When signed into law in 1990, the Americans with Disabilities Act was intended "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities."
The ADA provides that "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 operates a place of public accommodation."
Places of public accommodation include stadiums, arenas, recreation facilities, commercial gyms and aquatic centers, among others. While the ADA has been instrumental in opening access to sports and recreation facilities for people with disabilities, its applicability has its limits, as evidenced in Bailey v. Board of Commissioners of the Louisiana Stadium & Exposition District, 484 F. Supp. 3d 346 (2020).
Shelby Bailey, a New Orleans Saints season-ticket holder for more than 30 years, relies on an electric wheelchair for mobility and a ventilator for breathing assistance due to muscular dystrophy. Prior to 2011, Bailey's seat was located on a wheelchair-accessible raised platform in the 100 Level section of the Superdome. In 2011, SMG, a private company that manages the Superdome, began extensive renovations on the facility and reconfigured the accessible seating section.
Prior to the renovations, Bailey enjoyed watching the games from the temporary platforms in the last row of the 100 Level seating because his view of the field was seldomly blocked. However, the only way Bailey and other fans with disabilities could access the platform was by crossing a portion of the playing field. In addition, the platform did not provide permanent accessible bathrooms (patrons on the platform utilized a portable toilet) or concessions.
As a result of the renovations, Bailey's temporary sideline seat was removed and replaced with permanent, fixed seats. The wheelchair-accessible seats were moved to row 36 in each section along the sidelines of the 100 Level. Bailey was unhappy with the new seats because there was a concrete overhang preventing him from viewing the scoreboard and aerial gameplay such as punts, kicks and long passes. When Bailey complained about his seat and its sightlines, SMG tried to accommodate him by moving him to another designated area of accessible seating in the 100 Level, but the view was similarly obstructed by barriers, other patrons or players standing during the game.
In an attempt to gain a better sightline to the games, Bailey filed a complaint against SMG (as the operator of the Superdome) and the Board of Commissioners of the Louisiana Stadium and Exposition District (as the owner of the Superdome), claiming they violated various parts of Title II and Title III of the ADA. In particular, Bailey claimed that he was unable to see elements of football games at the Superdome because spectators seated in the row in front of him stand during the game, and the Superdome has not been properly designed to provide a view of the field over standing spectators; the concrete overhang prevents him from viewing aerial play; and players and coaches prevent him from seeing the field.
Following a trial, the United States District Court for the Eastern District of Louisiana held that Bailey had failed to carry his burden of proving that SMG had violated the Americans with Disabilities Act. While the court was mindful that the result left Bailey with "limited seating choices … in less-than-ideal locations," it held that the dictates of the ADA do not require otherwise.
In support of this conclusion, the court noted that to establish a claim under Title II of the ADA, Bailey was required to prove that 1) he has a qualifying disability; 2) he is being denied the benefits of services, programs or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and 3) such discrimination is by reason of his disability.
In addition, to establish a Title III violation, Bailey had to show that 1) he has a disability; 2) the defendant owned, leased or operated a place of public accommodation; and 3) the defendant denied plaintiff Bailey full and equal enjoyment on the basis of his disability.
The court concluded that there was no dispute that Bailey is a qualifying individual with a disability for purposes of Title II and Title III under the ADA. In addition, the court held that the evidence was clear that Bailey had been to the Superdome to watch football games many times and that the defendants were aware of his disability and the resulting limitations he experienced. Accordingly, the court found that Bailey met the third prong of the Title II test — that he was discriminated against by reason of his disability. The court also concluded that SMG is a private entity that operates the Superdome, which is a place of public accommodation, thereby meeting the second prong of the Title III test.
The court then turned to the last remaining element of Bailey's Title II and Title III claims: that the plaintiff was denied the benefits of services, programs or activities for which the public entity is responsible (Title II), or was otherwise discriminated against in a place of public accommodation (Title III). In examining the ADA guideline on stadiums and wheelchairs, the court found that the ADA does not require unobstructed views for wheelchair users, but only lines of sight comparable to those for members of the general public. In finding that Bailey failed to meet his burden of showing that he was denied the benefits of services, programs or activities for which the public entity is responsible, or was otherwise discriminated against in a place of public accommodation, the court held that in the Accessible Stadiums guideline, the Department of Justice defined a "comparable line of sight" to allow for a person using a wheelchair to see the playing surface between the heads and over the shoulders of the person standing in the row immediately in front and over the heads of the persons standing two rows in front. Since the sightlines to the playing field from Bailey's new seat are comparable to those for members of the general public, the Superdome is in compliance.
As for Bailey's argument that the Superdome was violating the ADA because he could not see the scoreboard, the court found that the ADA does not apply to scoreboards since the pertinent line of sight is to the main focal point of the assembly — the playing field. Once again, the court also noted that his view was comparable to those for members of the general public in that section.
Finally, the court found that under the ADA, older facilities that make alterations must ensure that, to the maximum extent feasible, the altered portions of the facility are ADA-compliant and usable by individuals with disabilities. The ADA does provide an exception to this requirement, however, where a facility can demonstrate that it is structurally impracticable to meet the requirements. Looking at the Superdome, the court found any further measures to provide additional wheelchair seating would require structural alterations of other seating sections in the stadium, namely the 200 Level and the Terrace. In addition, the court held that a public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance.
In this case, the court held that the facility was readily accessible to and usable by individuals with disabilities, and that Bailey was not denied access to Saints football games. Therefore, the court concluded that no structural alterations to the Superdome were required.
As the court noted, the "failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion." So, what can be learned from this case in terms of truly accommodating individuals with disabilities?
First, since structures built prior to the enactment of the ADA may not be able to physically comply with all new ADA accessibility guidelines, the regulations differentiate between structures built prior to the act taking effect in January 1992 and facilities built or altered after January 1992. As such, in existing facilities that have undergone alterations since the 1992 effective date, those alterations had to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible and usable by individuals with disabilities, including individuals who use wheelchairs. There is an exception to this requirement, however, in the event an entity can demonstrate that it is structurally impracticable to meet the requirements.
Second, while a stadium may be considered a place of public accommodation under Title III, the court found that the ADA does not entitle a wheelchair-using patron attending a football game to sit in a specific section of the stadium or to provide people with disabilities the ideal or preferred accommodation. Rather, the ADA requires an accommodation that is reasonable and permits individuals to participate equally in the good, service or benefit being offered.
Attorney John T. Wolohan (firstname.lastname@example.org) is a professor of sports law in the David B. Falk College for Sport and Human Dynamics at Syracuse University.
Fei Gao (email@example.com) is an assistant professor in the Recreation and Sport Management program at Coastal Carolina University.
This article originally appeared in the July|August 2021 issue of Athletic Business with the title "Renovated Superdome satisfies ADA, but not displaced Saints fan." Athletic Business is a free magazine for professionals in the athletic, fitness and recreation industry. Click here to subscribe.