In September, the National Association for the Deaf filed a lawsuit against the University of Maryland College Park under Title II of the Americans with Disabilities Act (ADA, 1990) and the Rehabilitation Act of 1973 for its "long-standing and continuing failure to provide captioning of announcements and commentary made over the public address systems during athletic events at Byrd Stadium and the Comcast Center." Specifically, the plaintiffs seek court-ordered display captioning on Jumbotrons and scoreboards for announcements made over the PA system.

 Title II of the ADA states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." In this case, the plaintiffs are qualified individuals with a disability who, without the provision of auxiliary aids and services, cannot fully and effectively enjoy the college football game provided by the university. However, the university contends that it is compliant with the federal laws, already offering closed captioning of all game announcements through a website accessible by smart phone or tablet.

In January, the attorney general in Arizona filed a lawsuit against the Arizona Cardinals under Title III of the ADA and the Rehabilitation Act of 1973 "demanding captioning for the deaf on all monitors in the University of Phoenix Stadium." Title III states "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."

In this case, the plaintiff is an individual with a disability who cannot participate in full and equal enjoyment of the services provided by the Arizona Cardinals, operating the football stadium as a place of public accommodation. While the Cardinals did install screens to display real-time captioning in the north and south end zones of the stadium, the plaintiff contends that such measures were insufficient. Specifically, the plaintiff claimed the new boards were not visible from every seat in the stadium; the color scheme used for captioning favored the Cardinals color scheme, rather than a color scheme fitting the needs of hearing-impaired patrons; and the monitors along the stadium concourses did not provide captioning at all.

Both the plaintiffs in the University of Maryland and Arizona Cardinals cases assert that they made multiple requests over a period of many years for improved captioning services. Both plaintiffs also claim that the defendants have failed to provide disabled individuals "full and equal enjoyment of the goods, services, facilities, privileges, or accommodations" required by both Title II and Title III of the ADA.

The basis of these lawsuits is not novel. In the past five years, NAD has challenged the captioning practices of multiple sport facility owners and operators, including Ohio State University and Pro Football Inc., the owner and operator of the Washington Redskins. NAD has asserted that the defendants have failed to "furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities."

Title II of the ADA (applicable to public facilities), Title III of the ADA (applicable to private entities operating places of public accommodation), and Section 504 of the Rehabilitation Act of 1973 (applicable to entities that receive federal funding), require such auxiliary aids and services. In all prior and current challenges, adequacy of captioning services is the primary issue.

In Sabino v. The Ohio State University [U.S. District Court, Southern District of Ohio, 2009], NAD sued the university of behalf of a deaf fan for not providing any captioning services. On October 12, 2010, the university, the attorney general of Ohio and the plaintiff entered into a non-confidential consent decree to settle the lawsuit. Per the consent decree, the university agreed to take several steps to make its athletic events accessible to deaf and hearing-impaired individuals, including captioning for its football and basketball games. The NAD used the settlement with Ohio State as a model, suggesting that all Big Ten Conference schools follow suit and address the sufficiency of captioning as an auxiliary aid in Big Ten sports facilities.

In Feldman v. Pro Football Inc.[2011 U.S. App. LEXIS 6188], the United States Court of Appeals for the Fourth Circuit upheld a grant of summary judgment in favor of two Washington Redskins fans who challenged the adequacy of captioning as an auxiliary aid. Prior to the lawsuit, the Redskins provided little to no captioning on stadium video boards, opting instead to offer handheld captioning devices. After the plaintiffs filed suit, the Redskins significantly increased captioning to include a "considerable amount of game information and other announcements." The Redskins used stadium video boards to do the following:

  • Caption public service announcements, including pre-game information
  • Announcements detailing each play
  • Referee penalty explanations
  • In-game entertainment announcements
  • Advertising
  • End-of-the-game announcements, final score and information regarding the next home game

This captioning was also provided in the stadium concourse areas. Additionally, the defendants captioned the emergency evacuation video on the stadium video board.

While this captioning was a significant improvement over the Redskins' past practice, the plaintiffs contested the failure to caption additional aural programming, including lyrics to songs played for entertainment and a radio program that was broadcast in the concourse areas separate from the public address system broadcast. The court determined that Title III of the ADA required the defendants to provide equal enjoyment of aural information, including music with lyrics. As a result, the lower court's grant of summary judgment to the plaintiffs was withheld.

Given the settlement in the above cases, along with the cases filed in 2013, sport facility owners and operators at all levels would be wise to evaluate current practices regarding auxiliary services for deaf and hearing-impaired patrons. While the laws make no technical or specific requirements, advocates of the hearing-impaired suggest that providing only closed-captioning on handheld devices, or providing open captioning only in certain areas of a facility, do not allow for full and effective enjoyment of services provided.

The Department of Justice regulations for Title II and Title III of the ADA indicate that the type of auxiliary aid necessary for effective communication will vary based on the method of communication used, the complexity of the communication involved, and the context of the communication. However, deference in ADA cases is often given to the person with the disability. The DOJ also recommends that individuals with disabilities are consulted whenever possible to determine which auxiliary aids are needed to ensure effective communication.

Captioning Best Practices

The 2011 article "Personal Foul: Lack of Captioning in Football Stadiums"comprehensively evaluates the issue of captioning, suggesting that the 2010 Ohio State University consent decree serve as a model while outlining areas of best practices to be considered by sport facility owners/operators:

  • Captioning all auditory information broadcast in the stadium, including public address announcements, music and emergency information before, during and after home football games.
  • Activate on at least one-half of the television monitors in the concourse areas the captioning of television broadcasts
  • Continue to provide accessible seating requests
  • Process requests for interpreting services, captioning and speech-to-text service, as well as requests for other auxiliary aids and services
  • Update the organization website to include a guide for guests with disabilities, information for requesting accommodations, contact information for a greater ADA coordinator, and a compliant procedure outline for guests with disabilities.

— K.S.B.