As everyone knows, Naomi Osaka made news last week in a big way. One of the things that I saw is that labor and employment bloggers were using it as an analogy for how they would deal with something like this under title I of the ADA, such as here184192212213215215. Sports commentators, such as here185193213214216216 for example, were also talking about it in employment law terms. What you do not find is anybody talking about the situation in terms of the applicable rules that actually apply. Since Naomi Osaka is an independent contractor, the question is whether title III of the ADA applies. If it does, what are the obligations of the WTA or the Grand Slams with respect to Naomi Osaka? This blog entry will deal with all of that. As is my typical practice, the blog entry is divided into categories and they are: facts; is Naomi Osaka a person with a disability; otherwise qualified/qualified is not a thing in title III; is the WTA a union; is the WTA a place of public accommodation; what about the interactive process; remedies; what accommodations might be possible; and concluding thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.





The facts that happened can be found here186194214215217217. Basically, Naomi Osaka has struggled with depression since she won the US open in 2018. If you recall, that particular US open ended when Serena Williams was defaulted on match point. All of a sudden, a very shy and introverted talented 18-year-old tennis professional was at the top of the world having beaten probably the greatest female tennis player of all time in a Grand Slam event. Certainly, a lot for anyone to handle. In her withdrawal statement from the French Open, she said that she has depression, anxiety, and social anxiety. She becomes extremely anxious when she has to talk to the press as it exacerbates her underlying mental health conditions. The Women’s Tennis Association (WTA), as well as well as the Grand Slams have rules mandating that players speak to the press. You can find the WTA rules on that here187195215216218218.



Is Naomi Osaka a Person with a Disability?


Under the ADA, 42 U.S.C. §12102188196216217219219(1), a disability is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment. Here, Naomi Osaka has a mental impairment. The question then becomes is whether the mental impairment substantially limits one or more major life activities. 42 U.S.C. §12102189197217218220220(2) defines a major life activity as including but not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. It also includes the operation of major bodily functions, such as but not limited to: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.


Undoubtedly, one of these major life activities is at issue with respect to Naomi Osaka. The question then arises whether she is substantially limited in any of these major life activities. The DOJ rules and regulations implementing title II in title III do not talk about substantial limitation. However, EEOC rules do talk about it. In particular, per 29 C.F.R. §1630.2190198218219221221(j)(ii), the question is whether the person is substantially limited in a major life activity as compared to most people in the general population. The chances are very good that a substantial limitation will be found upon further analysis. So, Naomi Osaka is undoubtedly a person with a disability under the ADA.



Otherwise Qualified/Qualified Is Not a Thing in Title III


The labor and employment law bloggers who have blogged on this are quick to note that meeting the press is arguably an essential function of the job. Under title I of the ADA, you have to be both a person with a disability and otherwise qualified/qualified (the Rehabilitation Act uses the term “otherwise qualified,” while the ADA uses the term, “qualified.” The two terms mean exactly the same thing. To be qualified under title I of the ADA, one of the questions, per 29 C.F.R. §1630.2191199219220222222(m), is whether the person can do the essential functions of the job with or without reasonable accommodations. You also find the term “qualified,” in title II of the ADA and it has a different meaning than it does under title I of the ADA. See 28 C.F.R. §35.104192200220221223223. However, the term otherwise qualified/qualified appears nowhere in title III of the ADA, as we discussed here193201221222224224 for example. So under title III of the ADA, whether Naomi Osaka is otherwise otherwise qualified/qualified is not relevant to the analysis that has to happen. By the way, titles II and III use the term “reasonable modification,” while title I uses the term, “reasonable accommodation.” The two terms are exactly the same in their meanings.



Is the WTA a Union?


Why does it even matter if the WTA is a union? It matters because unions are subject to title I of the ADA. The WTA is most definitely not a union, rather it is the organization that runs the professional tennis tour. They are not at all the same thing. For more information on the WTA, you can check out this link194202222223225225. So, title I of the ADA simply does not apply to Naomi Osaka’s situation.



Is the WTA a Place of Public Accommodation?


Under 42 U.S.C. §12181195203223224226226(7), the following are places of public accommodations: 1) places of lodging; 2) establishments serving food and drink; 3) places of exhibition and entertainment; 4) places of public gathering, such as a museum or library; 5) sales or rental establishments; 6) service establishments; 7) specified public transportation, such as terminals and depots; 8) public display or collection; 9) places of recreation, such as parks, etc.; 10) places of education; 11) social service center; and 12) places of exercise or recreation (athletic in nature).


There are several possibilities looking at the statute for claiming that the WTA is a place of public accommodation. For example, the WTA provides services. The tournaments also take place at athletic venues and even at places of recreation, such as parks. All this said, we don’t have to guess as to whether the WTA would be a place of public accommodation because the Supreme Court has already answered the question in PGA Tour v. Martin196204224225227227. In that case, you will find that the reasons the Supreme Court held that the PGA Tour was a place of public accommodation apply equally as well to the WTA. You don’t have to take my word for it. Let’s take a look at the United States Supreme Court’s reasoning on this issue as discussed on pages 677-681 of their opinion. In particular, the Supreme Court makes the following points about why the PGA golf tour and their qualifying rounds fit comfortably within title III of the ADA: 1) events occur on golf courses, a type of place specifically identified by the ADA as a place of public accommodation; 2) the PGA Tour leases and operates golf courses to conduct its Q school and its tours; 3) as a lessor and operator of golf courses, the PGA Tour cannot discriminate against any individual in the full and equal enjoyment of the goods, services, facility, privileges, advantages, or accommodations of those courses; 4) among the privileges offered by the PGA on the courses are those of competing in the Q school and playing on its tours; the former a privilege for which thousands of individuals from the general public pay and the latter being one for which they vie; 5) Title III’s broad general rule contains no express client or customer limitations; and 6) the PGA Tour offers two privileges to the general public, namely watching the golf competition and competing in it. Clearly, it is a no-brainer that the Supreme Court’s reasoning in PGA Tour v. Martin equally applies to the WTA.



What about the Interactive Process?


The interactive process is a title I construct, though as a matter of preventive law you have to be out of your mind not to use the interactive process in title II or title III situations. With respect to title II situations (accessing nonfederal governmental entities), you will find some case law out there requiring an interactive process, particularly with respect to places of education. If you search hard enough, you will find it outside of the educational contexts. You simply will not find case law dealing with whether a title III entity must engage in the interactive process. As a matter of preventive law, you certainly want to do that. However, if you don’t want to do that are you within your legal rights to refuse to do so? Arguably, yes. Will the courts hold that title III requires an interactive process? A court just might because it is hard to figure out how else you can determine a reasonable modification that does not constitute a fundamental alteration or an undue burden absent an interactive process. That said, as a matter of law a place of public accommodation would appear to be within its rights to refuse to engage in the interactive process. It makes no sense for them to take that position but they could. After initial reports on the Osaka matter, both the WTA and the Grand Slams, which are a separate entity, said they would work with her. That in and of itself is not surprising because she is a huge moneymaker on the tour, a worldwide presence, and the number two player in the world. If a place of public accommodation refuses to engage in the interactive process, it is certainly worth challenging because it would make for some great new law. It is also quite likely that a court would find that the interactive process is required because otherwise the ADA statutory scheme makes absolutely no sense.





The only remedies available to her under title III of the ADA would be injunctive relief and attorney fees. So, an order mandating the WTA engage in the interactive process and make reasonable modification to its policies, practices, procedures plus attorney fees. If the WTA takes federal funds (perhaps they took coronavirus relief funds), then damages would be a possibility under §504 the Rehabilitation Act upon a showing of deliberate indifference as we discussed here197205225226228228.



What Accommodations Might Be Possible?


I could think of one offhand. For example, perhaps her social anxiety is not so bad if she does the interview over a laptop through Zoom. There must be many other possible reasonable modifications that can be made without fundamentally altering the nature of her obligations to do the press conferences as a member of the WTA tour. The Job Accommodation Network198206226227229229 even though a job is not involved, could probably be of great help as well.



Concluding thoughts/takeaways


  1. Naomi Osaka is undoubtedly a person with a disability.
  2. The WTA is undoubtedly per PGA Tour v. Martin, subject to the rules dealing with places of public accommodation under Title III of the ADA.
  3. The WTA is under no obligation to engage in an interactive process with Naomi Osaka, though they would have to be out of their minds not to do so.
  4. I absolutely expect many more athletes at all levels to begin coming out saying that their mental health conditions need accommodating with reasonable modifications, particularly after a whole year of the pandemic that upended a lot of the athletes lives at all levels. Naomi Osaka has certainly started something.
  5. Keep in mind, the rules are not the same for employees and for independent contractors. So if this was the Kevin Love situation (he has been quite upfront about the anxiety that he deals with), he would be governed by title I because he is an employee of an NBA team.
  6. I have seen too many attorneys make mistakes because they don’t realize that each of the titles of the ADA have their own statutory and regulatory provisions. If you run into issues, be sure to seek out competent ADA counsel familiar with the particular title(s) involved.
  7. I am currently involved in several cases where more than one of the ADA titles are happening simultaneously. In fact, sometimes you can see titles I, II, and III all happening at the same time. It isn’t unusual in my practice for me to see title II and III happening at the same time, particularly but not exclusively so in the area of healthcare licensing boards and their interactions with professional recovery programs.
  8. Training, training, training (which also happens to be a large part of my practice:-).