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In a major defeat for the National Collegiate Athletic Association, a federal judge has ruled that it qualifies as a “place of public accommodation” under the Americans with Disabilities Act and can therefore be sued by a learning-disabled student who says its discriminatory rules barred him from getting an athletic scholarship. In his 108-page opinion in Bowers v. NCAA, U.S. District Judge Stephen M. Orlofsky of the District of New Jersey said, “This hotly contested case presents difficult legal questions in an area of the law that has become fertile ground for civil rights litigation: the applicability of laws prohibiting disability-based discrimination to the practices of the NCAA.” The plaintiff, Michael Bowers, claims the NCAA discriminates against the learning-disabled through initial eligibility requirements that govern whether a student may participate in intercollegiate college athletics. Among the many challenging issues that Orlofsky was forced to tackle in the opinion were whether money damages are available under the Rehabilitation Act; whether the NCAA is a place of public accommodation under the ADA; whether the NCAA’s eligibility requirements are “necessary” under the ADA; whether the NCAA is a recipient of federal funding; and whether the New Jersey Law Against Discrimination is applicable when an individual seeks access to a public accommodation outside of New Jersey. Bowers’ lawyers — Barbara E. Ransom of the Public Interest Law Center of Philadelphia and Richard L. Bazelon of Bazelon & Less, also in Philadelphia — challenged the NCAA’s regulations that prohibit first-year college students from participating in Division I and Division II athletic programs if they failed as high school students to complete a core academic curriculum specified by the NCAA. The NCAA requires high school students to complete 13 “core courses” in subject areas including English, mathematics, and the social and physical sciences before they may be declared “qualifiers,” student-athletes permitted to practice and compete as members of intercollegiate teams and to receive college athletic scholarships. Bowers completed a number of classes in high school that were designated “special education classes.” The NCAA ruled that such classes did not satisfy its core course requirement and declared that Bowers, who was a high school standout in football, was a “nonqualifier.” In his suit, Bowers alleges that the NCAA discriminated against him because of his disability in declaring him ineligible. He also sued Temple University, the University of Iowa and American International College for discrimination on the ground that they stopped recruiting him to play football when they concluded that his learning disability would likely result in the NCAA declaring him a nonqualifier. As a threshold matter, Judge Orlofsky concluded that Bowers “is still suffering from the adverse effects of the NCAA’s regulations in a way which confers standing to seek injunctive relief.” In a series of rulings, Orlofsky sided with Bowers on nearly every point. He ruled that money damages are available under the Rehabilitation Act “if intentional discrimination is alleged” and that the NCAA is not entitled to summary judgment on its claim that it is not a recipient of federal funding under the Rehabilitation Act. But by far the most important ruling in the opinion is Orlofsky’s decision that the NCAA is a place of public accommodation under the ADA. In a prior opinion, Orlofsky held that the NCAA itself is not a place of public accommodation because it is not a physical place. As a result, he said, the crucial issue was whether the NCAA owns, leases, leases to or operates a place of public accommodation. Although the term “operate” is not explicitly defined in the ADA statutory framework, Orlofsky found that the NCAA could “operate” under Title II — the ADA’s public accommodation section — if it “manages, controls or regulates the place or places of public accommodation of which Bowers was allegedly denied enjoyment in such a way that the NCAA manages, controls or regulates the allegedly discriminatory conditions of that place or those places of public accommodation.” Applying that definition, Orlofsky previously held that “indeed it is quite possible for the NCAA to operate places of public accommodation in connection with the discriminatory conditions alleged by Bowers.” On the basis of the record before him at that time, Orlofsky said, it was impossible to conclude that the NCAA “did not exercise the requisite control over its members so as to avoid classification as an ‘operator’ under Title III.” He cited evidence that the NCAA requires its member institutions “to control their athletic programs in compliance with the rules and regulations of the NCAA” and has an established procedure for the investigation and punishment of violations of NCAA rules. As a result, Orlofsky concluded that the NCAA’s initial eligibility requirements “determine whether and to what extent a particular student can participate in intercollegiate athletics and can receive institutional financial aid” and that “participation in intercollegiate athletics and receipt of financial aid from a member-institution are really just shorthand for a set of goods, services, facilities, privileges, advantages or accommodation of specific places of public accommodation.” Since that first opinion, Orlofsky gave both sides the chance to present evidence on the question of the extent to which the NCAA “controls” its member institutions in the context of whether it operates a place of public accommodation. The NCAA, he said, presented no new facts or legal arguments, forcing the court to conclude “as a matter of law” that “the NCAA is an operator of a place of public accommodation under Title III.” The NCAA was represented by attorneys Charles J. Vinicombe, J. Freedley Hunsicker Jr., John Schultz, Julianne Peck and Amy E. Pizzutillo of Drinker Biddle & Reath.

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