Shepherd v. U.S. Olympic Committee

• Decision Date: 16 November 2006
• Docket Number: Civil Action No. 99-cv-2077-JLK.,Civil Action No. 03-cv-1364-JLK.
• Citation: 464 F.Supp.2d 1072
• Parties: Mark E. SHEPHERD, Plaintiff, v. UNITED STATES OLYMPIC COMMITTEE, a corporation, Defendant. Scot Hollenbeck Jose Antonio Inguez Jacob Walter Jung Ho Heilveil, and Vie Sports Marketing, Inc., a Georgia corporation, Plaintiffs, v. United States Olympic Committee, a federally chartered corporation, and U.S. Paralympics, Inc., f/k/a United States Paralympic Corporation, a Colorado non-profit corporation, Defendants.
• Court: U.S. District Court — District of Colorado

464 F.Supp.2d 1072

Mark E. SHEPHERD, Plaintiff, v. UNITED STATES OLYMPIC COMMITTEE, a corporation, Defendant.

Scot Hollenbeck Jose Antonio Inguez Jacob Walter Jung Ho Heilveil, and Vie Sports Marketing, Inc., a Georgia corporation, Plaintiffs, v. United States Olympic Committee, a federally chartered corporation, and U.S. Paralympics, Inc., f/k/a United States Paralympic Corporation, a Colorado non-profit corporation, Defendants.

Civil Action No. 99-cv-2077-JLK.

Civil Action No. 03-cv-1364-JLK.

United States District Court, D. Colorado.

November 16, 2006.

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Amy Farr Robertson, Timothy Patrick Fox, Fox & Robertson, P.C., Darold W. Killmer, Killmer, Lane & Newman, LLP, Michael Wayne Breeskin, Arc of Denver, Inc., Kevin William Williams, Colorado Cross-Disability Coalition, Denver, CO, for Plaintiffs.

Anne Hall Turner, John William Cook, Hogan & Hartson, LLP, Edward John Butler, Nancy Dawn Webber, Raymond Myles Deeny, Sherman & Howard, L.L.C., Colorado Springs, CO, Christopher Todd Handman, Hogan & Hartson, LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' DISPOSITIVE MOTIONS RE ATHLETE CLAIMS

KANE, Senior District Judge.

I. INTRODUCTION

These disability discrimination actions brought by elite Paralympic wheelchair athletes push the margins of federal disability discrimination laws as applied to the United States Olympic Committee (USOC) and Congress' enactment of our system of international amateur athletic competition. Civil Action No. 99-cv-2077-JLK, brought by wheelchair basketball Paralympian Mark Shepherd, challenges the USOC's purported failure to provide him with the services, benefits and financial and other support routinely provided to his Olympic counterparts. Civil Action 03-cv-1364 asserts similar claims on behalf of elite wheelchair racers Scott Hollonbeck, Jose Antonio Iniguez and Jacob Walter Jun Ho Heilveil, as well as claims related to the USOC's marketing of U.S. Paralympic trademarks as they relate to Hollonbeck's marketing company Vie Sports.

According to the Plaintiff wheelchair athletes, the USOC was established by Congress to oversee matters pertaining to the selection, training and participation of elite disabled and non-disabled amateur athletes in international Olympic, Paralympic, and Pan-American competition. Charged with obtaining the best amateur representation possible in both Olympic and Paralympic events, Plaintiffs claim it is discriminatory for the USOC to provide them programming, privileges, and financial support inferior to that provided non-disabled athletes under the Olympic program. Plaintiffs claim the USOC also discriminates against elite Paralympic athletes by promoting, marketing and selling (or limiting U.S. Paralympic's ability to promote, market and sell) rights to the Paralympic trademark at a level below the level it promotes, markets and sells rights to the Olympic mark, which has the effect of limiting the funds available for Paralympic programs and limiting the public's awareness of the Paralympics and individual Paralympic athletes. Finally, Plaintiffs claim the statutory governance structure of the USOC discriminates against Paralympic athletes by denying them representation. It is these "Athlete Claims,"brought under § 504 of the Rehabilitation Act and Title III of the Americans with Disabilities Act, and the parties' cross-motions regarding their viability under the federal anti-disability discrimination laws, that are before me now for consideration.¹

Given the important and novel issues raised, I set the motions for oral argument. Argument has been completed, and my rulings follow.

A. Statutory Framework.

The ASA.

Congress originally chartered the United States Olympic Association in 1950 to organize and promote the United States' participation in international Olympic competition. The USOA became the USOC in 1954. In 1978, concerned with "`the disorganization and the serious factional disputes that seemed to plague amateur sports in the United States,'" Congress enacted the Ted Stevens Olympic and Amateur Sports Act ("ASA"), P.L. 95-606 (codified at 36 U.S.C. § 371 et seq. (1978)). San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522, 548-544, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987)(quoting from H.R. Rep. 95-1627 at p. 8)("1978 House Report"). The ASA charged the USOC with responsibility for coordinating amateur athletics for the Olympic and Pan-American Games and for resolving disputes involving national governing bodies of individual sports. See 1978 House Report at 8, 1978 WL 8517 (Leg.Hist.). The duties of developing interest and participation in amateur athletics, as well as determining who may sponsor amateur athletic competition in the United States and what athletes will be sanctioned to compete on behalf of the United States in particular competitions, were left under the ASA to individual amateur sports organizations selected by the USOC as the "national governing bodies" in each sport on the Olympic or Pan-American program. 36 U.S.C. §§ 391 (selection and requirements for selection as "national governing body"), 392 (duties of national governing bodies).

With respect to the disabled, the original ASA identified as one of the 14 enumerated purposes of the USOC "to encourage and provide assistance to amateur athletic programs and competition for handicapped individuals, including where feasible, the expansion of opportunities for meaningful participation by handicapped individuals in programs of athletic competition for able-bodied individuals." 36 § 374(13).² National governing bodies were delegated the specific duty to "encourage and support amateur athletic sports programs for handicapped individuals and the participation of handicapped individuals in amateur athletic activity, including where feasible, the expansion of opportunities for meaningful participation by handicapped individuals in programs of athletic competition for able-bodied individuals." 36 U.S.C. § 392(7). The ASA made no mention of the Paralympic movement or Paralympic Games, and articulated its mission in terms of fostering and developing amateur international competition at the Olympic and Pan-American Games only. See id., § 374, supra n. 2.

In 1998, the ASA was amended to reflect "significant changes"in Olympic and amateur sports at the time, specifically including the "significant" growth "in size and prestige" of the Paralympics. See S Rep. 105-325 at p. 2, 1998 WL 604018 ("1998 Senate Report"). The 1998 version of the ASA, now codified at 36 U.S.C. § 220501 et seq., amended the statement of the USOC's purposes objectives at § 374(3) and (4) to add participation in the "Paralympic Games" (recodified at 36 U.S.C. § 220503(3), (4))³ and amended § 391 to recognize "paralympic sports organizations" as national governing bodies for sports for which no national governing body had been designated. Id. § 220522(b). See 1998 Senate Rep. at 17.⁴

My overall impression in analyzing this legislative history is that the ASA distinguishes between authority and power the USOC has to oversee the United States' participation in international amateur athletic competition and the authority it has nationally to regulate and govern amateur sports nationally to obtain the best representation in the Olympic/Pan-American and Paralympic Games. Visávis the international community, the USOC "represent[s] the United States as its national Olympic committee in relations with the International Olympic Committee and the Pan-American Sports Organization and as [the United States'] national Paralympic committee in relations with the International Paralympic Committee," "coordinate[s] and develop[s] amateur athletic activity in the United States directly related to international amateur athletic competition,"and "organize[s], finance[s], and control[s] the representation of the United States in the competitions and events of the Olympic, Paralympic and Pan-American Games." 36 U.S.C. §§ 220505(c)(2), (3). Visàvis individual citizens, however, and while charged generally to "encourage and provide assistance to amateur athletic activities for women" (§ 220503(12)), "minorities" (§ 220503(14)), and "amateur athletes with disabilities" (§ 220503(13)), the USOC effects this purpose under the ASA first by selecting and recognizing "national governing bod[ies]" (or, where necessary because a sport exists only for the disabled, "paralympic sports organizations") for each amateur sport in the Olympic, Pan-American or Paralympic Games (§ 220521 & 22) and then delegating to them the duties of "develop[ing] interest and participation throughout the United States" in that sport (§ 220524(1)), "allow[ing] an amateur athlete to compete in any [sanctioned] international amateur athletic competition conducted by any amateur sports organization" (§ 220524(5)), and "encourag[ing] and support[ing] amateur athletic sports programs for individuals with disabilities and the participation of individuals with disabilities in amateur athletic activity." § 220524(7). Thus, while Plaintiffs are not incorrect in claiming the USOC is charged with "obtaining" the best amateur representation both for the Olympic and Paralympic Games, they cannot ignore that it does so through "the appropriate national governing bod[ies]"to which the responsibility for supporting athletic opportunities and participation for all athletes, including the disabled, is delegated. See 36 U.S.C. §§ 22503(4)("through the appropriate national governing body"), 22523-24 (authority and duties of national governing bodies include developing interest and participation in amateur sports they represent and to encourage and support amateur sports programs for individuals with disabilities).

Moreover, it is only those individual governing bodies that have any express duties under the ASA to provide equal or nondiscriminatory participation...