I have long been interested in the ADA and how it applies to sports. In the very first edition of my book in 2000, I talked about the hypothetical of what would happen if Sean Elliott, who underwent a kidney transplant from his brother in 1999, was given grief when he returned to professional  basketball. For those of us who don’t know about Sean Elliott, he had an absolutely fabulous career at the University of Arizona, where believe it or not, says Wikipedia anyway, he is still the leading scorer after all these years. He then went on to an excellent career in the NBA where he won championships and made numerous All-Star teams. He spent his career with San Antonio at first, then Detroit, and then back to San Antonio. Currently, he is a game analyst for the San Antonio Spurs. In my original edition of Understanding the ADA, I talked about how to analyze the situation where a professional basketball player had one functioning kidney and was given grief. That got into a discussion of playing time, direct threat, among other things. Now, history repeats itself with the case of the day, Hammond v. University of Southern Mississippi, a November 2018 decision from the Southern District of Mississippi. As usual, the blog entry is divided into categories, and they are: facts, court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

Plaintiff was a student and football player at the University of Southern Mississippi, and he only has one kidney. According to Plaintiff, USM’s football staff enticed him to transfer to USM by offering a full scholarship if he worked his way onto the team’s two-deep roster. After Plaintiff transferred, he received a physical evaluation at USM’s Student Health Services Center. The report noted that Plaintiff had only one kidney but cleared him to play without restrictions.

During a team practice, Plaintiff mentioned to one of the trainers that he only had one kidney. The trainer immediately removed Plaintiff from practice and took him to the team physician. The physician did not clear Plaintiff to play, citing the potential liability to USM if he were injured. Plaintiff sought a second opinion as permitted by USM’s Sports Medicine Policies and Procedures, and his nephrologist stated that no restrictions were necessary. Plaintiff also offered to execute a waiver of liability, but USM would not allow him to play. Plaintiff filed this lawsuit against USM in the United States District Court for the Middle District of Louisiana. He asserted, among other things, claims of discrimination under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Defendant filed a Motion to Dismiss.

 

II

Court’s Reasoning Denying the Motion to Dismiss The §504ClaimAndTitleIIClaim

 

  1. Under 42 U.S.C. §§12102(1),(3)(A), for a regarded as claim, a plaintiff is only required to establish that the defendant knew of the impairment and withheld public services or benefits because of it.
  2. A person with one functioning kidney has a physical impairment as contemplated by the ADA.
  3. The allegations, which must be accepted as true at the motion to dismiss stage, are sufficient to satisfy that burden. In particular: 1) the head athletic trainer removed the plaintiff from practice after learning he had only one kidney; 2) defendant’s team physician would not clear him to play football because he only had one kidney; 3) the head athletic trainer continued to hold him from practice after receiving the report from his nephrologist because the head athletic trainer believed that playing football with one kidney posed a liability issue for the school and a danger to plaintiff’s health; and 4) defendant’s athletic department told other school that he did not pass the physical because he only had one kidney so the plaintiff had trouble landing somewhere else.
  4. University of Southern Mississippi also claimed sovereign immunity, but the court was having none of it because the plaintiff also alleged §504 violations. If an entity receives federal funds, that entity waives sovereign immunity in a suit for damages under §504 of the Rehabilitation Act. So, since the two laws (§504 and title II of the ADA), are virtually identical except for causation, it is not necessary to address the question of whether sovereign immunity applies to the title II claim when it doesn’t to the §504 claim.

III

Takeaways

  1. If one tries to give a hypothetical as to what a regarded as case would look like, you can’t do much better than this one.
  2. Certainly, a person with one functioning kidney has a physical impairment. A person with a one functioning kidney operates in the same way pretty much as a person with two. It would be an interesting question as to whether such a person would have an actual disability. It is certainly possible that is the case, but it wasn’t necessary to visit that question here.
  3. The seminal case on direct threat is Chevron, U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002). In that case, the Supreme Court said that any direct threat defense must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Further, that assessment has to be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions.
  4. DOJ’s title II regulations, 28 C.F.R. §35.139, essentially adopt the Chevron formulation. However, unlike the EEOC regulations on direct threat, the title II and title III direct threat regulations put out by DOJ only apply to direct threat to others and not to self. So, in this case, University of Southern Mississippi appears to have not only regarded the plaintiff as having a disability but also made a determination that the person was a direct threat to himself. That presents a problem because the DOJ regulations do not factor in direct threat to self; they only factor in direct threat to others. It certainly does not seem like the plaintiff was a direct threat to others.
  5. Even assuming a title II anything can argue that the ADA would exclude someone from participating in its programs if they were a direct threat to self, there seems to be a question of fact here as to whether the University of Southern Mississippi relied on the most current medical knowledge and/or the best available objective evidence when making its determination. Again, it is certainly not a foregone conclusion, that the direct threat to self defense even exists because the University of Southern Mississippi is a title II entity, and this is not an employment situation.
  6. Colleges and Universities have been fighting tooth and nail that their division I men’s football and basketball athletes are not employees. Here, if the plaintiff was an employee, that would activate the direct threat to self-defense. On the other hand, it would create all kinds of problem for the college or university that they probably don’t want to deal with.
  7. Liability risk isn’t the issue, rather the issue is whether the plaintiff is a direct threat to self or others (if title I), or whether they are a direct threat to others (title II and title III). In a way, this case reminds me of the case, which we discussed here, where the company had a 1% rule with respect to whether a person would be able to do a job with respect to future injuries being possible. The ADA and Rehabilitation Act do not work that way. They both require an individualized analysis using the most current medical knowledge and/or the best available objective evidence before reaching a conclusion that a person is a direct threat.
  8. The case is now finishing up the discovery stage. I am sure the defendant’s motion for summary judgment will be coming before too long.
  9. If I am the plaintiff, I would move to exclude any evidence about direct threat to self since this is a title II case, and therefore, not relevant. It bears noting that the original direct threat case was a Rehabilitation Act case involving direct threat to others and not to self.

Leave a Reply

Your email address will not be published. Required fields are marked *