Earlier this winter, it was reported that the U.S. Justice Department plans to propose new rules that would require movie theaters to provide devices for closed-captioning and audio descriptions of what is happening on the screen.
Can sports facilities be far behind? And is closed-captioning enough?
Many organizations representing the hearing-disabled community advocate open captioning, which would scroll the dialogue on the screen for all to see. The challenge for them may be that the broad language of the Americans with Disabilities Act (ADA) prohibits discrimination, but with no rules in place for a theater or sports facility.
The debate continues.
Washington D.C. Attorney John Waldo, who has written about the ADA as it relates to the sports industry for Sports Litigation Alert, noted that there is a key case that he is watching very closely — Innes v. University of Maryland (http://law.justia.com/cases/federal/district-courts/maryland/mddce/8:2013cv02800/253918/64/
“That case was the first one to squarely raise the issue of whether hand-held captioning devices are sufficient to provide effective communication,” he told the Alert recently. “The court denied a motion to dismiss. Because the deaf plaintiffs had explained in some detail why handhelds were inadequate, the court said there was a fact issue about whether they provide effective communication. I don’t know the ultimate outcome, but since installing reader-boards is a hell of a lot cheaper than trying the case, I suspect the University of Maryland will give it up.”
Lawyer: Scoreboard Captioning Is a Good Business Practice
“What I think this case and the Feldman v. Pro Football case (the Washington Redskins) mean is that anyone with the budget to afford it is hanging out a mile if they do not provide scoreboard captioning,” said Waldo. “That is not to say that the captions have to be on the main Jumbotron — although that is nice. But they do need to be visible from any seat. And as the Feldman case declares, the captioning has to be inclusive of all of the aural content, including song lyrics.”
Waldo, who summers in the Northwest, cited the Seattle Seahawks and Seattle Mariners as examples of organizations that are answering the call for disability rights.
“The Seahawks and Mariners tried handhelds for several years,” he said. “But after explaining to them why handhelds won’t work, they both switched to scoreboard captioning. The Seahawks profusely apologized for the difficulties we initially encountered. I think the reason you haven’t seen more cases filed is that when organizations are asked to do this and investigate the state of the law, they realize this is the right thing to do from a legal perspective, and they comply rather than waste time and money in court.”
Does the Cost of Complying Constitute an Undue Burden on a Team?
Sports facilities are subject to Title III of the ADA, which guarantees individuals with disabilities the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . . .” Title III imposes a variety of more specific obligations and prohibitions upon Places of Public Accommodation. Of relevance here is an obligation to provide auxiliary aids and services to the extent necessary to achieve effective communication, unless doing so constitutes an undue burden or results in a fundamental alteration of the goods and services that they provide (42 U.S.C. §12182(b)(2)(A)(iii); 28 C.F.R. §36.303).
“As far as affordability is concerned, we take the firm position — and I think DOJ does likewise — that affordability is related to gross revenue, not net revenue,” Waldo said. “The reason for that is that providing access for people with disabilities is a cost of doing business, like the light bill. If affordability related to net revenue, the result would be that disability access would go to the bottom of the pile of priorities.”
Connecting it to net revenues would make it easier for professional sports teams to satisfy the “undue burden” requirement, said Waldo. “Applying this to college football level, schools in the Power 5 conference would also have a difficult time making this showing.”
Besides, the colleges that Waldo alludes to, like the pros, may already be moving in that direction.
Carol Studenmund, the founder and president of LNS Captioning, the leader in the industry, is seeing evidence of such improvements.
“We provide in-stadium captions for four NFL teams: the Giants and the Jets at MetLife Stadium, the Saints at the Mercedes-Benz Superdome, and the Seahawks at CenturyLink Field,” she said. “Our captions also show in the Moda Center for Portland Trail Blazer games and the Verizon Center for Washington Capitals and Wizards games.
“We’re also working with several college teams, covering a variety of sports. We think it’s time for the leagues to start thinking about establishing best practices for ADA-required captions. For example, the Knight Arena at the University of Oregon established a rule that when the crowd is big enough to require certain parking restrictions, it means the crowd is also big enough to warrant captioning without needing a request from a patron.”
