Cite as: 575 U.S. _____(2013)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
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SUPREME COURT OF THE UNITED STATES
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No. 14-002
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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:
- Competitive element
- May not rely on any form of “luck” that has been “integrated into the sport”
- May not pose undue “risk to the health and safety of its...participants”
- May not harm any living creature
- 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.
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