U.S. FIGURE SKATING and USA GYMNASTICS v. INTERNAL REVENUE SERVICE

Cite as: 573 U.S. _____(2013)

     Opinion of the Court

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         SUPREME COURT OF THE UNITED STATES

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No. 13-002

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U.S. FIGURE SKATING and USA GYMNASTICS v. INTERNAL REVENUE SERVICE

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

  [December 31, 2013]

CHIEF JUSTICE HOLT delivered the opinion of the Court.

I

   Following this Court’s decision in National Hockey League v. United States (2013), U.S. Figure Skating and USA Gymnastics separately brought suits against the United States, but were consolidated into a single case due to the similarity between the appellants.  Both associations are the recognized governing bodies for their respective athletic organization in the United States, per the U.S. Olympic Committee (USOC).  

    Appellants brought suit after they were exempted from the Taxation Post-Sport Exportation Act (2013) following the movement of USA Gymnastics from Indianapolis, IN to New York, NY and of U.S. Figure Skating from Colorado Springs, CO to Minneapolis, MN.  The Internal Revenue Service (IRS), the agency responsible for collecting the tax monies and distributing them to the previous municipality, exempted both associations, as it did not consider them to be a “sport” based on the criteria set out in National Hockey League.  Both organizations, per their brief submitted to the Court, believed it their “patriotic duty” to pay lawfully enacted taxes and filed suit, alleging that the athletic arts they represent do in fact qualify as a “sport” according to National Hockey League.

    The District Court of Colorado and the Southern District Court of Indiana held that their respective athletic events were sports under National Hockey League. The U.S. Tenth Circuit Court of Appeals reversed the decision of the District Court of Colorado, while the U.S. Seventh Circuit Court of Appeals reaffirmed the decision of the Southern District Court of Indiana.  Because of the conflicting rulings, a writ of certiorari was granted by this Court.

    Appellants contest that the Olympic Charter Chapter 5 Section III Part 45 Paragraph 2 dictates that the Olympic Games shall be divided into sports, disciplines, and events.  For example, Skating is the recognized Olympic sport, which serves as the umbrella for the disciplines consisting of figure skating, short-distance speed skating, long-distance speed skating, and synchronized skating.  Events consist of the different sex and distance categories underneath these disciplines that “give rise to medals”.  Appellants argue that since they are considered a sport underneath the expansive Olympic Charter, they should be considered a sport under federal law.

However, there are ample reasons not to use the Olympic Charter to create one’s definition of a sport.  First, the terminology used by the Charter is not universally accepted even within the athletic organizations of which it is composed.  Representing this, the International Gymnastics Federation--the recognized international gymnastics body and an organization of which the appellant is a member--considers men’s and women’s artistic gymnastics to be separate disciplines, while the Olympic Committee recognizes them as separate events within a discipline.  Additionally, to minimize the number of recognized sports, the Olympic Committee forced snowboarding to merge into the International Ski Federation and compete as a discipline under the sport of Skiing.  With the capping of the number of sports in the Olympic Games at 28 in 2005, these incidents have become more frequent.  It can be seen that decisions defining “sport” by the Olympic Committee and its subsidiaries are often made based on political influences and not on the purity of the definition of “sport”.  Therefore, this Court will not use the definition offered by the Olympic Charter to base its ruling.

This Court recognizes that under the Ted Stevens Olympic and Amateur Sports Act, which granted the United States Olympic Committee and its recognized sports organizations their power, “sport” was loosely defined.  Here, Congress defined an “amateur sports organization” as “a not-for-profit corporation, association, or other group organized in the United States that sponsors or arranges and amateur athletic competition.”  An “amateur athletic competition” is previously designated as “a contest, game, meet, match, tournament, regatta, or other event in which amateur athletes compete”.  Therefore, Congress seems to have previously, based upon the congruence of these definitions, defined a sport as any event in which athletes compete.  This overly simplistic definition, however, is not practical in delineating the difference between a sport and the myriad other events and activities which could fall underneath this broad description.

II

It is surreal enough to have to defend these institutions' tax-exempt status against themselves, but to do so while trying to convince them to appreciate their real dignity is truly baffling. The focus of the deliberations regards the fourth criterion stated in National Hockey League: that a sport must have a quantifiable and objective goal. In simple sports, such as running, the goal is quite plain: to run faster than all opponents. Which competitor runs faster is plainly objective and easily quantified in time. The faster the competitors run, the more likely each of them is to win. In complex team sports, such as the game of baseball, a variety of athletic operations contribute to a team's unified output, which is measured in runs, points, goals, etc. The more a team scores relative to its opponent, the more likely it is to win. No such statement is possible in the cases of the appellants' events, because there is no corresponding objective determinant for victory and defeat. In figure skating there is no factor, such as fastest time or runs scored, which directly controls the outcome.

It may be contested, with mounting furor no doubt, that the highest scores in figure skating and gymnastics are what determine victory, just as in team sports. Just as a team's various operations all feed into its score, so the various components of a figure skater's routine all feed into his or her score. But what exactly are those components and how are they measured?

We are agreed with the dissenting minority that the Technical Component is not disputed, because it measures the difficulty of routines. The Program Component's five subheadings, however, must meet the objectivity criterion. These five subheadings are: Skating Skills, Transition/Linking Footwork and Movement, Performance/Execution, Choreography/Composition, and Interpretation which we shall now examine in turn.

III

Skating Skills is judged based on the competitor's "effortless power", which, strictly speaking, is a contradiction in terms. What is meant is "seemingly effortless power," which is just as much an aesthetic effect as a means to skating well. Contrast this with the manifest effort expended by a speed skater in the final lap of a record run, or a pitcher in baseball nearing the end of a nine-inning shutout, or the guttural cries of exhaustion of a tennis champion in the fifth set of a match. The fact that they seem to be expending great effort does not detract from their imminent triumphs.

Transitions/Linking footwork which is defined by U.S. Figure Skating as “The varied and/or intricate footwork, positions, movements and holds that link all elements. In singles, pairs and synchronized skating, this also includes the entrances and exits of technical elements.” On the surface this seems not to veer too far from the criteria of sport, but the necessity of variety raises an interesting question. Certainly in sport we see that variety is an important aspect. A football team that only had one play would be fairly easy to defeat no matter how impressive the play. In baseball, at least in the misguided American League, the position of the Designated Hitter is the antithesis of variety. A Designated Hitter plays no fielding position (except in the most extreme cases), but has one and only one role, to hit. This is even more evident in most track and field events, which consist exclusively of one action, such as the high jump. They need no variety in their play, in fact that would be detrimental to their value. This is admittedly a small complaint, but the importance placed on a variety of movements evidences the focus on beauty which will be discussed more at length below.

The final three components shall be examined together, as they are what truly separates figure skating from sport: Performance/Execution, Choreography/Composition, and Interpretation.  All of these components focus in some way on artistic merits rather than on athletic prowess. Looking briefly at the definitions of the three components. First is Performance/Execution: the physical, emotional, and intellectual involvement of the competitors as they translate the intent of the music and choreography (performance); the quality of movement and precision in delivery (execution). Second, Choreography/Composition: an intentional, developed and/or original arrangement of all types of movements according to the principles of proportion, unity, space, pattern, structure, and phrasing. Finally, Interpretation: the personal and creative translation of the music to movement on ice.

Of the three, Performance/Execution is the least troublesome when considering the fourth criterion. In all team sports it is imperative that teams function as one unit - a statement proven true by the amount of speculation done about locker room discord when a team is struggling. In sport, however, this is not a way that teams are ever evaluated empirically. There are no bonus points awarded at the end of a hockey game to the team that was more emotionally and intellectually involved with one another during the game.  Choreography/Composition is also something that is found in all sports. As with the previous component though the difference between sport and the athletic arts is that in sport there is no subjective evaluation of these elements which impacts the final score. A recent example could be seen in the 2014 NFL Playoff game between the Kansas City Chiefs and the Indianapolis Colts; the Colts fumbled the ball, it bounced of a player’s back, and quarterback Andrew Luck picked it up and ran it in for a touchdown. It was an ugly and unscripted play with little or no artistic merit.

Finally we come to the most controversial of the components: Interpretation. Is is here that figure skating takes its biggest leap from sport. Here we are not speaking of the judges’ interpretation of the performance (which is its own issue discussed below) but evaluating the performers based on how well they interpret the music. This is a purely subjective criterion which looks at an equally unquantifiable idea and the moment at which, even if all other scoring components passed the test, figure skating would be deemed primarily art and not sport.

IV

While the dissent will without a doubt throw out the crazy outfits sometimes worn by golfers and the individualistic elements sometimes added by players to uniforms and equate them in a grand motion to the costumes worn in gymnastics and figure skating, it seems though the rather obvious linguistic discrepancy here is enough to render this point moot. Not even our overly enthusiastic counterparts in the dissent would use the term costume to describe what is worn in baseball, football, soccer, etc. These athletes wear uniforms. A uniform’s primary purpose is to designate members of a team as one entity - they serve a primarily functional purpose. A costume’s primary purpose is to promote individuality - their purpose is to add to the visual and artistic element of the performance. Here again we see that the primary focus is on art and not sport. Furthermore, the argument that the music which accompanies gymnastic and figure skating routines is in any way similar to the inclusion of music at sporting events is absurd.

It might be objected that the judges who award scores in figure skating are no different than rules officials in undisputed sports, such as referees and umpires. Rules officials determine conformity to the rules of the game just as judges determine the merits of a skating performance. Each has its subjective elements, so is there a true difference? Rules officials do not decide how well or poorly the competitors have attained their objective, they only ensure that the rules of conduct are observed. A referee would be equally satisfied with a clean losing effort as with a clean winning effort, and more satisfied in either than with a winning effort in which the victor committed penalties. In real life, the police only monitor road safety; they do not reward drivers for reaching their destinations on time. In sports, rules officials only monitor legality; they do not have the power to reward competitors for success. In figure skating and gymnastics, judges are the sole source of points awarded in a competition. In order to make the analogy between judges and referees work then, it would be as if referees evaluated the technical and program components of a football team’s drive down the field and then awarded them 7 points, 3 points, or no points based on their evaluation of the drive’s artistic merits. This is obviously not the case and framing it as such makes the allegation that referees and judges are the same in kind seem rather silly.

The scorekeeping in sports is essential to the object of the game. The scorekeeping in these other events is not essential. Take the scorekeeping away from baseball, and you are left with an exercise whose incompleteness is a punishment for those who are not responsible enough to compete in a healthy manner. Take the scorekeeping away from figure skating, and you have Disney on Ice. To score figure skating can even take away from the experience in some respects.

Another point often mentioned by supporters of figure skating's sporthood is its difficulty. None on this Court would suggest that these events are not incredibly challenging and beyond the scope of what any of us judges could hope to attain. It should go without saying that ruling these are not sports does nothing to lessen their inherent difficulty. Plenty of things are difficult, but are not sport - quantum physics for example. Figure skating requires the same, if not more, athleticism required by some sports, so clearly this takes nothing away from the dedication and training needed to compete in these events at the highest level.

While we’re near the subject, it behooves us to examine the relationship between art and sport. Though some may argue that we in the majority are a stodgy old bunch who see no possible connection between the finer things in life and our beloved real sports, it is in fact the case that they often intersect - from the swing of a baseball bat to graceful puck-handling in hockey, there are many beautiful and artistic aspects to even the most violent of sports. Sport then is not without art - which is defined in its most narrow terms in the Oxford Dictionary as, “the expression or application of human creative skill and imagination,  typically in a visual form such as painting or sculpture, producing works to be appreciated primarily for their beauty or emotional power.” One simply has to marvel at the marriage of power and elegance of a pitcher’s wind-up and release to see that art can be found in sport. It is this artistic element of sport that leads us to wax poetic about the game and to relish its visual beauty. This relationship though is how sport differs from “the athletic arts.” Unlike in sport, figure skating and gymnastics’ primary focus is on beauty. While both have undeniable and rigorous athletic requirements, these are not the main focus of the performance. The focus is on beauty, perfection, and showmanship. There is no room for deviation from the aesthetic norms of the event. The sport is based not on athleticism but how the athleticism is perceived and presented. It is not simply that figure skaters skate quickly for that would be speed skating. It is not simply that gymnasts are strong for that would be mere physical exercise. It is that figure skaters and gymnasts do this in a way that is aesthetically beautiful and delighted in for its own sake. Within sport, however, the aesthetic dimension is enjoyed as a secondary benefit of the event. Athletes can deviate greatly from an aesthetic ideal and still find success. An unorthodox quarterback like Bernie Kosar or a knuckleballer like R.A. Dickey would utterly fail to meet the ideals undergirding the standards of figure skating or gymnastics. It is this fundamental difference in focus that is what keeps figure skating and gymnastics from being classified as sports.

V

Therefore figure skating and gymnastics do not fall under the category of sport, but rather the category of athletic arts. This should not be in any way taken as an insult. It seems as though many in the world of athleticism have succumbed to an ESPN-dominated worldview, in which sport is the utter summit of live entertainment. There is an emerging attitude that if it isn't a sport, it is somehow deficient, and this attitude is enough to drive US Figure Skating and USA Gymnastics to demand to be taxed, as bizarre as that is. This attitude is unduly detrimental not only to these organizations' finances, but to their very identities as athletic arts. There is a certain dignity to the athletic arts that is not shared by sports. Though qualities of each are present in the other in a secondary form, the unique benefit of sports to humanity is the struggle for victory, whereas the unique benefit of athletic arts is the enjoyment of the activity itself. There is a certain utilitarian quality which is proper to sports, but which is not necessary for the athletic arts. Gymnastics and figure skating, along with ballet, synchronized swimming, and parkour to name a few others, can be delighted in simply because they are beautiful to behold, and not because they are means to the all-consuming end of wining. Therefore, US Figure Skating and USA Gymnastics should be proud not to be considered sports, not only because of the tax benefits, but because of the beauty which they possess as athletic arts.

The opinion of the U.S. Tenth Circuit Court of Appeals is affirmed and the opinion of the U.S. Seventh Circuit Court of Appeals is reversed.

It is so ordered.

JUSTICE WOLF, dissenting.

The Court in this case has held that Figure Skating and Gymnastics are not sports, based on the rules established for determining sport in National Hockey League v. United States. Those in the dissent, however, believe that these arbitrary rules are far too narrow and and exclude many deserving so-called “athletic arts” that are excluded even from consideration by these standards.  It is unfortunate that the majority can hardly mask its condescension in stripping gymnastics and figure skating of their rightful status as sports.  

With the first three points in the standard established in National Hockey League, no fault is found and as written the appellants in this case meet all of the standards. To wit, gymnastics and figure skating operate within rules and regulations. These events also require of their participants a level of specialized athleticism unseen in many other sports. Gymnastics and figure skating require a level of precision unmatched even by the most fine-tuned southpaw. And finally, these events are competitive in nature, pitting both individuals and teams against each other - often competing over multiple unique events. It is therefore clear that these events both meet and exceed the first three criteria of the standard.

Here though is where the main issue with the standard lies. To declare that any athletic event where scoring is done by a judge is not a sport is blatantly wrong. Looking at the bigger picture, there exists in all of the big four sports an arbitrary judge - referees and umpires. While these actors do not award points in the same manner as judges in gymnastics and figure skating, they are able to directly overturn scoring plays in many instances, directly affecting the outcome of a game and are therefore in a sense responsible for awarding points much as a judge in the athletic events examined in this case.

Those in the majority will argue that this power to overturn/confirm scoring plays, goals, and other plays is not the same as judges evaluating performances and awarding points. This assertion however could not be farther from the truth. In gymnastics and figure skating judges use a strict set of rules in order to award or subtract points. It is not an arbitrary system by any means. In baseball, umpires use a strict set of rules in order to judge a strike from a ball - their judgment is as arbitrary as some argue those of the judges in gymnastics and figure skating are. In fact, in the sport that Justice Buonopane seems to elevate above even the gods,  each umpire uses a variable, largely subjective strike zone that invariably determines the outcome of the game.  Each sport has a subjective nature; humanity is unable to truly provide objectivity, thus an allowable amount of subjectivity has been built into each sport.  However, it should be recognized that sports such as figure skating have more readily implemented video instant replay than more traditional sports, such as baseball and football.  Whereas there is limited instant replay in football--confined to under the two minute warning and to two challenges per team--and in baseball is used only to determine the validity of dubious homeruns, figure skating enacted instant replay long ago to determine the precise placement of blades on ice.  This allows the officials to determine whether an athlete properly performed a land, jump, etc. by landing on the correct side of the blade, for example; this ability to rewatch and rejudge certainly decreases the subjectivity of the officials.

Since the majority seems blissfully unaware--or worse, willfully ignorant--of the standards governing the sports--and I use that term with the full intention of riling my ill-informed colleagues on the bench--presented before us, I shall take it upon myself to inform them.  In Figure Skating, competitors are judged twofold; they are given a Technical Score--similar to the Difficulty Score in Gymnastics--and a Program Component Score--similar to the Execution Score in gymnastics.  I doubt my counterparts would quibble with the former, as it awards certain elements a set score and is then graded for quality; the two are then combined to give a score.  Justice Smith indicated during oral arguments that he agreed that the Technical Score qualified as a largely impartial determiner deserving of a sport.

The Program Component Score is composed of a combined score of Skating Skills, Transition/Linking Footwork and Movement, Performance/Execution, Choreography/Composition, and Interpretation (the second element is excluded in ice dancing in favor of Timing).  We shall discuss each component here.  Skating skills is described as “edge control and flow over the ice surface demonstrated by a command of the skating vocabulary (edges, steps, turns, etc.), the clarity of technique and use of effortless power to accelerate and vary speed.”  It is hard to see how this definition, favoring technique and ability, is different from other skating disciplines that the majority would undoubtedly deem worthy of receiving their knighthood as a sport.

The Transition/Linking Footwork and Movement element is defined as the “varied and/or intricate footwork, positions, movements and holds that link all elements. In singles, pairs and synchronized skating, this also includes the entrances and exits of technical elements.”  Once again, the focus on technical competence, difficulty, and ability are highlighted.  Some may argue that difficulty should be irrelevant; after all, the difficulty of a pass in football does not determine the game and is, in fact, plays no role in determining the outcome.  However, this is ignoring a basic fact: precision often does affect the outcome of a sport.  It is the more precise hits along the lines in tennis that win a match; this merely codifies already practiced principles.

Performance/Execution is demarcated as “the involvement of the skater/couple/teams physically, emotionally and intellectually as they translate the intent of the music and choreography. Execution is the quality of movement and precision in delivery.”  Criteria used to judge this element include body carriage, projection, clarity of movement, unison and spatial awareness (in pairs), and style.  Once again, these are factors that influence the outcome of every sporting event; the “sweet swing” of Ken Griffey, Jr. certainly contributed to his batting prowess and offensive dominance and the manner of pitching unique to those like Orlando Hernandez--where the knee is brought up to block the vision of hand location prior to pitch release--contributed to his success.  Once again, Figure Skating merely codified these abilities to create a more objective way to judge such pure, finessed talent.

The Choreography/Composition element is defined as the “intentional, developed and/or original arrangement of all types of movements according to the principles of proportion, unity, space, pattern, structure and phrasing.”  The Interpretation is specified as the “personal and creative translation of the music to movement on ice.”  These two shall be discussed together, as they are what the majority finds so egregious and morally repugnant in its ruling today. While it is true that music has long played an important part in a variety of traditional sports--from entrance songs and “Take Me Out to the Ballgame” in baseball--to “pump up” music during hockey games, the majority is correct to note that these do not have direct influence over the outcome of the sporting event.  Nevertheless, it demonstrates that there is not the complete separation of the Arts from sports, for which the majority so desperately pines.  

My colleagues on the bench seem to desperately fear the intersection of art and sport, treating it as if musical interpretation and Johnny Weir’s costumes will single-handedly defeat the Western World.  Perhaps instead we should celebrate an addition to a sport and celebrate that uniformity and conformity are not always a necessity.  Briefly, on costumes: the costumes used in figure skating, and less so in gymnastics, are no more essential than the stirrups associated with baseball, the stockings associated with football, the garish outfits of Payne Stewart, or the throwback uniforms across a variety of Big Four sports teams.  None of these play an essential function, but add to the sport stylistically.  The Court claims that figure skating is more art than sport, but, using the scoring outlined by U.S. Figure Skating and supported by this Court, the endeavor actually consists of 70-80% “sport”, depending on whether the third element of the Program Score Component is accepted.  

Figure skating--and its summer counterpart, gymnastics--display the criteria set forth in National Hockey League: the rules and regulations are exhaustively outlined, it is undisputed that the participants are athletes, and there are winners and losers in the sport.  Finally, the governing bodies of the disputed “athletic arts”--if I should be so politically correct--have established the above specific criteria to determine “quantifiable and definite” winners and losers.  The Court erred gravely in its judgment today.

Perhaps we should follow the recommendations and regulations put forth by the Olympic Charter and consider these “athletic arts” sports.  The International Olympic Committee and United States Olympic Committee are the premier authorities on sports and are legally recognized as such by Congress; perhaps the majority should put aside its judicial activism for a moment and reflect the will of the Legislature.