1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 4 AT SEATTLE 5 TOURE BUTLER, ) 6 Plaintiff, ) No. C96-1656D 7 v. ) ORDER ISSUING ) PRELIMINARY 8 THE NATIONAL COLLEGIATE ) INJUNCTION ATHLETIC ASSOCIATION, ) 9 ) Defendant. ) 10 ) 11 12 THIS MATTER comes before the Court on Defendant's motion to dismiss 13 or, in the alternative, to dissolve a temporary restraining order issued by this Court 14 on October 21, 1996. Having reviewed the motion, Plaintiff's opposition, all 15 supporting memoranda and declarations, and the memorandum in opposition 16 submitted by the United States as amicus curiae, the Court hereby denies the 17 motion to dismiss and issues a preliminary injunction prohibiting the NCAA from 18 declaring Plaintiff ineligible to participate in the University of Washington's 19 football program or to receive the benefits of an athletic scholarship. 20 I. FACTS AND PROCEDURAL BACKGROUND 21 Defendant NCAA is an unincorporated member organization of colleges 22 whose goals include keeping the "college" in college sports by making sure that its 23 members' athletes are also students. To further this end, the NCAA establishes and 24 enforces academic achievement standards that prospective students must meet in 25 order to be eligible to participate in college athletics. These standards are designed 26 27 28 ORDER ISSUING PRELIMINARY INJUNCTION - 1 c:\data61\butler.ord 01-07626 1 to ensure that the prospective students are adequately prepared to meet the 2 challenges of a college education. 3 Plaintiff Toure Butler was diagnosed in the seventh grade as having a 4 learning disability and requiring special education services, which he received from 5 eighth grade through high school. Because of his disability, Plaintiff was eligible 6 to take "Support" courses in connection with certain standard courses (for 7 example, Plaintiff took both American History and American History Support). In 8 his senior year in high school, spring of 1996, the University of Washington 9 offered Plaintiff a full scholarship to attend the University and play for itsfootball 10 team. Plaintiff accepted the offer. In the fall of 1996, however, the NCAA 11 declared Plaintiff academically ineligible to participate in Division I college 12 athletics, the University of Washington being a Division I school. As a result, 13 Plaintiff was removed from the football team and his scholarship was revoked. 14 This action followed. 15 Plaintiff claims that the NCAA declared him ineligible to play football in 16 violation of the Americans with Disabilities Act. Specifically, Plaintiff claims that 17 he in fact met the NCAA's requirements for academic eligibility, that the NCAA 18 nonetheless determined that he did not meet those requirements, and that his 19 determination was an act of discrimination against Plaintiff as a person witha 20 learning disability. The NCAA's academic eligibility standards require 21 prospective college students to complete 13 units of "Core" courses with a certain 22 minimum grade point average that varies with the prospective student's SAT score. 23 The NCAA counted some, but not all, of Plaintiff's Support courses toward the 24 required 13 units of Core course instruction. As a result, according to the NCAA, 25 Plaintiff completed only 12.5 of the required 13 units of Core course instruction. 26 27 28 ORDER ISSUING PRELIMINARY INJUNCTION-2 01-07627 1 In addition, the NCAA found that Plaintiff's grade point average was deficient. 2 Plaintiff claims, however, that all of his Support courses in fact met the NCAA'S 3 Core course criteria and that, if these Support courses were counted, not only 4 would he have over 13 units of Core course instruction, but also he would have an 5 adequate grade point average. The primary factual dispute, therefore, is whether 6 or to what extent Plaintiff's Support courses meet the NCAA's criteria for Core 7 courses. 8 On October 21, 1996 the Court granted a temporary restraining order. 9 Pursuant to an expedited briefing schedule, Defendant filed the instant motion on 10 Monday, October 28; Plaintiff filed an opposition on Wednesday, October 30; and 11 Defendant filed a reply on the morning of October 31, 1996. Also on October 30, 12 the United States Department of Justice filed a motion for leave to participate as 13 amicus curiae and for leave to participate in oral argument; the Court granted the 14 motion. On October 31, 1996, the Court heard oral argument on the motion to 15 dismiss and extended the temporary restraining order until November 8, 1996, to 16 give the United States time to file its memorandum.1 17 II. DISCUSSION 18 A. Jurisdiction Under Title III of the ADA. 19 Title III of the Americans with Disabilities Act (ADA) prohibits 20 discrimination against a person on the basis of disability "in the full and equal 21 enjoyment of the goods, services, facilities, privileges, advantages, or 22 accommodations of any place of public accommodation by any person who owns, 23 leases (or leases to), or operates a place of public accommodation." 42 U.S.C. S 24 25 1 The United States did not participate in oral argument, but it filed a memorandum in opposition to Defendant's motion on November 5, 1996. 26 27 28 ORDER ISSUING PRELIMINARY INJUNCTION-3 01-07628 1 12182(a). The ADA and the regulations implementing it do not define a "place of 2 public accommodation." Instead, the ADA lists twelve examples of "private 3 entities" that are considered "public accommodations ... if the operations of such 4 entities affect commerce." Id. S 12181(7). Similarly, the regulations enforcing 5 the ADA defines a "place of public accommodation" as "a facility, operated by a 6 private entity, whose operations affect commerce" and fall within certain 7 categories. 28 C.F.R. S 36.104. 8 Plaintiff argues that title III of the ADA should apply to the NCAA through 9 the foregoing provisions. In support of his argument, Plaintiff notes that the 10 examples of private entities considered public accommodations include the 11 following: 12 (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; 13 .... (J) a nursery, elementary, secondary, undergraduate, or postgraduate 14 private school, or other place of education; 15 L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation. 16 Id. S 12181(7)(C),(J),(L). Citing to the NCAA regulations that govern many 17 aspects of college sports and the activities of those who play them, Plaintiff 18 attempts to demonstrate that the NCAA "operates" places of public 19 accommodation, namely the gymnasiums and stadiums in which the Huskies 20 argument. 2 21 22 Plaintiff cites the case of Dennin v. The Connecticut Interscholastic Athletic 23 24 2/ For example, the United States points out that the NCAA regulates ticket prices at stadiums, concessions that may be sold at stadiums and the profits that may be earned therefrom, and 25 which institutions are allowed to play in the stadiums. Mem. Opp. Def.'s Mot. Dismiss at 9. 26 27 28 ORDER ISSUING PRELIMINARY INJUNCTION-4 01-07629 1 Conference, Inc., 913 F. Supp. 663 (D. Conn.), vacated as moot, 94 F.3d 96 (2d 2 Cir. 1996), in favor of his position. Among the issues in Dennin was whether title 3 III of the ADA applied to decisions made by the Connecticut Interscholastic 4 Athletic Conference (CIAC), an organization much like the NCAA directing and 5 regulating interscholastic athletics in the state of Connecticut. See id. at 670. In 6 concluding that title III of the ADA did not apply to the CIAC, the court reasoned as 7 follows: 8 Member schools delegate significant control and authority to CIAC in regulating th[e] athletic component of education. Additionally, CIAC 9 sponsors athletic competitions and tournaments. By managing and controlling the aforementioned, it "operates" places of public 10 accommodation, i.e., a place of education, entertainment, and/or recreation. The fact that some of these facilities might be owned by a public entity, i.e., 11 a public school, does not affect the conclusion that CIAC "operates" the 12 facilities for purposes of athletic competition. Id. 13 Defendant argues that, because neither the University of Washington nor its 14 facilities are "private entities," they are not "place of public accommodation." In 15 support of its position, Defendant cites the case of Sandison v. Michigan High 16 School Athletic Association, 64 F.3d 1026 (6th Cir. 1995). Among the issues in 17 Sandison was whether title III of the ADA applied to decisions made by the 18 Michigan High School Athletic Association (MHSAA); in holding that it did not, 19 the court reasoned as follows: 20 [T]he applicability of title III turns not so much on who is covered: "any 21 person" leasing or operating a place of public accommodation is covered, S 12182(a). The critical inquiry will typically be the nature of the place to 22 which the disabled individual alleges unequal access. Title III protects disabled individuals from unequal enjoyment of "place[s] of public 23 accommodation." S 12182(a)(emphasis added). And S 12181(7) and [28 C.F.R.] S 36.104 make clear that public accommodations are operated by 24 private entities, not public entities. The plaintiffs complain that the MHSAA age eligibility rule precludes them from equally participating in track events 25 held on public school grounds or ... in public parks. Public school grounds 26 27 28 ORDER ISSUING PRELIMINARY INJUNCTION-5 c:\data6l\:butler.ord 01-07630 1 and public parks are of course operated by public entities, and thus cannot constitute public accommodations under title III. 2 Id. at 1036. 3 The disagreement between the parties, and between Dennin and Sandison, 4 regarding the applicability of the ADA obviously and necessarily turns on whether 5 the NCAA "operates" in some sense the University of Washington football 6 program and its facilities. In Dennin, the court found that the CIAC did operate 7 certain facilities used in connection with college football in Connecticut and thus 8 concluded that it was subject to title III of the ADA. To the contrary, the court in 9 Sandison found that the MHSAA did not operate the facilities at issue and 10 therefore was not subject to title III of the ADA. In fact, the court in Sandison 11 indicated that the result may have been different if the plaintiffs had shown that 12 they were denied access to arenas operated by private entities, but "no evidence 13 suggest[ed] that [the plaintiffs] ran anywhere but on public school grounds or in 14 public parks." 64 F.3d at 1036 n.4. 15 The court in Sandison was therefore correct that whether a facility is actually 16 owned by a public school or a private school should not make a difference; the 17 question is whether the private entity being sued can be said to operate the 18 facility.3 Accordingly, this Court disagrees with Sandison that the "critical inquiry 19 will typically be the nature of the place to which the disabled individual alleges 20 21 3/To illustrate, assume that the NCAA does "operate" the facilities involved in college football; if the applicability of the ADA then turned on whether a public or a private school owned the 22 facilities, the ADA would provide a cause of action against the NCAA if it denied eligibility to a player at a private school, but not if it denied eligibility to a player at a public school simply because the public 23 school's stadium is publicly owned. Although a plaintiff wishing to sue his school would bring an action either under title II or under title III, depending on whether the school was public or private, in the 24 example a plaintiff either does or does not hav ea cause of action against the same defendant, the NCAA, depending on what kind of school he attends. Congress could not have intended such an arbitrary result. 25 26 27 28 ORDER ISSUING PRELIMINARY INJUNCTION-6 c:\data6l:\butler.ord 1 unequal access" rather than who is covered by title III, 64 F.3d at 1036; rather, the 2 nature of the place is determined by who owns, leases, or operates the place. 3 Defendant's other authorities to the contrary are not on point. For the 4 proposition that member organizations such as the National Football League and 5 the Boy Scouts of America are not "places of public accommodation" within the 6 meaning of the ADA, Defendant cites Stoutenborough v. National Football 7 League, Inc., 59 F.3d 580, 583 (6th Cir.), cert. denied, 116 S. Ct. 674 (1995) and 8 Welch v. Boy Scouts of America, 993 F.2d 1267, 1270-71 (7th Cir.), cert. denied, 9 510 U.S. 1012 (1993). However, both cases dealt with member organizations as 10 organizations, not as the operators of facilities that might, in turn, be considered 11 places of public accommodation. Accordingly, the court in Welsh distinguished 12 that case from others in which member organizations "conducted public meetings 13 in public facilities or operated facilities open to the public like swimming pools, 14 gyms, sports fields, and golf courses." 993 F.2d at 1272. Similarly, the court in 15 Stoutenborough based its decision, in part, on the fact that none of the defendants 16 in that case fell within the categories listed in the ADA as examples of places of 17 public accommodation. 59 F.3d at 583. In the instant case, Plaintiff alleges that 18 the NCAA does operate facilities open to the public, facilities that are listed in the 19 ADA as places of public accommodation. Thus, if anything, Defendant's 20 authorities work against its position. 21 A careful reading of the statute does not lead to a contrary result. The statute 22 prohibits discrimination against a person on the basis of disability in providing him 23 access to "any place of public accommodation by any person who owns, leases (or 24 leases to), or operates a place of public accommodation." 42 U.S.C. S 12182(a). 25 The statue then provides that certain kinds of "private entities are considered" 26 27 28 ORDER ISSUING PRELIMINARY INJUNCTION-7 c:\data6l::\butler.ord 01-07632 1 places of "public accommodations" if they fall into certain categories. Id. S 2 12181(7). The statute does not define "private entities" except to say that they are 3 not "public entities." Id. S 12181(6). Nor does the statute say that a public entity 4 may not be a place of public accommodation if it is operated by a private entity; to 5 the contrary, the United States Department of Justice has provided that a place of 6 public accommodation is "a facility, operated by a private entity, whose 7 operations affect commerce and fall within [certain] categories," including 8 stadiums, places of recreation, places of education, and gymnasiums. 28 C.F.R. S 9 36.104 (emphasis added); see 42 U.S.C. S 12186 (delegating authority to the 10 United States Department of Justice to promulgate regulations under title III); 11 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 12 844 (1984) (providing that, where Congress expressly delegates authority to an 13 agency to promulgate regulations, the regulations "are given controlling weight 14 unless they are arbitrary, capricious, or manifestly contrary to the statute"). If 15 there is any doubt as to whether the ADA should read so that it might apply to the 16 instant case, the Court recognizes that remedial legislation should be construed 17 broadly rather than narrowly. Tcherepnin v. Knight, 389 U.S. 332, 336 (1967). 18 For the foregoing reasons, the Court holds that the issue of whether title III 19 of the ADA applies to the NCAA in the instant case cannot be resolved as a matter 20 of law; instead the determination rests on whether the NCAA can be said to 21 operate the facilities used in connection with the football program at the University 22 of Washington.4 Because the issue presents a mixed question of law and fact, the 23 24 4/Although Plaintiff did not raise it in his complaint, he has argued since that title II may also apply to the NCAA in the instant case. The Court finds this argument to be without merit. Title II applies to 25 public entities. See 15 U.S.C. S 12132. The ADA defines a public entity as a state or local government, 26 27 28 ORDER ISSUING PRELIMINARY INJUNCTION-8 c:\data6l:\butler.ord 01-07633 1 Court finds that it is inappropriate to rule on the issue in the context of a motion to 2 dismiss, and Plaintiff will be allowed to develop and present evidence on the issue. 3 B. Preliminary Injunction. 4 Having denied Defendant's motion to dismiss, the next question becomes 5 whether to issue a preliminary injunction. This question involves different 6 standards with respect to subject matter jurisdiction than it involves with respect to 7 the merits of the case. The Court will consider each issue separately. 8 1. Subject Matter Jurisdiction. 9 As a prerequisite to exercising its discretion as to whether to a preliminary 10 injunction under Rule 65(a) of the Federal Rules of Civil Procedure, the Court 11 must determine whether it has subject matter jurisdiction to issue an injunction in 12 the first place. Enterprise Int'l, Inc. v. Corporacion Estatal Petrolera 13 Ecuatoriana, 762 F.2d 464, 471 (5th Cir. 1985). "Where a challenge to 14 jurisdiction is interposed on an application for a preliminary injunction[,] '[t]he 15 plaintiff is required to adequately establish that there is at least a reasonable 16 probability of ultimate success upon the question of jurisdiction when the action is 17 tried on the merits.'" Id. (quoting Visual Sciences, Inc. v. Integrated 18 Communications, Inc., 660 F.2d 56, 59 (2d Cir. 1981)). As discussed above, the 19 question of jurisdiction turns upon whether the NCAA can be said to "operate" the 20 facilities of the University of Washington and its football program. Plaintiff has 21 provided evidence of the many ways in which the NCAA regulates who may use 22 those facilities and when, how, and under what conditions they may be used. 23 Given this evidence, as well as the rule that remedial statutes are to be construed 24 a government agency, or an instrumentality thereof. Id. S 12131(1). The NCAA does not fit this 25 definition. See Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179 (1988). 26 27 28 ORDER ISSUING PRELIMINARY INJUNCTION-9 c:\data6l:\butler.ord 1 broadly, Tcherepnin v. Knight, 389 U.S. 332, 336 (1967), it appears that Plaintiff 2 has demonstrated "at least a reasonable probability of ultimate success upon the 3 question of jurisdiction." Enterprise International, 762 F.2d at 471. 4 2. Likelihood of Success on the Merits and the Balance of Harm. 5 As with any other form of injunctive relief, the basis for a preliminary 6 injunction is irreparable injury and the inadequacy of legal remedies. See 7 Weinberger v. Romer-Barcelo, 456 U.S. 305, 312 (1982). The traditional test 8 holds that a preliminary injunction should issue when the movant shows that (1) he 9 has a strong likelihood of success on the merits; (2) the balance of irreparable harm 10 tips in his favor; and (3) an injunction would be in the public interest. E.g., 11 Regents of University of California v. American Broadcasting Companies, Inc., 12 747 F.2d 511, 515 (9th Cir. 1984). Alternatively, courts have held that the party 13 seeking a preliminary injunction "must show either (1) a likelihood of success on 14 the merits and the possibility of irreparable injury, or (2) the existence of serious 15 questions going to the merits and the balance of hardships tipping in [his] favor." 16 E.g., Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991). The tests are 17 not inconsistent but rather mark two ends of a continuum; "[t]he critical element in 18 determining the test to be applied is the relative hardship to the parties. If the 19 balance of harm tips decidedly toward the plaintiff, then the plaintiff need not show 20 as robust a likelihood of success on the merits as when the balance tips less 21 decidedly." State of Alaska v. Native Village of Venetie, 856 F.2d 1384, 1389 (9th 22 Cir. 1988) (internal quotation marks omitted). 23 In the instant case, the balance of harm tips decidedly towards the plaintiff. 24 Were the Court not to issue an injunction, Plaintiff would be denied eligibility to 25 play football for the University of Washington. As a result, it appears that Plaintiff 26 27 28 ORDER ISSUING PRELIMINARY INJUNCTION-10 c:\dat6l:\butler.ord 01-07635 1 would loose his athletic scholarship. Without other forms of assistance, Plaintiff 2 would be forced to quit school, with the risk that he would never obtain a college 3 degree or play college football. 4 Although the possible consequences to Plaintiff are somewhat speculative, it 5 appears that the potential harm to Defendant that would result from a preliminary 6 injunction is virtually nonexistent. This action involves the NCAA only in its 7 capacity as independent regulatory body. An injunction would merely suspend the 8 NCAA's determination that Plaintiff is not eligible to play Division I football. The 9 Court sees no harm in that to the NCAA. Therefore, although Plaintiff's likelihood 10 of success on the merits may not be strong, the Court will issue a preliminary 11 injunction. 12 III. CONCLUSION 13 For the foregoing reasons, Defendant's motion to dismiss is DENIED, and 14 the Court hereby issues a preliminary injunction prohibiting the NCAA from 15 declaring Plaintiff ineligible to participate in the University of Washington's 16 football program or to receive the benefits of an athletic scholarship. 17 The Clerk of the Court is directed to send copies of this order to all counsel 18 of record. 19 DATED this 8th day of November, 1996. 20 21 Carolyn R. Dimmick 22 Chief Judge 23 24 25 26 27 28 ORDER ISSUING PRELIMINARY INJUNCTION-11 c:\data6l:\butler.ord 01-07636 1 The Hon. Carolyn R. Dimmick 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE WESTERN DISTRICT OF WASHINGTON 9 10 TOURE BUTLER, ) ) 11 Plaintiff, ) ) 12 v. ) No. C 96-1656D ) 13 THE NATIONAL COLLEGIATE ) ATHLETIC ASSOCIATION, ) 14 ) Defendant. ) 15 ) ) 16 17 UNITED STATES' MEMORANDUM OF LAW AS AMICUS CURIAE IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS 18 19 INTRODUCTION 20 On October 21, 1996, Toure Butler, an individual with a learning disability, filed suit 21 alleging that the National Collegiate Athletic Association ("NCAA") violated title III of the 22 Americans with Disabilities Act ("ADA") when it declared him ineligible to accept an 23 athletic scholarship at the University of Washington. On October 22, 1996, this court 24 granted Mr. Butler's Motion for a Temporary Restraining Order. 25 United States' Amicus U.S. Department of Curiae Brief Justice, Civil Rights 26 Division, P.O. Box 66738 Washington, D.C. 20035 01-07637 1 On October 28, 1996, the NCAA filed a Motion to Dismiss, or, in the alternative, a 2 Motion to Dissolve the Temporary Restraining Order. The NCAA argues, among other 3 things, that it is not subject to title III of the ADA because it is not a private entity that 4 owns, leases or operates a place of public accommodation. 5 On October 30, 1996, the United States moved for leave to file an amicus curiae brief 6 on this issue. On October 31, 1996, the Court granted the Motion for Leave and directed 7 the United States to file its brief by November 5, 1996.1 8 ARGUMENT 9 I. Title III of the Americans with Disabilities Act Applies to Private Entities That Own, Lease (or, Lease to) or Operate Places of Public 10 Accommodation. 11 The Americans with Disabilities Act, 42 U.S.C. S 12101-12213, is the most extensive 12 piece of civil rights legislation to pass Congress since the Civil Rights Act of 1964. Its 13 purpose is to provide "a clear and comprehensive national mandate for the elimination of 14 discrimination against individuals with disabilities." 42 U.S.C. S 12101(b)(1). The ADA's 15 coverage is accordingly broad, prohibiting discrimination on the basis of disability in 16 employment, state and local government programs and services, transportation systems, 17 telecommunications, commercial facilities, and the provision of goods and services offered to 18 the public by private businesses. 19 Under well-established canons of statutory construction, remedial legislation should 20 not be given a narrow or limited construction but rather should be liberally construed. 21 Tcherepnin v. Knight, 389 U.S. 332, 336 (1967). This principle of statutory construction is 22 1The United States argues only that the NCAA's Motion to Dismiss should not be 23 granted. This amicus curiae brief does not address the NCAA's alternative motion, to dissolve the temporary restraining order, because the United States is not in a position to 24 advise the court on the issues of fact involved in that motion. 25 United States' Amicus U.S. Department of Curiae Brief Justice, Civil Rights 26 Division, P.O. Box 66738 Washington, D.C. 20035 - 2 - 01-07638 1 especially true of civil rights legislation, and has repeatedly been applied to the Americans 2 with Disabilities Act. For example, the Sixth Circuit Court of Appeals recently held, 3 [E]ven if the law were not so clear, remedial statutes are to be interpreted broadly, in a manner consistent with their stated goal. Gomez v. Toledo, 446 4 U.S. 635, 639, 100 S.Ct. 1920, 64 L.Ed. 2d 572 (1980). The Disabilities Act was intended to provide a clear and comprehensive national mandate for the 5 elimination of discrimination against individuals with disabilities. 6 Parker v. Metropolitan Life Insurance, 1996 WL 613142 at *7 (6th Cir. Oct. 29, 1996). See 7 also, Kinnev v. Yerusalim, 812 F. Supp. 547, 551 (E.D. Pa.), aff'd 9 F.3d 1067(3d Cir. 8 1993), cert. denied sub nom. Hoskins v. Kinnev, 114 S. Ct. 1545 (1994); Niece v. Fitzner. 9 922 F. Supp. 1208, 1218-19 (E.D. Mich. 1996). 10 This action involves title III of the ADA, which prohibits disability-based 11 discrimination by private entities who own, lease (or, lease to) or operate a place of public 12 accommodation. 42 U.S.C. Section 12182(a); 28 C.F.R. Section 36.202.2 13 As the Preamble to the implementing regulation explains, it does not matter if the 14 private entity's relationship to the place of public accommodation is for only limited period 15 of time. 28 C.F.R. Part 36, Appendix B at 593.3 It also does not matter if the place of 16 17 2 Congress explicitly delegated to the Department of Justice the authority to promulgate regulations under title III. 42 U.S.C. Section 12186. Accordingly, the Department's regulations 18 are entitled to substantial deference. See Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994)(Secretary of Health and Human Services' regulation interpreting statutory 19 language on reimbursable medical education expenses must be given controlling weight unless plainly erroneous); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 20 467 U.S. 837, 844 (1984) (where Congress expressly delegates authority to an agency to 21 issue legislative regulations, the regulations "are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute"). 3 The Preamble provides, "The coverage is quite extensive and would include . . . any 23 other entity that owns, leases, leases to, or operates a place of public accommodation, even if the operation is only for a short time." 28 C.F.R. Part 36, Appendix B at 593. The 24 preamble or commentary accompanying a regulation is entitled to deference since both are United States' Amicus U.S. Department of Curiae Brief Justice, Civil Rights 26 Division, P.O. Box 66738 - 3 - Washington D.C. 20035 01-07639 1 public accommodation at which the individual with a disability is subject to discriminatory 2 treatment is a private or public facility.4 If discriminatory treatment takes place of 3 public accommodation that is owned by a state or local government, title III nevertheless 4 applies when a private entity is operating that place of public accommodation. See The 5 Americans with Disabilities Act, Title III Technical Assistance Manual, "Covering Public 6 Accommodations and Commercial Facilities," at 7-8 (Nov. 1993).5 The Technical 7 Assistance Manual demonstrates through several illustrative fact patterns that where a 8 government entity owns a building or facility, but a private entity operates within it, title III 9 applies to the private entity's actions. Id. See also, Dennin v. Connecticut Interscholastic 10 11 part of a department's official interpretation of legislation. Stinson v. United States, 508 U.S. 36, 45 (1993), quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)(an agency's interpretation of its own regulations must be given controlling weight, 13 unless the interpretation violates the Constitution or a federal statute, or is plainly erroneous.) 14 4 The Preamble provides, "It is the public accommodation, and not the place of public accommodation, that is subject to the regulation's nondiscrimination requirement." 28 C.F.R. 15 Part 36, Appendix B at 587. 16 5 More than one entity can "own, lease (or, lease to) or operate" a facility atone time. 17 If a state or local government owns a facility, but a private entity operates within it, title II of the ADA applies to discriminatory actions by the governmental entity and title III applies 18 to discriminatory actions by the private entity. The Technical Assistance Manuel reads, "Public entities, by definition, can never be subject to title III of the ADA, which covers 19 only private entities. Conversely, private entities cannot be covered by title II. There are many situations, however, in which public entities stand in very close relation to private 20 entities that are covered by title III, with the result that certain activities may be affected, at 21 least indirectly, by both titles." Title III Technical Assistance Manuel at 3. The Manual provides four fact patterns to illustrate the point, including: "The City of W owns a 22 downtown office building occupied by W's Department of Human Resources. The first floor is leased as a commercial space to a restaurant, a newsstand, and a travel agency. The City 23 of W, as a public entity, is subject to title II in its role as landlord of the office building. As 24 a public entity, it cannot be subject to title III, even though its tenants are public 25 accommodations that are covered by title III." Id. United States' Amicus U.S. Department of Curiae Brief Justice, Civil Rights 26 Division, P.O. Box 66738 - 4 - Washington, D.C. 20035 01-07640 1 Athletic Conf., 913 F.Supp. 663, 670 (D. Conn. 1996), vacated as moot, 94 F.3d 96 (2d 2 Cir. 1996)("[t]he fact that some of these facilities might be owned by a public entity, i.e., a 3 public school, does not affect the conclusion that CIAC 'operates' the facilities for purposes 4 of athletic competition").6 5 II. This Action Should Not Be Dismissed Because Mr. Butler Should be Given the Opportunity to Develop Evidence that the National Collegiate Athletic 6 Association Operates Places of Public Accommodation. 7 In ruling on the NCAA's Motion to Dismiss, this Court should accept the factual 8 allegations in the complaint as true, and should construe the facts in the light most favorable 9 to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1990). Dismissal at 10 this early stage of the litigation is unwarranted unless "it appears beyond doubt that the 11 plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 12 Id. quoting Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir. 1986), cer. denied, 479 13 U.S. 1054 (1987). See also Conlev v. Gibson, 355 U.S. 41 (1957)(district court erroneously 14 dismissed a complaint that adequately set forth a claim upon which relief could be granted). 15 At such an early stage in the proceeding, courts are reluctant to foreclose the possibility that 16 a complainant could develop facts that would sustain a theory of liability. See, e.g., Carparts 17 18 6 Deference extends as well to statements made in informal interpretive documents like the Department's Technical Assistance Manual. See Reno v. Koray, 115 S. Ct. 2021, 2027 19 (1995)(Bureau of Prisons internal agency guideline is entitled to deference);Wagner Seed 20 Co., Inc. v. Bush, 946 F.2d 918, 922 (D.C. Cir. 1991), cert. denied, 503 U.S. 970 (1992)(holding that interpretive statements receive Chevron deference even if they do not 21 arise out of rulemaking, and deferring to position taken by EPA in a "decision letter"). Many courts have deferred to the Department's TA Manuals for both title II and III of the 22 ADA. See, e.g., Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35, 36 n.4 (D.D.C. 1994). Cf. Pinnock v. International House of Pancakes, 844 F. Supp. 574 (S.D. Cal. 1993) 23 (rejecting a constitutional challenge to title III of the ADA as void for vagueness in part by 24 considering clarification of statute found in administrative regulations and the title III Ta 25 Manual). United States' Amicus U.S. Department of Curiae Brief Justice, Civil Rights 26 Division, P.O. Box 66738 - 5 - Washington, D.C. 20035 01-07641 1 Distribution Center v. Automotive Wholesaler's Association of New England, 37 F.3d 12, 2 20 (1st Cir. 1994)("[w]e think at this stage it is unwise to go beyond the possibility that the 3 plaintiff may be able to develop some kind of claim under Title III even though this may be a 4 less promising vehicle in the present case than Title I"). 5 The issue of whether the NCAA is a private entity that owns, leases or operates 6 places of public accommodation is not simply a legal issue. It also involves a factual inquiry 7 into the relationship between the NCAA and various places of public accommodation. In this 8 case, Mr. Butler's complaint contains the following factual allegations concerning the 9 relationship of the NCAA to places of public accommodation such as stadiums, coliseums, 10 arenas, gymnasiums and athletic training facilities: 11 * Paragraph 1.2: The NCAA is an unincorporated association whose members are several hundred colleges and universities throughout the United States. The NCAA has the 12 authority to determine whether student-athletes attending the University of Washington and other universities are able to participate in intercollegiate athletics. The NCAA 13 also administers intercollegiate athletic events, collects assessments from the University of Washington and other universities, and executes contracts. * Paragraph 3.1: The NCAA, among other activities, sanctions, supervises and promotes 15 athletic competition among its members. It is governed by a constitution, by laws and rules and its affairs are administered by a permanent staff located in Overland Park, 16 Kansas. 17 * Paragraph 3.3: The NCAA's Constitution provides that it should strive to "maintain intercollegiate athletics as an integral part of the educational program" of its member 18 institutions. 19 * Paragraph Paragraph 3.3 and 3.4: The NCAA controls the eligibility of each student-athlete by 20 requiring him or her to meet certain academic requirements. * Paragraph 3.19: The NCAA's eligibility ruling prevented Mr. Butler from continuing to 21 train and practice at the University of Washington's facilities. 22 These facts, if established, present a compelling case that the NCAA is a private 23 entity that operates places of public accommodation under title III. However, even if these 24 factual allegations are insufficient to sustain Mr. Butler's legal argument that the NCAA is United States' Amicus U.S. Department of Curiae Brief Justice, Civil Rights 26 Division, P.O. Box 66738 - 6 - Washington, D.C. 20035 01-07642 1 covered under title III, it would be inappropriate to grant the Motion to Dismiss without 2 giving Mr. Butler an opportunity to develop further evidence to support his legal theory. 3 Unless "it appears to a certainty" that Mr. Butler could not develop "any set facts" to 4 support his argument that the NCAA owns, leases, or operates places of public 5 accommodation, the Motion to Dismiss should be denied. See Sanders v. Kennedy,794 6 F.2d 478, 481 (9th Cir. 1986). 7 III. The Plaintiff's Complaint, When Viewed In the Light Most Favorable to the Plaintiff, States A Claim Sufficient to Defeat a Motion to Dismiss. A. The Factual Allegations in the Complaint Support the Legal Theory that 9 the NCAA is a private entity which operates places of public accommodation. 10 Mr. Butler's Complaint argues that the National Collegiate Athletic Association is a 11 private entity that operates places of public accommodation. This argument turns on the 12 understanding of three terms. First is whether the NCAA is a "private entity." All sides 13 concede that the NCAA meets this definition. 14 Second is the meaning of the word "operates." Neither the ADA nor the regulations 15 define the word "operates." When a word is not defined by statute, courts "normally 16 construe it in accord with its ordinary or natural meaning." Smith v. United States, 113 S. 17 Ct. 2050, 2054 (1993). In the context intended by the statute, "operates" means control, 18 manage, administer or direct.7 A federal court in Connecticut defined "operate" in the 19 context of title III of the ADA as "managing and controlling[.]" Dennin, 913 F.Supp. at 670. 20 21 7 Dictionaries define "operate" in its transitive form as "[t]o control or direct the 22 functioning of." Webster's II: New Riverside University Dictionary (1988), p. 823 (core meaning). See also 7 The Oxford English Dictionary, p. 144 (1933) ("[t]o direct the 23 working of; to manage, conduct, work (a railway, business, etc.")); 2 New Shorter Oxford English Dictionary, p. 2005 (1993) ("[m]anage, direct the operation of (a business, 24 enterprise, etc.")). 25 United States' Amicus U.S. Department of Curiae Brief Justice, Civil Rights 26 Division, P.O. Box 66738 - 7 - Washington, D.C. 20035 01-07643 1 A federal court in California held that the word "implies a requirement of control over the 2 place providing services" subject to title III. Aikins v. Helena Hospital, 843F.Supp. 3 1329, 1335 (N.D. Cal. 1994). A federal district court in Ohio held that "operate" means 4 that the person or entity "is in a position of authority" to make decisions which are allegedly 5 discriminatory under title III. Howe v. Hull, 873 F.Supp 72, 77 (N.D. Ohio 1994). 6 Third, the phrase "places of public accommodation" is defined in title III through a 7 list of illustrative facilities, including: 8 * a ... stadium, or other place of exhibition of entertainment; 9 * an auditorium, convention center ... or other place of public gathering; and, 10 * a gymnasium . . . or other place of exercise of recreation. 11 42 U.S.C. Section 12181(7)(C), (D) and (L). 12 With these definitions as a foundation, it is clear that the NCAA operates one omore 13 public accommodations. 14 1. The available evidence establishes that the NCAA "operates" 15 stadiums or other places or exhibition or entertainment, as well as 16 auditoriums, convention centers or other places of public gathering. 17 The NCAA controls, manages and administers athletic events held in stadiums, 18 auditoriums, convention centers and other places of entertainment and public gathering. See 19 Butler Complaint, Paragraph Paragraph 1.2, and 3.1. These athletic events range from football "bowl games" 20 to the NCAA basketball championship that dominates the airwaves each March, to women's 21 gymnastics championships to men's lacrosse competitions. By setting eligibility rules, the 22 association regulates who can compete in the stadiums, coliseums and other places of public 23 gathering. Cf. Butler Complaint Paragraph Paragraph 3.3 and 3.4. 24 However, the NCAA controls more than just the people who are allowed to compete. 25 United States' Amicus U.S. Department of Curiae Brief Justice, Civil Rights 26 Division, P.O. Box 66738 - 8 - Washington, D.C. 20035 01-07644 1 The NCAA manages the stadiums, auditoriums, convention centers and other places of 2 entertainment and public gathering carefully. It controls which stadiums and coliseums will 3 be chosen for championship events. NCAA Executive Regulation 31.1.3.2, 1995-96NCAA 4 Manual at 428 (1995)(copies of all Executive Regulations and By-Laws cited areattached). 5 The NCAA regulates the ticket prices that the stadiums and coliseums may charge. NCAA 6 Executive Regulation 31.1.11. The NCAA controls the types of beverages the stadiums may 7 sell. NCAA Executive Regulation 31.1.13 (prohibiting the sale of alcohol). TheNCAA 8 controls the types of goods which vendors in the stadium may sell. NCAA Executive 9 Regulation 31.6.2. It regulates the profits which are earned from sales at concession stands. 10 NCAA Executive Regulation 31.4.2.1. The NCAA controls which members of the press will 11 be allowed to set up broadcast facilities at the stadiums. NCAA Executive Regulation 12 31.6.4. On the most obvious level, the NCAA controls which institutions are allowed to 13 play in the stadiums and coliseums. NCAA Executive Regulation 31.3. 14 NCAA Executive Regulation 31.1, "Administration of NCAA Championships," could 15 be read, "Operation of NCAA Championships." The NCAA operates significant functions of 16 these stadiums, coliseums and arenas for a limited, specific period of time. During the 17 athletic events sponsored by the NCAA, it exercises substantial control over the operations of 18 the stadiums, from its ticket windows to its concession stands to its press passes. 19 2. The available evidence establishes that the NCAA "operates" 20 gymnasiums or other places of exercise or recreation. 21 The NCAA manages, administers and regulates the athletic training facilities - 22 gymnasiums and other places of exercise or recreation - used by member institutions. If 23 Mr. Butler is allowed to conduct discovery, it is likely that he could produce evidence 24 describing the training facilities which large universities set aside for the use of authorized 25 United States' Amicus U.S. Department of 26 Curiae Brief Justice, Civil Rights Division, P.O. Box 66738 Washington, D.C. 20035 - 9 - 01-07645 1 athletes. See, e.g., NCAA Operating By-Law 17.02.1.2(p)(permitting member institutions to 2 reserve its athletics facilites only for student-athletes); Cf. Butler Complaint P 3.19. These 3 training facilities are likely to include weight rooms, practice fields, exercise facilities with 4 equipment to build cardiovascular strength or recuperate from injuries, and facilities where 5 athletic trainers provide massage and other therapy. 6 The NCAA's controls over these athletic training facilities are substantial. It 7 regulates the conditions under which individuals who are not enrolled in the school may use 8 the facilities. NCAA Operating By-Law 17.02.1.2(p). It directs that student-athletes can 9 voluntarily choose to work out in the gym or other place of exercise only under certain 10 conditions. NCAA Operating By-Law 17.02.1.2(m). It regulates the conditions under which 11 members of the coaching staff can be in the gym or exercise facility while an athlete engages 12 in a voluntary workout. NCAA Operating By-law 17.02.1.2(q). It prohibits students from 13 using tobacco products while working out in the gym or other place of exercise. NCAA 14 Operating By-Law 17.1.11. It regulates the number of days that student-athletes are allowed 15 to practice in the athletic facilities. NCAA Operating By-Laws 17.02.13, 17.1.1 and 17.1.5. 16 It regulates the types of equipment that they may use while working out in the athletic 17 training facilities. NCAA Operating By-Law 17.7.6. It controls the conditions under which 18 student-athletes may ask a coach for advice and instruction on athletic training not conducted 19 during the playing season. NCAA Operating By-Law 17.1.5.2.1. It establishes rules for the 20 types of "conditioning activities" which athletes can use. NCAA Operating By-Law 21 17.1.5.2.2. 22 The NCAA manages who can use the exercise facilities, how long they can use those 23 facilities, and what they can do while in the facilities. Clearly, the NCAA "operates" the 24 gymnasiums or other places of exercise or recreation of its member institutions. 25 United States' Amicus U.S. Department of 26 Curiae Brief Justice, Civil Rights Division, P.O. Box 66738 Washington, D.C. 20035 - 10 - 01-07646 1 B. Relevant authorities support the conclusion that evidence could be developed to demonstrate that the NCAA is subject to title III. 2 In Dennin v. Connecticut Interscholastic Athletic Conf., 913 F. Supp 663 (D. Conn. 3 1996), vacated as moot, 94 F.3d 96 (1996), a student charged that the state's athletic 4 association, the Connecticut Interscholastic Athletic Association ("CIAC"), violated the ADA 5 when it declared him ineligible.8 The court held that the CIAC had two major activities. 6 First, "Member schools delegate significant control and authority to CIAC in regulating this 7 athletic component of education." Id. at 670. Like the NCAA, the CIAC set rules for the 8 types of classes student-athletes should take, minimum grades they must receive, and other 9 facets of the student's academic life. Second, "CIAC sponsors athletic competitions and 10 tournaments." Id. The sponsorship of competitions and tournaments brought CIAC into a 11 management role over coliseums where the events are staged. Therefore, the court held, "By 12 managing and controlling the aforementioned, it 'operates' places of public accommodation, 13 i.e., a place of education, entertainment and/or recreation." Id.9 While the parallels 14 between the CIAC and the NCAA are obvious, the role of the NCAA is no doubt more 15 16 8 The Second Circuit Court of Appeals did not reject the lower court's reasoning in 17 Dennin. The Court of Appeals simply held that there was no longer a ripe controversy because the student had already completed the athletic season. The Court of Appeals, 18 quoting other courts, explained, "Where it appears upon appeal that the controversy has become entirely moot, it is the duty of the appellate court to set aside the decree below and 19 to remand the cause with directions to dismiss." Dennin, 94 F.3d at 101 (citations omitted). 20 9 Dennin also held that the CIAC was subject to title II of the ADA because it was "an instumentality of the state." In its reply brief, the NCAA merges the court's reasoning 21 concerning title II and III of the ADA. The NCAA correctly points out that National 22 Collegiate Athletic Association v. Tarkanian, 488 U.S. 179 (1988), establishes that under the 14th Amendment due process clause, actions taken by the NCAA is not "state action." The 23 issue of whether the NCAA is an "instrumentality of the state" under title II of the ADA, is, however, not relevant to the issue of whether the association is a public accommodation 24 under title III. 25 United States' Amicus U.S. Department of 26 Curiae Brief Justice, Civil Rights Division, P.O. Box 66738 Washington, D.C. 20035 - 11 - 01-07647 1 comprehensive than the state athletic association. The holding in Dennin clearly suggests 2 that Mr. Butler could develop sufficient facts to conclude that the NCAA is subject to title 3 III. 4 Cases outside the context of athletic associations also support the proposition that the 5 NCAA operates places of public accommodation. In Hull v. Howe, 873 F.Supp. 72 (N.D. 6 Ohio 1994), the court held that a single physician "operated" a hospital. Although the 7 physician was not an employee of the hospital, as the on-call admitting physician he had the 8 authority and discretion to admit individuals seeking medical attention. The physician in this 9 case refused to admit an individual infected with the HIV virus. The court held that the 10 physician operated the public accommodation because he was "in a position of authority" to 11 make decisions which are allegedly discriminatory under title III. Howe v. Hull, 873 F.Supp 12 72, 77 (N.D. Ohio 1994). See also Aikins v. St. Helena Hospital, 843 F.Supp. 1329 (N.D. 13 Cal. 1994)(a physician would operate a hospital if he had control over the provision of 14 services, although in this case the physician had no authority to arrange a sign language 15 interpreter for the spouse of a patient). Similarily, the NCAA is in a position of authority 16 over a number of places of public accommodation -- it is in a position of authority to set the 17 standards for admitting individuals into colleges and universities, into gymnasiums and 18 training facilities, and into stadiums and coliseums. 19 20 21 22 23 24 25 United States' Amicus U.S. Department of 26 Curiae Brief Justice, Civil Rights Division, P.O. Box 66738 -12- Washington, D.C. 20035 01-07648 1 C. Authorities Relied Upon by the NCAA Do not Justify a Conclusion that Title III is inapplicable to the NCAA. 2 The NCAA relies primarily on two cases which applied title III to athletic 3 associations, and a series of cases which apply title III to "membership organizations." In an 4 unpublished decision in Johannesen v. National Collegiate Athletic Association, No. Civ. 96- 5 197 (D. Ar. filed May 3, 1996), a federal court denied a motion for a preliminary injunction 6 because the student could not establish a likelihood of success on the merits of the argument 7 that the NCAA is covered by title III.10 The court held that, "The Johannesens' claims 8 relate to access to facilities operated by [Arizona State University], which is a public, not 9 private entity." Id. at 7. The court relied heavily on Sandison v. Michigan High School 10 Athletic Association, 64 F.3d 1026 (6th Cir. 1995), which held that a state association was 11 not subject to title III because the facilities where its member institutionsplay games are on 12 public school grounds and public parks. 13 Johannesen and Sandison are inapposite. First, neither opinion gives title III the 14 broad interpretation that sound principles of construction require. Second, the courts in both 15 cases did not focus on the correct entity. It is not the place of public accommodation that is 16 the focus; the courts should not analyze only who owns the facility where thediscriminatory 17 treatment takes place. Rather, the entity which "owns, leases (or leases to),or operates" the 18 place of public accommodation is the focus. As the Department of Justice's Technical 19 Assistance Manual makes clear, activity at a publicly-owned facility can be subject to title III 20 if that facility is operated or leased by a private entity. Title III Technical Assistance Manual 21 at 7-8. At this juncture, the question is not where Mr. Butler will practice and play football, 22 but whether the private entity in operational control of the eligibility decision manages one or 23 24 10 The court did not dismiss the complaint, as the NCAA is asking this court to do. 25 United States' Amicus U.S. Department of 26 Curiae Brief Justice, Civil Rights Division, P.O. Box 66738 -13- Washington, D.C. 20035 01-07649 1 more places of public accommodation. As the court in Dennin put it, "[t]he fact that some 2 of these facilities might be owned by a public entity, i.e., a public school, does not affect the 3 conclusion that CIAC 'operates' the facilities for purposes of athletic competition." Dennin 4 at 670. 5 Third, the distinction raised in Johannesen and Sandison is artificial. If title III does 6 not apply solely because the place where Mr. Johannsen would usually practice and play is 7 owned by a public school, title III would logically apply when Mr. Johannesen sought to play 8 when the university had a game with a private school. Although most of the members of the 9 league (the "Pacific 10 Conference") to which Arizona State University belongsare public 10 schools, at least two are private entities: Stanford University and the University of Southern 11 California.11 The NCAA's decision to prevent Mr. Johannesen from using training facilities 12 reserved for eligible athletes did not restrict him solely to facilities maintained by the public 13 university where he was enrolled. The NCAA's decision to deny Mr. Johannesen eligibility 14 therefore prevented him from training in gymnasiums and other places of exercise or 15 recreation that are owned by a variety of entities, both public and private, and from playing 16 in stadiums which are owned by a variety of entities, both public and private. The court's 17 distinction is obviously artificial; the location where the discrimination takes place is simply 18 not relevant - the NCAA applies the same allegedly discriminatory eligibilty rules at all 19 member institutions, public and private, and in a variety of stadiums, coliseums and arenas. 20 21 22 23 11 Coincidentally, the school where Mr. Johannesen sought to attend, Arizona State University, is in the same league as the school where Mr. Butler seeks to attend, the 24 University of Washington. 25 United States' Amicus U.S. Department of 26 Curiae Brief Justice, Civil Rights Division, P.O. Box 66738 -14- Washington, D.C. 20035 01-07650 1 In its Reply Brief, the NCAA argues that in Welsh v. Boy Scouts of America, 993 2 F.2d 1267 (7th Cir. 1993), cert. denied, 510 U.S. 1012 (1993), the Seventh Circuit Court of 3 Appeals "concluded that membership organizations are not subject to either the Civil Rights 4 Act or the ADA." NCAA's Reply Memorandum in Support of Motion to Dismiss or, 5 Alternatively, to Dissolve Temporary Restraining Order, Butler v. National Collegiate 6 Athletic Association, No. C 96-1656D at 2 (filed Oct. 21, 1996). The NCAA failed to note 7 in its brief that a number of courts have held exactly the opposite - that organizations which 8 do not have an office or physical structure are covered by title III of the ADA. See, e.g., 9 Carparts Distribution Center v. Automotive Wholesaler's Association of New England, 37 10 F.3d 12, 18-20 (1st Cir. 1994); Anderson v. Little League Baseball, 794 F. Supp. 342, 344 11 (D. Ar. 1992). 12 The case law discussing whether "membership organizations" such as the Boy Scouts 13 are public accommodations is of limited assistance to this Court. First, Welsh is primarily 14 concerned with whether the Boy Scouts are a public accommodation under title II of the 1964 15 Civil Rights Act, a statute with purposes and legislative history that are completely distinct 16 from the Americans with Disabilities Act. Moreover, the primary issue in Welsh is whether 17 a membership organization with no physical facility can be characterized as a public 18 accommodation. While the NCAA is a membership organization, it could hardly be more 19 different than a neighborhood group whose leaders are parents donating a few hours of free 20 time on a week night. The NCAA has extensive offices in Kansas, hundreds of employees, 21 and an annual budget in the tens of millions of dollars. The NCAA is connected to a range 22 of physical facilities: its offices, where eligibility decisions are made; the facilities of 23 member institutions, where young people seek to study, train and compete; the facilities of 24 colleges and universities against whom the student-athletes compete; and the facilities of 25 United States' Amicus U.S. Department of Curiae Brief Justice, Civil Rights 26 Division, P.O. Box 66738 - 15 - Washington, D.C. 20035 01-07651 1 commercial enterprises which operate stadiums, sell NCAA-trademarked goods, and 2 broadcast NCAA-controlled athletic events. 3 If anything, the membership organization cases support the argument that the NCAA 4 is a public accommodation. Welsh in fact cites eight cases holding that various membership 5 organizations are public accommodations. Id. at 1272. According to Welsh, membership 6 organizations have been found to be public accommodations under two circumstances. First, 7 a membership organization with a connection to facilities is a public accommodation: 8 In each of these [eight] cases, Title II [of the 1964 Civil Rights Act] was found applicable because the organization conducted public meetings in public 9 facilities or operated facilities open to the public like swimming pools, gyms, sports fields and golf courses. In contrast, the trial court in the case before us 10 found that the typical Boy Scout gathering involves five to eight young boys engaging in supervised interpersonal interaction in a private home. 11 Id. at 1272. In contrast to the Boy Scouts, the NCAA establishes rules govern- ing the 12 operation of facilities for athletes who train and compete -- facilities such asswimming 13 pools, gyms, sports fields and golf courses. 14 According to Welsh, the second circumstance under which membership organ- izations 15 are found to be public accommodations are "when the organization functions as a "ticket" to 16 admission to a facility or location." Id. at 1272. In other words, when the organization 17 serves as a gatekeeper, controlling who can use facilities, the organization is often found to 18 be a public accommodation. The NCAA serves precisely this gatekeeper function, setting 19 eligibility rules for students who wish to participate in athletic competitions. 20 21 22 23 24 25 United States Amicus U.S. Department of 26 Curiae Brief Justice, Civil Rights Division, P.O. Box 66738 - 16 - Washington, D.C. 20035 01-07652 1 CONCLUSION 2 The United States respectfully requests that the Court reject the NCAA's Motion to 3 Dismiss because there is a substantial likelihood that Mr. Butler could develop evidence to 4 support his argument that the NCAA "operates" places of public accommodation. 5 Respectfully submitted, 6 KATRINA G. PFLAUMER DEVAL L. PATRICK United States Attorney Assistant Attorney General 7 Western District of Washington Civil Rights Division MARION J. MITTET JOHN L. WODATCH 8 9 10 Attorney L. IRENE BOWEN United States Attorney's Office PHILIP L. BREEN 11 Western District of Washington DANIEL W. SUTHERLAND 800 5th Avenue Attorneys 12 Suite 3600 Disability Rights Section Seattle, Washington 98104 Civil Rights Division 13 (206) 553-7970 U.S. Department of Justice P.O. Box 66738 14 Washington, D.C. 20035-6738 (202) 307-0663 15 November 5, 1996 16 17 18 19 20 21 22 23 24 25 United States' Amicus U.S. Department of 26 Curiae Brief Justice, Civil Rights Division, P.O. Box 66738 - 17 - Washington, D.C. 20035 01-07653