Feldman v. Football
| Decision Date | 25 March 2011 |
| Docket Number | No. 09-1021,No. 09-1023,09-1021,09-1023 |
| Parties | SHANE FELDMAN; BRIAN KELLY; PAUL SINGLETON, Plaintiffs - Appellees, v. PRO FOOTBALL, INCORPORATED; WFI STADIUM, INCORPORATED, Defendants - Appellants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
Appeals from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:06-cv-02266-AW)
Before MICHAEL and DAVIS, Circuit Judges, and James A. BEATY, Jr., Chief United States District Judge for the Middle District of North Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion. Judge Beaty wrote a separate opinion dissenting in part.
ARGUED: Roger William Yoerges, STEPTOE & JOHNSON, LLP, Washington, D.C., for Appellants/Cross-Appellees. Joseph B. Espo, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Appellees/Cross-Appellants. ON BRIEF: Kathryn J. Gainey, STEPTOE & JOHNSON, LLP, Washington, D.C., for Appellants/Cross-Appellees. Marc P. Charmatz, Rosaline Crawford, NATIONAL ASSOCIATION OF THE DEAF, Law And Advocacy Center, Silver Spring, Maryland, for Appellees/Cross-Appellants.
Unpublished opinions are not binding precedent in this circuit.
Defendants Pro Football, Inc. and WFI Stadium, Inc. operate, respectively, the Washington Redskins football team and FedEx Field, where the Redskins play home games. Plaintiffs are three individuals who are deaf or hard of hearing and who regularly attend Redskins games at FedEx Field. Plaintiffs argue that the Americans with Disabilities Act (ADA) obligates defendants to provide auxiliary access to the content of broadcasts from FedEx Field's public address system. Soon after plaintiffs filed their complaint, defendants captioned most of the aural content to which plaintiffs seek access. The district court nevertheless held that the case was not moot and granted summary judgment to plaintiffs.
The district court's holding rested in part on the fact that defendants were not providing plaintiffs with access to the lyrics to music played over the stadium's public address system. Defendants appeal the district court's summary judgment ruling that the ADA requires them to provide plaintiffs with auxiliary access to the aural content broadcast over the public address system, including music lyrics. They ask this court to decide whether deaf and hearing-impaired game spectators require access to music lyrics in order to fully and equally enjoy defendants' goods, services, privileges, and facilities. Whatever the poetic merit of the lyrics and their relevance tothe sport of football, 1 we agree with the district court that the music played over the public address system during Redskins home games is part of the football game experience that defendants provide as a good or service, and that the ADA requires full and equal access to the music lyrics. Accordingly, we affirm the district court's declaratory judgment requiring defendants to provide auxiliary access to the aural content broadcast over FedEx Field's public address system. We also affirm the district court's holding that plaintiffs' complaint cannot be construed as requesting auxiliary access to aural content that is not broadcast over the public address system, including the content of a separate radio program.
Plaintiffs Shane Feldman, Brian Kelly, and Paul Singleton are Maryland residents who regularly attend Washington Redskins football games at FedEx Field in Landover, Maryland. They are deaf or hard of hearing to a degree that renders them unable to benefit from assistive listening devices. DefendantPro Football, Inc. is a Maryland corporation that owns and operates the Redskins. Defendant WFI Stadium, Inc. is a Delaware corporation that owns and operates FedEx Field, where the Redskins play home games. FedEx Field seats more than 91,000 fans.Defendants have always provided assistive listening devices to spectators who are hard of hearing, but the 2006 football season marked the first time that defendants captioned announcements made over the stadium's public address system. This change was prompted by communications between defendants and plaintiff Feldman. Feldman first emailed defendants in 2003, introducing himself as a season ticket holder who was deaf and unable to benefit from assistive listening devices. Feldman explained that during the games he was "often at a loss" when the referees called penalties and that he was unable to catch the number of the player who just made a play. J.A. 94. His email also mentioned an incident involving pepper spray during a 2002 night game when he was unable to understand the stadium's emergency announcement. Feldman asked defendants to consider captioning the Jumbotron at FedEx Field.
Feldman maintained correspondence with defendants in 2004 regarding possible auxiliary aids. Defendants did not want to caption the Jumbotron because doing so would take up one-third of the screen, significantly reducing the remaining videoportion. As an alternative, defendants proposed hand-held captioning devices. Feldman responded that spectators who are deaf or hard of hearing would not be pleased with these devices, in part because of reported time delays between announcements and the appearance of the captions and the nuisance of having to glance repeatedly from the device to the field. In February 2006 the National Association of the Deaf (NAD), on behalf of Feldman, wrote to defendants and explained that as a place of public accommodation under the ADA, FedEx Field had a legal obligation to afford full and equal enjoyment of its goods, services, facilities, and privileges to spectators who are deaf or hard of hearing. The NAD demanded that defendants caption the stadium's public address system announcements on the "scoreboards/Jumbotrons." J.A. 101. Specifically, the NAD demanded captioning of "anything that is said by the referee, the public address announcer, or anyone else using the public address system." Id.
Plaintiffs sued defendants on August 31, 2006. The complaint alleged that defendants were violating Title III of the ADA by refusing to caption the Jumbotrons and video monitors at FedEx Field. Plaintiffs requested a declaratory judgment that defendants were violating the ADA and an injunction requiring defendants to "provide individuals with disabilities equal access to the benefits of [defendants'] facilities, programs, services, and activities." J.A. 16. Specifically, plaintiffs asked the court to order defendants to "provide and display captioning on the Jumbotrons and video monitors at FedEx Field for all announcements made over the public address system, including all of the plays that just occurred, all of the penalties called, safety and emergency information, and any other announcements made over the public address system." Id.
The first Redskins home game of the 2006 season was on September 11, 2006. During the first game the only content broadcast over the public address system that defendants captioned was an emergency evacuation video. However, defendants started captioning game information shortly thereafter at the third Redskins home game on October 15, 2006, just over a month after being served with the complaint. After receiving Feldman's criticisms of the hand-held captioning devices in 2004, defendants had explored other options. They decided to provide most of the captioning on FedEx Field's two light-emitting diode ribbon boards (LED boards) rather than on the Jumbotrons. The LED boards are located on each side of the stadium at the fifty-yard line and are visible from almost every seat. Defendants hired a stenographer, Stephen Clark, as an independent contractor to provide the captioning.
During the October 15 home game defendants captioned a considerable amount of game information and other announcements.On the LED boards defendants captioned: (1) a pre-game announcement encouraging the fans to cheer; (2) after each play an announcement stating the type of play, the names of the key players involved, the number of yards gained or lost, the yard line location of the ball, the down, and the number of yards remaining until first down; (3) two-minute warning announcements and announcements that the quarter had ended; (4) the referee's penalty explanations; (5) announcements that cheerleaders were entering the field; (6) announcements regarding check presentations and other non-musical entertainment during breaks and halftime; (7) public service announcements and advertising; and (8) the announcement of the game's end, along with the final score and information regarding the next home game. On the Jumbotrons located in the stadium bowl, defendants captioned an emergency evacuation video played before the game. Additionally, defendants provided captioning in the concourse areas of the stadium so that spectators who are deaf or hard of hearing would not lose track of what was occurring on the field when using the restroom or buying refreshments. The concourse areas contain around 150 televisions, half of which caption the network broadcast from the field while the other half display the Jumbotron video feed. Defendants continue to provide this captioning, and they represent to this court, just as they did to the district court, that they will do so indefinitely.
Three months after filing their complaint, plaintiffs retained expert Lawrence Goldberg. Goldberg founded the National Center for Accessible Media, a research center dedicated to making new media technologies accessible to persons with disabilities. Goldberg attended a Redskins home game in December 2006 and wrote a report that analyzed the captioning that defendants were providing and recommended captioning of additional aural programming, including lyrics to songs played for entertainment and a radio program (the Red Zebra program) that is broadcast in the concourse areas and is separate from the public address system...
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