Shane Feldman v. Pro Football, Incorporated

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:06-cv-02266-AW. Copies to all parties and the district court/agency. [998553238]. [09-1021, 09-1023]

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-1021

SHANE FELDMAN; BRIAN KELLY; PAUL SINGLETON,
Plaintiffs - Appellees,
v.
PRO FOOTBALL, INCORPORATED; WFI STADIUM, INCORPORATED,
Defendants - Appellants.

No. 09-1023

SHANE FELDMAN; BRIAN KELLY; PAUL SINGLETON,
Plaintiffs - Appellants,
v.
PRO FOOTBALL, INCORPORATED; WFI STADIUM, INCORPORATED,
Defendants - Appellees.

Appeals from the United States District Court for the District
of Maryland, at Greenbelt.
Alexander Williams, Jr., District
Judge. (8:06-cv-02266-AW)

Argued:

March 25, 2010

Decided:

March 25, 2011

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.

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Affirmed by unpublished per curiam opinion.
separate opinion dissenting in part.

Page: 2

Judge Beaty wrote a

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/CrossAppellees.
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Unpublished opinions are not binding precedent in this circuit.

2

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 3

PER CURIAM:
Defendants Pro Football, Inc. and WFI Stadium, Inc.
operate, respectively, the Washington Redskins football team and
FedEx Field, where the Redskins play home games.
three

individuals

regularly

attend

who

are

Redskins

deaf

or

hard

games

at

of

FedEx

Plaintiffs are

hearing

Field.

and

who

Plaintiffs

argue that the Americans with Disabilities Act (ADA) obligates
defendants

to

provide

auxiliary

access

to

the

broadcasts from FedEx Field’s public address system.

content

of

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

defendants’

music

lyrics

goods,

in

order

services,

to

fully

privileges,

and
and

equally

enjoy

facilities.

Whatever the poetic merit of the lyrics and their relevance to
3

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 4

the 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.
district

court’s

declaratory

Accordingly, we affirm the

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.

I.
A.
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.
1

Defendant

Defendants’ “Half-Time Mix” includes lyrics like “Y’all
don’t really want it but the young got time / With a flow so
spec like . . . technologic / Shawty get loose, baby do what you
do, let me see you let down your hair.” Lil’ Mama, “Shawty Get
Loose” (Jive Records 2008). J.A. 586.

4

Case: 09-1021

Pro

Football,

operates

Document: 43

Inc.

the

is

a

Date Filed: 03/25/2011

Maryland

Redskins.

corporation

Defendant

WFI

Page: 5

that

Stadium,

owns

Inc.

and

is

a

Delaware corporation that owns and operates FedEx Field, where
the

Redskins

91,000

play

fans.

home

games.

Defendants

FedEx

have

Field

always

seats

more

provided

than

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

defendants

in

holder

who

was

prompted

plaintiff

and

defendants

change

Feldman.

2003,

was

introducing

deaf

listening devices.

and

unable

by

communications
Feldman

himself
to

as

a

benefit

first

emailed

season
from

between

ticket

assistive

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 onethird of the screen, significantly reducing the remaining video
5

Case: 09-1021

portion.

As

Document: 43

an

Date Filed: 03/25/2011

alternative,

captioning devices.

defendants

Page: 6

proposed

hand-held

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

obligation

to

under

the

ADA,

full

and

equal

afford

FedEx

Field

enjoyment

had

of

a

its

legal
goods,

services, facilities, and privileges to spectators who are deaf
or hard of hearing.
the

stadium’s

public

The NAD demanded that defendants caption
address

“scoreboards/Jumbotrons.”

system

J.A.

announcements

on

the

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.
that

defendants

Plaintiffs requested a declaratory judgment
were

violating

the

ADA

and

an

injunction

requiring defendants to “provide individuals with disabilities
equal

access

to

the

benefits
6

of

[defendants’]

facilities,

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

programs, services, and activities.”

J.A. 16.

Page: 7

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

penalties

called,

the

plays

safety

that

and

just

emergency

occurred,

all

information,

of

the

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

captioned

was

an

defendants

started

address

emergency

system

evacuation

captioning

game

that

defendants

video.

However,

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.
7

Case: 09-1021

On

the

LED

Document: 43

boards

Date Filed: 03/25/2011

defendants

captioned:

(1)

Page: 8

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

Additionally,

defendants

video

played

provided

before

captioning

in

the
the

game.

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.
8

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 9

Three months after filing their complaint, plaintiffs
retained

expert

Lawrence

National

Center

for

Goldberg.

Accessible

Goldberg

Media,

a

founded

research

the

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

recommendation

on

the

system

broadcast.

principle

that

Goldberg

“if

there

based

is

his

spoken

or

performed speech, or essential non-speech information provided
via audio systems, a usable text-equivalent should be provided
for people who cannot fully perceive such audio.”
he

explained

in

his

deposition:

“[I]f

audio

J.A. 399.
is

As

heard

a

by

hearing person, then it has some reason for being projected;
and, therefore, a deaf person should have equal access to that.”
J.A. 337.
B.
Defendants moved for summary judgment in January 2008,
and

plaintiffs

2008.

cross-moved

for

summary

judgment

in

February

Defendants contended that the case was moot because they

were captioning game and emergency information as requested in
9

Case: 09-1021

the

complaint

responded

and

that

defendants

Document: 43

would

there

could,

violating the ADA.

Date Filed: 03/25/2011

do

so

remained

with

the

J.A. 109.

a

“flip

Page: 10

indefinitely.

Plaintiffs

live

controversy

of

switch,”

a

because

return

to

Further, plaintiffs alleged that

defendants continued to violate the ADA by failing to caption
music lyrics and the Red Zebra radio program.
maintained

that

defendants

were

not

Plaintiffs also

providing

full

aural

accessibility because the LED board captions were not in the
same line of sight as the Jumbotrons, but they abandoned this
claim after the summary judgment hearing.

Defendants urged that

the court could not grant relief on the captioning of music
lyrics and the radio program because these claims were outside
the scope of the complaint and were raised for the first time in
plaintiffs’ summary judgment motion.
The district court concluded that plaintiffs’ case was
not moot because defendants’ voluntary provision of captioning
did

not

satisfy

the

heavy

burden

of

showing

no

reasonable

expectation that the alleged ADA violations would recur.

On the

issue of which alleged ongoing violations were within the scope
of the complaint, the district court concluded that plaintiffs’
request for captioning music lyrics, but not their request for
captioning the radio program, was encompassed in the complaint.
The

court

relied

upon

the

ongoing

10

disputes

regarding

the

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 11

captioning music lyrics and the line-of-sight positioning of the
LED captions to bolster its holding that the case remained live.
On the substance of the ADA claim, the district court
awarded summary judgment to plaintiffs and held that the ADA
requires
content

defendants
broadcast

to

provide

over

FedEx

auxiliary
Field’s

aids

public

for

the

address

aural

system,

including music lyrics.

The court found it undisputed that the

Redskins

auxiliary

without

could
undue

particular

provide
burden.

auxiliary

access

Because
aid,

the

the
court

ADA

to

the

does

music

not

declined

to

lyrics

dictate

a

issue

an

injunction requiring captioning as the means of access for the
music lyrics.

Plaintiffs do not appeal this portion of the

district court’s ruling.
defendants

make

Pursuant to the district court’s order

available

typed

copies

of

the

lyrics

to

plaintiffs by email before each game.

II.
On appeal defendants maintain that the district court
erroneously held (1) that plaintiffs’ claims were not moot and
(2) that the ADA requires defendants to provide auxiliary aids
for aural content broadcast over FedEx Field’s public address
system.

Defendants

take

particular

issue

with

the

court’s

conclusion that the ADA requires them to furnish plaintiffs with
access to the lyrics to music that is played over the public
11

Case: 09-1021

address

system.

Document: 43

Plaintiffs

Date Filed: 03/25/2011

cross

appeal,

Page: 12

arguing

that

the

district court wrongly construed their request for captioning
the

radio

program

Alternatively,

as

outside

plaintiffs

the

contend

scope
that

of

the

their

complaint.

request

for

captioning the Red Zebra radio program was tried by consent of
the

parties.

We

affirm

the

district

court’s

order

in

its

entirety.
A.
We

first

address

plaintiffs’ claims are moot.

defendants’

assertion

that

We review the district court’s

ruling on constitutional mootness de novo. 2

Green v. City of

Raleigh, 523 F.3d 293, 298 (4th Cir. 2008).

A “case is moot

when the issues presented are no longer ‘live’ or the parties
lack a legally cognizable interest in the outcome.”
McCormack, 395 U.S. 486, 496 (1969).
moot during the pendency of an appeal.”
F.3d 281, 286 (4th Cir. 2007).

Powell v.

“Litigation may become
Incumaa v. Ozmint, 507

“The requisite personal interest

that must exist at the commencement of the litigation . . . must
continue throughout its existence.”

United States Parole Comm’n

v.

(1980)

Geraghty,

445

U.S.

388,

397

2

(quoting

Henry

P.

The district court also held that plaintiffs’ claims were
not prudentially moot.
Defendants do not challenge this
holding.

12

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 13

Monaghan, Constitutional Adjudication: The Who and When, 82 Yale
L.J. 1363, 1384 (1973)).
A case may remain live even if the events giving rise
to

the

lawsuit

cease.

The

“voluntary

discontinuance

of

challenged activities by a defendant does not necessarily moot a
United States v. Jones, 136 F.3d 342, 348 (4th Cir.

lawsuit.”
1998).

The exception to this general rule is when there is “no

reasonable expectation that the wrong will be repeated.”

Lyons

P’Ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 800 (4th
Cir. 2001) (quoting United States v. W.T. Grant Co., 345 U.S.
629, 633 (1953) (emphasis added)).

“But this exception is just

that – an exception – and defendants ‘face a heavy burden to
establish mootness in such cases because otherwise they would
simply be free to return to [their] old ways’ after the threat
of a lawsuit has passed.”

Id. (quoting W.T. Grant, 345 U.S. at

632).
While we commend defendants for providing most of the
relief

that

plaintiffs

requested

and

for

engaging

with

plaintiffs on the benefits and burdens of particular auxiliary
aids, we agree with the district court that defendants have not
discharged

their

expectation

that

heavy
they

burden
will

of

repeat

showing
their

no

reasonable

alleged

wrongs.

Although defendants were investigating possible auxiliary aids
years before plaintiffs’ lawsuit, they did not actually provide
13

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 14

captioning until after plaintiffs filed their complaint.

See

Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th
Cir. 2007)

(noting that “whether the defendant’s cessation of

the offending conduct was motivated by a genuine change of heart
or

timed

cessation

to

anticipate

analysis).

suit”

is

Further,

relevant

this

is

plaintiffs “control[] [their] own fate.”
289.

not

to

the

voluntary

a

case

in

which

Incumaa, 507 F.3d at

Defendants maintain complete control over the captioning.

They hired one stenographer, Stephen Clark, as an independent
contractor to provide the captioning.

If Clark for some reason

cannot provide his services at a Redskins home game, he arranges
for another certified stenographer to take his place.

Given the

ease with which defendants could stop providing captioning, we
simply cannot say that they have made an affirmative showing
that the continuation of their alleged ADA violations is “nearly
impossible.”

Lyons, 243 F.3d at 800; see also Tandy v. City of

Wichita, 380 F.3d 1277, 1291 (10th Cir. 2004) (observing in an
ADA

case

that

defendants’

heavy

burden

under

the

voluntary

cessation doctrine is “typically . . . met only by changes that
are permanent in nature and that foreclose a reasonable chance
of recurrence”).
Equally important is the continued existence of a live
dispute over captioning music lyrics at Redskins games.

The

district court construed plaintiffs’ complaint to encompass a
14

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

request for captioning of music lyrics.

Page: 15

Because defendants had

not provided auxiliary aids for the lyrics, the court concluded
that this issue also remained live.

As explained below, we

agree with the district court’s construction of the complaint
and therefore hold that plaintiffs’ case was not moot when the
court ruled on the parties’ summary judgment motions, nor is the
case moot before this court.

Ramer v. Saxbe, 522 F.2d 695, 704

(D.C. Cir. 1975) (“A case is not moot so long as any single
claim

for

relief

remains

viable,

whether

that

claim

was

the

primary or secondary relief originally sought.”) (citing Powell,
395 U.S. at 496-97).
Defendants argue that even if plaintiffs’ request for
captioning music lyrics is a live claim, this request must be
separated for mootness purposes from captioning emergency and
game-related
providing.

information
Because

we

that
agree

defendants
with

the

are

district

voluntarily
court

that

defendants have not shown that a continuation of their alleged
ADA violations is nearly impossible, we likewise treat all of
plaintiffs’ requested relief as presenting a live claim.
B.
We now turn to the district court’s interpretation of
plaintiffs’ complaint.

Federal Rule of Civil Procedure 8(a)

requires a “pleading that states a claim for relief” to include
“a

short

and

plain

statement

of
15

the

claim

showing

that

the

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 16

pleader is entitled to relief” and “a demand for the relief
sought, which may include relief in the alternative or different
types of relief.”

The statement of the claim must give the

defendant “fair notice” of the claim and the “grounds upon which
it

rests.”

(2007).

Bell

Atl.

Corp.

v.

Twombly,

550

U.S.

544,

555

A “formulaic recitation of the elements of a cause of

action will not do.”

Id.

“Factual allegations must be enough

to raise a right to relief above the speculative level.”

Id.

Plaintiffs did not explicitly request that defendants
caption the music lyrics accompanying the football game; this
specificity appeared for the first time in plaintiffs’ summary
judgment

motion.

mentions

music

“announcements

Although
lyrics,

made

over

the

complaint

it

does

the

public

never

refer

repeatedly

address

“captioning on the Jumbotrons and video monitors.”
11, 12, 15, 16.

explicitly

system”

to
and

J.A. 8, 10,

Besides requesting captioning of “plays that

just occurred,” “penalties called,” and “safety and emergency
information,”

plaintiffs

requested

captioning

of

“any

announcements made over the public address system.”

other

J.A. 16.

The complaint also referred to “equal access to the information
. . . made over the public address system.”

J.A. 15.

Music is

part of the aural content that defendants broadcast on FedEx
Field’s public address system.

By repeatedly referring to the

“public address system,” plaintiffs gave defendants fair notice
16

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 17

that they were seeking as much auxiliary access as possible to
the

football

game

as

experienced

from

the

stadium

bowl,

an

experience which includes music.
C.
Before turning to defendants’ argument on the merits
of plaintiffs’ ADA claim, we dispose of plaintiffs’ cross-appeal
challenging the district court’s holding that the complaint did
not

encompass

program.

As

specifically

a

request
with

for

the

mention

captioning

music

captioning

moved for summary judgment.

the

lyrics,
the

Red

Zebra

plaintiffs

radio

program

radio

did

not

until

they

Unlike the music lyrics, however,

the Red Zebra program is not part of the aural content broadcast
over FedEx Field’s public address system, which plaintiffs did
repeatedly reference in their complaint.

The Red Zebra program

is a separate broadcast heard only in FedEx Field’s concourse
areas, and it includes different commentary than what is heard
in

the

stadium

bowl.

Although

the

complaint

refers

to

the

“video monitors located in the concession areas,” J.A. 10, it
describes the content on the monitors to which plaintiffs sought
access
system.”

as

the

“announcements

J.A. 16.

made

over

the

public

address

The complaint describes the purpose of the

concourse monitors as “enabl[ing] attendees to keep track of
events on-field when they are not in their seats.”

J.A. 10.

Because the requested relief focuses on what is broadcast from
17

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 18

the field, the district court properly held that plaintiffs’
request for captioning the Red Zebra program was outside the
scope of the complaint and could not be sought at the summary
judgment stage.
Plaintiffs argue that even if their complaint cannot
be construed to encompass captioning the radio program, this
issue was tried by implied consent of the parties under Federal
Rule of Civil Procedure 15(b)(2).

Rule 15(b)(2) provides that

“[w]hen an issue not raised by the pleadings is tried by the
parties’ express or implied consent, it must be treated in all
respects as if raised in the pleadings.”
defendant

of

the

allegations

to

be

“Because notice to the

proven

is

essential

to

sustaining a cause of action, Rule 15(b) applies only when the
defendant has consented to trial of the non-pled factual issues
and will not be prejudiced by amendment of the pleadings to
include

Gilbane

them.”

Bldg.

Co.

v.

Fed.

Richmond, 80 F.3d 895, 901 (4th Cir. 1996).

Reserve

Bank

of

The plain language

of Rule 15(b)(2) suggests that the non-pled issue must have gone
to

trial.

pleading

The
when

rule

the

“is

facts

designed
proven

at

to

allow

trial

amendment

differ

from

of

a

those

alleged in the complaint, and thus support a cause of action
that the claimant did not plead.”
Courts

of

appeals

are

Id. (emphasis added).
split

regarding

15(b)(2) applies at the summary judgment stage.
18

whether

Rule

See Ahmad v.

Case: 09-1021

Furlong,

435

F.3d

circuit split).
Doughney,

Document: 43

263

1196,

Date Filed: 03/25/2011

1203

n.1

(10th

Page: 19

Cir.

2006)

(noting

In People for Ethical Treatment of Animals v.
F.3d

359,

367

(4th

Cir.

2001),

we

affirmed

a

district court’s grant of summary judgment on an issue raised
for

the

first

judgment.
allow

time

in

the

plaintiffs’

motion

for

summary

We found that although the district court did not

formal

plaintiffs’
constructive

amendment

of

subsequently
amendment

the

complaint

raised

claim,

the

complaint

of

to

the

include

court

by

the

recognized

granting

judgment in the plaintiffs’ favor on the non-pled issue.

summary
Id. at

367-68.
Here,
grant

summary

in

contrast,

judgment

on

the

district

plaintiffs’

court

radio

declined

station

to

claim

because it found that defendants did not consent to trial of
that claim.

The court in Doughney found that the defendant had

fair notice of the non-pled claim because although the defendant
objected

to

plaintiffs’

belated

claim,

vigorously defended against the claim.”

the

defendant

“also

Id. at 367.

Because defendants here merely objected to plaintiffs’
raising the radio program at the summary judgment stage, and did
not vigorously defend against it, they did not essentially try
or litigate the issue.

In their response to plaintiffs’ summary

judgment motion, defendants focused primarily on their argument
that

the

radio

program

was

not
19

raised

in

the

complaint

and

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

therefore could not be used to avoid mootness.

Page: 20

Moreover, the

bulk of that mootness argument focused on the undisputed fact
that defendants were already captioning play-by-play information
from

the

field

in

the

concourse

areas.

Defendants’

only

response to the Red Zebra program specifically, other than their
general assertion that the ADA does not require captioning the
program,

was

a

footnote

observing

that

none

of

plaintiffs

claimed to read the captioned coverage from the field while in
the concourse areas.

Thus, defendants maintained that there was

no factual basis for plaintiffs’ argument that “the content of
the

radio

broadcast

is

superior

to

broadcasters.”

that
J.A.

provided
21

by

(emphasis

the

television

network

in

original).

This does not amount to a vigorous defense against

providing auxiliary access to the Red Zebra program.
Plaintiffs

also

argue

that

implied

consent

may

be

found in defendants’ failure to object to the introduction of
evidence relevant to the request for captioning the Red Zebra
program,

namely

Goldberg’s

captioning the program.

expert

report

that

recommended

However, as the Ninth Circuit has said,

although “a party’s failure to object to evidence regarding an
unpleaded issue may be evidence of implied consent to trial of
an issue, it must appear that the party understood the evidence
was introduced to prove the unpleaded issue.”

Campbell v. Bd.

of Trs. of Leland Stanford Junior Univ., 817 F.2d 499, 506 (9th
20

Case: 09-1021

Cir. 1987).

Document: 43

Date Filed: 03/25/2011

Page: 21

There is no indication of such an understanding on

this record.
D.
Defendants
requiring

them

to

challenge
provide

the

district

auxiliary

aids

court’s

that

enable

holding
“equal

access to the aural information broadcast over the stadium bowl
public address system at FedEx Field.”

J.A. 578.

The court

defined the aural information as the “music with lyrics, play
information,

advertisements,

referee

information, and other announcements.”

calls,
Id.

safety/emergency
Defendants contend

this sweeps far broader than what the ADA requires, particularly
with regard to the lyrics to music broadcast over the stadium’s
public address system.
Title III of the ADA mandates that individuals who
visit places of public accommodation like FedEx Field may not
“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.”

42

U.S.C.

§

12182(a).

Title

III

defines

discrimination in part as the
failure to take such steps as may be necessary to
ensure that no individual with a disability is
excluded, denied services, segregated or otherwise
treated
differently
because
of
the
absence
of
auxiliary aids and services, unless the entity can
demonstrate that taking such steps would fundamentally

21

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 22

alter the nature of the good, service, facility,
privilege . . . or would result in an undue burden.
§

12182(b)(2)(A)(iii).

regulation

implementing

Id.

public

accommodation

A

Title

shall

Department
III

furnish

of

further

Justice

provides

appropriate

(DOJ)

that

auxiliary

“a
aids

and services where necessary to ensure effective communication
with individuals with disabilities.”

28 C.F.R. § 36.303(c).

Defendants do not contend that captioning the aural
information

described

in

the

district

court’s

order

would

constitute a fundamental alteration or an undue burden.
inquiry

is

defendants

therefore
to

limited

provide

to

auxiliary

whether

aids

Our

ADA

requires

the

for

the

aural

content

broadcast over the stadium bowl’s public address system in order
to

provide

plaintiffs

with

“full

and

equal

enjoyment”

of
Id.

defendants’ goods, services, facilities, and privileges.
§ 36.201(a).

Neither the ADA nor the regulations implementing

the ADA impart guidance on the specific content that places of
public

accommodation

must

deaf or hard of hearing.

communicate

to

individuals

who

are

The DOJ’s Technical Assistance Manual

for Title III indicates that the type of auxiliary aid that
ensures “effective communication” varies by context.
of

Justice,

Disabilities
4.3200.

The

Civil
Act:

Rights

Title

regulation

III

Division,
Technical

contemplates

22

The

Americans

Assistance
that,

U.S. Dep’t

like

Manual
the

with
III-

type

of

Case: 09-1021

auxiliary

aid,

auxiliary

aids

Document: 43

the
is

Date Filed: 03/25/2011

content
also

that

must

be

Page: 23

communicated

context-sensitive.

What

by

constitutes

“full and equal enjoyment” of a place of public accommodation’s
goods, services, facilities, and privileges necessarily varies
based on what the place provides to visitors and consumers.
We agree with the district court that in the context
of a professional football game at a large stadium like FedEx
Field,

effective

auxiliary
useless

aids
to

communication

requires

beyond

assistive

plaintiffs,

to

defendants

listening

convey

to

devices,

the:

(1)

provide

which

are

game-related

information broadcast over the public address system, including
play information and referee calls; (2) emergency and public
address announcements broadcast over the public address system;
and (3) the words to music and other entertainment broadcast
over the public address system.

Plaintiffs need access to this

aural content to have full and equal access to the goods and
services that defendants provide at FedEx Field.
To resolve the issue, we must determine the goods and
services

defendants

provide.

First

and

foremost,

provide a live football game at FedEx Field.
enjoy

a

game

on

a

level

as

equal

as

defendants

For plaintiffs to

possible

with

hearing

spectators, they must be able to access, in both the stadium
bowl and concourse areas, the game-related information broadcast
over the public address system.
23

Title III of the ADA also

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 24

requires defendants to provide auxiliary aids for the content of
emergency

information,

advertisements,

and

public

service

announcements broadcast over the stadium bowl’s public address
system.

Without

auxiliary

aids

that

provide

emergency

information, spectators with disabilities are almost certain to
experience more stress in an emergency than hearing spectators.
Knowing

that

understandable

instructions

will

accompany

an

emergency, then, is necessary to the full and equal enjoyment of
the game.

Advertisements and public service announcements are

also part of the services and privileges that defendants provide
because

they

Redskins’

communicate

stature

organizations.
support
which

the

causes

and

to

spectators

recognition

Advertisements

Redskins.
the

Public

Redskins

among

a

message

businesses

communicate
service

support

and

about

which

and

announcements
how

the

other

entities
indicate

spectators

might

become involved in those causes.
We also agree with the district court that defendants
“provide more than a football game.”
an entertainment experience.

J.A. 577-78.

They provide

This experience includes aural and

visual components that, although not part of the game action,
play an important role in generating support for the game and
promoting spectator attendance.

Full and equal enjoyment of

defendants’ goods, services, privileges, and facilities includes
aural access to the lyrics to music broadcast over the stadium
24

Case: 09-1021

Document: 43

bowl’s public address system.

Date Filed: 03/25/2011

Page: 25

Without this access plaintiffs

are “otherwise treated differently” because of the “absence of
auxiliary aids.” 42 U.S.C. § 12182(b)(2)(A)(iii).

Music played

during a football game arouses enthusiasm and fosters a sense of
shared

participation.

The

lyrics

may

be

nonsensical,

as

defendants point out, but even nonsensical lyrics may enhance
the environment of collective excitement that defendants provide
as part of their goods and services.

By having access to the

lyrics, plaintiffs have the opportunity to participate in the
communal

entertainment

experience.

Without

access

to

lyrics

played, for example, during cheerleader dance routines and the
halftime show, plaintiffs would not fully and equally experience
the

planned

and

synchronized

promotional

entertainment

that

large stadiums like FedEx Field provide.
In holding that defendants must provide access to the
lyrics, we emphasize that, like the district court, we do not
require the auxiliary aids and services to take a particular
form.

When an auxiliary aid of some kind is required, the

regulations acknowledge (1) that the type of aid necessary for
effective communication inevitably will vary with context and
(2) that “[t]he auxiliary aid requirement is a flexible one.”
28

C.F.R.

pt.

36

App.

B.

What

is

more,

“full

and

equal

enjoyment” is not so capacious as to “mean that an individual

25

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 26

with a disability must achieve an identical result or level of
achievement as persons without a disability.”
The
result.

DOJ’s

rulemaking

activity

Id.

does

not

alter

this

The DOJ issued a Notice of Proposed Rulemaking in June

2008 regarding the issue of captioning at sports stadiums.

The

notice announced the DOJ’s awareness “that individuals who are
deaf or hard of hearing have expressed concern that they are
unaware of information that is provided over the public address
systems” at sports stadiums with a capacity of 25,000 or more.
Nondiscrimination

on

the

Basis

of

Disability

by

Public

Accommodations and in Commercial Facilities, 73 Fed. Reg. 34508,
34531-32 (proposed June 17, 2008).

The DOJ therefore proposed

that large stadiums “provide captioning for patrons who are deaf
or

hard

of

hearing

announcements

made

34532.

The

notice

several

major

for

over

safety

the

public

also

announced

stadiums,

including

and

emergency

address
the

Id.

system.”

DOJ’s

FedEx

information

awareness

Field,

at

that

“currently

provide open captioning of all public address announcements, and
do not limit captioning to safety and emergency information.”
Id.

The

notice

solicited

comments

on

“the

effect

of

a

requirement to provide captioning for patrons who are deaf or
hard of hearing for game-related information (e.g., play-by-play
information), safety, and emergency announcements, and any other
relevant announcements.”

Id.
26

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 27

On July 23, 2010, after oral argument in this case, the
DOJ issued final rules enforcing the accessibility standards of
Title

III

of

the

ADA.

Nondiscrimination

on

the

Basis

of

Disability by Public Accommodations and in Commercial Facilities,
28

C.F.R.

§

36,

available

at

http://www.ada.gov/regs2010/titleIII_2010/titleIII_combined.html.
With respect to the issue of captioning of “all public address
announcements,”

rather

than

simply

“safety

and

emergency

information,” the DOJ elected to “postpone rulemaking on this
complex issue.”

Id.

The DOJ based this decision on “a number of

factors, including the multiple layers of existing regulations by
various state agencies and levels of government, and the wide
array of information, requests, and recommendations related to
developing

technology

“concluded

that

by

further

the

public.”

consideration

Id.
and

Thus,

review

before it issues specific regulatory requirements.”
Defendants

maintain

that

the

DOJ’s

is

the

DOJ

prudent

Id.

solicitation

of

input and postponement of rulemaking on this issue indicates
that

the

stadiums

DOJ
to

does

not

provide

interpret
auxiliary

the

ADA

access

to

require

to

large

game-related

information, let alone music lyrics.

We disagree.

This action

demonstrates

to

like

the

DOJ’s

experienced by plaintiffs.

alertness

problems

those

It does not preclude the conclusion

that the ADA requires defendants to provide auxiliary access to
27

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 28

more than just safety and emergency information.

The earlier

notice of proposed rulemaking explicitly contemplated that the
ADA may require captioning of game-related information and “any
other relevant announcements.”
of

Disability

by

Public

Nondiscrimination on the Basis

Accommodations

Facilities, 73 Fed. Reg. at 34531-32.
evaluate the

effect

of

such

a

and

in

Commercial

The DOJ is continuing to

requirement.

This

evaluation

raises the possibility that the requirement could pose an undue
burden for some stadiums, or that it could fundamentally alter a
stadium’s goods and services, thus providing defenses to what
the ADA otherwise requires.

The DOJ’s action does not, however,

indicate that large stadiums like FedEx Field need only furnish,
at most, auxiliary access to play-by-play game information.

The

notice cited play-by-play information as one example of gamerelated information and mentions “other relevant announcements,”
leaving open the possibility that spectators who are deaf or
hard of hearing must have auxiliary access to the promotional
and entertainment content of a stadium bowl’s public address
system in order to fully and equally enjoy the goods, services,
facilities, and privileges of the stadium.

28

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 29

III.
For

the

foregoing

reasons,

the

judgment

of

the

district court is
AFFIRMED.

29

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 30

BEATY, Chief District Judge, dissenting in part:
I respectfully dissent from the majority opinion to the
extent that it affirms the scope of the declaratory judgment
entered by the district court in this case.
district

court

in

this

case

erred

by

In my view, the

announcing

a

broad

declaratory judgment that required “equal access” to all “aural
content” at FedEx Field, rather than focusing on whether the
auxiliary aids provided by Defendants were sufficient to ensure
“effective communication.”

By setting out an “equal access to

aural content” standard, the district court set out a rule that
would potentially require that all content broadcast over the
public address system at an athletic event at a public stadium
be captured and provided to deaf or hearing impaired individuals
in order to comply with the ADA, even though the ADA itself does
not

include

such

a

requirement,

instead

of

following

the

“auxiliary aid” analysis set out in the applicable statutory and
regulatory provisions.
The Americans with Disabilities Act prevents discrimination
on the basis of disability “in the full and equal enjoyment of
the

goods,

services,

facilities,

privileges,

advantages,

accommodations of any place of public accommodation.”
§ 12182(a).
must

take

or

42 U.S.C.

Under the statute, a place of public accommodation
necessary

steps

to

ensure

that

hearing-impaired

individuals are not “excluded, denied services, segregated or
30

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 31

otherwise treated differently than other individuals because of
the absence of auxiliary aids and services,” unless such steps
would result in an undue burden or fundamental alteration in the
nature of the good, service, facility or privilege.
§ 12182(b)(2)(A)(iii)

(emphasis

added).

The

42 U.S.C.

Department

of

Justice regulations that implement these provisions state that
“[a]

public

aids

and

accommodation
services

shall

where

furnish

necessary

appropriate
to

ensure

communication with individuals with disabilities.”
§ 36.303(c).

amplifiers,

effective
28 C.F.R.

“The term ‘auxiliary aids and services’ includes

. . . [q]ualified
transcription

auxiliary

interpreters,

services,
assistive

written
listening

notetakers,
materials,
devices,

computer-aided

telephone
assistive

handset
listening

systems, telephones compatible with hearing aids, closed caption
decoders, open and closed captioning, telecommunications devices
for deaf persons (TDD’s), videotext displays, or other effective
methods

of

making

aurally

delivered

materials

available

to

individuals with hearing impairments.” 26 C.F.R. § 36.303(b).
The Department of Justice has noted that “[t]he auxiliary aid
requirement is a flexible one. . . . [T]he Department believes
that Congress did not intend under title III to impose upon a
public

accommodation

consideration
disability.”

to

the

the

requirement

request

of

that
the

it

give

individual

28 C.F.R. part 36, App. B, Sec. 36.303.
31

primary
with

a

Thus,

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 32

“[a] public accommodation can choose among various alternatives
as long as the result is effective communication.” Id.
Under these statutory and regulatory provisions as they
relate

to

hearing-impaired

individuals,

public

accommodations

should follow a three-step process: (1) a public accommodation
must provide auxiliary aids where necessary to ensure effective
communication;

and

(2)

if

this

requirement

is

triggered

and

auxiliary aids are needed to ensure effective communication, the
public accommodation can choose what auxiliary aids are provided
as long as the result is effective communication; but (3) the
public

accommodation

need

not

provide

an

auxiliary

aid

or

service if it would result in an undue burden or fundamental
alteration.

Thus, the relevant focus is on whether auxiliary

aids are needed for, and result in, “effective communication.”
In

the

present

case,

under

this

analysis,

the

first

question is whether an auxiliary aid or service of some type
must

be

provided

FedExField.
whether

the

to

auxiliary

case.

effective

communication

at

If so, the analysis then moves to the second step:
auxiliary

aids

effective communication.
of

ensure

aids

or

chosen

by

Defendants

result

in

In this regard, there were two types

services

offered

by

Defendants

in

this

First, there is no dispute that Defendants have been

providing

assisted-listening

service since 1997.

devices

as

an

auxiliary

aid

or

However, there is also no dispute that
32

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 33

those devices did not benefit Plaintiffs due to the nature of
Plaintiffs’ hearing impairments.

Second, after this suit was

filed, Defendants attempted to address Plaintiffs’ concerns by
providing auxiliary aids that included captioning on the LED
boards at the 50-yard line of all public service announcements,
play

calls,

game

announcements,

emergency

announcements,

and

other announcements and information broadcast over the public
address system, in addition to captioning of the video feeds in
the

concession

areas. 1

However,

the

professional

stenographer/captioner providing the captioning did not caption
the lyrics to songs, because he testified that he followed the
“industry

standard”

of

not

captioning

song

lyrics

due

to

difficulty in understanding and correctly captioning the lyrics,
and because the software that he used did not allow him to
“prescript” the lyrics in advance. (Stephen Clark Dep., J.A.0433 to JA-0434).
Before the district court, Defendants disputed whether the
ADA required them to provide deaf and hard of hearing fans with
any type of auxiliary aids and services beyond the assistivelistening devices in order to ensure effective communication.
The district judge properly rejected this contention, finding
1

Defendants also offered the possibility of a hand-held
captioning system.
However, Plaintiff Feldman rejected this
option and the district court did not consider whether this type
of auxiliary aid would result in effective communication.
33

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 34

that the assistive-listening system provided by Defendants did
not

result

further

in

effective

finding

auxiliary

aid

communication.

communication

that

simply

or

service

These

findings

for

watching
did

the

game

not

rightly

Plaintiffs,
without

provide

would

and

have

any

effective
supported

a

declaratory judgment that an auxiliary aid of some type must be
provided by Defendants beyond the assistive-listening devices,
unless

undue

burden

or

fundamental

alteration

could

be

established.
However, the district court went beyond this analysis, and
rather than declaring that an auxiliary aid of some type was
necessary

for

effective

communication,

the

district

court

instead declared that “the ADA requires Defendants to provide
deaf

and

information

hard

of

hearing

broadcast

over

system at FedExField.”

fans

equal

access

the

stadium

bowl

to

the

public

aural
address

The district court then specifically

concluded that the ADA requires Defendants to provide auxiliary
aids with respect to the lyrics to the songs played during the
cheerleader’s dance routines.

On this point, the district court

did not consider whether the captioning system being provided by
Defendants resulted in effective communication as a whole, and
instead created a separate analysis focusing on “equal access”
to a particular communication.

While the ADA provides for “full

and

services

equal

enjoyment”

of

the

34

at

a

place

of

public

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 35

accommodation, the primary obligation is to furnish auxiliary
aids

and

services

communication.

that

provide

an

“effective

method”

of

Thus, the district court’s focus on providing

“equal access” to the “aural content” but failure to evaluate
whether

the

auxiliary

aids

actually

provided

resulted

in

“effective communication” goes beyond the regulatory framework. 2
In
whether

addition,
the

the

auxiliary

district
aids

that

court’s
were

failure
provided

to

consider

resulted

in

effective communication left the second step in the analysis
unanswered. The Complaint in this case specifically requested
that all public announcements be captioned on the JumboTrons,
not the LED boards, but the district court did not consider
whether the auxiliary aid of captioning on the Jumbotrons, as
requested, was necessary for effective communication, nor did

2

The Department of Justice Technical Assistance Manual
includes a reference to “equal access.” However, the Technical
Assistance Manual explains that “[i]n order to provide equal
access, a public accommodation is required to make available
appropriate auxiliary aids and services where necessary to
ensure effective communication.” Thus, even under the Technical
Assistance Manual, the obligation is framed in terms of
“effective communication.”
The Technical Assistance Manual
further notes that “[t]he type of auxiliary aid or service
necessary to ensure effective communication will vary in
accordance with the length and complexity of the communication
involved” and “the ultimate decision as to what measures to take
to ensure effective communication rests in the hands of the
public accommodation, provided that the method chosen results in
effective communication.”
U.S. Dep’t of Justice, Civil Rights
Division, The Americans with Disabilities Act: Title III
Technical Assistance Manual III-4.3200.
35

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 36

the district court consider whether the auxiliary aid provided
by

Defendants

of

captioning

effective communication.

on

the

LED

boards

resulted

in

The district court did conclude that a

trial was necessary on one issue related to the LED captioning,
specifically, the “line of sight” issue regarding the location
of the LED boards, but that issue was subsequently dropped by
the Plaintiffs.

Thus, the only issue remaining related to the

song lyrics, for which the district court concluded that “equal
access” was required, apart from any analysis of the auxiliary
aids that were being provided.
in

this

case

were

not

Thus, the ultimate issues raised

addressed,

leaving

ongoing

questions

regarding the impact of the district court’s Judgment. 3
In my view, the auxiliary aids provided here, i.e., the
captioning

that

concourse

area,

was

provided

were

on

sufficient

the
to

LED

boards

result

and

in

in

the

effective

communication, even if Defendants did not provide word-for-word
captioning of the songs in the cheerleader’s dance routines.
3

Of

The difficulty in this conclusion is exemplified by the
ultimate result here: the district court ruled that “equal
access” to the lyrics of the dance routines must be provided,
and Defendants have therefore been providing the lyrics by emailing song lyrics to Plaintiffs prior to the games. However,
if, as the district court concluded, equal access to the lyrics
of the dance routines is required, the auxiliary aid provided by
Defendants must still be evaluated in terms of whether it
results in “effective communication,” and the district court’s
decision leaves open the question of whether prior e-mailing of
the full lyrics of songs that may be played during the dance
routines results in “effective communication.”
36

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 37

course, even this conclusion does not mean that captioning is
required for all stadiums, since other auxiliary aids could also
be

sufficient

to

result

in

effective

communication.

In

addition, other stadiums may be able to raise defenses of undue
burden

or

fundamental

alteration,

Defendants in this case.

which

were

not

raised

by

In this regard, I would note that the

Department of Justice has undertaken the process of rulemaking
to

consider

“further

these

various

consideration

issues,

but

review

is

and

complexity of the issues involved.

has

concluded

prudent”

that

given

the

Thus, the issues potentially

raised in this case and the requirements of the ADA in this
context
future

would

be

matters

rulemaking,

litigated

below

or

but
on

of

many

public
of

appeal,

importance

these
given

issues

and

were

Defendants’

potential
not

fully

decision

to

voluntarily provide auxiliary aids, including captioning on the
LED

boards

and

on

the

video

screens

in

the

concourse

area.

Indeed, this appeal came before us driven not by the substantive
issues, but instead by Plaintiffs’ claim for attorney’s fees, as
was candidly discussed during oral argument. Therefore, in my
view, this case is not an appropriate forum or proceeding to
determine these potential issues, and particularly to announce
the

broad

rule

set

out

in

the

judgment.

37

district

court’s

declaratory

Case: 09-1021

Document: 43

Date Filed: 03/25/2011

Page: 38

Therefore, given all of the issues outlined above, I would
reverse the declaratory judgment in this case, as it was entered
by

the

district

court,

and

I

respectfully

dissent

from

the

majority opinion to the extent that it affirms that declaratory
judgment. 4

4

However, as in the majority opinion, I would affirm the
district court on Plaintiffs’ cross-appeal with respect to the
determination that issues related to the FM radio broadcast were
not raised in the Complaint and therefore are not properly
before the court. I therefore join that portion of the majority
opinion related to the FM radio broadcast issue.

38