By Jeff Birren, Senior Writer
Chicago’s beloved “Cubbies” play in Major League Baseball’s second oldest stadium. Wrigley Field began to host the Cubs in 1916. It was quaint but lacked modern amenities. The Cubs began to renovate the stadium in 2014. An Americans with Disabilities Act (ADA) lawsuit followed. After five years of litigation in the United States District Court, the Court conducted a bench trial in April 2023 and, recently, ruled for the Cubs, Cerda v. Chi. Cubs Baseball Club. However, the other cleat may drop in another courtroom.
Background
The Cubs faced a dilemma early in the Twenty-First Century. The stadium could not compete with rival teams. Wrigley Field, however, is also both a Chicago Landmark and a National Historic Landmark. So, the Cubs could either follow the lead of other teams and build a brand-new stadium or attempt to renovate Wrigley Field. Any remodeling would face daunting challenges. For one thing, renovations could only occur during the offseason. Furthermore, the team had to preserve the historic features while complying with the ADA and increase revenue streams.
Renovation began during the 2014-2015 off season. Work was done on the left field corner that added new concession stands and restrooms, structural steel, and improvement to the stadium façade. The bleachers were reconstructed, adding elevators, concession stands and accessible seating in the left and right field bleachers. “Jumbotron” scoreboards were installed above the bleachers. The 2015-2016 renovations were concentrated in the home plate area, adding more structural steel, concrete, concessions, and restrooms. Both the concession stands and restrooms were made more accessible.
The Cubs finally won the World Series in 2016, after a mere 108-year wait. This delayed the next round of renovations, but undoubtedly few Cubs’ fans cared. The shortened construction period added more structural steel, replaced old concrete, installed club seats, more restrooms, and concessions—those two items do seem linked— and lifts to make the new sections more accessible. The 2017-2018 phase brought more of the same, including improved accessibility of elevators, concession stands, restrooms, again, and the relocation of some accessible seating.
The Litigation Begins
David F. Cerda filed his initial seven-page complaint on December 15, 2017. Cerda has Duchenne Muscular Dystrophy and uses a power chair for mobility. During games he must periodically lay flat to prevent sores and allow for necessary blood flow. In his complaint, Cerda claimed that the wheelchair seating area did not meet ADA standards. He is represented by his father, David Cerda of the Cerda Law Firm. The Cubs are represented by Seyfarth Shaw.
Cerda attended Cubs’ games with his godfather, Joseph Ferrie, who is a professor of economics at Northwestern. Together, Ferrie and Cerda enjoyed sitting in the old right field bleachers or behind home plate in sections that were both altered by previous renovations. Since 2016, the right field section is enclosed and is sold only to the large groups. The accessible area behind home plate no longer exists as it did in the past.
Still, the renovation project continued. In 2018-2019, once again, concession stands and restrooms were added, in addition to an elevator to the upper deck, increased room for wheelchair mobility, and a majority of the accessible seats. The Cubs also minimized the distance between the accessible seats and the vertical accessible routes, concession stands and restrooms. Renovation continued, and apparently was completed in March 2023.
Meanwhile, Cerda’s complaint continued to crawl through the court. In August 2019, the Court partially granted the Cubs motion to dismiss the Third Amended Complaint. Cerda could proceed “with his challenge to the number of Accessible Seats and horizontal dispersion for Accessible Seats at Wrigley Field.” However, his “challenge to Accessible Seating in club/luxury box locations or vertical dispersion” claims were dismissed. The Court also dismissed without prejudice his claim under the Rehabilitation Act and denied the Cubs’ motion for a stay.
Three years later, the Court denied the Cubs’ motion for summary judgment on the ADA seating claim, dismissing an allegation concerning the 2018 seating map. The Cubs maintained that the map was ADA-compliant, but Cerda’s brief did not respond. The Court also granted summary judgement on the claim that a playoff ticket lottery did not meet ADA regulations. Cerda’s opposition was three lines and failed to cite any legal authority. Consequently, both claims were dismissed with prejudice due to “insufficient” briefing.
Bench Trial
The Court held a five-day bench trial in April 2023. Cerda’s remaining claims were that the Cubs discriminated against him by denying him the full and equal opportunity to enjoy its services because Wrigley Field does not have the minimum number of accessible seats and because those seats are not horizontally dispersed around the field of play. Cerda and Ferrie testified, and introduced photographs, but Cerda did not offer an expert. Ferrie took measurements and offered opinions, but not as an expert, and the Court did not treat him as such. Cerda’s counsel also cited “sparse” controlling case law, and his proposed findings of fact were based on evidence that was “excluded.”
The Cubs presented a more formidable testifying lineup. It included Patrick Meenan, Vice President of Operations; Carl Rice who led the renovation project; Anuj Patel, Senior Director of Ticket Operations; and expert Doug Anderson, who had been on the United States Architectural and Transportation Barriers Compliance Board when its members drafted the 2010 ADA Standards for Accessible Design, and who chaired the Access Board when the Department of Justice adopted the 2010 Standards regarding the 300 level seats at Wrigley Field. Anderson also took photographs that were introduced.
Cerda moved to have the Court conduct a site visit during the trial. The Cubs did not oppose the motion and so the judge went to Wrigley Field. The Court viewed the accessible seating areas, and this “impressed upon the Court the variety of locations and views on offer for patrons who require accessible seating, as well as that ‘friendly confines’ feeling that is unique to Wrigley Field.”
Many of the terms used in the ADA are defined in the “2010 Standards” and the Court constantly referred to those Standards to determine what various words and phrases meant. Despite its importance as national policy, the ADA does not always define its terms. The Court thus repeatedly turned to dictionaries to discern the definition of “component,” “constituent,” “architectural,” “element,” “angle” and “assembly area”. For those litigating such cases where terms are not distinctly defined, it would be helpful to have a dictionary handy.
Conclusions of Law
The Court went through each contested section of the stadium and analyzed what that area was like prior to the renovation, what it was after the renovation, and whether the new area was consistent with the ADA. It did so in such specific detail that only a passionate Cubs fan with intimate knowledge of the stadium will enjoy that portion of the decision.
Strike One—Requisite Number of Accessible Seats
The first claim was whether Wrigley Field has the requisite number of accessible seats. It currently has 39,510 total seats, excluding areas that are not ticketed and sold as individual seats. According to the 2010 Standards, Wrigley Field must have 209 accessible seats. The Cubs argued that it has 225 such seats. Cerda disagreed. One disputed section is the center field “Batter’s Eye.” Cerda and Ferrie claimed it is too dark to see much. It has 15 accessible seats, so after the Court subtracted those 15 for the purpose of argument, it still meant that Wrigley Field has 210 seats, one above the required minimum.
Strike Two—Measurement of Wheelchair Spaces
Another dispute concerned the measurement of wheelchair spaces. ADA requires such spaces entered from the rear to be 36” wide and 48” deep. Ferrie took measurements, as did the Cubs’ expert, Anderson. The Court stated that Cerda had submitted “no credible evidence.” Therefore, the Court used the measurements supplied by Anderson. The wheelchair sections have angled railings in certain sections. The “question at hand boils down to this: can the ground space underneath the angled railings be included when measuring the depth of a wheelchair space for purposes of ADA compliance?” The 2010 Standards did not address this issue. Those in wheelchairs can stretch out their legs under the railing, as Mr. Cerda does. After discussing this issue for over three pages, the Court ultimately concluded that the disputed space could be included in the measurements, and therefore met ADA’s requirements.
Strike Three—Viewing Areas of the Accessible Seats
Another dispute arose over the quality and dispersal of the viewing areas of the accessible seats. The 2010 Standards requires those areas to offer choices that are consistent with or better than viewing areas available to other fans. Ferrie testified that the accessible seats were among the worst viewing areas in the stadium. Perhaps, but ask ten baseball fans: What is the best place to see a baseball game and one is likely to get at least twenty different answers. Wrigley Field has low, overhanging sections that also block the view of fans in the deck below. There are structural columns throughout the seating areas that block the view. Some may wish to be close to the action, but this usually means that some of the field, and fly balls, will not be visible.
In some standing room sections patrons press forward and block of the view of the accessible seats, but also other seats. Ferrie complained about this, but when it came to the Batter’s Eye area the Court found, “Plaintiff makes the reverse complaint,” that is, he was shut off from other fans. The Jumbotrons and other scoreboards are not always visible, but that, too, applies to other seating areas. What is “best” or “worst” seat is subjective. [Note: In Boston fans pay hundreds to sit on stools on the Green Monster in left field. Others willingly spend that much just to stand at the very back of that section.]
Another area of contention was whether the accessible seats were horizontally dispersed around the field of play. That term is not defined in the 2010 Standards, so the Court used the Oxford English Dictionary. The Cubs’ expert Anderson testified that not only were the accessible seats dispersed, but that there were “multiple locations” in each quartile of the field. Accessible seats were also available on various levels of the stadium. The Cubs thus prevailed on this issue. The Court found that Cerda failed to prove the Cubs “by a preponderance of the evidence” that there were too few accessible seats or that they were not sufficiently horizontally dispersed. As a result, the Court entered judgment for the Cubs.
Next Up: The Clean Up Hitter
Cerda may have struck out, but the Cubs now face a far more formidable batter: The United States Department of Justice (DOJ). It may offer solace to Cerda that in 2019 the DOJ initiated an ADA compliance review, which was delayed due to the pandemic. However, in July 2022, the DOJ sued the Cubs for violating the ADA. Discovery has begun. In Cerda, Anderson was accepted as an expert, but the Court found it “doubtful” that his opinions represented the “‘official position’ of the Access Board,” citing case authority that “the speech of a mid-level official and an informal memorandum do not constitute” the official position. Instead, the official position must emanate from “actors and vehicles ‘understood to make authoritative policy in the relevant context.’” The DOJ will have no problem finding such “actors,” nor will it show up without a team of experts. Unlike Cerda’s rejected measurements, the DOJ will get that right as well. It is unlikely that the DOJ will abandon claims due to a failure to respond in motion practice, nor provide “insufficient” legal analysis.
Conclusion
Cerda’s results are consistent with a similar ADA challenge to New Orleans’ Superdome. The decision in that case was upheld by the Fifth Circuit, so Cerda is certainly not an outlier. In today’s world, clubs are constantly competing on the field athletically, and off the field economically, which leads to a new stadium, and constant renovations to existing facilities. For those with historic facilities the ADA challenges are formidable.
Clubs are routinely sued if they do make changes and sued if they do not make changes desired by ADA plaintiffs. The ADA is not going away nor is the litigation it spawned. Cerda’s loss demonstrates that an ADA counsel must effectively use the law and the tools that it provides. An economist with a tape measure is not enough. There is little point in suing, but then abandoning causes of action during motion practice, nor do arguments without citations impress a judge. The Cubs now face challenges brought by the DOJ that never left the dugout in Cerda. More ADA renovation may be coming. There yet may be no joy in Cubville.
