By John F. Waldo, J.D.
In the case of Feldman v. Pro Football, Inc., 579 S.Supp.2d 697 (D. Md. 2008), aff’d, 419 Fed.Appx. 381, 2011 WL 1097549 (4th. Cir, March 25, 2011), on remand ___ F.Supp.2d ___, 2011 WL 3835635 (D. Md., Aug. 30, 2011), the Washington Redskins were ordered to make all information delivered aurally to patrons at the stadium accessible to patrons with hearing loss. The court ruled that those patrons are entitled to “full and equal enjoyment,” not just of the game itself but of the entire spectrum of entertainment being presented.
In the wake of the Feldman case, the National Association of the Deaf, which brought that case, sued Ohio State University and the University of Kentucky, asking that their football stadiums caption the public-address announcements. OSU signed a settlement agreement to provide captioning at its football stadium, and to offer captioning at its basketball arena upon request. The University of Kentucky case remains pending.
This is not an issue that professional or major-college teams will likely be able to avoid. Aural accessibility at high-visibility facilities like athletic venues is an important issue to advocates for people with hearing loss such as NAD and the author, because we think there is considerable value to having people see what such accessibility looks like. The very modest cost of captioning – literally pennies or fractions thereof per attendee – makes it unlikely that any major-league or major-college team can raise an “undue burden” defense. And solid precedent in a case where fees are available can make these cases attractive to attorneys in general.
This article first looks at the legal, factual and practical conclusions that can be drawn from the Feldman case. Second, the article looks at the decisions sports administrators will need to make, and suggests preferred solutions. Third, we look at a resolution with the University of Oregon that we believe embodies what might be called “best practices.”
1. The Feldman case, legally, factually and practically.
The Redskins initially contended that patrons can fully enjoy a football game by observing the action on the field. The court rejected that argument out of hand. It noted that the team provides aural information and entertainment “for a reason,” and that whatever is believed to enhance the total experience for hearing patrons should be made available to deaf patrons. The Redskins were directed to put such information into written form and display it visually in the form of captions.
Legally, the case rejected the argument that any of the information provided to hearing fans over the public-address system is unimportant, and need not be provided to fans with hearing loss. Factually, the case indicated that providing live captioning is not very expensive. Just weeks after suit was filed, the Redskins installed two ribbon boards to display captions. According to the court, the boards and installation only cost about $5,000, and the per-game cost of a captioner was only about $550.Practically, the case should alert decision-makers that providing captioning immediately after being sued, as the Redskins did, doesn’t relieve the entity of its obligation to pay attorneys’ fees. Indeed, the Redskins spent three years arguing at the trial and appellate levels that their post-suit actions mooted the case and about the relatively minor issue of song lyrics all in an unsuccessful effort to avoid paying relatively modest attorneys’ fees, and in so doing incurred obligations to pay far greater fees.
A canvass done in 2010 by attorneys for the NAD found only 25 professional football and baseball venues that offer any type of captioning. Captioning at basketball arenas is evidently even less common. Those facilities and teams that do not offer captioning now may be well advised to get out ahead of this issue before being handed a summons and complaint.
2. Accommodating Fans with Hearing Loss.
As the Feldman case notes, the Americans with Disabilities Act (ADA) requires affected entities to provide “auxiliary aids and services” where those are necessary to afford individuals with sensory disabilities the “full enjoyment” of the services being offered. “Auxiliary aids and services” are defined by example as “effective methods of making aurally delivered information available to individuals with hearing impairments,” 42 U.S.C. § 12102(1)(A). That term includes but is not limited to captioning – it also encompasses alternatives to captioning such as volume-enhancing assistive-listening devices. So the twin questions are, what constitutes an effective accommodation, and who gets to decide.
The question of what accommodation to provide can be difficult, because the needs of individuals with hearing loss vary. Simple volume-enhancing Assistive Listening Devices (ALDs) have limited benefit. The most common form of hearing loss, though, is high-frequency loss. A person with such a loss can hear voices, often at a normal volume, but cannot understand consonants, which are high-frequency not fully voiced. Because volume is not the problem, simple amplification is not the solution, especially when there is a significant level of background noise.
Induction loops – either individual loops that fit around the user’s neck or loops that encircle a seating section or an entire building – can work with sophisticated hearing aids or cochlear implants, and thus can be very useful for people with those devices. But like ALDs, loops become less effective where there is a lot of background noise, and are of no use to people like the plaintiffs in Feldman who are totally deaf.
One accommodation sometimes attempted at major venues when the game is being televised is to provide a portable television that will let the fan view the captioned broadcast. While imaginative and well-intended, that effort misses the mark. The captions are not of the public-address announcements, but rather of the play-by-play. Someone who sees only those captions is not participating in the same experience as others in the stands – the basic rationale for attending the game in person – but is essentially participating only in the very different television experience. Moreover, captioning the television program will generally ignore or significantly truncate anything that happens on the field at halftime or before the game.
The best approach to satisfying ADA accessibility obligations is captioning – converting aural information to written form and displaying it visually. Captioning is an effective communication across the full spectrum of hearing loss, and comes as close as possible to replicating the full experience being offered to hearing patrons.
Once an organization decides to offer captioning, it must select the mode in which the captions are displayed. A number of organizations use individual hand-held display units that show the captions on a cell-phone-like device. Other organizations have chosen to display the captions on a scoreboard – either the main scoreboard or separate ribbon boards.
The user community has indicated a very strong preference for scoreboard captioning. Objections to the hand-helds include the delay and hassle of checking the devices out and back in, the fact that they sometimes disconnect and are hard to reconnect, the fact that they may not work well in rainy conditions, and the fact that the user is required to look back and forth from the devices to the field. . It is not always easy to juggle food, drink and the device when trying to applaud. The purported benefit of hand-helds is that the user can take them wherever he or she goes, but that is a mixed blessing at best – the fact that the devices not only can but must be taken to the rest rooms creates some obvious issues.
Once a method of accommodation is selected, the next question is, for what events should the accommodation be offered? Assuming that the availability of the accommodation is well publicized, there appears to be no real objection to making the accommodation available upon request. While reasonable notice can be required, the entity must ensure that the required notice period is not longer than the ticket-availability period; that is, the entity can’t require two weeks’ notice for a playoff game where tickets aren’t available longer than a week in advance. And it is also vital that the mode of notice be one that is accessible to people who will be making the request. For people with hearing loss, it is not effective to require that the request be made by telephone – email requests should be sufficient.
College administrators may also need to decide what events to offer. While it is tempting to examine the question of “undue burden” on an event-specific basis, and decline to offer accommodations for low-attendance events and those for which no admission is charged, that approach is clearly impermissible. The “undue burden” decision must be made in light of the overall budget of “the agency,” which is at least the athletic department if not the entire university. So just as football revenue may subsidize low-turnout sports, so the overall revenue from athletics must be considered when it comes to providing accommodations for fans of low-revenue sports.
On the other hand, the ADA does not entitle persons with a disability to services not otherwise provided. If there is no aural information provided to hearing fans, such as at a golf tournament, there is no entitlement to captioning for hearing-disabled fans. However, if a public-address announcer introduces the golfers on the first tee, then there should be some form of accommodation at that location.
3. The University of Oregon, and Best Practices.
A three-year effort spearheaded by sports fans in Eugene, Oregon, has resulted in a voluntary arrangement, undertaken without any threat of litigation, that we believe sets the standard for accessible athletic venues.
U of O originally offered captioning using hand-held devices. The fans tested those, and explained in detail why they believed those devices were ineffective. U of O then agreed to consider scoreboard captioning, but did not know how that could be accomplished. LNS Captioning (see sidebar) offered a free demonstration of how the vertical dimension of the Jumbotron replay picture could be shrunk slightly, leaving room for two lines of captioning below. Once the U of O officials saw that this was possible, they enthusiastically agreed to provide scoreboard captioning at their football stadium and basketball arena. Subject to working out technical issues, scoreboard captioning will also be available at the baseball and track facilities.
U of O has made a two-step commitment that we believe is “state of the art.” It will automatically provide captioning at all events where attendance is expected to exceed 6,500, which will be all football and men’s basketball games. It will provide captioning upon request made with five business days’ notice to any other event where the public-address system is in use. (It has already received and responded favorably to requests that the women’s basketball season be captioned). Further details and technical information may be available from assistant athletic director Mike Duncan or IT Director Chris Butler.
Sports fans with hearing loss are no longer willing to sit in silence. Real-time captioning can allow such fans to be part of the multi-sensory event that is a professional or college game. Rather than waiting for a demand or a lawsuit, which the Feldman case suggests would likely succeed, sports administrators should proactively apply best practices to bring those fans into the action.
John Waldo is a solo practitioner in Portland, Oregon, whose practice focuses on the legal issues arising out of hearing loss. His website is www.hearinglosslaw.com. He received his J.D. from the University of Utah in 1981, and is admitted to practice in Washington, Texas and Utah. He has a severe hearing loss, and is an avid sports fan. He may be contacted at johnfwaldo@hotmail.com
