N.E. Brigand

Well, I hate to say this, but new evidence suggests that garfield and MikeD may be right after all. Not sure yet. Need to read some more. But I'm definitely seeing a future where I write Matt Stoller and ask him to explain himself. For those who want to solve this mystery on their own, here's a hit: Mary Ann Powers.

Also what do you make of this statement from the closing argument (p. 38) by the attorney for Quinnipiac University? "You may recall about how the team used some pompoms in the one 45-second portion of one performance during the year in which they were actually required by Jeff Webb's company to use those pompoms, which by the way he also sold to the participants." Is he saying that there was just one year in which teams were required to use pompoms? Or is he saying that there was a year in which teams were required to use Varsity's pompoms?

OK, the first thing I should do is note that I forgot your post when replying to garfield. Apparently you agree with him, and thus he's not alone. Which is fine by me; I agree the judge is not clear. You do a better job of parsing his words than garfield did, in my opinion. But here you're replying to my request for Webb's words. Yet what you cite is not Webb's words. You're quoting the judge's description of what Webb said in trial. I'm not saying the judge is lying. What I'm saying is that nobody yet seems to be able to find what Webb actually said about this.That's not the actual transcript of Webb's words. And that gap in our knowledge is frustrating attempts to get to the answer. Because the subsequent press reports on the trial took the opposite position from you and garfield. - - - - - - - - - - Wait a minute, I think I realize the problem. Does anyone else realize, looking at the text below, why I haven't been able to find Webb's words? "Indeed, testimony at trial revealed that the NCA’s scoring system was intertwined with the promotion of Varsity Brands. During the 'spirit' portion of the competition, cheerleading teams are awarded points for using props, such as pom poms, sold by Varsity Brands; the more props a team uses, the more points that team receives." I'm not sure I'll have time before the weekend to investigate my hunch. Happy hunting to anyone who wants to get there first!

I noticed that too! Very cool.

Way back when I was a freshman in high school, our marching band played Neil Diamond's "America" (although not in our contest show). That was from his movie The Jazz Singer, but while the movie is generally considered a failure (I saw it on TV many years ago and it's pretty dull stuff), I still like the soundtrack a lot. It looks like a handful of corps played this one back in the 1980s and 90s; did any of them bring it off?

Naturally. Does anyone know if that judge is still available for comment? Maybe we can get him to explain what he meant.

But apparently there are people who even today think those fine young men were suckers and that cemeteries like Arlington are filled with losers. People who would stand next to the father of a veteran at his gravestone in a military cemetery on Memorial Day and say: I don't get it, what was in it for them? People who would suggest that it would be better for military parades not to include amputees or other visibly wounded veterans because: nobody wants to see that. I do tend to be a little wary of patriotic displays myself, because I think they can risk glossing over the messy (but aspirational) nature of our history, but confronted with statements like those, I really need an infusion of some national spirit. Lots and lots of corps have played Morton Gould's American Salute (derived from the Civil War tune "When Johnny Comes Marching Home"), although I think no DCI or DCA finalist has used it since the Sunrisers in 1999. (Corps have played some other Gould songs; I'm curious which of his tunes are people's favorites.) Maybe it's time another top tier corps had a go. I saw two marching bands do excellent versions with the piece in the past five years, including Broken Arrow, who placed fourth in Bands of America's finals two years ago.

As garfield says, given they have no expertise in this field, then presumably the former if they are hoping to make inroads beyond selling uniforms.

Yes, sometimes judges are wrong. That's been true for as long as there have been judges. Dred Scott (1857)? Plessy v. Ferguson (1896)? Korematsu (1944)? Nobody would defend any of those rulings nowadays, and they're all more than 75 years old. So let's not pretend this has anything to do with "today's society".

I hate to be a pest about this, but we need to be clear that still haven't seen Jeff Webb's actual words on the relationship between props and scoring at Varsity's competitions. All we have seen are the words of the judge and the attorney for the defendants in the case in which Webb appeared as a witness. Most people interpret those words as indicating that in at least one event, higher scores were awarded to those groups that used Varsity's pom-poms. You have offered an alternate and not unreasonable reading of the judge's words. You may yet be shown to be right about that, but at the moment, you do seem to be pretty much alone in that interpretation.

Does the quote exist? I think it has to, but no one yet seems to be able to find it. I mean: we have yet to read what Webb actually said in this trial about scoring and the use of props. All we've seen from the trial documents on that subject are the defendant's attorney's and the judge's characterization of what Webb said (which, as I have said, is debatable, as your own reasonable interpretation shows). We've also seen later reports characterizing what Webb said, but it's not clear to me that those rely on his actual words or on the judge's description thereof. Those later reports I mentioned refer, as you say, to this happening at just one event. But the judge doesn't say that. I'm inclined to agree with you that this may not have been the regular practice of Varsity's events, but we really don't know. Given this lack of information, I think we're stuck on this point and just have to move on.

Because it was a disappointing show by their standards (though a miracle recovery compared to what they were fielding earlier in the season), I forget that Minnesota Brass played "Hurt" in 2017. And then they were gone.

Have drum corps really never covered a song written by Johnn Cash? (Trent Reznor wrote "Hurt" and June Carter Cash wrote "Ring of Fire".) He penned so many hits! Here's one that might have worked in Suncoast Sound's 1984 show, among others: "I wear the black in mourning for the lives that could have been Each week we lose a hundred fine young men."

Can you quote from that transcript? I read what I believe is all of Webb's testimony at the trial, and I can't find where he says what the judge and the defendant's attorney say that he said. I am baffled and would really love the help, please.

Just fyi, based on his reading of the judge's decision in the case, garfield disputes that claim from that Houston Press article (which doesn't actually quote Webb saying that, although it's important to remember that they gave Varsity a chance to comment before publishing, as most journalists do, and Varsity didn't deny the claim). I agree with you and think garfield misread the decision (although the judge could have been clearer), and I think the closing argument by the defendant's attorney in that civil case futher bolsters that claim, but I have failed to locate Webb actually saying so (or anything one way or the other) in the trial transcript. Edit: And I see you've now noticed the same thing yourself, so feel free to ignore this post.

Apologies if someone else already mentioned this, but a lawsuit was filed just a month ago against Varsity alleging that the company is running a monopoly, although I don't have a subscription and can't see much past the headline.

Jeff Webb did say this about cheerleaders during that trial: "They don't cheer and they don't lead." And he also said that competitive cheerleading is no more a sport than chess is. - - - - - - - - - - - Here's an example of what the defendant's lawyers brought to the attention of the judge in the case: following testimony in which Webb said that cheerleading was not a sport, he published this on Varsity's website (it's no longer there, but it was saved on the Internet Archive): "My own belief, as well as that of Varsity, is that when using the general definition of sport – 'an athletic activity with competition' -- all forms of cheerleading are either sports or have sports components." Run away! Run away! I'm finding this website ("Spirit Company") to be useful in locating items like that. - - - - - - - - - I want to be as fair as possible to Webb, so I will say that this testimony from the trial sounds like what many decent people say about drum corps: "Well, cheerleading is something I have had a passion for since I was very young man. And you know, I've been able been fortunate enough over the past 30, 35 years to take sort of a concept that I created and to be able to transform this athletic activity into something that millions of kids can participate in and I honestly believe that as cheerleading exists today which is what we originally envisioned when we started UCA, we began that transforming process, we envisioned that the traditional role of cheerleading with leadership, with spirit race, combined with what we do on the field, entertainment and an element of competition, we believe that the result speaks for itself. Most people tell you that cheerleading has grown three to four times over the past 25 years and it involves millions and millions of kids, and we know from the feedback we get the impact it's had on so many lives and it's because of the total experience, not just one. So that's why it's important." Then again, it also sounds like what some indecent people have said about drum corps.

Well, the last numbered item appears to be 43, and I still haven't found Webb's deposition. So now I'm wondering if I just missed Webb talking about this in his trial testimony. I see the judge, in the portion of the decision that garfield initially brought to our attention, specifies that it was in Webb's "testimony at trial" that he made the statement we've been attempting to parse second-hand. That's parts 28-29 of the files, for anyone with sharper eyes than mine. Here are two legal blog posts about the case that might help with this search: Title IX Blog: Quinnipiac Volleyball Players Win Title IX Decision Connecticut Sports Law: Competitive Cheering a Varsity Sport? I see that they include links to news stories that might have details not uploaded in those files I checked. (Some helpful analysis of the case here at the Sports Law Canary blog.) Here's a media article about Webb's testimony that doesn't mention what the judge and defense counsel took from it. Here's another article on the subject that notes that Wisconsin's Supreme Court had previously ruled that cheerleading is a sport. That article also says: "Unfortunately, an appropriate governing body has yet to be created for competitive cheer at the high school level. Although athletes regularly compete at local, regional, and national competitions, the organization that currently hosts most of the competitions is Varsity Brands, Incorporated. One of the problems is that Varsity Brands, Incorporated currently hosts more than 66 national championship competitions each year (Penn and Teller, 2010). They are also the organization that profits from the sport of cheer through the sale of uniforms, practice clothes, competition entrance fees, and competition gate fees (300 million annually). In order to bring the sport of competitive cheer within line with other traditional sports, there would need to be one annual state competition (per state) and one national competition. Whether this can be done by reorganizing the current Varsity competition schedule or through existing state high school athletic organizations is yet to be determined. Reducing 66 national competitions to one national competition and reducing state competitions to one per state might have a financial impact on this company."

Still haven't found Webb's deposition, but from this portion of the trial transcript, here is something the attorney for the defense, i.e. Quinnipiac University said in his summation: "You may recall about how the team used some pompoms in the one 45-second portion of one performance during the year in which they were actually required by Jeff Webb's company to use those pompoms, which by the way he also sold to the participants." Remember, the university is arguing that competitive cheerleading is a sport, but here they appear to be admitting that at times there have been reasons to believe otherwise. (It's also interesting that at the beginning of this section of the transcript, the university's lawyers inform the judge and the the plaintiff's lawyers that Webb, subsequent to his trial testimony in which he stated clearly that he didn't believe cheerleading was a sport, went on to make public comments that appear to contradict that position. Apparently there was a lot of backlash to what Webb testified in court from cheerleaders and their parents. The judge says he doesn't need to see those news reports because he wasn't going to just take Webb at his word anyway; he was going to make up his own mind. You will recall that what he decided was that competitive cheerleaders are athletes but competitive cheerleading is not a sport.) What does "required by Jeff Webb's company to use those pompoms" mean? Does "those pompoms" mean the pompoms sold by Varsity? Or does it mean the pompoms they were waving?

By the way, for anyone else who wants to dig into these files, here's how you can find them. Start with this link: https://www.clearinghouse.net/chDocs/public/ED-CT-0001-0001.pdf And change the last two digits from "01" to "02", "03", "04", etc. to see further files. Webb's trial testimony was in parts 28 and 29. I know the documents go at least as high as part 33. There's probably some other way to navigate, but this works well enough. (I now see that this thing dragged on for two four years or more after the decision.) (And there is absolutely no rhyme or reason to the numbering of these documents.)

There were only about ten more pages in Webb's testimony in this transcript, and what we're seeking isn't there. And yet, as we all agree, the judge indicates that Webb made a statement about scoring and props (whether Varsity's or not, we're not agreed). What can that mean? I noticed that in the first part of Webb's testimony, there was reference to entering his earlier deposition into the record. So I have to imagine that's where Webb made these comments. And now we have to find that document.

Well, I've read all 70 pages of Webb's testimony in this transcript, but unfortunately it's not complete, and as far as I can see, nowhere in that portion of the testimony is there anything about how cheer teams' scores relate to their use of props. If someone can find the testimony where Webb talks about this, please share the link. He must have done so, because the judge references it in his decision. Edit: I've found a document with the rest of Webb's testimony, and will read it now to see if it answers this question.

I have bolded the passage that is central to our discussion, but unfortunately, the judge is not clear. Does anyone have a link to Webb's actual testimony about this?* Here's why it's not clear: there are two ways to read that line. Let's put the relevant paragraph from which you you cite here in its entirety, with that particular sentence underlined: "As was true with the UCA’s competitive events, Webb did not believe that his NCA competitions would eventually establish a sport that would, some day, be recognized by athletics organizations such as the NCAA. Instead, he envisioned NCA competitions as a further promotion of his cheerleading supply business. Indeed, testimony at trial revealed that the NCA’s scoring system was intertwined with the promotion of Varsity Brands. During the 'spirit' portion of the competition, cheerleading teams are awarded points for using props, such as pom poms, sold by Varsity Brands; the more props a team uses, the more points that team receives. Webb testified that he was not averse to competitive cheerleading eventually becoming an independent sport. Still, as a sideline cheerleading purist, Webb wants competitive cheer to be distinguished from traditional sideline cheer out of concern that competitive cheer will threaten his competitions – for instance, competitive cheer might annex certain moves and routines from sideline cheer – and lead to confusion about the difference between the two forms of cheerleading. Webb did not think that the rise of competitive cheer would hurt his business, however. On the contrary, he welcomed its emergence, believing that the creation of new competitive cheer teams at high schools, colleges, and universities would increase demand for Varsity Brands’ products and services." Remember that the question that the judge is trying to answer in the part of the decision based on the facts laid out here is this: is cheerleading a sport? To put it briefly: this was a case in which a university got rid of its women's vollyeball team. Members of the team and the coach sued the university claiming discrimination against women's sports. The university said that, on the contrary, it simultaneously launched a new women's cheerleading team, and that cheerleading is a sport. The judge's decision was that cheerleading is not a sport (and thus that the university had violated Title IX), and part of the reason it's not a sport is the way that so much of its governance is in the hands of this private company named Varsity instead of the usual kind of organization that oversees sports. I think it's really important that the underlined sentence immediately follows the judge saying that "the NCA's scoring system was intertwined with the promotion of Varsity Brands." The key sentence that you cite is thus meant to prove that phrase; it's the judge saying: here's how Varsity promotion is intertwined with the scores. But I can see why you interpreted it the other way, and if I were the judge, I would have written it this way instead: "During the 'spirit' portion of the competition, cheerleading teams are awarded points for using props, such as pom poms, sold by Varsity Brands; the more Varsity props a team uses, the more points that team receives." I believe the judge thought readers would assume the word "Varsity" that I have added was implied by the first half of his sentence. - - - - - - - - - - *OK, I just found Webb's testimony, which I will read and then link and discuss in a separate reply. We'll see if I'm right or wrong about what he said.

I'm not seeing this on page 31 (or elsewhere). Can you point to the specific text that you believe says this? I may just not be looking in the right place.

Yes, we'll get to that part. (It's problematic, in my opinion.) I just wanted to make it clear, particularly for those who don't want to read the decision, that nobody in this case was trying to make an argument against what Varsity had done (or not done). That was a secondary matter.