By Anita M. Moorman
On October 6, 2008 the Supreme Court denied certiorari in a unique case raising legal issues surrounding USOC funding for Paralympic athletes (Hollonbeck v. United States Olympic Committee, __ U.S. __, 129 S. Ct. 114 (2008). The Supreme Court’s denial of certiorari lets stand the 10th Circuit decision upholding the district court’s dismissal of Hollonbeck’s and his co-plaintiffs claims under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (Hollonbeck v. United States Olympic Committee, 513 F.3d 1191 (10th Cir. 2008). The 10th Circuit decision is the first to explore whether § 504 of the Rehabilitation Act requires the USOC to afford Paralympic athletes with equal access to certain athlete support programs that are available to Olympic and Pan American athletes.
Plaintiffs are current and former Paralympic athletes. They sued United States Olympic Committee (USOC) and alleged that the USOC’s failure to provide them with resources and benefits afforded Olympians generally constituted disability discrimination under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., and the Rehabilitation Act of 1973. The U.S. District Court for the District of Colorado dismissed both the ADA and § 504 claims. Hollonbeck appealed the dismissal of their § 504 claim to the 10th Circuit Court of Appeals. Since Hollonbeck did not appeal the dismissal of the ADA claims, the 10th Circuit did not review or affirm that component of the District Court’s decision.
The resources and benefits at issue involved a number of different support services programs including health insurance, training services, facility priority, medal incentive programs (hereinafter referred to as “Athlete Support Programs”). The Athlete Support Program is available only to Olympic and Pan American athletes. These benefits or services are not available to Paralympic athletes.
Section 504 provides that “no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving federal financial assistance . . . “ 29 U.S.C. § 794(a). To establish their claims, Hollonbeck et al. were required to prove that (1) they were disabled under the Act, (2) they were “otherwise qualified” to participate in the program; (3) the program receives federal financial assistance; and (4) the program discriminates against them. It was undisputed that the Hollonbeck et al. satisfied the first and third elements – they are disabled elite athletes and the USOC received federal financial assistance. Thus, the arguments surrounded whether they were “otherwise qualified” to participate in the program and whether the program discriminates against them. So naturally, defining the “program” in question was a critical step in the analysis of the district court and the court of appeals.
Hollonbeck argued that pursuant to § 504 the USOC may not discriminate against athletes with disabilities in the administration of the Athlete Support Program. Hollonbeck further argued that under the Amateur Sports Act, the USOC must support all amateur athletes and that that duty combined with the mandate of § 504 requires the USOC to provide Paralympic Athletes with equal access to the Athlete Support Program as that provided to Olympic and Pan American (i.e. non-disabled) athletes. The USOC defended its Athlete Support Program arguing that (1) the Amateur Sports Act does not impose a duty upon the USOC to provide Paralympic athletes with equal support services and programs; and (2) its Paralympic program is a separate program from the Olympic and Pan American programs; and (3) within each of those programs, the USOC does not discriminate based on disability. In other words, if a disabled athlete qualified for an Olympic or Pan American team, he or she would be provided the exact same benefit as every other Olympic or Pan American athlete. Moreover, all Paralympic athletes are treated equally within the Paralympic program. The 10th Circuit adopted the analysis offered by the USOC, although it was not unanimous. Judge Holloway wrote a separate dissenting opinion. Judge Kelly wrote the majority opinion joined by Judge Holmes.
In its decision, the 10th Circuit reasoned that the USOC’s three programs (Olympic, Pan American, and Paralympic) were separate programs and should only be compared considering the significant distinctions between each program in purpose, scope, success, and all other relevant differences. Hollonbeck had suggested that an institutional comparison similar to that used in a Title IX analysis was appropriate rather than the separate program analysis used by the district court. However, the court of appeals held that § 504 analysis applied to the “individual programs” under the USOC’s umbrella, thus Hollonbeck et al. must show that they are otherwise qualified for the Athlete Support Program and that the program discriminates against them. Since to be eligible for the Athlete Support Program, one must be an Olympic or Pan American athlete, the court concluded that Hollonbeck et al. were not otherwise qualified because none of them were Olympic or Pan American athletes.
Hollonbeck had also argued that being a member of an Olympic team was not an essential eligibility requirement to qualify for the Athlete Support Programs since the benefits could easily be extended to Paralympic athletes. The 10th Circuit suggested that defining eligibility criteria was a discretionary act of administrators, and absent discrimination, §504 was not an appropriate vehicle to compel such discretionary act.
Hollonbeck next argued that excluding Paralympic athletes from the Athlete Support Programs was discriminatory, both facially and by proxy. Hollonbeck essentially argued that since all Paralympic athletes are disabled, and all Paralympic athletes are excluded from the Athlete Support Program, it follows that the Athlete Support Program excludes athletes based upon their disability. In rejecting this argument, the 10th Circuit noted that the USOC’s policy contains no explicit requirement of not being disabled and that disabled athletes are eligible to become Olympic athletes (the court mentions a few disabled athletes who competed in the Olympics).
Lastly, the 10th Circuit rejected Hollonbeck’s final argument that the USOC Athlete Support Program effectively screens out amateur athletes with disabilities. The 10th Circuit interpreted this argument as a disparate impact claim and again refused to consider USOC’s programs as a whole. The court again cautioned that courts are not free to rewrite eligibility requirements, but must instead analyze whether a plaintiff is otherwise qualified against the requirements set up by the covered entity.
In his dissent, Judge Holloway agreed with Hollonbeck that the majority opinion’s reasoning was flawed and circular. Hollonbeck had argued that the USOC developed various support programs for elite amateur athletes as required in the ASA, selectively excluded certain athletes from access to those programs, namely all disabled athletes. And that the “program” for purposes of §504 analysis is the Athlete Support Program – not the Olympic program, or the Pan American Program, or the Paralympic Program. Judge Holloway agreed reasoning that the plain language in § 504 compels such an approach.
Section 504 defines “program or activity” to include “all of the operations of” the covered entity. 29 U.S.C. § 794(b). Hollonbeck et al. were qualified to participate in the programs or activities of the USOC because they are elite Paralympic athletes whose competition is among the operations of the USOC. The dissent sharply criticizes the majority decision for ignoring the broad definition of “program or activity” expressly adopted by Congress and assuming without explanation why a separate programs analysis was used.
The dissent further reminds that § 504 prohibits not only intentional discrimination, but also the use of criteria of methods of administration that have the effect of subjecting people with disabilities to discrimination. (See, 28 C.F.R. § 41.51(b)(3)(i) and Alexander v. Choate, 469 U.S. 287 (1985). Lastly, Judge Holloway also challenged the majority’s view that limiting eligibility for the Athlete Support Programs to Olympic athletes was not a proxy for discrimination against disabled athletes. The majority had noted that there was nothing in the eligibility criteria for the Olympic program that excluded disabled athletes from seeking access and that indeed some disabled athletes had earned a spot on the Olympic team in the past. However, the dissent concluded that the eligibility criteria was a proxy for discrimination noting that the USOC provided four examples in 100 years where disabled athletes competed in the Olympic or Pan American games – thus the exceptions prove the rule that awarding benefits only to athletes training for the Olympics or Pan American Games to the exclusion of Paralympic athletes discriminates against the disabled. The dissent finally states “. . . the fact that a practice does not discriminate against every member of a protected class is not sufficient to show that members of the protected class have the meaningful access to which they are entitled” (citing, Lovell v Chandler, 303 F. 3d 1039 (9th Cir. 2002).
Anita Moorman teaches sports law at the University of Louisville, where she is an Associate Professor in the school’s Department of Health & Sport Sciences.
