complete safety and with a high degree of aesthetic and technical mastery.”  The use of the term “aesthetic” brought most concern to the Internal Revenue Service when reviewing the exportation of USA Gymnastics.  However, to  focus on these two sentences from a document that is hundreds of pages long ignores the rest of the rules governing this athletic event.  While appellee is correct that “aesthetic” is used to refer to something related to art of beauty, the term is not used anywhere in the deduction list or in the description of individual elements.  If aesthetics were to factor into the score of the individual, the event would be better classified as an athletic art; however, there is no evidence that this is done for the events outlined.  In the rules provided by the International Federation of Gymnastics, each element that an athlete may perform for the aforementioned men’s events are painstakingly and thoroughly outlined and drawn.  Complete with each description is the amount of points the judges are to award for the described element.  Deductions for the Difficulty Score are similar to those described above for women.  But the components of the Element Score to not address aesthetics whatsoever and instead are objectively framed point values for various elements.  Judges may not stray or add their own subjective opinions regarding the athlete’s interpretation or artistic quality.  Instead judges are constrained within the bounds set by the rules referenced above.  Thus, the Court holds that Men’s Floor Exercise, Pommel Horse, Still Rings, Parallel Bars, and High Bar all meet the fourth criterion outlined in National Hockey League and are classified as sports under the Sport Taxation Post-Exportation Act.

VII

The decisions of the District Court and the Court of Appeals have been modified to reflect the diversity of gymnastics and the challenges of dealing with the discipline as a monolithic entity.  USA Gymnastics is composed of a number of sports under United States law: Vault, Uneven Bars, Men’s Floor Exercise, Still Rings, Pommel Horse, Parallel Bars, and High Bars; however, Women’s Floor Exercise, Rhythmic Gymnastics, and Balance Beam failed to meet the standards to be classified as a sport outlined in National Hockey League.  It should be reiterated that this is not a failure in the colloquial use of the term.  Being classified as an athletic art rather than a sport allows the event to be appreciated for what it is and allows it to truly reveal its best, expressive instincts.  Nor does such a classification distract from its competitiveness.  It merely establishes that there are differences in our world and that such differences do not weaken the integrity of either differing party.  The case is remanded to the District Court for the Northern District of Indiana to determine the percentage of tax monies owed by USA Gymnastics pursuant to this decision.

It is so ordered.

JUSTICE WOLF, concurring in the judgment in part and dissenting in part.

I hardly thought “progress” would be a term that I would be capable of using to describe this current Court, yet the decision today can be described as such, begrudging as it may be.  The Court today allowed for a slight, yet significant exception: a sport may mention the aesthetically pleasing nature of its performers, as long as such aesthetics are not included in judging said competition.  While I would prefer to extend this development to allow for aesthetics within judging and as a component of sports, incremental change is preferred to stagnation.  I shall not reiterate my extensive arguments from U.S. Figure Skating, but shall refer the reader to them for full analysis of constitutional interpretation methods.  It is worth noting that one cannot help but detect the subtle sexism that the majority exudes, however, in readily casting male-dominated events as sports, while dismissively classifying traditionally female-dominated events as art.  The twenty-first century has arrived; someone apparently has forgotten to notify my contemporaries on the bench.

JUSTICE SMITH, concurring in the judgement and dissenting in part.

The Court here is right to hold that events such as rhythmic gymnastics should not be defined as a sport. The mere idea that one would be able to quantitatively judge “contribution to unity” seems laughable to this justice and the Court is right to rule such events as athletic arts. However, I believe with today’s ruling the Court strays too far from the original intent of the standards set forth in National Hockey League. It is noble to attempt to broaden the definition of sport just so competitors may feel more included, but this does not mean it is what is best for sport or even the athletic arts for that matter. The only thing a referee in hockey would have to review is whether the puck crosses the goal line. He is never asked to evaluate the placement of a player’s hips. Here I think we find what is most problematic about the Court’s ruling in this case. It views judges in the same way it views referees and umpires. The latter are merely officiants there to ensure the progression of the game. Judges though are different in kind - they are the sole arbiters of points and deductions and their views compose the entirety of who wins and who loses. While the majority may argue that referees award penalties, this seems a far cry from the power given to judges in theses such events. It appears some on this Court are ruling not based on the standards we have before us, but on what they enjoying watching the most.

CITY OF STEVENS POINT v. INTERNAL REVENUE SERVICE

Cite as: 577 U.S. _____(2014)

Opinion of the Court

             NOTICE: This opinion is subject to formal revision before publication in the

      preliminary print of the United States Reports.  Readers are requested to

            notify the Reporter of Decisions, Supreme Court of the United States, Wash-

     ington, D.C. 20543, of any typographical or other formal errors, in order

      that corrections may be made before the preliminary print goes to press.

         SUPREME COURT OF THE UNITED STATES

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No. 14-004

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CITY OF STEVENS POINT v. INTERNAL REVENUE SERVICE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[January 27, 2014]

CHIEF JUSTICE HOLT delivered the opinion of the Court.

I

    After the national organization representing Olympic curling, USA Curling, relocated from Stevens Point, Wisconsin to Colorado Springs, Colorado, the Internal Revenue Service classified curling as a “non-sport”, exempt from the provisions set forth in the Sport Taxation Post-Exportation Act of 2013.  The beleaguered and embattled Internal Revenue Service adopted the policy to consider all athletic events not previously on record as sports as “non-sports” and thus unaffected by the law.  Seeking the tax monies as outlined in the aforementioned Act, the City of Stevens Point brought suit, arguing that the curling does qualify as a sport and meets the criteria articulated in National Hockey League.  Appellee contests that curling has failed to meet both the first and second criteria, and thus is exempt from the law.

The United States District Court for the Western District of Wisconsin ruled in favor of the appellant, however the United States Court of Appeals for the Seventh Circuit reversed this decision.

II

Curling is a unique and oft-considered complex athletic event in which two teams consisting of four players each compete to land a stone closer to the tee than the other team.  For each stone closer to the tee--the center circle in the scoring area--the team receives a point.  Participants, when throwing their stones, may attempt to either land their stone within the house--the scoring area--or knock another team’s stone out of play.  Teammates sweep in front of the stone to clean the ice causing the stone to glide farther and curl less, thus guiding the stone to the desired location; once the stone passes the tee line, an opposing player may sweep the stone to guide it to an undesired location.

Curling clearly satisfies the fourth criterion, as the team with the highest number of points is declared the victor.  Appellee insinuated that curling may not satisfy the third criterion due to the notion of the “Spirit of Curling” that governs the athletic event.  The Spirit of Curling is commonly described as the notion that a “curler would rather lose than win unfairly”.  While the Spirit of Curling strongly accentuates the importance of good sportsmanship and honorable conduct, this does not distract from the competitive element of the sport.  Two teams aim to win the match by scoring more points; doing so civilly does not eliminate the aspect of competition from the event.

The first criterion recognizes that, for an event to be considered a sport, a predetermined set of Rules and Regulations must exist to govern the sport.  For Olympic events, the World Curling Federation strictly governs the athletic event with a lengthy and thorough set of Rules of Curling and Rules of Competition.  However, the appellee seemed to find greatest issue with the lack of referees within curling; instead curling relies almost entirely on self-policing by the participants.  Players are expected to call themselves on their own violations, following the Spirit of Curling.  This adaptation is not enough to exclude curling from being considered a sport.  The code of self-governance adopted by USA Curling is agreed upon by parties beforehand and, if implemented properly and in good faith as appellant argues it is, should be an effective measure to control the event.  Additionally, curling does employ umpires who may “intervene at any time during a game” and may give direction regarding stone placement, violations, and disputes.  Therefore, while self-policing is the first resort, a final say is had by an impartial referee if the need arises.

Appellees other primary complaint with USA Curling is that it does not require a specialized athleticism necessary to fulfill the second criterion.  This, however, also seems to be based merely on a cursory knowledge of the game.  Stones regularly weigh forty-two pounds and strength and technical ability are required to properly propel the stone down the sheet.  Sweeping is the main aspect of curling that incorporates a specialized athleticism, as sweeping must be done most vigorously to ensure proper lubrication of the ice.  Furthermore, participants must display excellent balance during the event, which requires athleticism specialized for this sport--and the corresponding shoes--on the ice.  While strategic discussions are an essential and central part of curling, this does not discount its status as a sport.  Within noteworthy sports such as football, various plays are outlined in advance and planned before the ball is snapped, yet this does not distract from the athleticism clearly at hand.

The Court therefore finds that curling meets all of the standards set forth in National Hockey League, and is thus a sport. The decision of the Court of Appeals is reversed.

    It is so ordered.

UNITED STATES BOBSLED AND SKELETON FEDERATION v. INTERNAL REVENUE SERVICE

Cite as: 576 U.S. _____(2014)

Opinion of the Court

             NOTICE: This opinion is subject to formal revision before publication in the

      preliminary print of the United States Reports.  Readers are requested to

            notify the Reporter of Decisions, Supreme Court of the United States, Wash-

     ington, D.C. 20543, of any typographical or other formal errors, in order

      that corrections may be made before the preliminary print goes to press.

         SUPREME COURT OF THE UNITED STATES

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No. 14-003

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UNITED STATES BOBSLED AND SKELETON FEDERATION v.

INTERNAL REVENUE SERVICE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[January 20, 2014]

CHIEF JUSTICE HOLT delivered the opinion of the Court.

I

In an attempt to consolidate operations, the U.S. Bobsled and Skeleton Federation (USBSF) closed a secondary office in Colorado Spring, CO and moved all operations to its main office in Lake Placid, NY. The Internal Revenue Service in accordance with the Taxation Post-Sport Exportation Act (2013) declared Bobsled and Skeleton, the events which are governed by the USBSF, to be sports.

Following the decision in City of Park City the IRS deemed that it would be in the spirit of the law to require the USBSF  to pay taxes to the city of Colorado Springs. The USBSF sued the Internal Revenue Service, arguing that Bobsled and Skeleton should not be classified as sports under the standards set forth in National Hockey League. The appellant argued that the events of bobsled and skeleton do not meet the second criterion of specialized athleticism due to the fact that the majority of the work is done by a non-human element - the sled is the primary object by which the athlete is propelled, therefore the events fail the criteria.

The United States District Court for the Northern District of New York ruled in favor of the appellee, holding that the events represented by the USBSF are indeed sports.  The United States Court of the Appeals for the Second Circuit affirmed this decision.

II

Both bobsled and skeleton satisfy the first criterion set forth in National Hockey League of having rules and regulations which guide the sport. Extensive rules govern everything from the minimum and maximum weight limit for the sled to the size of spikes on the shoes of the racers.  Each item is precisely and clearly delineated in the International Rules of Bobsleigh.  They are competitive in nature as the track times of participants are compared against one another to determine a winner. Finally, given that competitors times are the deciding factor in the events, they have a quantitative and definite outcome, fulfilling the fourth criterion.  

Appellant argues that the main issue in this case is what effect the inclusion of a non-human element in an event has on its standing as a sport. Certainly almost every sport has some non-human element: a bat in baseball or a stick in hockey. The question then before this Court is at what, if any, point does the use of a non-human object negate the second criterion set forth in National Hockey League. In defining this standard the Court walks a fine line - we cannot say that any non-human element used in an event places it in the non-sport category, for this ruling would eliminate virtually all events. However, this is not to say that in some instances such elements would become the primary mode by which the event’s goal is attained which, in the Court’s opinion, would mean that an event can no longer be considered a sport.

In making this determination the Court is proposing an addendum to the second criteria: The Standard of Initial Propulsion, which states that if the initial propulsion of a ball, sled, or other non-human entity is directly the result of specialized athleticism, then the event will be considered to satisfy the second criterion. Some may contend that this standard is too broad and will inevitably lead to the dilution of what it means to be a sport. Let us therefore consider several examples from events previously discussed.

In hockey, a player uses his stick to control and maneuver the puck on the ice. Does the fact that the most common way the puck’s movement is affected is with a non-human object mean that the ruling in National Hockey League should be overturned? In fact, the puck’s propulsion is due to the contact it makes with the stick; the stick’s movement is based on the strength and energy put into moving the stick by the athlete.  The assertion that use of an instrument should disqualify an event as a sport seems almost absurd given the obvious athletic skill needed to compete at the highest levels in hockey. It seems logical then to conclude that the stick used in hockey is merely an accessory for a player whose own specialized athleticism is responsible for puck-handling. While the stick may be the object which makes contact with the puck, it is the player who is directly responsible for controlling initial propulsion of the stick.  Similarly, in skiing or snowboarding, especially the downhill events, gravity is the main element driving the forward motion of the skier.

Furthermore, a form of specialized athleticism is required of the participants following entrance into the vehicle.  Athletes are required to maintain aerodynamic posture, maneuver their bodies properly to maximum effectual weight balance, and to steer the sled.  

Appellant also argued that the thought, plans, schematics, and regulations regarding the construction of the sled are so vast and in depth that it becomes more of a technological competition than an athletic competition.  However, similar effort is placed in designing aerodynamic swimsuits for swimmers.  In both cases, the technological advancements alone cannot achieve victory, but are dependent on the athleticism of those using the equipment.

In examining the events of bobsled and skeleton the Court has found the main method of initial propulsion in both events is specialized athleticism.  A vehicle whose propulsion is dependent upon the athleticism of the participants, the vehicle is merely an instrument of the participant, and does not affect whether the event should be considered a sport.  The ruling of the District Court is reaffirmed.

It is so ordered.

CITY OF PARK CITY v. INTERNAL REVENUE SERVICE

Opinion of the Court

              NOTICE: This opinion is subject to formal revision before publication in the

      preliminary print of the United States Reports.  Readers are requested to

            notify the Reporter of Decisions, Supreme Court of the United States, Wash-

     ington, D.C. 20543, of any typographical or other formal errors, in order

      that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 14-001

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CITY OF PARK CITY v. INTERNAL REVENUE SERVICE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[January 7, 2014]

CHIEF JUSTICE HOLT delivered the opinion of the Court.

I

Following the movement of the United States Ski and Snowboard Association from Park City, Utah to Colorado Springs, Colorado, the Internal Revenue Service determined that the organization and the athletic events it represented were not sports.  Thus the City of Park City was not eligible to receive tax monies for the movement of the United States Ski and Snowboard Association out of the city.  The City sued the Internal Revenue Service for this classification.

The City of Park City argues that, under National Hockey League v. United States and U.S. Figure Skating v. Internal Revenue Service, the athletic events represented by the United States Ski and Snowboard Association--Alpine Skiing, Freestyle Skiing, Nordic Combined, Cross-Country Skiing, Ski Jumping, and Snowboarding--fulfills the four criteria outlined and thus constitute sports.  Appellant contests that in each event a victor is determined by “quantifiable elements” and is therefore bound by the rules set forth in the Sport Taxation Post-Exportation Act (2013).

Appellee argues that the participation of and reliance on judges in the United States Ski and Snowboard Association makes the outcome of the athletic events too subjective under U.S. Figure Skating.  Therefore, the organization should be exempt from the taxation rules dictated in the aforementioned Act.

The United States District Court of Utah ruled in favor of the appellant, holding that the athletic endeavors represented by the United States Ski and Snowboard Association were indeed sports.  The United States Court of Appeals for the Tenth Circuit reaffirmed this decision.

We believe this is too narrow of a holding for the variety of interests the United States Ski and Snowboard Association represents.

II

This case presents the Court with a difficult situation. In examining the various disciplines contained within the Skiing umbrella we have come to find that some, by the definitions set forth in National Hockey League v. United States, of these disciplines are in fact sport, while others fall short of meeting the criteria.

During oral arguments, the Internal Revenue Service contended that it determined the entirety of the United States Ski and Snowboard Association to be composed of non-sport, athletic events largely due to the fact that none of these events have a “defensive component”.  The Court has never held that this is a necessary component of a sport, nor has any other court had a similar finding.  While often found as a component of sports, competition--the third criterion outlined in National Hockey League--does not require an offense and a defense.  Even across sports with a recognized defense, such as baseball, tennis, and hockey, there is wide variety in how such defensive components are implemented.  Athletes may still compete with one another without physically interacting in a defensive manner through competitions for better times or for longer distances traveled, as may be the cases in races, an intrinsically competitive endeavor.

The City of Park City has argued that, per the U.S. Armed Forces, which is a branch of the federal government, Skiing is universally declared as a sport and therefore should be considered such under this Court and for the Sport Taxation Post-Exportation Act.  However, the Court recognizes that the word “sport” has often been used as a colloquialism to represent a larger swath of events that the Act was intended to represent.  Use of the word “sport” has not previously been taken to be a serious issue or of legalistic concern, nor has such great ponderance been put toward the philosophy behind the word until this time.

It should be noted that the dissenting opinion makes much ado about the definition put forth by the international organization SportAccord.  However, the same organization makes very clear that “the aim [of the definition of ‘sport’] is not to have a general, scientifically sound or static definition”.  Instead, it uses this working definition simply to consider applicant federations and ensure inclusivity.  The umbrella organization goes on to recognize that many authoritative references consider “sport as a physical or athletic activity” and that “the relationship between sport and art is particularly interesting for sports that rely on judges.”  The penetrance of uncertainty regarding the role of judges, and the relationship between sports and athletic arts, is visible into the highest establishments.

In total there are six types of Skiing covered by the USSA: Alpine, Freestyle, Nordic Combined, Cross-Country, Ski Jumping, and Snowboarding. Of these events, three have distinct subcategories other than distance. There are five types of Freestyle events: Aerials, Moguls, Ski Cross, Halfpipe, and Slopestyle and five Alpine events: Alpine Combined, Downhill, Giant Slalom, Slalom, and Super-G. Snowboarding contains Giant Parallel Slalom, Half-Pipe, Parallel Slalom, Slopestyle, and Snowboard Cross. Presented with such a wide array of events we must consider each based on its own merits.

III

Alpine skiing has five events. The first, Downhill Skiing, is fairly straightforward (if you will): “In this competition, the racer must demonstrate excellent skiing technique, agility, concentration, marked endurance and physical fitness as well as courage at high speed...The vertical drop varies from 500 m to 1100 m., the terrain is varied and the gates are set to control and to direct the racer instead of demanding turning techniques.”

Next are the Slalom events which includes Super-G, Giant Slalom, and the basic Slalom course. According to Alpine Canada, “In Slalom, the competitor must follow a tight course defined by pairs of single flagged poles called gates”. A typical slalom course contains both horizontal (open) and vertical (closed) gates and involves many complex turning combinations. Super-G and Giant Slalom are similar events. Giant Slalom combines attributes of Slalom and Downhill racing, “The course is moderately long and preferably undulating and hilly with a vertical drop between 250 to 450m.” Super-G events have a course that is longer than Giant Slalom and skiers can reach similar speed as on a Downhill course.

Looking at the four criteria set forth, the events of Alpine Skiing all meet the four requirements. All events have rules and regulations guiding their competitions. Athletes in the events have a great deal of specialized athleticism in order to control themselves at speeds over 90 mph in the Downhill races and to successfully navigate the hairpin turns found in the slalom courses. Though not directly competing against one another on the course, Alpine events are competitive in nature in that participants are pitted against each other based on time trials. Finally, these events are quantifiable in nature based on the timed results for each athlete’s run. Appellee argues that the Alpine events are judged which, based on the ruling in U.S. Figure Skating, would mean that they are not sports. However, it is the opinion of this Court that the judges, or a more accurate term: officials, in Alpine events differ in kind from those in figure skating and gymnastics. In Alpine events, skiers may be disqualified for missing a gate on the course and an official, serving as a referee, oversees such calls.  We believe this is a well-demarcated rule set forth by the USSA and serves to create a quantifiable outcome.  Disqualifications are similar to being ejected from a baseball game, though more serious. Each sport contains an element to penalize rulebreakers; a football team cannot choose to compete with more than twelve men on the field without being assessed a penalty and baseball pitchers may not use chalk to enhance their grip without risking ejection.  Such rules, composed of penalties and occasionally disqualifications, are essential to the integrity of the sport. In sum, all the disciplines contained within Alpine Skiing, Alpine Combined, Downhill, Slalom, Super-G, and Giant Slalom, are sports.

IV

Freestyle Skiing encompasses five events, all of which meet the first three criteria but vary in the satisfaction of the fourth criterion.

The event of Ski Aerials is the most difficult of any event this court has ever had to evaluate because, while it may appear to be intrinsically artistic at a glance (and thus not a sport), its "style" points are awarded on such a rigorous, geometrically-governed basis, that it strains the distinction between subjective and objective achievement. If there was ever a trick-based event which was objective enough to satisfy the fourth criterion, it would be this one. Then again, the objective norms are never actually satisfied in competition, because human beings do not conform perfectly to rigid geometry, whereas in objective competitions, the rules can be perfectly satisfied. If competitors were judged based on whether or not they met the norms of the event, it would satisfy court's fourth criterion and it would be a sport. But competitors are judged on how well or poorly they approach the unattainable ideals of the event, therefore it is not quantitative, but qualitative and subjective. Even though it is very difficult to discern, there is an element of subjective expression intrinsic to the event which qualifies it as an athletic art and not a sport.

The events of Moguls, Halfpipe, and Slopestyle all incorporate subjective expression more obviously than Aerials, thus these are not categorizable as sports. The remaining event, Ski Cross, is a race and clearly meets the fourth criterion and is a sport. Curiously, this clear objectivity causes many in the freestyle community to exclude it from the category "freestyle", which helps illuminate why it is a sport and the others are not.

V

Cross-Country Skiing is a speed based sport, in which a victor is determined based on the completion time across various distances. It should be clear throughout this Court’s opinion that all the disciplines represented by the United States Ski and Snowboard Association meet the first three criteria set forth in National Hockey League. The Quantitative Outcome, the fourth established criterion, is met by Cross-Country Skiing. In athletic events in which the winner is determined exclusively based on the speed of the competitors, a definitive, quantifiable outcome is clearly achieved. Athletic events that consist entirely of objective scoring, distance traveled, or are time-based clearly meet the standards set in the fourth criterion.  The athlete’s athletic prowess and abilities exclusively determines whether or not he or she achieves success.  The Court holds that Cross-Country Skiing is indeed a sport.

VI

Ski Jumping is a discipline in which athletes ski down a large ramp and are vaulted into the air; the aim of the skier is to travel the longest distance through the air, while completing his or her landing. Each “hill” that a skier is vaulted from is allotted a certain number of points based on an established “par” for that height of the hill; skiers who progress beyond that distance are awarded additional distance points. For example, a hill that is 120 meters in height will have a 120 meter par distance; for every meter over those 120 meters that the skier travels, he or she will receive additional points per meter. However, ski jumpers are also given style points, in which judges deduct points for “flaws in technique during flying or landing”.

Clearly, the discipline of Ski Jumping has delineated Rules and Regulations specific to this athletic event; it could not be a part of the Olympic Games without such standards. The Specialized Athleticism and Competitive in Nature criteria are, again, unquestioned in Ski Jumping, as they were outlined in National Hockey League. Ski Jumping fails to meet the Quantifiable Outcome standard outlined in U.S. Figure Skating. The reliance on judges who award points based on an arbitrary definition of style to determine a significant portion of the athlete’s score causes Ski Jumping to fall short of the standard.  Specifically, the reliance on the the ability of the jumper to “convey an aesthetic overall impression” leads the Court to rule that this event does not qualify as a sport.

The Internal Revenue Service, in its argument, contended that the policy of penalizing ski jumpers with a body mass index below the minimum established standard is also reason to classify Ski Jumping as an “athletic art” rather than a sport. We do not agree with this assessment. Many sports have similar standards to protect the integrity of the sport, including a ban on performance enhancing drugs. Such bans are meant to protect athletes and provide a fairer assessment of abilities. It is worth noting that athletes below weight are not barred from competing; athletic events may set such boundaries through self-regulation and such regulations shall not affect their standing as sports.

VII

Nordic Combined is a combination of the disciplines of Cross-Country Skiing and Ski Jumping. The Ski Jumping component is performed first; the scores and rankings achieved during this portion determine the order and corresponding delays of racers for the Cross-Country Skiing component.  The winner of the entire Nordic Combined event is thus determined by the first person to complete the Cross-Country Skiing event. The issue before the Court is whether an athletic exhibition containing a decided sport and a decided non-sport should be classified as a sport. The Court holds today that it should not.

Although Nordic Combined contains a definitive sport component--Cross-Country Skiing--this is not markedly different from the Technical Component in Figure Skating in U.S. Figure Skating. In that case, the Court clearly detailed that possessing a component of a sport is not enough to classify an athletic exhibition a sport. Instead, it must be clearly, completely composed of the criteria that define sport and must not, in any way, conflict with said criteria. We find that Nordic Combined, through the Ski Jumping portion, does conflict and would more appropriately be termed an athletic exhibition.

VIII

Parallel slalom, giant parallel slalom, and snowboard cross are all races and therefore meet the four criteria qualifying them all as sports, similar to their Skiing counterparts. However, the halfpipe and slopestyle--as with ski halfpipe and slopestyle above--fail to meet the fourth criterion on the same basis. The most egregious violation from these events is the fact that often times competitors complain about judges improperly scoring runs. This occurs when the athletes incorporate elements into their run that the judges have never seen before and thus are unable to properly assess their difficulty. This discordance very clearly shows that the judging in these events is subjective in nature.

IX

The decisions of the lower courts have been modified, as has the determination of the Internal Revenue Service.  The United States Ski and Snowboard Association is composed of two unequivocal sports--Alpine and Cross-Country Skiing, two unequivocal athletic exhibitions--Ski Jumping and Nordic Combined, and two disciplines that contain components of each--Freestyle Skiing contains the sport of Ski Cross but is otherwise an athletic exhibition and Snowboarding is composed of sports with the exceptions of the Half-Pipe and Slopestyle. The case is remanded the the United States District Court of Utah to determine the tax monies owed to the City of Park City based on percentages of income from sports within the USSA.

JUSTICE WOLF, concurring in the judgment in parts III, V, and VIII and dissenting in part.

Yet again the misguided majority has maintained a narrow interpretation of the word “sport”, precluding them properly categorizing numerous athletic events.  Once more, the general criteria outlined in National Hockey League are being blatantly ignored.  I shall not discuss the first criteria here, as the Court found today that all Skiing events met these with a sufficient degree to be considered a sport.  It is instead the fourth criterion, due to the inclusion of judges who evaluate style points, that has excluded Ski Jumping, Nordic Combined, and portions of Snowboarding and Freestyle Skiing from being considered sports.

The majority glosses over the own quote they use from the USA Ski Jumping Team to describe the style points awarded to athletes: points are deducted for “flaws in technique [emphasis added] during flight or landing”.  This makes it quite clear, even by the rigorous standards established in U.S. Figure Skating, that the judges in Ski Jumping do not make artistic judgments, but rather technical judgments.  Therefore, Ski Jumping should meet the fourth criterion and be considered a sport under the Sport Taxation Post-Exportation Act.  Consequently, Nordic Combined should received the same consideration, as it is the Ski Jumping component that is in dispute.

Similarly, the events in Freestyle Skiing and Snowboarding are judge based on technical ability rather than artistry, interpretation, or other matters the Court has wrongfully considered to be more subjective.  Is there a subjective component to these athletic events outlined here? Absolutely. But so is there also a subjective component to baseball via the strike zone, and soccer via offsides calls, and football via unsportsmanlike conduct and roughing the passer.  No sport employs completely objective means.  It is time the Court recognizes that.

The three components of Mogul Skiing, Turns, Speed, and Air, shall be discussed in turn.  The Court held that Speed is an acceptable, quantifiable component, and so shall not be examined at length.  The Air component score is based on “form and degree of difficulty,” both of which have pre-determined parameters and requirements to receive high marks.  The highest Turns marks are given to the athlete who stays within the Fall Line for the entire race, initiate turns by Carving, follows the shape of the mogul via Absorption and Extension, and has proper placement of the Upper Body.  The desired outcome for criteria does not change between each skier and is not founded in interpretation.  Rather the judge is an observer, checking boxes to make sure the athlete achieves each desired formation; it is baffling to this Justice how this does not qualify as a quantifiable outcome.

Aerial Skiing is judged in the same manner, with the Air and Form component responsible for most points, and the Landing component completing the rest.  As described above, each is based on technical requirements and judges score these according to difficulty and achievement of the pre-set requirements. Again, the Court has taken the criteria of a quantitative outcome and incorrectly interpreted this to mean any and all judging or perceived subjectivity in an event. This rigid interpretation would logically appear to negate all events as sport as argued above, however the Court is inconsistent in its application of this criteria thus making it essentially useless.

Looking lastly at snowboarding and its events. The Court is right to say the events of parallel slalom, giant parallel slalom, and snowboard cross are sports. However, it once again blithely takes what can be one of the most exciting elements of sport, creativity, and deems it to be a critical factor in declaring half-pipe and slopestyle not sports. It is as if the Court wants to take what is beautiful about sport and declare it invalid. This would not seems so ridiculous if it weren’t for the fact that the Court so frequently waxes poetic about events it sees as sport. What would these sports that the Court so highly regards be without creativity? If not for the creativity, pitchers would all rely on one single pitch. If not for creativity, the Great One would probably just have been the Average One. The Court seems to gloss over elements it disagrees with in its pet projects and decries them in those it decides to declare not sport.

Perhaps most concerning is the Court’s complete disregard to the history behind sports and competition.  Hearkening back to USA Gymnastics, gymnastics has been considered a sport for thousands of years, dating back to ancient China, yet the Court was quick to dismiss such a classification and discard tradition.  Skiing’s categorization as a sport dates to the early nineteenth century and the tradition of Ski Jumping as a sport dates to the mid-1800s in Norway, where judges awarded points based on style for “elegance and smoothness”.  It is clear the category of “sport” is not as homogeneous as the Court would lead us to believe.

In this complicated matter, it is perhaps best if we consult those who are considered experts in the field, such as SportAccord, the umbrella organization for Olympic and non-Olympic federations.  The definition of “sport” that SportAccord offers contains five criteria:

1. Competitive element
2. May not rely on any form of “luck” that has been “integrated into the sport”
3. May not pose undue “risk to the health and safety of its...participants”
4. May not harm any  living creature
5. May not rely on equipment “provided by a single provider”.

Under this definition, SportAccord allows for physical, mind-based, motorized, coordination-based, and animal-supported events to be defined as sports.  The Council of Europe on Sports Development has taken an even more inclusive view, defining “sport” as “all forms of physical activity which, through casual or organized participation, aim at expressing or improving physical fitness and mental well-being, forming social relationships or obtaining results in competition at all levels.”  This would eliminate the competition criterion and allow for all forms of athleticism, such as jogging, to be considered a sport.

While the minority would not go as far as the Council of Europe, an acceptance of the criteria outlined in the SportAccord seems more apropos.  Allowing for the diversity that we find in sports is important and narrowing the definition serves no beneficial--or intellectually sound--purpose.