Case 1:03-cv-01364-JLK Document 66 Filed 02/02/07 USDC Colorado Page 1 of 44
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 03-cv-1364-JLK SCOT HOLLONBECK, JOSE ANTONIO INIGUEZ, JACOB WALTER JUNG HO HEILVEIL, and VIE SPORTS MARKETING, INC., a Georgia corporation,
Plaintiffs, v. UNITED STATES OLYMPIC COMMITTEE, a federally chartered corporation, and U.S. PARALYMPICS, INC., f/k/a UNITED STATES PARALYMPIC CORPORATION, a Colorado non-profit corporation,
Defendants.
DEFENDANTS’ ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ AMENDED COMPLAINT AND U.S. PARALYMPICS, INC.’S COUNTERCLAIM
Defendants United States Olympic Committee (“USOC”) and U.S. Paralympics, Inc. (“USP”) f/k/a United States Paralympic Corporation (“USPC”) (collectively, “Defendants”), by and through their counsel, Hogan & Hartson LLP by Jeffrey S. George and Anne H. Turner, file their Answer and Affirmative Defenses to Plaintiffs’ Amended Complaint, and USP files its Counterclaim as follows:
ANSWER Introduction ALLEGATION NO. 1. On July 26, 1990, President George H. W. Bush signed the Americans with Disabilities Act (“ADA”), establishing one of the most important civil rights law for persons with disabilities in our country’s history. One of the principal goals of the ADA was equality of opportunity, full participation, and integration of people with disabilities in our economic and social life.
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ANSWER: The allegations contained in paragraph 1 of the Amended Complaint relate
to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore,
no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 2. Now, thirteen years later, the United States Olympic Committee — a federally chartered corporation responsible for United States participation in the Olympic and Paralympic Games — continues to discriminate against Paralympic athletes such as Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez and Jacob Walter Jung Ho Heilveil by denying them benefits, funding, and other support provided to Olympic athletes.
ANSWER: The allegations contained in paragraph 2 of the Amended Complaint relate
to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore,
no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 3. The USOC admits to this discrimination, and attempts to justify it on the grounds that its primary focus is on Olympic, and not Paralympic, athletes, and that more equitable funding for Paralympic athletes would detract from its support for Olympic athletes.
ANSWER: The allegations contained in paragraph 3 of the Amended Complaint relate
to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore,
no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 4. At the same time that the USOC denies benefits to Paralympic athletes for these ostensibly financial reasons, however, it hinders U.S. Paralympic fund-raising efforts by, for example, failing to effectively market the rights to the U.S. Paralympic trademark — valuable rights granted to the USOC by Congress.
ANSWER: The allegations contained in paragraph 4 of the Amended Complaint relate
to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore,
no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 5. In July, 2001, the USOC retained Plaintiff Vie Sports Marketing to develop the Paralympic brand and to market and sell the rights to the U.S. Paralympic trademark. Although Vie put significant work into this project and although potential sponsors showed significant interest, the USOC ultimately frustrated Vie’s attempts to secure the most valuable sponsorships for that mark, simultaneously breaching its contract with Vie and perpetuating its discrimination against Paralympic athletes and against Vie.

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ANSWER: To the extent that the allegations contained in paragraph 5 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, no answer is required. Further answering, Defendants state that the USPC retained Vie Sports Marketing, Inc. (hereinafter, “Vie”) for the provision of certain sponsorship development consulting services pursuant to a Sponsorship Development Consulting Agreement (“Consulting Agreement”) executed by the USPC and Vie and effective September 1, 2001, which speaks for itself. The USPC subsequently changed its name to USP, and USP and Vie modified the Consulting Agreement in December 2001 and March 2002, which modifications speak for themselves. At all times, USP fully complied with the Consulting Agreement. Defendants deny all remaining allegations contained in paragraph 5 of the Amended Complaint. ALLEGATION NO. 6. Plaintiffs bring this case to rectify the USOC’s discrimination against the Plaintiffs and to remedy the harm caused by that discrimination and by the breach of Defendants’ contract with, and repudiation of their promises to, Vie Sports.
ANSWER: To the extent the allegations contained in paragraph 6 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, no answer is required and the allegations are deemed to be denied or avoided. Further answering, Defendants deny the allegations contained in paragraph 6 of the Amended Complaint.
Jurisdiction and Venue ALLEGATION NO. 7. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343 and 1367.
ANSWER: Defendants admit that this Court has subject matter jurisdiction over this action. Defendants further state that this Court has dismissed all claims upon which jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 may have been conferred and, therefore, denies that this Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343. Further answering, Defendants admit that this Court has the discretion to retain jurisdiction over the state

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law claims in Counts III and IV of the Amended Complaint pursuant to 28 U.S.C. § 1367. Defendants further assert that Vie’s claims for breach of contract and promissory estoppel are subject to binding arbitration pursuant to the Consulting Agreement.1 ALLEGATION NO. 8. Venue is proper within this District pursuant to 28 U.S.C. § 1391.
ANSWER: Defendants admit the allegations contained in paragraph 8 of the Amended Complaint.
Parties ALLEGATION NO. 9. Scot Hollonbeck is a resident of Georgia. Due to a spinal cord injury, he is paralyzed from the waist down and is substantially impaired in one or more major life activities including but not limited to walking. He uses a manual wheelchair for mobility.
ANSWER: The allegations contained in paragraph 9 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 10. Jose Antonio Iniguez is a resident of Illinois. Due to the effects of polio, he is substantially impaired in one or more major life activities including but not limited to walking. He uses a manual wheelchair for mobility.
ANSWER: The allegations contained in paragraph 10 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 11. Jacob Walter Jung Ho Heilveil is a resident of Washington. Due to the effects of polio, he is substantially impaired in one or more major life activities including but not limited to walking. He is able to walk with difficulty with the aid of crutches, and often uses a manual wheelchair for mobility.

1

On January 4, 2007, the Court stayed this matter until June 25, 2007. If Vie’s breach of contract

and promissory estoppel claims are not settled prior to such time, Defendants will then file a motion to

compel arbitration and to stay this case.

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ANSWER: The allegations contained in paragraph 11 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 12. Plaintiff Vie Sports Marketing, Inc. is a Georgia corporation, with its principal place of business in Atlanta, Georgia.
ANSWER: Defendants are without knowledge and information sufficient to form a belief as to the truth of the allegations contained in paragraph 12 of the Amended Complaint and, therefore, deny the same. ALLEGATION NO. 13. Plaintiff Vie Sports Marketing, Inc., was founded and is owned and managed in part by Plaintiff Hollonbeck, an individual with a disability. Vie Sports was founded for the purpose of obtaining sponsors for the Paralympics and is closely associated with Paralympic and disabled athletes and sports. As such, Vie Sports has a known relationship or association with individuals with known disabilities.
ANSWER: To the extent the allegations contained in paragraph 13 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, no answer is required and the allegations are deemed to be denied or avoided. Further answering, Defendants are without knowledge and information sufficient to form a belief as to the truth of the allegations contained in paragraph 13 of the Amended Complaint and, therefore, deny the same. ALLEGATION NO. 14. Defendant United States Olympic Committee is a federally chartered corporation, 36 U.S.C. § 220502(a), registered to do business in the State of Colorado with its principal place of business in Colorado Springs, Colorado.
ANSWER: Defendants admit the allegations contained in paragraph 14 of the Amended Complaint. ALLEGATION NO. 15. Defendant U.S. Paralympics, Inc., is a Colorado non-profit corporation with its principal place of business in Colorado Springs, Colorado. USP was formerly known as the Unites States Paralympic Corporation (“USPC”).

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ANSWER: Defendants admit the allegations contained in paragraph 15 of the
Amended Complaint.
ALLEGATION NO. 16. On information and belief, the USP is the alter ego of the USOC. ANSWER: Defendants deny the allegations contained in paragraph 16 of the
Amended Complaint.
ALLEGATION NO. 17. Because the USOC often referred to itself as the USP and/or USPC in its relationship with the Athlete Plaintiffs and Vie, the USOC and the USP will often be referred to jointly herein.
ANSWER: Defendants deny the allegations contained in paragraph 17 of the
Amended Complaint.
Facts ALLEGATION NO. 18. The Paralympic Games, held every two years immediately after the Olympic Games, are the equivalent of the Olympic Games for persons with disabilities.
ANSWER: The allegations contained in paragraph 18 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 19. The Paralympic Games are the second largest sporting event in the world, after the Olympic Games.
ANSWER: The allegations contained in paragraph 19 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 20. The United States sent approximately 600 athletes to the 2000 Summer Olympic Games and approximately 250 athletes to the 2000 Summer Paralympic Games.
ANSWER: The allegations contained in paragraph 20 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.

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ALLEGATION NO. 21. Congress created the USOC through the Ted Stevens Olympic and Amateur Sports Act (“ASA”), 36 U.S.C. §§ 220501 - 220529, and gave the USOC exclusive jurisdiction over “all matters pertaining to United States participation in the Olympic Games, the Paralympic Games, and the Pan-American Games, including representation of the United States in the games,” and obtaining “the most competent amateur representation possible in each event” in Olympic, Pan-American and Paralympic Games. Id. § 220503(3)(A) & (4).
ANSWER: The allegations contained in paragraph 21 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 22. Congress empowered the USOC to act as the national Paralympic committee of the United States. Id. § 220505(c)(2).
ANSWER: The allegations contained in paragraph 22 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 23. The USOC has responsibility for the United States Paralympic Team.
ANSWER: The allegations contained in paragraph 23 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 24. The USOC controls many aspects of Olympic and Paralympic organization, administration, housing, training, and competition in the United States, including but not limited to managing, regulating and/or controlling the conditions of such organization, administration, housing, training, and competition.
ANSWER: The allegations contained in paragraph 24 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 25. The USOC selects the U.S. cities that will submit bids to host the Olympic and Paralympic Games, thereby effectively controlling all aspects of the venues in which competition will take place.

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ANSWER: The allegations contained in paragraph 25 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 26. As such, the USOC operates the places of public accommodation where such organization, administration, housing, training, and competition take place.
ANSWER: The allegations contained in paragraph 26 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 27. The USOC operates and, on information and belief, owns several additional places of public accommodation.
ANSWER: The allegations contained in paragraph 27 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 28. On information and belief, the USOC owns the Colorado Springs Olympic Training Center in Colorado Springs, Colorado.
ANSWER: The allegations contained in paragraph 28 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 29. On information and belief, the USOC operates the Colorado Springs Olympic Training Center.
ANSWER: The allegations contained in paragraph 29 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 30. On information and belief, the USOC owns the Lake Placid Olympic Training Center in Lake Placid, New York.

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ANSWER: The allegations contained in paragraph 30 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 31. On information and belief, the USOC operates the Lake Placid Olympic Training Center.
ANSWER: The allegations contained in paragraph 31 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 32. On information and belief, the USOC owns the ARCO Olympic Training Center, in Chula Vista, California.
ANSWER: The allegations contained in paragraph 32 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 33. On information and belief, the USOC operates the ARCO Olympic Training Center.
ANSWER: The allegations contained in paragraph 33 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 34. Plaintiff Hollonbeck is an elite wheelchair racer. ANSWER: The allegations contained in paragraph 34 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 35. Plaintiff Hollonbeck has competed in three Paralympic Games, winning two gold medals and a silver medal in Barcelona in 1992, two silver medals in Atlanta in 1996 and competing as a finalist in three events in Sydney in 2000. He also competed in an exhibition wheelchair racing event — the 1500 meter race — in the corresponding Olympic Games, winning a silver medal in 1996.

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ANSWER: The allegations contained in paragraph 35 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 36. Plaintiff Hollonbeck has held the United States records in the 800, 1500 and 5000 meter races, and world records in the former two events.
ANSWER: The allegations contained in paragraph 36 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 37. Plaintiff Hollonbeck has won 15 marathons and twice won the United States 10,000 meter championship.
ANSWER: The allegations contained in paragraph 37 the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 38. Plaintiff Hollonbeck was the Wheelchair Sports USA Athlete of the Year in 1992.
ANSWER: The allegations contained in paragraph 38 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 39. Plaintiff Hollonbeck is currently in training for the 2004 Olympic and Paralympic games in Athens.
ANSWER: The allegations contained in paragraph 39 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 40. Plaintiff Iniguez is an elite wheelchair racer. He competed in the 1992 Paralympic Games, in the 100 and 800 meter races and the marathon.

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ANSWER: The allegations contained in paragraph 40 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 41. Because he had to work full time, Plaintiff Iniguez was not able to afford the time to train and qualify for the 1996 Paralympic Games.
ANSWER: The allegations contained in paragraph 41 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 42. Plaintiff Iniguez qualified for the 2000 Paralympic Games in several distances and for the quarterfinal preliminary race for the 2000 Olympic 1500 meter wheelchair exhibition race. However, he was not able to afford to leave his job for the time required to attend the Paralympic Games.
ANSWER: The allegations contained in paragraph 42 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 43. Plaintiff Iniguez is currently in training for the 2004 Olympic and Paralympic games in Athens.
ANSWER: The allegations contained in paragraph 43 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 44. Plaintiff Heilveil is an elite wheelchair racer. ANSWER: The allegations contained in paragraph 44 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 45. Plaintiff Heilveil has competed in two Paralympic Games. In the 1996 Paralympic Games in Atlanta, he competed in the 800 meter, the 1500 meter, the 5000 meter, the 10,000 meter, and the marathon. He placed fourth in the 10,000 meter race. He also competed in the 1996 Olympic exhibition 1500 meter competition in Atlanta.

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ANSWER: The allegations contained in paragraph 45 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 46. In 2000, Plaintiff Heilveil competed in the Paralympic Games in Sydney, racing in the 800 meter, the 1500 meter, the 5000 meter, the 10,000 meter, and the marathon. He did not win any medals.
ANSWER: The allegations contained in paragraph 46 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 47. Plaintiff Heilveil is currently in training for the 2004 Olympic and Paralympic games in Athens.
ANSWER: The allegations contained in paragraph 47 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 48. Defendants provide certain goods, services, facilities, privileges, advantages, and accommodations to elite non-disabled athletes that they either do not provide to elite athletes with disabilities, including the Athlete Plaintiffs, or provide to such athletes in inferior quantities, manners and/or forms.
ANSWER: The allegations contained in paragraph 48 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 49. Defendants’ discrimination includes but is not limited to discrimination in grants, and other financial support for individual athletes, programs and organizations as well as insurance, eligibility for the Resident Athlete Program, use of training facilities, representation in governance, marketing, and other goods, services, facilities, privileges, advantages, and accommodations.
ANSWER: The allegations contained in paragraph 49 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.

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ALLEGATION NO. 50. Defendants’ discrimination against Paralympic athletes, including the Athlete Plaintiffs, includes but is not limited to that described in this Amended Complaint.
ANSWER: The allegations contained in paragraph 50 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 51. Prior to 2002, the USOC awarded money to Olympic athletes for gold, silver, and bronze medals as well as fourth place finishes, but did not award any money to Paralympic athletes for gold, silver, or bronze medal or fourth place finish.
ANSWER: The allegations contained in paragraph 51 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 52. In 2002, the USOC awarded an athlete $25,000 for an Olympic gold medal, $15,000 for an Olympic silver medal, and $10,000 for an Olympic bronze medal.
ANSWER: The allegations contained in paragraph 52 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 53. In 2002, the USOC awarded an athlete $2,500 for a Paralympic gold medal, $1,500 for a Paralympic silver medal, and $1,000 for a Paralympic bronze medal.
ANSWER: The allegations contained in paragraph 53 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 54. To determine usage of its training facilities, the USOC prioritizes athletes by class. Olympic athletes are allocated an A (or first) priority level; Paralympic athletes are allocated a C (or third) priority level.
ANSWER: The allegations contained in paragraph 54 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.

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ALLEGATION NO. 55. The USOC makes Basic Grants available to Olympic athletes but not Paralympic athletes.
ANSWER: The allegations contained in paragraph 55 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 56. The USOC makes Tuition Assistance Grants available to Olympic athletes but not Paralympic athletes.
ANSWER: The allegations contained in paragraph 56 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 57. The USOC makes Elite Athlete Health Insurance available to Olympic athletes but not Paralympic athletes.
ANSWER: The allegations contained in paragraph 57 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 58. During the 1997 to 2000 quadrennium, the USOC directed grants to some 2,300 individual Olympic athletes (with awards ranging from $200 to $100,000) for a total of $26 million.
ANSWER: The allegations contained in paragraph 58 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 59. Under USOC rules, Paralympic athletes, including the Athlete Plaintiffs, are not eligible to receive basic grants, tuition assistance grants or health insurance from the USOC.
ANSWER: The allegations contained in paragraph 59 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.

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ALLEGATION NO. 60. As a result, the Athlete Plaintiffs have had to pay significant training expenses out of their own pockets and Plaintiff Iniguez has had to work a full-time job both to earn enough to cover expenses and to secure health insurance. This has impaired their ability to train for Paralympic and Olympic competition.
ANSWER: The allegations contained in paragraph 60 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 61. Plaintiff Hollonbeck competed in the 1992, 1996 and 2000 Olympic Games in the 1500 meter wheelchair exhibition race.
ANSWER: The allegations contained in paragraph 61 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 62. He was denied many benefits that, on information and belief, non-disabled athletes participating in exhibition events enjoyed.
ANSWER: The allegations contained in paragraph 62 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 63. For example, Plaintiff Hollonbeck was not permitted to march in the opening ceremonies of the Olympic Games.
ANSWER: The allegations contained in paragraph 63 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 64. On information and belief, non-disabled U.S. Olympic athletes participating in exhibition events in the 1992 Olympics marched in the opening ceremonies.
ANSWER: The allegations contained in paragraph 64 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.

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ALLEGATION NO. 65. On information and belief, non-disabled U.S. Olympic athletes participating in exhibition events in the 1996 Olympics marched in the opening ceremonies.
ANSWER: The allegations contained in paragraph 65 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 66. On information and belief, non-disabled U.S. Olympic athletes participating in exhibition events in the 2000 Olympics marched in the opening ceremonies.
ANSWER: The allegations contained in paragraph 66 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 67. Although he won several medals — including an Olympic silver medal and silver and gold Paralympic medals — Plaintiff Hollonbeck received no compensation, while Olympic athletes received monetary compensation for winning gold, silver and bronze medals in those same years.
ANSWER: The allegations contained in paragraph 67 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 68. The governance structure of the USOC discriminates against Paralympic athletes. This discrimination includes but is not limited to that described in this Amended Complaint.
ANSWER: The allegations contained in paragraph 68 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 69. The USOC Constitution calls for the creation of an Athlete Advisory Committee (“AAC”), which plays a central role in USOC governance. See, .e.g., USOC Constitution arts. XII, XIII, XIX. Despite the fact that the definition of “amateur athlete” in the ASA includes Paralympic athletes, see 36 U.S.C. § 220501(b)(l), until recently, Paralympic athletes were excluded from the AAC. Even in the most recent version of the USOC Constitution, which includes Paralympic athletes in the AAC for the first time, each Olympic sport has a representative on the AAC, while a total of two Paralympic representatives are permitted. USOC Constitution art. XIX, sec. 1.

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ANSWER: The allegations contained in paragraph 69 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 70. Congress granted the USOC the exclusive right to use, market and sell rights to the Olympic and Paralympic names, emblems and symbols. 36 U.S.C. § 220506(a).
ANSWER: The USOC admits the allegations contained in paragraph 70 of the Amended Complaint. ALLEGATION NO. 71. The USOC relies on the sale of rights to the Olympic mark to generate revenue.
ANSWER: The allegations contained in paragraph 71 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 72. The USOC obtains most of its funding through sponsorship fees, suppliership agreements and fees obtained through licensing of media properties and merchandise.
ANSWER: The allegations contained in paragraph 72 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 73. These fees are used to house, feed, train and otherwise support U.S. Olympic athletes and to finance the United States’ participation the Olympic Games.
ANSWER: The allegations contained in paragraph 73 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 74. On information and belief, the USOC used the Olympic mark to generate over $300 million in corporate sponsor and other income during the 1997 to 2000 quadrennium.

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ANSWER: The allegations contained in paragraph 74 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 75. The USOC discriminates against elite athletes with disabilities, including the Athlete Plaintiffs, by limiting the promotion, marketing and sale of rights to the Paralympic trademark to a level far below the level at which it promotes, markets and sells rights to the Olympic mark. This has the effect, among others, of limiting funds available for Paralympic programs and athletes, limiting public understanding, exposure and profile of the Paralympics and of individual Paralympic athletes, and generally suppressing the role of the Paralympics in public life.
ANSWER: The allegations contained in paragraph 75 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 76. In the spring and summer of 2000, the USOC convened a United States Paralympic Sport Corporation Working Group (“Working Group”) to address issues of Paralympic governance and structure.
ANSWER: The allegations contained in paragraph 76 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 77. The Working Group consisted of three representatives of Disabled Sport Organizations, one representative of a National Governing Body (an organization administering an Olympic sport), four representatives from the USOC, two at-large members and an athlete representative of the Paralympic Athletes Committee (“PAC”).
ANSWER: The allegations contained in paragraph 77 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 78. Plaintiff Hollonbeck was a member of the Working Group; he was the athlete representative of the PAC.

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ANSWER: The allegations contained in paragraph 78 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 79. One of the tasks of the Working Group was to explore whether a separate entity should be created to administer U.S. participation in the Paralympic Games.
ANSWER: The allegations contained in paragraph 79 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 80. Among the early goals of the Working Group such a separate entity was that it would “[e]stablish value for Paralympic team rights.”
ANSWER: The allegations contained in paragraph 80 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 81. Ultimately, the USOC proposed to spin off the administration of United States participation in the Paralympic Games into a separate entity, with the goal that it become self-sustaining.
ANSWER: The allegations contained in paragraph 81 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 82. The PAC declined to endorse the USOC’s proposal. Among other reasons, the PAC believed that the new structure would be “separate but unequal” and expressed concern that the USOC had not allocated sufficient funds to permit a successful startup or continuation of the separate entity.
ANSWER: The allegations contained in paragraph 82 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided.

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ALLEGATION NO. 83. Nevertheless, in August, 2000, the USOC Executive Committee resolved to create a separate corporation named the United States Paralympic Corporation (“USPC”).
ANSWER: To the extent that the allegations contained in paragraph 83 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, no answer is required and the allegations are deemed to be denied or avoided. Further answering, Defendants state that the USPC was incorporated in August 2000. Defendants deny all remaining allegations contained in paragraph 83 of the Amended Complaint. ALLEGATION NO. 84. The USPC was to be created with the stated purpose of providing Paralympic athletes access to funds, services and supports more comparable to those afforded Olympic athletes.
ANSWER: To the extent that the allegations contained in paragraph 84 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, no answer is required and the allegations are deemed to be denied or avoided. Defendants deny the allegations contained in paragraph 84 of the Amended Complaint. ALLEGATION NO. 85. The USOC represented that it endorsed those objectives for Paralympic athletes but could not fund them in light of the fact that it believed its principal mission to be Olympic sport.
ANSWER: The allegations contained in paragraph 85 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 86. The USPC was to have authority over commercial use of Paralympic marks, images and terminology, and to market those marks, images and terminology to raise funds for the Paralympics.
ANSWER: Defendants deny the allegations contained in paragraph 86 of the Amended Complaint.

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ALLEGATION NO. 87. The USOC made clear, in establishing the USPC, that only those sponsors who had explicit rights to the U.S. Paralympic trademark would be able to exercise such rights, and that those contracts ran, at most, through 2004. Sponsors without such rights would be given a right of first negotiation.
ANSWER: Defendants deny the allegations contained in paragraph 87 of the
Amended Complaint.
ALLEGATION NO. 88. In August, 2000, USOC officials Norman P. Blake and William J. Hybl incorporated the USPC as a Colorado non-profit corporation.
ANSWER: Defendants admit the allegations contained in paragraph 88 of the
Amended Complaint.
ALLEGATION NO. 89. In or about November, 2002, the name of the USPC was changed to “U.S. Paralympics, Inc.”
ANSWER: Defendants deny the allegations contained in paragraph 89 of the
Amended Complaint.
ALLEGATION NO. 90. The USOC never ultimately transferred authority for United States participation in the Paralympics to the USP or USPC.
ANSWER: The allegations contained in paragraph 90 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 91. Rather, the USOC administered and continues to administer United States participation in the Paralympics through a division of the USOC known as “U.S. Paralympics.”
ANSWER: Defendants deny the allegations contained in paragraph 91 of the
Amended Complaint.
ALLEGATION NO. 92. In or about the fall of 2000, representatives of the USOC promised to representatives for Paralympic athletes that, whether United States participation in the Paralympics was administered within the USOC or through a separate corporation, the entity in question would have full authority over U.S. Paralympic trademarks.

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ANSWER: Defendants deny the allegations contained in paragraph 92 of the
Amended Complaint.
ALLEGATION NO. 93. Plaintiff Hollonbeck began taking steps to form Plaintiff Vie Sports Marketing during the year 2000. One of the primary purposes of Vie Sports Marketing was to provide marketing services to the USOC for the U.S. Paralympic trademark.
ANSWER: Defendants are without knowledge and information sufficient to form a
belief as to the truth of the allegations contained in paragraph 93 of the Amended Complaint and,
therefore, deny the same.
ALLEGATION NO. 94. In early 2001, Mr. Hollonbeck started working with Daniel Dooley, a successful businessman and father of a child with a disability, on a plan to provide marketing services to the USPC for the rights to the U.S. Paralympic trademark.
ANSWER: Defendants are without knowledge and information sufficient to form a
belief as to the truth of the allegations contained in paragraph 94 of the Amended Complaint and,
therefore, deny the same.
ALLEGATION NO. 95. Mr. Hollonbeck also recruited Svein Romstad, who at that time was with Meridian Management, the marketing agency for the IOC. Mr. Romstad provided consulting services to Vie Sports in 2001 and joined the company in the spring of 2002.
ANSWER: Defendants are without knowledge and information sufficient to form a
belief as to the truth of the allegations contained in paragraph 95 of the Amended Complaint and,
therefore, deny the same.
ALLEGATION NO. 96. On or about April 18, 2001, Mr. Hollonbeck and Mr. Dooley made a presentation to the USOC concerning services they could provide in marketing and selling rights to the U.S. Paralympic trademark.
ANSWER: Defendants admit that on or about April 18, 2001, Mr. Hollonbeck and
Mr. Dooley made a presentation to the USPC concerning services they alleged they could
provide in marketing and selling rights to the U.S. Paralympic trademark. Defendants deny all
remaining allegations contained in paragraph 96 of the Amended Complaint.

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ALLEGATION NO. 97. In the spring of 2001, the USPC issued a “Reason for Proposal” (“RFP”) for a marketing agency for the U.S. Paralympic trademark.
ANSWER: Defendants admit the allegations contained in paragraph 97 of the
Amended Complaint.
ALLEGATION NO. 98. In June, 2001, Vie submitted a bid to become the exclusive marketing agency for the U.S. Paralympic trademark.
ANSWER: Defendants admit that in June 2001, Vie submitted to the USPC a bid to
become a marketing agency for the U.S. Paralympic trademark. Defendants deny all remaining
allegations contained in paragraph 98 of the Amended Complaint.
ALLEGATION NO. 99. In July, 2001, Defendants selected Vie to be the exclusive marketing agency for the U.S. Paralympic trademark.
ANSWER: Defendants admit that in July 2001, the USPC communicated to Vie that
the USPC had selected Vie to become a marketing agency for the U.S. Paralympic trademark.
Defendants deny all remaining allegations contained in paragraph 99 of the Amended Complaint.
ALLEGATION NO. 100. Among the terms of the agreement between Defendants and Vie were that Vie would be the exclusive marketing agency for U.S. Paralympics and that it would receive a base fee of $20,000 per month for the first 12 months of the contract and $12,500 per month for the remainder of the term as well as 15% of total gross revenues on all sponsor and supplier sales. The parties agreed that the contract would extend from 2001 through the 20052008 quadrennium.
ANSWER: Defendants deny the allegations contained in paragraph 100 of the
Amended Complaint.
ALLEGATION NO. 101. Both before and after the Vie proposal, representatives of Defendants stated to representatives of Vie that Vie would be able to sell rights to the U.S. Paralympic mark to companies that had existing sponsorship contracts with the USOC or the IOC provided that the sponsor did not have explicit rights to that mark.
ANSWER: Defendants deny the allegations contained in paragraph 101 of the
Amended Complaint.

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ALLEGATION NO. 102. Defendants stated that those USOC and IOC sponsors who did not have such rights were to be provided a right of first negotiation for the rights to the U.S. Paralympic mark.
ANSWER: Defendants deny the allegations contained in paragraph 102 of the
Amended Complaint.
ALLEGATION NO. 103. Finally, Defendants stated that even those sponsors with rights to the U.S. Paralympic mark only owned those rights through 2004, so that Vie would immediately be able to sell the U.S. Paralympic rights for use starting in 2005.
ANSWER: Defendants deny the allegations contained in paragraph 103 of the
Amended Complaint.
ALLEGATION NO. 104. The parties referred to this access to USOC and IOC sponsors as the “open market.”
ANSWER: Defendants deny the allegations contained in paragraph 104 of the
Amended Complaint.
ALLEGATION NO. 105. Starting in August, 2001, through January, 2003, Vie did a substantial amount of work pursuant to its contract with Defendants.
ANSWER: Defendants admit that Vie performed some work pursuant to the
Consulting Agreement. Defendants deny all remaining allegations contained in paragraph 105 of
the Amended Complaint.
ALLEGATION NO. 106. For example, Vie developed a strategic plan to market the rights to the U.S. Paralympic trademark, conducted market research and brand analysis, and developed the products through which the brand would be marketed.
ANSWER: Defendants deny the allegations contained in paragraph 106 of the
Amended Complaint.
ALLEGATION NO. 107. Vie kept Defendants informed of its substantial efforts by sending Defendants drafts of Vie’s products and presentations, meeting with representatives of Defendants on several occasions, holding weekly conference calls with Defendants, and exchanging numerous emails with Defendants’ representatives concerning Vie’s activities.

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ANSWER: Defendants admit that Vie sent the USPC and USP drafts of Vie’s work
product, met with the USPC and USP, held conference calls with the USPC and USP, and
exchanged emails with the USPC and USP concerning Vie’s activities. Defendants deny all
remaining allegations in paragraph 107 of the Amended Complaint.
ALLEGATION NO. 108. Defendants approved of and encouraged Vie to continue its work pursuant to the parties’ contract.
ANSWER: Defendants deny the allegations contained in paragraph 108 of the
Amended Complaint.
ALLEGATION NO. 109. Throughout this time, Vie repeatedly sought reassurance from Defendants of the open market principle.
ANSWER: Defendants deny the allegations contained in paragraph 109 of the
Amended Complaint.
ALLEGATION NO. 110. Defendants repeatedly provided these reassurances. ANSWER: Defendants deny the allegations contained in paragraph 110 of the
Amended Complaint.
ALLEGATION NO. 111. Specifically, Defendants assured Vie that a certain category of IOC sponsors — known as “The Olympic Programme” or “TOP” sponsors — did not own rights to the U.S. Paralympic trademark, and that Vie could sell rights to the Paralympic trademark to them or (if they declined) to their competitors.
ANSWER: Defendants deny the allegations contained in paragraph 111 of the
Amended Complaint.
ALLEGATION NO. 112. As of June, 2001, it was the USOC’s view that TOP sponsors did not have rights to the U.S. Paralympic trademark.
ANSWER: Defendants deny the allegations contained in paragraph 112 of the
Amended Complaint.
ALLEGATION NO. 113. Plaintiff Hollonbeck would not have taken the steps he took to form Vie, Messrs. Dooley and Romstad would not have joined Vie, and Vie would not have bid on Defendants’ RFP if not for the promise of an open market.

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ANSWER: Defendants deny the allegations contained in paragraph 113 of the
Amended Complaint.
ALLEGATION NO. 114. When Vie met with USOC and IOC sponsors to sell the U.S. Paralympic brand, a number of sponsors showed significant interest.
ANSWER: Defendants deny the allegations contained in paragraph 114 of the
Amended Complaint.
ALLEGATION NO. 115. However, Defendants undermined, discouraged and deterred Vie’s attempts to secure sponsorships.
ANSWER: Defendants deny the allegations contained in paragraph 115 of the
Amended Complaint.
ALLEGATION NO. 116. Among other things, several sponsors took the position that they already owned rights to the U.S. Paralympic brand.
ANSWER: Defendants admit that certain sponsors interpreted their sponsorship
contracts to include ownership rights to the U.S. Paralympic brand. Defendants deny all
remaining allegations in paragraph 116 of the Amended Complaint.
ALLEGATION NO. 117. Despite the fact that this was contrary to Defendants’ own view of the sponsors’ contracts, Defendants discouraged further meetings with those sponsors and their competitors, and prohibited Vie from attempting to sell them rights to the U.S. Paralympic brand.
ANSWER: Defendants deny the allegations contained in paragraph 117 of the
Amended Complaint.
ALLEGATION NO. 118. In September, 2002, representatives of the U.S. Paralympics division of the USOC submitted a memorandum to the USOC Executive Committee raising the question whether or not the USOC should “yield to TOP sponsors” and recognize “implied” rights to the U.S. Paralympic brand.
ANSWER: The September 9, 2002 memorandum speaks for itself. Defendants admit
that the September 9, 2002 memorandum discusses possible results of yielding to TOP sponsors
and that TOP sponsors believe they have rights to the U.S. Paralympic brand. To the extent

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Vie’s allegations are inconsistent with the September 9, 2002 memorandum, Defendants deny
the remaining allegations contained in paragraph 118 of the Amended Complaint.
ALLEGATION NO. 119. In this memorandum, the U.S. Paralympics division asserted that these sponsors had “[n]o contractual rights.”
ANSWER: The September 9, 2002 memorandum speaks for itself. Defendants deny
the allegations contained in paragraph 119 of the Amended Complaint.
ALLEGATION NO. 120. The effect of “yield[ing] to TOP sponsors” would be to close the major sponsor categories to sale of the rights to the U.S. Paralympic mark.
ANSWER: The September 9, 2002 memorandum speaks for itself. Defendants deny
the allegations contained in paragraph 120 of the Amended Complaint.
ALLEGATION NO. 121. That is, not only would sponsors who had purchased rights to the Olympic mark from the USOC receive “implied” rights to the U.S. Paralympic mark, but the category in which each such sponsor fell would be completely closed to the sale of the U.S. Paralympic mark.
ANSWER: The September 9, 2002 memorandum speaks for itself. Defendants deny
the allegations contained in paragraph 121 of the Amended Complaint.
ALLEGATION NO. 122. This would radically curtail the ability to raise funds to support the U.S. Paralympics.
ANSWER: The September 9, 2002 memorandum speaks for itself. Defendants deny
the allegations contained in paragraph 122 of the Amended Complaint.
ALLEGATION NO. 123. That is, if the USOC had permitted Vie Sports Marketing to sell rights to the Paralympic mark as originally promised, there would be significantly more money available to fund Paralympic programs.
ANSWER: The September 9, 2002 memorandum speaks for itself. Defendants deny
the allegations contained in paragraph 123 of the Amended Complaint.
ALLEGATION NO. 124. The USOC’s September 2002 submission to its Executive Committee estimated the loss of revenue from a decision to “yield to TOP sponsors” at $18-24 million.

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ANSWER: The September 9, 2002 memorandum speaks for itself. Defendants deny
the allegations contained in paragraph 124 of the Amended Complaint.
ALLEGATION NO. 125. Nevertheless, the U.S. Paralympics division of the USOC submitted to the Executive Committee of the USOC a question that Defendants had represented to Paralympic athletes and Vie as having been resolved long ago, the USOC’s long-standing position on which had formed the basis both for Vie’s acceptance of the role of exclusive marketing agency and for a over a year of its hard work in building and promoting the U.S. Paralympic mark.
ANSWER: Defendants deny the allegations contained in paragraph 125 of the
Amended Complaint.
ALLEGATION NO. 126. On information and belief, the determination was made to close access to major sponsor categories to the independent sale of rights to the U.S. Paralympic mark.
ANSWER: Defendants deny the allegations contained in paragraph 126 of the
Amended Complaint.
ALLEGATION NO. 127. During the period around the September Executive Committee meeting, Defendants urged Vie to try to sell the rights to the U.S. Paralympics mark to more disability-oriented sponsors, for example, durable medical equipment companies.
ANSWER: Defendants deny the allegations contained in paragraph 127 of the
Amended Complaint.
ALLEGATION NO. 128. By blocking Vie’s attempts to market and sell the rights to the U.S. Paralympics trademark to current major sponsor categories and asking Vie to obtain sponsorships from smaller, disability-oriented sponsors, Defendants blocked access to millions of dollars of revenue that could have been devoted to supporting Paralympic athletes and sports.
ANSWER: To the extent that the allegations contained in paragraph 128 of the
Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and
January 4, 2007, no answer is required and the allegations are deemed to be denied or avoided.
Defendants deny all remaining allegations contained in paragraph 128 of the Amended
Complaint.
ALLEGATION NO. 129. Defendants continue to market and promote the Olympics in more ways -- and more effective ways -- than they promote the Paralympics.

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ANSWER: The allegations contained in paragraph 129 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 130. This has the effect of denying funding to Paralympic athletes and programs.
ANSWER: The allegations contained in paragraph 130 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 131. This has the further effect of significantly reducing the public profile of the Paralympics, Paralympic sports and Paralympic athletes, suppressing public awareness of the Paralympics, Paralympic athletes and sports, and generally frustrating the ability of athletes with disabilities to achieve competitive success, public understanding and integration.
ANSWER: The allegations contained in paragraph 131 of the Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and, therefore, no answer is required and the allegations are deemed to be denied or avoided. ALLEGATION NO. 132. Defendants also denied Vie the amounts it would have earned had it been permitted access to the open market as originally promised.
ANSWER: Defendants deny the allegations contained in paragraph 132 of the Amended Complaint. ALLEGATION NO. 133. In January, 2003, Defendants attempted unilaterally to renegotiate the terms of their contract with Vie to far less advantageous terms.
ANSWER: Defendants deny the allegations contained in paragraph 133 of the Amended Complaint. ALLEGATION NO. 134. At least two sponsors were obtained for the U.S. Paralympics through Vie’s efforts and/or during the period of its exclusive agency. Defendants have not paid Vie the amounts it is owed for those sponsorships.

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ANSWER: Defendants deny the allegations contained in paragraph 134 of the
Amended Complaint.
ALLEGATION NO. 135. All of the work Vie did for Defendants was required by the contract between the parties, and would not have been performed but for that contract. Vie’s work is referable to no other theory than that of the contract between the parties.
ANSWER: Defendants admit that Vie performed some work pursuant to the
Consulting Agreement. Defendants deny all remaining allegations contained in paragraph 135 of
the Amended Complaint.
ALLEGATION NO. 136. All of the work Vie did for Defendants was done in reliance on the Defendants’ representations, including that it would be able to market the U.S. Paralympic brand on the open market and that it would receive a 15% commission on all sponsor and supplier sales for the U.S. Paralympics.
ANSWER: Defendants deny the allegations contained in paragraph 136 of the
Amended Complaint.
ALLEGATION NO. 137. Defendants should reasonably have expected their promises to have induced substantial action and/or forbearance on the part of Vie.
ANSWER: Defendants deny the allegations contained in paragraph 137 of the
Amended Complaint.
ALLEGATION NO. 138. Based on (among other things) Defendants’ representations to the public concerning the marketing of the U.S. Paralympics brand and the purposes of the USPC, this reliance was reasonable.
ANSWER: Defendants deny the allegations contained in paragraph 138 of the
Amended Complaint.
ALLEGATION NO. 139. Defendants’ actions in breaching its contract with, and/or reneging on its promise to, Vie Sports were part of its overall policy and practice of discriminating against athletes with disabilities. Vie was harmed by Defendants’ discrimination against Paralympic athletes.
ANSWER: To the extent that the allegations contained in paragraph 139 of the
Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and

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January 4, 2007, no answer is required and the allegations are deemed to be denied or avoided.
Defendants deny all remaining allegations contained in paragraph 139 of the Amended
Complaint.
ALLEGATION NO. 140. Paralympic athletes were harmed by the fact that the USOC discriminated against, breached its contract with, and/or reneged on its promise to, Vie Sports.
ANSWER: To the extent that the allegations contained in paragraph 140 of the
Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and
January 4, 2007, no answer is required and the allegations are deemed to be denied or avoided.
Defendants deny all remaining allegations contained in paragraph 140 of the Amended
Complaint.
ALLEGATION NO. 141. Paralympic athletes will benefit — through the increased funding available for their support — if the contract and/or promise between the USOC and Vie Sports is enforced as originally agreed.
ANSWER: To the extent that the allegations contained in paragraph 141of the
Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and
January 4, 2007, no answer is required and the allegations are deemed to be denied or avoided.
Defendants deny all remaining allegations contained in paragraph 141 of the Amended
Complaint.
ALLEGATION NO. 142. Defendants discriminated against Vie Sports based on the fact that its primary purpose was to obtain sponsorships for the Paralympics, based on the fact that it was closely associated with Paralympic and disabled athletes and sports, and/or based on the fact that one if its principals was an individual with a disability.
ANSWER: To the extent that the allegations contained in paragraph 142 of the
Amended Complaint relate to claims that this Court dismissed on November 16, 2006 and
January 4, 2007, no answer is required and the allegations are deemed to be denied or avoided.
Defendants deny all remaining allegations contained in paragraph 142 of the Amended
Complaint.

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Claim I: Violation of Title III of the Americans with Disabilities Act (All Plaintiffs against both Defendants)
ALLEGATION NO. 143. Plaintiffs reallege and incorporate by reference the allegations set forth in this Amended Complaint as if fully set forth herein.
ANSWER: Defendants reallege and incorporate by reference the allegations set forth
in this Amended Complaint as if fully set forth herein.
ALLEGATION NO. 144. The USOC owns, operates, leases and/or leases to one or more places of public accommodation as that term is defined in 42 U.S.C. § 12181(7).
ANSWER: The allegations contained in paragraph 144 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 145. The USP owns, operates, leases and/or leases to one or more places of public accommodation as that term is defined in 42 U.S.C. § 12181(7).
ANSWER: The allegations contained in paragraph 145 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 146. Defendants have discriminated and continue to discriminate against Plaintiffs on the basis of disability in the full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations in violation of Title in of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq.
ANSWER: The allegations contained in paragraph 146 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 147. Plaintiffs have been and continue to be harmed by Defendants’ violations of Title III of the Americans with Disabilities Act.
ANSWER: The allegations contained in paragraph 147 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.

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Claim II: Violation of the Rehabilitation Act (All Plaintiffs against both Defendants)
ALLEGATION NO. 148. Plaintiffs reallege and incorporate by reference the allegations set forth in this Amended Complaint as if fully set forth herein.
ANSWER: Defendants reallege and incorporate by reference the allegations set forth
in this Amended Complaint as if fully set forth herein.
ALLEGATION NO. 149. The USOC receives federal financial assistance as that term is used in 29 U.S.C. §794.
ANSWER: The allegations contained in paragraph 149 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 150. The USP receives federal financial assistance as that term is used in 29 U.S.C. §794.
ANSWER: The allegations contained in paragraph 150 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 151. Defendants have discriminated and continue to discriminate against Plaintiffs on the basis of disability in violation of section 504 of the Rehabilitation Act of 1973. 29 U.S.C. §794.
ANSWER: The allegations contained in paragraph 151 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
ALLEGATION NO. 152. In violating the Rehabilitation Act, Defendants acted intentionally, maliciously, and/or with reckless, callous and/or deliberate indifference to Plaintiffs’ federally protected rights.
ANSWER: The allegations contained in paragraph 152 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.

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ALLEGATION NO. 153. Plaintiffs have been and continue to be harmed by Defendants’ violations of section 504 of the Rehabilitation Act of 1973.
ANSWER: The allegations contained in paragraph 153 of the Amended Complaint
relate to claims that this Court dismissed on November 16, 2006 and January 4, 2007, and,
therefore, no answer is required and the allegations are deemed to be denied or avoided.
Claim III: Breach of Contract (Plaintiff Vie Sports Marketing against both Defendants) ALLEGATION NO. 154. Plaintiffs reallege and incorporate by reference the allegations set forth in this Amended Complaint as if fully set forth herein. ANSWER: Defendants reallege and incorporate by reference the allegations set forth
in this Amended Complaint as if fully set forth herein.
ALLEGATION NO. 155. Defendant USOC, either on its own or acting through its alter ego, Defendant USP, entered into a contract with Plaintiff Vie Sports Marketing pursuant to which Vie was to be the exclusive marketing agency for the U.S. Paralympic brand and was to be able to sell rights to that trademark in the open market, as more fully described above, in return for an agreed-upon compensation.
ANSWER: Defendants deny the allegations contained in paragraph 155 of the
Amended Complaint.
ALLEGATION NO. 156. Plaintiff Vie Sports Marketing performed substantial work pursuant to the contract.
ANSWER: Defendants admit that Vie performed some work pursuant to the
Consulting Agreement. Defendants deny all remaining allegations contained in paragraph 156 of
the Amended Complaint.
ALLEGATION NO. 157. Defendant USOC, either on its own or acting through its alter ego, Defendant USP, prevented Vie Sports from selling the rights to the Paralympic mark in the open market and otherwise fully performing under the contract.
ANSWER: Defendants deny the allegations contained in paragraph 157 of the
Amended Complaint.

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ALLEGATION NO. 158. Defendant USOC, either on its own or acting through its alter ego, Defendant USP, failed to compensate Plaintiff Vie Sports as required under the contract.
ANSWER: Defendants deny the allegations contained in paragraph 158 of the
Amended Complaint.
ALLEGATION NO. 159. Plaintiff Vie Sports has been damaged by Defendants’ breach of contract.
ANSWER: Defendants deny the allegations contained in paragraph 159 of the
Amended Complaint.
Claim IV: Promissory Estoppel (Plaintiff Vie Sports Marketing against both Defendants)
ALLEGATION NO. 16. Plaintiffs reallege and incorporate by reference the allegations set forth in this Amended Complaint as if fully set forth herein.
ANSWER: Defendants reallege and incorporate by reference the allegations set forth
in this Amended Complaint as if fully set forth herein.
ALLEGATION NO. 161. Defendant USOC, either on its own or acting through its alter ego, Defendant USP, made promises to Plaintiff Vie Sports Marketing, including but not limited to promises that the latter would be the exclusive marketing agency for the U.S. Paralympics, that it would have access to the open market, and that it would be compensated as described above.
ANSWER: Defendants deny the allegations contained in paragraph 161 of the
Amended Complaint.
ALLEGATION NO. 162. It was reasonable for Defendant USOC, either on its own or acting through its alter ego, Defendant USP, to expect its promises to induce action and/or forbearance of a definite and substantial character on behalf of Vie Sports Marketing. For example, it was reasonable for Defendants to expect that its promises would induce Vie Sports to undertake substantial work to market and sell the U.S. Paralympic trademark and to forego other opportunities so it could perform that work.
ANSWER: Defendants deny the allegations contained in paragraph 161 of the
Amended Complaint.
ALLEGATION NO. 163. Plaintiff Vie Sports Marketing performed substantial work in reliance on Defendants’ promises, and passed up other business opportunities to perform that work.

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ANSWER: Defendants are without knowledge and information sufficient to form a belief as to the truth of the allegation that Vie passed up other business opportunities to perform work for USP contained in paragraph 163 of the Amended Complaint and, therefore, deny the same. Defendants admit that Vie performed some work pursuant to the Consulting Agreement. Defendants deny all remaining allegations contained in paragraph 163 of the Amended Complaint. ALLEGATION NO. 164. Defendants broke their promises to Vie Sports. For example, Defendants did not permit Vie Sports to have access to the open market and did not compensate Vie Sports as promised.
ANSWER: Defendants deny the allegations contained in paragraph 164 of the Amended Complaint. ALLEGATION NO. 165. Injustice can only be avoided by the enforcement of Defendants’ promises.
ANSWER: Defendants deny the allegations contained in paragraph 165 of the Amended Complaint.
Defendants deny all allegations contained in the Amended Complaint unless specifically admitted herein.
AFFIRMATIVE DEFENSES 1. Vie’s Amended Complaint fails to state a claim upon which relief may be granted. 2. Vie’s claims are barred by the Statute of Frauds. 3. Vie’s claims are barred by a mutual mistake of fact. 4. The parties did not form the contract Vie alleges. 5. USP has fully performed any and all contractual, statutory and other duties to Vie, and therefore Vie is estopped to assert any cause of action against Defendants.

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6. Vie’s promissory estoppel claim is barred by the existence of the Consulting Agreement between Vie and USP.
7. USP has fully complied with the Consulting Agreement. 8. Vie’s alleged damages are barred by the damage limitation provisions in the Consulting Agreement. 9. Vie has failed to mitigate its damages, if any. 10. Vie’s claims are subject to binding arbitration pursuant to the Consulting Agreement. 11. Vie’s claims are barred because at all times Defendants were acting in good faith and with legal justification for their actions. 12. Vie’s claims are barred by a failure of consideration. 13. Vie’s claims are barred by full payment pursuant to the Consulting Agreement.
COUNTERCLAIM Counterclaimant, U.S. Paralympics, Inc. (“USP”), files its counterclaim as follows: 1. In this action, USP seeks enforcement of the parties’ contract and its rights thereunder to arbitrate the dispute between the parties and to recover all of its costs and expenses, including its reasonable attorneys’ fees incurred in defending against Counter-defendant, Vie Sports Marketing, Inc.’s (“Vie”), claims and in asserting this Counterclaim.
Jurisdiction and Venue 2. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1367. 3. Venue is proper within this District pursuant to 28 U.S.C. § 1391.

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Parties 4. USP is a Colorado non-profit corporation with its principal place of business in Colorado Springs, Colorado. Prior to December 2001, USP was known as the United States Paralympic Corporation (“USPC”). 5. Vie is a Georgia corporation, with its principal place of business in Atlanta, Georgia.
Facts 6. Congress granted the United States Olympic Committee (“USOC”) the exclusive right to use, market and sell rights to the Olympic and Paralympic names, emblems and symbols. 36 U.S.C. § 220506(a). 7. In August 2000, the USPC was incorporated with the stated purpose of working with the USOC to ensure that the USOC’s responsibilities to Paralympic and disabled athletes under the Ted Stevens Olympic and Amateur Sports Act (36 U.S.C. § 220501 et seq.) were met. 8. Thereafter, the USOC considered transferring its right to use, market, and sell rights to the Paralympic names, emblems, and symbols to the USPC n/k/a USP. 9. On or about April 18, 2001, representatives of Vie made a presentation to the USPC concerning services they alleged Vie could provide in marketing and selling rights to the Paralympic trademark to sponsors. 10. In the Spring of 2001, the USPC issued a “Reason for Proposal” (“RFP”). The RFP requested the submission of proposals for an external marketing agency for the Paralympic trademark.

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11. In early June 2001, Vie submitted a written proposal to become a marketing agency for the Paralympic trademark in response to the RFP. Representatives of Vie made a presentation of their proposal to the USPC in late June 2001.
12. In July 2001, the USPC communicated to Vie that it had selected Vie to become a marketing agency for the Paralympic trademark.
13. In July and August 2001, the parties discussed the terms of their relationship. The parties agreed to enter a short-term consulting agreement so that Vie could begin work for the USPC; they agreed to continue negotiating the terms of a longer-term sales agency and fulfillment agreement.
14. Effective September 1, 2001, the USPC and Vie executed a Sponsorship Development Consulting Agreement (“Consulting Agreement”).
15. The Consulting Agreement generally obligated Vie to provide Paralympic sponsorship development consulting services to the USPC.
16. In return, the USPC was to pay Vie an escalating monthly fee: $20,000 for September 2001; $25,000 for October 2001; $30,000 for November 2001; $35,000 for December 2001; and $40,000 for January 2002. The USPC also agreed to pay Vie for its direct out-ofpocket expenses incurred in connection with Vie’s performance of the Consulting Agreement.
17. The Consulting Agreement further provided, in part, that any dispute between the parties relating to the Consulting Agreement was to be resolved by binding arbitration in Denver, Colorado, and that the prevailing party in any proceeding to enforce the agreement was entitled to its costs and expenses, including but not limited to its reasonable attorneys’ fees, court costs and expert witness fees.
18. The Consulting Agreement initially was to terminate on February 1, 2002.

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19. Vie performed some work pursuant to the Consulting Agreement and the USPC fully performed its obligations under the Consulting Agreement.
20. In December 2001, because the parties were still negotiating a longer-term sales agency and fulfillment agreement, the parties agreed to modify the payment and term provisions of the Consulting Agreement. By this time, the USPC was operating under the USP name. Effective January 1, 2002, Vie agreed to perform its obligations under the Consulting Agreement for a flat fee of $20,000 per month. The parties also agreed to extend the term of the Consulting Agreement beyond February 1, 2002.
21. Vie performed additional work pursuant to the modified Consulting Agreement and USP fully performed its obligations under the modified Consulting Agreement.
22. In early 2002, the USOC ultimately decided that it would not transfer to USP the right to use, market, and sell rights to the Paralympic names, emblems, and symbols. Instead, a division of the USOC called U.S. Paralympics (“the Division”) would manage for the USOC all rights pertaining to Paralympic marks, logos and sponsorships. As a result, USP ceased, and the USOC began, negotiating the longer-term sales agency and fulfillment agreement with Vie.
23. USP and Vie nonetheless continued to operate pursuant to the modified Consulting Agreement. In March 2002, Vie and USP again agreed to modify the Consulting Agreement, by changing the expenses provision to provide that USP would pay Vie a flat $5,000 per month for its expenses incurred in connection with its performance of the Consulting Agreement.
24. In early May 2002, the Division sent Vie a draft USOC/Vie Sports Sales Agency and Fulfillment Agreement (the “Draft Sales Agency Agreement”) between the USOC and Vie.

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Vie returned the Draft Sales Agency Agreement to the Division with edits in late May 2002. Vie sent another Draft Sales Agency Agreement to the Division in early June 2002.
25. Throughout the negotiation of the Draft Sales Agency Agreement in 2002, Vie performed some work pursuant to, and USP fully performed its obligations under, the Consulting Agreement as modified in March 2002.
26. In January 2003, as part of continued negotiations of the Draft Sales Agency Agreement, the Division presented Vie with a proposed summary term sheet. In response, Vie indicated it would not agree to the proposed terms, and negotiations between the Division and Vie relating to a sales agency and fulfillment agreement ended at that time. In addition, Vie terminated the Consulting Agreement with USP.
27. Prior to its termination of the Consulting Agreement, Vie had been paid at least $438,233.76 pursuant to the Consulting Agreement with USP.
28. Vie filed its lawsuit against the USOC and USP in July 2003 for breach of contract and promissory estoppel.
Count I: Enforcement of the Consulting Agreement (Against Vie Sports Marketing, Inc.)
29. USP realleges and incorporates by reference the allegations set forth in this Counterclaim as if fully set forth herein.
30. From September 1, 2001 through the date of Vie’s termination of the parties’ relationship in January 2003, the parties operated pursuant to the Consulting Agreement. The Consulting Agreement was the only contract between the parties.
31. USP fully performed all of its obligations under the Consulting Agreement.

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32. Pursuant to the Consulting Agreement, USP is entitled to the arbitration in Denver, Colorado, of Vie’s breach of contract and promissory estoppel claims against it.2
33. USP has incurred reasonable attorneys’ fees, costs and expenses in defending against Vie’s lawsuit and in asserting this Counterclaim to enforce the contract between the parties.
34. Pursuant to the Consulting Agreement, USP is entitled to recover all of its costs and expenses, including but not limited to reasonable attorneys’ fees, court costs and expert witness fees, incurred in defending against Vie’s breach of contract and promissory estoppel claims and in asserting this Counterclaim.
Prayer for Relief WHEREFORE, USP respectfully prays: 1. That this Court order binding arbitration of Vie’s claims and USP’s Counterclaim and stay the case; 2. That this Court award USP all of its costs and expenses, including but not limited to its reasonable attorneys’ fees, court costs and expert witness fees incurred in defending against Vie’s claim and in asserting this Counterclaim; 3. That this Court enter judgment that Vie take nothing, dismiss Vie’s suit with prejudice, and assess costs against Vie; and 4. That this Court award such additional or alternative relief as may be just, proper and equitable.

2

This matter is currently stayed until June 25, 2007. If Vie’s breach of contract and

promissory estoppel claims are not resolved prior to such time, USP will file a motion to compel

arbitration and to stay this case.

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Respectfully submitted this 2nd day of February, 2007.
HOGAN & HARTSON LLP
s/ Jeffrey S. George Jeffrey S. George John W. Cook Anne H. Turner Two North Cascade Avenue, Suite 1300 Colorado Springs, CO 80903 (719) 448-5900 Attorneys for Defendants, United States Olympic Committee and U.S. Paralympics, Inc. f/k/a United States Paralympic Corporation

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CERTIFICATE OF SERVICE

I hereby certify that on February 2, 2007, I electronically filed the foregoing Defendants’ Answer And Affirmative Defenses To Plaintiffs’ Amended Complaint And U.S. Paralympics, Inc.’s Counterclaim with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following:

Amy Farr Robertson arob@foxrob.com
Ari Krichiver akrichiver@foxrob.com

Kevin William Williams kwilliams@ccdconline.org

And a copy was mailed by first class mail postage prepaid to:
Christopher Todd Handman Hogan & Hartson LLP-DC 555 Thirteenth Street, N.W. Washington, DC 20004-1109

s/ Sandra J. Kaus

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 03-K-1364 SCOT HOLLONBECK, JOSE ANTONIO INIGUEZ, JACOB WALTER JUNG HO HEILVEIL, and VIE SPORTS MARKETING, INC., a Georgia corporation,
Plaintiffs, v. UNITED STATES OLYMPIC COMMITTEE, a federally-chartered corporation, and U.S. PARALYMPICS, INC., f/k/a UNITED STATES PARALYMPIC CORPORATION, a Colorado non-profit corporation,
Defendants.
PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ ADA AND REHAB ACT CLAIMS PURSUANT TO FED. R. CIV. P. 12(B)(6)
Plaintiffs, by and through their counsel, hereby submit this Brief in Opposition to Defendants’ Motion To Dismiss Plaintiffs’ ADA and Rehab Act Claims Pursuant to Fed. R. Civ. P. 12(b)(6).
Plaintiffs’ Amended Complaint alleges that Defendants discriminate against athletes with disabilities by providing Olympic athletes with services, benefits and supports that they deny Paralympic athletes. Defendants attempt to justify this discrimination based on their assertion that the Olympics and Paralympics are separate programs. This argument is no more valid than a college defending a Title IX claim on the grounds that it has separate men’s and women’s athletic programs and is therefore permitted to provide benefits to the former that it denies the

latter. Defendants also argue that their discrimination is justified because Paralympic athletes are not “qualified” for the Olympics; this is equivalent to a college arguing that its female athletes are not entitled to equitable athletic opportunities because they are not “qualified” for the men’s teams.
Defendants ultimately attempt to immunize themselves completely from the Americans with Disabilities Act, 42 U.S.C. §§ 12101 - 12213 (“ADA”), and section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Rehabilitation Act”), by arguing that the only law that applies to them is the Ted Stevens Olympic and Amateur Sports Act. 36 U.S.C. §§ 220501 220529 (“ASA”). Defendants provide no support for the proposition that in attempting to organize amateur sports, Congress placed amateur athletes outside the protection of federal antidiscrimination laws.
The Shepherd Litigation Plaintiffs agree with Defendants that the legal questions at issue in Defendants’ Motion To Dismiss Plaintiffs’ ADA and Rehab Act Claims Pursuant to Fed. R. Civ. P. 12(b)(6)1 (“Defs.’ Mot. to Dismiss Athlete Pls.”) are the same as those addressed in the cross-motions for summary judgment in Shepherd v. United States Olympic Committee, 99-K-2077, currently pending

1

At the time Defendants filed this motion, only the Athlete Plaintiffs asserted

claims under the ADA and the Rehabilitation Act; as such, Defendants’ motion addresses only

those claims. Since that time, Plaintiffs have amended their complaint to assert ADA and

Rehabilitation Act claims on behalf of Plaintiff Vie Sports Marketing, Inc. (See Am. Compl.

(filed Oct. 22, 2003). Defendants’ Motion to Dismiss does not address those claims. Because

the Athlete Plaintiffs’ claims remain the same in the Amended Complaint and because the latter

is now the operative complaint, Plaintiffs will refer to the Amended Complaint herein.

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before this Court. (See Def.’s Mot. to Dismiss Athlete Pls. at 2.) In light of that, Plaintiffs incorporate by reference the legal arguments in plaintiff Mark Shepherd’s briefs in the Shepherd case: Plaintiff’s Memorandum in Support of His Motion for Partial Summary Adjudication (filed Sept. 18, 2002); Plaintiff’s Memorandum in Opposition to the USOC’s Motion for Summary Judgment on Plaintiff’s Second and Third Claims for Relief (Shepherd’s Shepherd Opp., filed Oct. 9, 2002); and Plaintiff’s Reply Memorandum in Support of His Motion for Partial Summary Adjudication (filed Oct. 16, 2002). This brief, while incorporating some of the language of those briefs, contains new material and argumentation that, for example, addresses the different procedural posture of Defendants’ motion here.
FACTS The Paralympic Games are the equivalent of the Olympic Games for persons with disabilities. (Am. Compl. ¶ 18.) Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez, and Jacob Walter Jung Ho Heilveil (the “Athlete Plaintiffs”) all have disabilities that cause them to use wheelchairs for mobility. (Id. ¶¶ 9-11.) All three are elite wheelchair racers who have competed in past Paralympic Games and are training to compete in the 2004 Paralympic Games in Athens. (Id. ¶¶ 34-47.) Defendants the United States Olympic Committee (“USOC”) and U.S. Paralympics, Inc. discriminate against the Athlete Plaintiffs by providing services, benefits and supports to Olympic athletes that are either denied to Paralympic athletes or provided in inferior types and amounts. (Id. ¶¶ 48-75, 120-31.)
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ARGUMENT I. Standard of Review.
Defendants have moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dismissal under this rule is appropriate “only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle him to relief, accepting the well-pleaded allegations of the complaint as true and construing them in the light most favorable to the plaintiff.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (internal quotes omitted). “An affirmative defense may be raised in a motion to dismiss only if the defense appears plainly on the face of the complaint.” Guardian Title Agency, LLC v. Matrix Capital Bank, 141 F. Supp. 2d 1277, 1280 (D. Colo. 2001) (citing Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1311 n.3 (10th Cir. 1999)). II. The Elements of a Prima Facie Case under Title III and the Rehabilitation Act.
The Athlete Plaintiffs bring suit under Title III of the ADA, 42 U.S.C. § 12181 - 12189, and section 504 of the Rehabilitation Act. 29 U.S.C. § 794. Title III of the ADA prohibits disability discrimination “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a).2 Under the Rehabilitation Act, a qualified individual with a disability may not -solely by reason of his or her disability -- be “excluded from the participation in, be denied the

2

See also 28 C.F.R. pt. 36 (Department of Justice (“DOJ”) Title III regulations).

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benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).3 Discrimination under the ADA and Rehabilitation Act may take the form of, among others, denial of participation, 42 U.S.C. § 12182(b)(1)(A)(i), 28 C.F.R. § 41.51(b)(1)(i), unequal benefits, 42 U.S.C. § 12182(b)(1)(A)(ii), 28 C.F.R. § 41.51(b)(1)(ii), or imposition of eligibility criteria that screen out or tend to screen out people with disabilities. 42 U.S.C. § 12182(b)(2)(A)(i).
The Athlete Plaintiffs state a prima facie case under Title III of the ADA if they can show that (1) they have a disability; (2) Defendants own, operate, lease or lease to a place of public accommodation; and (3) they were denied full and equal treatment because of their disability. See Parr v. L & L Drive-Inn Restaurant, 96 F. Supp. 2d 1065, 1085 (D. Haw. 2000); Access Now, Inc. v. S. Fla. Stadium Corp., 161 F. Supp. 2d 1357, 1363 (S.D. Fla. 2001). Under the Rehabilitation Act, the Athlete Plaintiffs are required to show that (1) they have a disability; (2) they are otherwise qualified to participate in the program; (3) the program receives federal financial assistance; and (4) the program discriminated against them. See Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir. 1999). III. The Athlete Plaintiffs have Stated Claims under The ADA and the Rehabilitation
Act. Defendants do not dispute that the Athlete Plaintiffs have properly alleged that they have disabilities, that Defendants receive federal funding, and that Defendants are places of public accommodation. (See Am. Compl. at ¶¶ 24-33, 149-50; Mot. to Dismiss Athlete Pls. at 10 n.3,

3

See also 28 C.F.R. pt. 41 (DOJ Rehabilitation Act Coordination Regulations).

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11 n.4 & 12.) Defendants argue that the Athlete Plaintiffs have not properly alleged the second and fourth of the elements set forth in Powers: that they are otherwise qualified; and that Defendants discriminated against them on the basis of disability. Plaintiffs will address these questions in reverse order, and will then address two defenses raised by Defendants: that their eligibility criteria are necessary; and that they do not have to change their mix of services. These defenses are inappropriate on a motion to dismiss and are, in any event, wrong. Finally, Defendants raise the question of reasonable accommodation; this argument is irrelevant because the Athlete Plaintiffs do not seek an accommodation.
A. Defendants Discriminate Against the Athlete Plaintiffs on the Basis of Disability. 1. The Athlete Plaintiffs have Properly Alleged Disability Discrimination.
The Athlete Plaintiffs allege that Defendants discriminate against athletes with disabilities by providing services, benefits and supports to Olympic athletes that they deny to Paralympic athletes. (See Am. Compl. ¶¶ 48-75, 120-31.) These policies facially discriminate against athletes with disabilities. Plaintiffs “make[ ] out a prima facie case of intentional discrimination . . . merely by showing that a protected group has been subjected to explicitly differential -- i.e. discriminatory -- treatment.” Bangerter v. Orem City Corp., 46 F.3d 1491, 1501 (10th Cir. 1995). The Athlete Plaintiffs allege that Defendants provide benefits to Olympic athletes but deny those benefits to Paralympic athletes; this subjects athletes with disabilities to “explicitly differential -- i.e. discriminatory -- treatment.” Plaintiffs have thus stated a prima facie case of intentional disability discrimination.
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The fact that Defendants’ discrimination is against Paralympic athletes rather than against disabled athletes per se is not to the contrary. Using such a “proxy” for a protected class constitutes intentional discrimination. See, e.g. McWright v. Alexander, 982 F.2d 222, 228 (7th Cir. 1992) (holding that a defendant “cannot be permitted to use a technically neutral classification as a proxy to evade the prohibition of intentional discrimination. An example is using gray hair as a proxy for age: there are young people with gray hair (a few), but the ‘fit’ between age and gray hair is sufficiently close that they would form the same basis for invidious classification.”); Alliance for the Mentally Ill v. City of Naperville, 923 F. Supp. 1057, 1070 (N.D. Ill. 1996) (holding that fire code provision that applied to “facilities that house four or more unrelated persons ‘for the purpose of providing personal care services’” was a proxy for intentional disability discrimination); Horizon House Developmental Servs., Inc. v. Township of Upper Southampton, 804 F. Supp. 683, 694 (E.D. Pa. 1992) (holding that an ordinance requiring 1000 feet between facilities in which “permanent care or professional supervision is present” was facially discriminatory), aff’d, 995 F.2d 217 (3rd Cir. 1993)).
In the present case, “Paralympian” is a proxy for “elite disabled athlete.” It is irrelevant that the occasional Olympic athlete with a disability may be entitled to the benefits at issue here. “That a law may not burden all members of the protected class does not remove its facially discriminatory character.” Children’s Alliance v. City of Bellevue, 950 F. Supp. 1491, 1496 n.8 (W.D. Wash. 1997) (citing Asbury v. Brougham, 866 F.2d 1276, 1281-82 (10th Cir. 1989)); see also Hargrave v. Vermont, 340 F.3d 27, 31, 36-37 (2d Cir. 2003) (holding that statute affecting individuals with mental illness who were civilly committed or in prison violated Title II of the
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ADA despite the fact that it only affected a subset of individuals with mental illness); Lovell v. Chandler, 303 F.3d 1039, 1054 (9th Cir. 2002) (holding that the fact that some individuals with disabilities were eligible for certain government benefits did not excuse the exclusion of the plaintiffs on a discriminatory basis), cert. denied, 537 U.S. 1105 (2003). The “fit” is sufficiently close between Paralympic athletes and athletes with disabilities to make facial discrimination against the former a proxy for facial discrimination against the latter.
Defendants also impose an eligibility criterion for many of their benefits -- the requirement that an athlete be an Olympic athlete to qualify -- that screens out or tends to screen out elite athletes with disabilities, in violation of 42 U.S.C. § 12182(b)(2)(A)(i). This provision “makes it discriminatory to impose policies or criteria that, while not creating a direct bar to individuals with disabilities, diminish such individuals’ chances of participation.” H. R. Rep. No. 101-485, pt. 2, at 105 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 388. Given that Paralympic athletes are not eligible for many of the services, benefits, and supports at issue in this litigation, the chances of most elite disabled athletes qualifying for these benefits are next to zero. For this reason, and as a matter of common sense, excluding Paralympic athletes will tend to screen out “a class of individuals with disabilities,” that is, elite disabled athletes.4

4

In its opposition to Mr. Shepherd’s motion for summary judgment, the USOC

argued that its eligibility criterion was not in fact discriminatory because it “exclude[d] most of

the human population, irrespective of disability.” Shepherd, The USOC’s Resp. in Opp. to Pl.’s

Mot. for Partial Summ. Adjudication Pursuant to Fed. R. Civ. P. 56(d) (filed on Oct. 9, 2002) at

12. Such an argument would vitiate all discrimination claims: the USOC could refuse to provide

benefits to African American athletes on the grounds that most of the white population of the

world would not qualify either. Indeed, an employer could refuse to hire an applicant explicitly

(continued...)

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In sum, Plaintiffs have properly alleged that Defendants discriminated against them based on their disability in violation of the ADA and the Rehabilitation Act.
2. Disparate Funding and Unequal Benefits That Result from the Explicit Exclusion of Paralympic Athletes Violate the ADA and the Rehabilitation Act.
Defendants argue that Plaintiffs have not property alleged discrimination because providing disparate funding or unequal benefits to different programs does not constitute actionable discrimination under the ADA or the Rehabilitation Act. (See Defs.’ Motion to Dismiss Athlete Pls. at 19). That is, because they assert that the Olympics and the Paralympics are separate programs, Defendants believe they are free to support one and not the other. If this argument were permissible, three decades of colleges and universities could simply have argued that their men’s and women’s athletic programs were separate, and that this freed them from any obligation -- under Title IX of the Education Amendments of 1972, 29 U.S.C. § 1681 -- to provide equal athletic opportunities for female athletes. The cases are to the contrary. Although no school has had the audacity to make the argument made here by Defendants, courts commonly interpret Title IX to require equitable treatment of male and female athletes participating in separate teams and programs. See, e.g., Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 829-32 (10th Cir. 1993) (holding that university violated Title IX when it cut its
4(...continued) because he was African-American, and then argue that it was not discriminatory because he did not offer the job to the rest of the white population. The relevant universe here is those elite athletes for whom Congress has given the USOC responsibility. Within that universe, the USOC’s eligibility criterion includes those without disabilities, and screens out those with disabilities.
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women’s softball team); Cohen v. Brown Univ., 991 F.2d 888, 903-04 (1st Cir. 1993) (holding that demoting two women’s varsity teams to club status violated Title IX); Comtys. for Equity v. Mich. High School Athletic Ass’n, 178 F. Supp. 2d 805, 855-57 (W.D. Mich 2001) (holding that scheduling boys teams to play in traditional seasons and girls teams in non-traditional seasons violated Title IX).5 A college could not deny benefits to its female athletes that it provides to its male athletes simply on the grounds that it has chosen to administer those teams or programs separately. Likewise, Defendants may not deny benefits to Paralympic athletes that it provides to Olympic athletes simply because it asserts that they are separate programs.
The Court need not even reach that analysis, however, because there is nothing on the face of the Amended Complaint to indicate that this case involves separate programs. To the contrary, the Amended Complaint alleges that Congress gave the USOC responsibility for both Olympic and Paralympic athletes, and that Defendants provide benefits to the former that they do not provide to the latter. (See Am. Compl. at ¶¶ 21, 48-75, 120-31.) There is no basis for the premise of Defendants’ argument: that the benefits they provide Olympic athletes are somehow part of a different “program” from the benefits they provide Paralympic athletes. This makes the holding in John Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996) -- on which

5

Title IX is especially relevant to this Court’s analysis of the Athlete Plaintiffs’

claims, as Congress has made clear that the Rehabilitation Act is to be read and interpreted

together with Title IX. See S. Rep. No. 100-64, 100th Cong., 1st Sess. at 3, reprinted in 1988

U.S.C.C.A.N. 3, 5 (“the same standards are used to interpret and enforce [those] laws”); see also

Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1379 (10th Cir. 1981) (holding that the

Rehabilitation Act and Title IX were both patterned after Title VI of the Civil Rights Act, 42

U.S.C. § 2000d).

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Defendants rely -- inapposite. The Ninth Circuit’s holding in that case -- that a state could place a durational limit on a benefits program for individuals with disabilities that did it did not place on a program for “families with dependent children” -- was based in part on its determination that the programs at issue were separate and should be analyzed separately, rather than as part of a unitary general assistance program. Id.
Assuming for the moment that it were appropriate to analyze the benefits that Defendants provide to Olympic athletes as a separate program, the present case differs from Does 1-5 in one very central respect: the favored program in Does 1-5 -- the one for needy families with dependant children -- was in fact open to all. That is, the category “families with dependent children” is in no way a proxy for “non-disabled families,” and the criterion of having dependent children does not screen out or tend to screen out individuals with disabilities. The plaintiffs in Does 1-5 made no such argument and it is simply common sense that many families with dependent children will have one or more members who have disabilities. This was essential to the court’s approval of the differing durational limitations. Id. at 1155 (holding that “a program would not violate the ADA as long as disabled people with children were not excluded from full participation in the program.”) In contrast, the two programs Defendants ask this Court to analyze separately -- and to permit Defendants to treat differently -- are almost perfectly aligned with the classification protected by the ADA. It would be as if the state in Does 1-5 offered one benefit program for “families all of whose members can walk” (which had no durational limit) and a separate benefit for “families one or more of whose members have a mobility impairment” (which was limited to one year). Where two programs are defined to track the distinction
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between a protected and unprotected class -- male/female; African-American/Caucasian; disabled/non-disabled -- a defendant cannot excuse discrimination against the protected-class program by asserting that the programs are separate.
3. Defendants Do Not Provide Meaningful Access to their Benefits for Elite Athletes with Disabilities.
Defendants also attempt to refute the Athlete Plaintiffs’ discrimination claim by arguing that they are only required to provide “meaningful access” to their benefits and that they have done so. (See Defs.’ Mot. to Dismiss Athlete Pls. at 18.) It is not clear what Defendants mean by this. If they are referring to the benefits they provide Olympic athletes, the Athlete Plaintiffs allege that Defendants provide Paralympic athletes no access whatsoever -- meaningful or otherwise -- to a number of those benefits.6 If, instead, Defendants are suggesting that, by providing support to those extraordinarily rare disabled athletes who qualify for the Olympics, they have provided meaningful access to elite disabled athletes in general, this argument has repeatedly been rejected. See, e.g., Lovell, 303 F.3d at 1054 (holding that “appropriate treatment of some disabled persons does not permit [the defendant] to discriminate against other disabled people under any definition of ‘meaningful access.’”); see also supra at 7-8 (citing cases). There is, in any event, nothing on the face of the Amended Complaint that indicates that athletes with disabilities have meaningful access to Defendants’ benefits and services. As such, dismissal at this stage would be inappropriate.

6

See Am. Compl. ¶¶ 48-75, 120-31.

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B. The Athlete Plaintiffs Are Otherwise Qualified for Defendant’s Benefits. The Athlete Plaintiffs have properly alleged that they are qualified for the Paralympics and that “[t]he Paralympic Games . . . are the equivalent of the Olympic Games for persons with disabilities.” (See Am. Compl. at ¶¶ 18, 34-47.) The Athlete Plaintiffs are thus elite athletes, qualified for the benefits at issue but for the discriminatory condition Defendants’ have placed on those benefits. Defendants do not dispute that the Athlete Plaintiffs are qualified for the Paralympics. Rather, Defendants argue that the Athlete Plaintiffs are not qualified because, “[s]ince none of the Athlete Plaintiffs are qualified to compete in an ‘official’ event on the program of the Olympic Games, none are eligible for the USOC’s Olympic benefits.” This is circular: Defendants have simply defined the benefits in terms of the discriminatory condition. See Clark v. Va. Bd. of Bar Exam’rs, 880 F. Supp. 430, 441 (E.D. Va. 1995) (noting, in addressing mental health question on bar application, that “[w]hile Defendant argues that [the plaintiff] is not an ‘otherwise qualified individual’ because she failed to answer [the mental health question], this argument begs the question of whether [the question] must be answered at all.”). Before the Supreme Court decided Brown v. Board of Education, 347 U.S. 483 (1954), African-American students were not “qualified” to enter Topeka schools; before United States v. Virginia, 518 U.S. 515 (1996), women were not “qualified” to enter the Virginia Military Institute. Ultimately, Defendants’ argument is tantamount to a Title IX defendant asserting that, since members of the women’s team are not qualified for the men’s team, they cannot challenge inequitable provision of benefits to the two teams.
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C. Defendants’ Defenses Are Meritless. Defendants also offer the defenses to Plaintiffs’ prima facie case that their eligibility criterion is necessary and that they should not be required to alter the mix of their services. Both are wrong, and the latter is irrelevant.
1. The Eligibility Criterion of Being an Olympic Athlete Is Not Necessary for the Provision of the Services Being Offered.
By alleging that “[t]he Paralympic Games . . . are the equivalent of the Olympic Games for persons with disabilities” and that Defendants provide certain benefits only to Olympic, and not Paralympic, athletes, (see Am. Compl. at ¶¶ 18, 48-75, 120-31), the Athlete Plaintiffs have stated a claim for violation of the provision prohibiting the imposition of “eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities.” 42 U.S.C. § 12182(b)(2)(A)(i). That provision contains a defense: such criteria are acceptable if they “can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered.” Id. The question whether the criterion of being an Olympic athlete is “necessary” is an affirmative defense on which Defendants have the burden of proof. See Colo. Cross Disability Coalition v. Hermanson Family Ltd. P’ship I, 264 F.3d 999, 1003 (10th Cir. 2001) (noting that “[s]everal district courts have placed the burden of showing that the eligibility criteria are necessary on the proponent of such criteria” and citing cases). Because there is nothing on the face of the Amended Complaint to suggest that this criterion is necessary, it would be inappropriate to resolve this question on a motion to dismiss. See Guardian Title, 141 F. Supp. 2d at 1280.
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In any event, Defendants simply perpetuate the circularity of their qualification argument by defining the goal of the program in discriminatory terms. The racial and gender restrictions at issue in Brown v. Board of Education and United States v. Virginia might have been necessary if the purpose of the defendant schools were defined to be, respectively, the education of white or male students. Here, because the USOC is responsible for obtaining and training both Olympic and Paralympic athletes, see 36 U.S.C. § 220503(3)(A), (4) & (13), and because supporting Paralympic athletes serves the goal of supporting athletes with “agility, strength, speed, balance, and other talents,” (see Defs.’ Mot. to Dismiss Athlete Pls. at 15), Defendants’ limitation of its benefits to Olympic athletes is not “necessary for the provision of the [benefits] being offered.” See 42 U.S.C. § 12182(b)(2)(A)(i). As such, it violates the ADA.
2. The Athlete Plaintiffs Are Not Asking Defendants to Alter Their Mix of Services.
The Athlete Plaintiffs brought this suit to compel Defendants to provide Paralympic athletes with the same services, supports and benefits they provide Olympic athletes. Defendants point to a regulation stating that the ADA does not require public accommodations to carry “accessible or special goods,” 28 C.F.R. § 36.307(a), and argue that providing the same benefits to Olympic and Paralympic athletes somehow involves providing the latter “accessible or special” goods. (See Defs.’ Mot. to Dismiss Athlete Pls. at 17.) Because the Athlete Plaintiffs do not request anything other than what is provided Olympic athletes, this argument is completely irrelevant.
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The cases cited by Defendants underscore this irrelevance. Defendants rely on five cases in which the plaintiffs were requesting insurance products with more advantageous coverage than the ones offered by the defendants to their other employees. Although the court in each case held that the ADA did not require the provider to change the content of its insurance policies to provide superior coverage for people with disabilities, in each case the court made clear that the defendant had offered the same insurance product to all employees.7 Indeed, at least one of Defendants’ cases made clear that it would have been a violation of the ADA to do otherwise. Doe, 179 F.3d at 561 (“[R]efusing . . . to provide the same coverage for a broken leg, or other afflictions not peculiar to people with AIDS . . . would be a good example of discrimination by reason of disability.”) The Athlete Plaintiffs are asking that Defendants here do the equivalent of what the defendants in each of its insurance cases had already done: make the same benefits available to all of the elite amateur athletes for which Congress has given them responsibility.

7

See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1116 (9th Cir.

2000) (the defendant “gave [the plaintiff] the same opportunity that it gave all the rest of its

employees”); McNeil v. Time Ins. Co., 205 F.3d 179, 188 (5th Cir. 2000) (defendant “offered the

policy to [the plaintiff] on the same terms as it offered the policy to other members of the

association.”), cert. denied 531 U.S. 1191 (2001); Kimber v. Thiokol Corp., 196 F.3d 1092,1101

(10th Cir. 1999) (“Every [Thiokol] employee had the opportunity to join the same plan with the

same schedule of coverage, meaning that every [Thiokol] employee received equal treatment.”);

Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (“Mutual of Omaha does

not refuse to sell insurance policies to . . . persons [with the plaintiff’s disability].”), cert. denied

528 U.S. 1106 (2000); Ford v. Schering-Plough Corp., 145 F.3d 601, 608 (3d Cir. 1998) (“Every

Schering employee had the opportunity to join the same plan with the same schedule of

coverage”), cert. denied 525 U.S. 1093 (1999), cited in Defs.’ Mot. to Dismiss Athlete Pls. at 17-

19.

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Defendants’ argument is not only irrelevant, it’s dangerous. If a proprietor were permitted to refuse to sell goods to people with disabilities on the grounds that the simple act of providing its goods to such people would convert them to “accessible or special” goods, this single exception would swallow Title III whole. Yet this is what Defendants argue: that by making benefits available to Paralympic athletes, those same benefits become “accessible or special.” Under this reasoning, a restaurant could refuse to serve people who use wheelchairs and then argue that any attempt to alter that discriminatory rule would be forcing it to sell “accessible or special goods.”
D. The Athlete Plaintiffs Do Not Seek a Reasonable Accommodation; They Seek an End to Facial Discrimination.
Defendants argue that “[t]he ADA and the [Rehabilitation] Act, at their broadest interpretation, perhaps require the USOC to make reasonable accommodations to permit a qualified entrant to participate,” and then discuss PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), for a page and a half. (Defs.’ Mot. to Dismiss Athlete Pls. at 12-13.) The plaintiff in Martin was an elite disabled golfer who sought to modify the rules of the PGA Tour to permit him to compete against non-disabled golfers. Id. at 669. The entire discussion is irrelevant: the Athlete Plaintiffs do not seek to compete in Olympic track events against non-disabled athletes, nor do they seek a reasonable modification of a neutral rule under 42 U.S.C. § 12182(b)(2)(A)(ii), as Mr. Martin did. Rather, the Athlete Plaintiffs here seek the removal of a facially discriminatory provision that denies elite disabled athletes services, benefits and supports that Defendants provide elite nondisabled athletes. Where a provision is facially discriminatory, a reasonable
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accommodation analysis is not appropriate; rather, the facially discriminatory provision constitutes a per se violation of the ADA. Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 734-35 (9th Cir. 1999). IV. The ASA Provides No Reason to Dismiss the Athlete Plaintiffs’ Claims.
As demonstrated above, the Athlete Plaintiffs have stated claims under Title III and the Rehabilitation Act. Defendants seek to avoid these claims by attempting to convert them -largely through wishful thinking -- into claims under the ASA, which claims, they then argue, are improper. Defendants provide no legally-cognizable grounds for this Court to treat the Athlete Plaintiffs’ ADA and Rehabilitation Act claims as ASA claims or otherwise to use the ASA to dismiss this case.
A. The ASA’s Substantive Requirements are Irrelevant. Defendants assert that the ASA has no private right of action and that it does not mandate parity between athletes. (See Def.’s Mot. to Dismiss Athlete Pls. at 5, 7-10.) The former is true, and the latter may be arguable, but both are completely irrelevant, as the Athlete Plaintiffs have not asserted claims under the ASA. All of the cases on which Defendants rely involved plaintiffs
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who asserted claims directly under the ASA;8 their holding that the ASA does not create a private right of action is not applicable to the present case.
B. The USOC Has Disavowed Any Argument That the ASA Preempts the ADA or Rehabilitation Act.
Defendants assert, in their Motion to Dismiss Athlete Plaintiffs, that “[t]he only obligation the USOC has at all with respect to Olympic, Paralympic or Pan American athletes is enumerated in the ASA.” (Id. at 6.) Furthermore, two of the cases on which Defendants rely hold that state tort claims are pre-empted by the ASA.9 While it might appear that Defendants are making a preemption argument, the USOC, in its reply brief in the Shepherd case, explicitly disavowed the argument that the ASA preempts the ADA or Rehabilitation Act. (See Shepherd, The USOC’s Reply in Supp. of Mot. for Summ. J. (“USOC Shepherd Reply,” filed Oct. 16, 2002)) at 2 (“The USOC’s basis for summary judgment, however, does not stand on the argument that the ASA preempts either the ADA or [the Rehabilitation Act].”)) In any event, an

8

Martinez v. United States Olympic Comm., 802 F.2d 1275, 1280-81 (10th Cir.

1986) (addressing ASA claim of deceased boxer); Michels v. United States Olympic Comm.,

741 F.2d 155, 156 (7th Cir. 1984) (addressing ASA claims of athlete challenging

disqualification following drug test); Oldfield v. Athletic Cong., 779 F.2d 505, 506 (9th Cir.

1985) (addressing ASA claims of athlete challenging suspension of amateur status and resulting

disqualification from competition); DeFrantz v. United States Olympic Comm., 492 F. Supp.

1181, 1186 (D.D.C.) (addressing ASA claims of athletes challenging the USOC’s decision not to

send a team to the Moscow Olympics), aff’d 701 F.2d 221 (D.C. Cir. 1980); Walton-Floyd v.

United States Olympic Comm., 965 S.W.2d 35, 35-37, 40 (Tex. App. 1998) (addressing ASA

and state tort claims of athlete challenging disqualification following drug test); Dolan v. United

States Equestrian Team, Inc., 608 A.2d 434, 435 (N.J. Super. Ct. App. Div. 1992) (addressing

ASA and state tort claims of athlete challenging selection of different athlete for world

championship team), cited in Def.’s Mot. to Dismiss Athlete Pls. at 5.

9

Dolan, 608 A.2d at 437-38; Walton-Floyd, 965 S.W.2d at 40.

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argument that the ASA preempted the ADA would not succeed. See Devlin ex rel. Devlin v. Ariz. Youth Soccer Ass’n, No. CIV 95-745 TUC ACM, 1996 WL 118445, at *2 (D. Ariz. Feb. 8, 1996) (Ex. 1 hereto) (holding that “the ADA . . . preempt[s] federal and state laws that provide less protection than the ADA and by precluding a judicial remedy, the Amateur Sports Act provides less protection for the rights of individuals with disabilities than does the ADA.”).
C. Entities Governed by the ASA Are Also Required to Comply with Other Federal Laws.
Because the Athlete Plaintiffs did not actually make a claim under the ASA and because Defendants disavow any argument that the ASA preempts the ADA or the Rehabilitation Act, in order for Defendants’ ASA argument to succeed, they must find some legally cognizable way to convert the Athlete Plaintiffs’ claims into ASA claims. The bald assertion -- quoted above -- that “[t]he only obligation the USOC has at all with respect to Olympic, Paralympic or Pan American athletes is enumerated in the ASA,” (Def.’s Mot. to Dismiss Athlete Pls. at 6), does not do the trick. Defendants provide no support for this proposition. Furthermore, having admitted for the purposes of the present motion that they are both recipients of federal funding and places of public accommodation,10 Defendants provide no legal or logical reason why they alone among such recipients and places should not be covered by the Rehabilitation Act and Title III, respectively.
While Defendants provide no support for the proposition that their only obligation to athletes is under the ASA, several cases have held to the contrary. In Devlin, 1996 WL 118445,
10 Def.’s Mot. to Dismiss Athlete Pls. at 10 n.3 & 11 n.4 -20-

at *2-4, for example, the court upheld an ADA claim against an athletic organization that alleged it was covered by the ASA. In two other cases, courts considered on their merits federal civil rights claims against national governing bodies of sport (“NGBs”), which are also governed by the ASA. 36 U.S.C. §§ 220504(b)(1) (defining “member” to include NGBs). See Akiyama v. United States Judo, Inc., 181 F. Supp. 2d 1179, 1182-83 (W.D. Wash. 2002) (considering on its merits a claim against the NGB of judo under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(a)); Sternberg v. U.S.A. National Karate-do Fed’n, Inc., 123 F. Supp. 2d 659, 661-62 (E.D.N.Y. 2000) (holding that female athlete stated cause of action against the NGB of karate for gender discrimination under Title IX based on the NGB’s decision to withdraw a women’s team from world championship competition while permitting the equivalent men’s team to participate); see also Slaney v. Int’l Amateur Athletic Fed’n, 244 F.3d 580 (7th Cir.) (considering on its merits a claim against the USOC under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq.), cert. denied, 534 U.S. 828 (2001).11 These cases contradict any assertion that the USOC’s only duties to athletes arise under the ASA.
Mark Shepherd cited to these same cases in his opposition to the USOC’s motion for summary judgment. (Shepherd’s Shepherd Opp. at 5-7.) In its reply brief, the USOC attempted to distinguish these cases, but used an argument that had nothing whatsoever to do with the ASA. That is, the USOC did not explain how the argument that its only duty to athletes arises under the
11 Two other cases have permitted athletes to proceed with state contract claims against the USOC. See Foschi ex. rel Foschi v. United States Swimming, Inc., 916 F. Supp. 232, 241 (E.D.N.Y. 1996); Harding v. United States Figure Skating Ass’n, 851 F. Supp. 1476, 1480 (D. Or. 1994).
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ASA is consistent with cases recognizing claims against the USOC, NGBs and other covered sports organizations under the ADA, Title IX, Title II of the Civil Rights Act of 1964, and RICO. Rather, it simply repeated its argument that Mr. Shepherd is not qualified, a subset of its argument that discrimination against Paralympic athletes is not disability discrimination. (See USOC Shepherd Reply at 4-5 (distinguishing Akiyama and Sternberg on the grounds that the athlete-plaintiffs in those cases were “qualified,” whereas, in the USOC’s view, Mr. Shepherd is not qualified for the benefits he seeks).) Similarly, when explaining to the Court in Shepherd that it was not making a preemption argument, the USOC asserted that its ASA argument was in fact this: that “[n]either the ADA nor [the Rehabilitation Act] are meant to provide a remedy to a class of athletes who are displeased by the USOC’s financial allocations.” Id. at 2. Thus explained, Defendants’ ASA argument simply collapses into its argument -- refuted above -- that Mr. Shepherd and the Athlete Plaintiffs have not stated an actionable discrimination claim.
D. The Athlete Plaintiffs Are Not Trying to Enforce Duties Created by the ASA. Defendants argue that the fact that the Athlete Plaintiffs’ claims involve athlete benefits “transforms the Athlete Plaintiffs’ claim from one based on disability discrimination to one in which this Court is forced to interpret and then enforce alleged duties or obligations owed to Paralympic athletes under the ASA.” (Def.’s Mot. to Dismiss Athlete Pls. at 5-6.) This is simply wrong: The Athlete Plaintiffs do not “rely on alleged duties created by the ASA;” they rely on the duty -- created by the Americans with Disabilities Act and the Rehabilitation Act -- not to discriminate against individuals with disabilities. The ASA does not mandate the benefits at issue here and if the USOC had elected -- as would have been its right under the ASA -- not to
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provide certain benefits at all, the Athlete Plaintiffs would not have filed suit to force the USOC to provide them. Once Defendants have chosen to provide a given benefit, however, the ADA and the Rehabilitation Act mandate that they do so in a nondiscriminatory fashion.
The fact that the Amended Complaint refers to the ASA does not convert the Athlete Plaintiffs’ claims into ones enforcing that statute. The USOC was created and is defined by the ASA and it would be virtually impossible to understand how the organization functions without reference to that statute. The fact that a court -- in evaluating the presence or absence of discrimination -- refers to foundational documents, internal policies, or other guidelines does not transform a case into one enforcing those documents, policies or guidelines. The Supreme Court in PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), for example, made extensive reference to the rules of golf and the policies of the PGA Tour in order to examine whether that entity was discriminating under Title III of the ADA. Nothing in this analysis converted Mr. Martin’s claim to one attempting to enforce the Rules of Golf, the Conditions of Competition and Local Rules, or the Notices to Competitors. See id. at 666-67. See also, e.g., Woodman v. Runyon, 132 F.3d 1330, 1334 (10th Cir. 1997) (interpreting personnel manual in evaluating whether reassignment was required under the Rehabilitation Act); Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 785 (10th Cir. 1995) (interpreting employee policy manual in evaluating a sexual harassment claim under Title VII).
In the present case, the Court will have to understand what the USOC does to evaluate whether it is doing what it does in a manner that violates the ADA and the Rehabilitation Act. The fact that this understanding will require reference to the ASA -- and to the USOC’s
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Constitution, its annual reports, it website and numerous other documents -- does not convert the Athlete Plaintiffs’ discrimination claims into ASA claims, or claims to enforce annual reports or web pages.
E. Defendants Are Not above the Law. Defendants conclude their ASA argument by asserting that mandating equivalent programming “would be an intrusion into the USOC’s prerogatives, and would endanger the flexibility necessary for any private organization to function efficiently and responsibly.” (Defs.’ Mot. to Dismiss Athlete Pls. at 9.) Many private organizations function efficiently and responsibly without discriminating -- and, of course, whatever the USOC’s prerogatives, they must be exercised in compliance with federal law. See, e.g., Bay Area, 179 F.3d at 735 (holding, in zoning context, “localities remain free to distinguish between land uses to effectuate the public interest -- they just must refrain from making distinctions based on what Congress has determined to be inappropriate considerations.”); South Dakota Farm Bureau, Inc. v. Hazeltine, 202 F. Supp. 2d 1020, 1041 (D.S.D. 2002) (holding that while a state may control land use, it must do so in compliance with the ADA), aff’d in part, rev’d in part on other grounds, 340 F.3d 583 (8th Cir. 2003); Ellen S. v. Fla. Bd. of Bar Exam’rs, 859 F. Supp. 1489, 1492 (S.D. Fla. 1994) (“[T]he Board [of Bar Examiners] is authorized by state law to investigate an applicant’s character and fitness. However, the Board is not permitted to conduct such investigation in violation of federal law.”); Clark, 880 F. Supp. at 443 (“While the Board’s broad authority to set licensing qualifications is well established, such authority is subject to the requirements of the ADA.”).
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Defendants provide no basis for elevating their prerogatives above those of states, cities and state bar associations. Indeed, the Supreme Court has made clear that -- although sovereign immunity protects states from paying money damages under the ADA -- they are subject to suit for injunctive relief to bring them into compliance with that law. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n.9 (2001) (holding that the ADA “prescribes standards applicable to the States. Those standards can be enforced . . . by private individuals in actions for injunctive relief under Ex parte Young, [209 U.S. 123 (1908)].”). It is hard to believe that Congress, through the ASA, imbued the USOC with sovereignty greater than that of the States of our Union.
CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that this Court deny Defendants’ Motion To Dismiss Plaintiffs’ ADA and Rehab Act Claims Pursuant to Fed. R. Civ. P. 12(b)(6). Respectfully submitted, FOX & ROBERTSON, P.C.

Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Attorneys for Plaintiffs

Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775
Dated: November 14, 2003
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Certificate of Service
I hereby certify that on November 14, 2003, a copy of PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ ADA AND REHAB ACT CLAIMS PURSUANT TO FED. R. CIV. P. 12(B)(6), was served by first-class mail, postage prepaid, on:
John W. Cook, Esq. Virginia S. Morgan, Esq. Hogan & Hartson L.L.P. 2 N Cascade Ave., Suite 1300 Colorado Springs, CO 80903

 
 Case 1:03-cv-01364-JLK Document 32 Filed 08/01/05 USDC Colorado Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 03-cv-01364-JLK SCOT HOLLONBECK, et al.,
Plaintiffs, v. UNITED STATES OLYMPIC COMMITTEE, a federally-chartered corporation, et al.,
Defendants.
PLAINTIFFS’ SECOND SUBMISSION OF SUPPLEMENTAL AUTHORITY
Plaintiffs, by and through their attorneys, respectfully submit the recently-decided Third Circuit case of Addiction Specialists, Inc. v. Township of Hampton, 411 F.3d 399 (3d Cir. 2005), as supplemental authority in opposition to Defendants’ Motion to Dismiss Vie Sports Marketing, Inc.’s Federal Discrimination Claims for Lack of Subject Matter Jurisdiction Pursuant to Fed. R. Civ. P. 12(b)(1) (“Defs.’ Mot. to Dismiss Vie”). A copy of the case is attached.
In its Motion to Dismiss Vie, Defendants relied on the case of Discovery House, Inc. v. Consolidated City of Indianapolis, 319 F.3d 277 (7th Cir. 2003), to argue that Plaintiff Vie Sports Marketing, Inc. (“Vie”) did not have standing under the Rehabilitation Act, 29 U.S.C. § 794, to seek compensatory damages that would not directly benefit people with disabilities. (See Defs.’ Mot. to Dismiss Vie at 5-8.) In Addiction Specialists, Inc. v. Township of Hampton, the Third Circuit expressly rejected this holding. 411 F.3d 399, 406 (3d Cir. 2005).

Case 1:03-cv-01364-JLK Document 32 Filed 08/01/05 USDC Colorado Page 2 of 4
Like Discovery House, Addiction Specialists involved a methadone clinic (“ASI”) bringing suit under, among other statutes, the Rehabilitation Act for relief that included compensatory damages for lost profits. The defendant in Addiction Specialists relied on Discovery House to argue -- as Defendants do here -- that the plaintiff did not have standing to recover such damages because they did not benefit people with disabilities. Addiction Specialists, 411 F.3d at 406. The Third Circuit held that such a limitation is improper.
The court noted that an entity may bring suit on its own behalf as well as on behalf of its members, id. at 406-07, and explained:
As we understand it, the Seventh Circuit’s decision in Discovery House assumes that an entity bringing suit under . . . the [Rehabilitation Act] must necessarily assert the rights of its members rather than bringing suit “in its own right.” This ignores that the protections of the . . . [Rehabilitation Act] have been extended to shield entities themselves from discrimination. Although ASI is protected by these statutes only by virtue of its association with disabled individuals, ASI’s standing to sue arises from its own alleged injuries, not those of its clients. See 28 C.F.R. § 35.130(g). As such, we decline to follow the Seventh Circuit’s premise that a methadone clinic has standing “only because it provides services . . . to persons presumably covered by those Acts.” Discovery House, 319 F.3d at 281. Addiction Specialists, at 407 (emphasis in original). This was based on the court’s holding that standing under the Rehabilitation Act extends to the limits of Article III of the Constitution. Id.; accord Tandy v. City of Wichita, 380 F.3d 1277, 1287 (10th Cir. 2004). In the present case, Defendants acknowledge that Vie may and does bring suit on its own behalf. (Defs.’ Mot. to Dismiss Vie at 5.) Based on both Tandy and Addiction Specialists, Vie has standing to sue for its own injuries, including lost profits.
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Conclusion For the reasons set forth above and in Plaintiffs’ Opposition to Motion to Dismiss Vie, Defendants’ motion should be denied.

Certification under D. Colo. L. R. 7.1A The undersigned certifies that she conferred with counsel for Defendants who represented that Defendants did not object to this submission provided that they be given an opportunity to file a response of comparable length. Plaintiffs do not object to such a response. Respectfully submitted, FOX & ROBERTSON, P.C.

s/Amy Farr Robertson Amy Farr Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700 arob@foxrob.com
Attorneys for Plaintiffs

Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775 kwilliams@ccdconline.org
Dated: August 1, 2005

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Certificate of Service
I hereby certify that on August 1, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email address:
Virginia S. Morgan vsmorgan@hhlaw.com
and I hereby certify that I have mailed the document to the following non-CM/ECF participant in by first class mail, postage prepaid:
John W. Cook, Esq. Hogan & Hartson L.L.P. 2 N Cascade Ave., Suite 1300 Colorado Springs, CO 80903
s/ Amy Farr Robertson Amy F. Robertson Attorney for Plaintiffs Fox & Robertson, PC 910 16th Street Suite 610 Denver, CO 80202 303.595.9700 (voice) 303.595.9705 (fax) arob@foxrob.com

 
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 03-cv-1364-JLK SCOT HOLLONBECK, JOSE ANTONIO INIGUEZ, JACOB WALTER JUNG HO HEILVEIL, and VIE SPORTS MARKETING, INC., a Georgia corporation,
Plaintiffs, v. UNITED STATES OLYMPIC COMMITTEE, a federally-chartered corporation, and U.S. PARALYMPICS, INC., f/k/a UNITED STATES PARALYMPIC CORPORATION, a Colorado non-profit corporation,
Defendants.
PLAINTIFF / COUNTERCLAIM DEFENDANT VIE SPORTS MARKETING, INC.’S REPLY AND DEFENSES
TO THE COUNTERCLAIM OF DEFENDANT U.S. PARALYMPICS, INC.
Plaintiff / Counterclaim Defendant Vie Sports Marketing, Inc. (“Vie”), by and through its counsel, hereby submits its Reply and Defenses to the Counterclaim of Defendant U.S. Paralympics, Inc.
ALLEGATION NO. 1. In this action, USP seeks enforcement of the parties' contract and its rights thereunder to arbitrate the dispute between the parties and to recover all of its costs and expenses, including its reasonable attorneys' fees incurred in defending against Counter-defendant, Vie Sports Marketing, Inc.'s ("Vie"), claims and in asserting this Counterclaim.

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REPLY:

Denied.

Jurisdiction and Venue

ALLEGATION NO. 2. This Court has subject matter jurisdiction over this action

pursuant to 28 U.S.C. § 1367.

REPLY: Admitted.

ALLEGATION NO. 3. Venue is proper within this District pursuant to 28 U.S.C. §

1391.

REPLY: Admitted.

Parties

ALLEGATION NO. 4. USP is a Colorado non-profit corporation with its principal place

of business in Colorado Springs, Colorado. Prior to December 2001, USP was known as the

United States Paralympic Corporation ("USPC").

REPLY: Vie admits that USP is a Colorado non-profit corporation with its

principal place of business in Colorado Springs, Colorado, and that it was formerly known as the

United States Paralympic Corporation. Vie denies all remaining allegations in this paragraph.

ALLEGATION NO. 5. Vie is a Georgia corporation, with its principal place of business

in Atlanta, Georgia.

REPLY: Admitted.

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Facts

ALLEGATION NO. 6. Congress granted the United States Olympic Committee

("USOC") the exclusive right to use, market and sell rights to the Olympic and Paralympic names,

emblems and symbols. 36 U.S.C. § 220506(a).

REPLY: Admitted.

ALLEGATION NO. 7. In August 2000, the USPC was incorporated with the stated

purpose of working with the USOC to ensure that the USOC's responsibilities to Paralympic and

disabled athletes under the Ted Stevens Olympic and Amateur Sports Act (36 U.S.C. § 220501 et

seq.) were met.

REPLY:

Vie admits that the USPC was incorporated in August 2000 and

that the articles of incorporation speak for themselves.

ALLEGATION NO. 8. Thereafter, the USOC considered transferring its right to use,

market, and sell rights to the Paralympic names, emblems, and symbols to the USPC n/k/a USP.

REPLY: Vie is without knowledge and information sufficient to form a belief

as to the truth of the allegations contained in this paragraph, and therefore denies the same.

ALLEGATION NO. 9. On or about April 18, 2001, representatives of Vie made a

presentation to the USPC concerning services they alleged Vie could provide in marketing and

selling rights to the Paralympic trademark to sponsors.

REPLY:

Vie admits that on or about April 18, 2001, its representatives made

a presentation concerning services they could provide in marketing and selling rights to the U.S.

Paralympic trademark. Vie denies all remaining allegations in this paragraph.

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ALLEGATION NO. 10. In the Spring of 2001, the USPC issued a "Reason for Proposal"

("RFP"). The RFP requested the submission of proposals for an external marketing agency for

the Paralympic trademark.

REPLY: Admitted.

ALLEGATION NO. 11. In early June 2001, Vie submitted a written proposal to become

a marketing agency for the Paralympic trademark in response to the RFP. Representatives of Vie

made a presentation of their proposal to the USPC in late June 2001.

REPLY: Vie admits that in June 2001, it submitted a bid to become the exclusive

marketing agency for the U.S. Paralympic trademark. Vie denies all remaining allegations in this

paragraph.

ALLEGATION NO. 12. In July 2001, the USPC communicated to Vie that it had

selected Vie to become a marketing agency for the Paralympic trademark.

REPLY:

Vie admits that in July 2001, it was selected to be the exclusive

marketing agency for the U.S. Paralympic trademark. Vie denies all remaining allegations in this

paragraph.

ALLEGATION NO. 13. In July and August 2001, the parties discussed the terms of their

relationship. The parties agreed to enter a short-term consulting agreement so that Vie could

begin work for the USPC; they agreed to continue negotiating the terms of a longer-term sales

agency and fulfillment agreement.

REPLY:

Denied.

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ALLEGATION NO. 14. Effective September 1, 2001, the USPC and Vie executed a

Sponsorship Development Consulting Agreement (“Consulting Agreement”).

REPLY: Admitted.

ALLEGATION NO. 15. The Consulting Agreement generally obligated Vie to provide

Paralympic sponsorship development consulting services to the USPC.

REPLY: The Consulting Agreement speaks for itself. Vie denies the

allegations contained in this paragraph.

ALLEGATION NO. 16. In return, the USPC was to pay Vie an escalating monthly fee:

$20,000 for September 2001; $25,000 for October 2001; $30,000 for November 2001; $35,000

for December 2001; and $40,000 for January 2002. The USPC also agreed to pay Vie for its

direct out-of-pocket expenses incurred in connection with Vie's performance of the Consulting

Agreement.

REPLY:

The Consulting Agreement speaks for itself. Vie denies the

allegations contained in this paragraph.

ALLEGATION NO. 17. The Consulting Agreement further provided, in part, that any

dispute between the parties relating to the Consulting Agreement was to be resolved by binding

arbitration in Denver, Colorado, and that the prevailing party in any proceeding to enforce the

agreement was entitled to its costs and expenses, including but not limited to its reasonable

attorneys' fees, court costs and expert witness fees.

REPLY:

The Consulting Agreement speaks for itself. Vie denies the

allegations contained in this paragraph.

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ALLEGATION NO. 18. The Consulting Agreement initially was to terminate on February

1, 2002.

REPLY:

The Consulting Agreement speaks for itself. Vie denies the

allegations contained in this paragraph.

ALLEGATION NO. 19. Vie performed some work pursuant to the Consulting

Agreement and the USPC fully performed its obligations under the Consulting Agreement.

REPLY:

Denied.

ALLEGATION NO. 20. In December 2001, because the parties were still negotiating a

longer-term sales agency and fulfillment agreement, the parties agreed to modify the payment and

term provisions of the Consulting Agreement. By this time, the USPC was operating under the

USP name. Effective January 1, 2002, Vie agreed to perform its obligations under the Consulting

Agreement for a flat fee of $20,000 per month. The parties also agreed to extend the term of the

Consulting Agreement beyond February 1, 2002.

REPLY:

Denied.

ALLEGATION NO. 21. Vie performed additional work pursuant to the modified

Consulting Agreement and USP fully performed its obligations under the modified Consulting

Agreement.

REPLY:

Denied.

ALLEGATION NO. 22. In early 2002, the USOC ultimately decided that it would not

transfer to USP the right to use, market, and sell rights to the Paralympic names, emblems, and

symbols. Instead, a division of the USOC called U.S. Paralympics ("the Division") would manage

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for the USOC all rights pertaining to Paralympic marks, logos and sponsorships. As a result, USP

ceased, and the USOC began, negotiating the longer-term sales agency and fulfillment agreement

with Vie.

REPLY: Vie is without knowledge and information sufficient to form a belief

as to the truth of the allegations contained in the first two sentences of this paragraph, and

therefore denies the same. Vie denies all other allegations in this paragraph.

ALLEGATION NO. 23. USP and Vie nonetheless continued to operate pursuant to the

modified Consulting Agreement. In March 2002, Vie and USP again agreed to modify the

Consulting Agreement, by changing the expenses provision to provide that USP would pay Vie a

flat $5,000 per month for its expenses incurred in connection with its performance of the

Consulting Agreement.

REPLY:

Denied.

ALLEGATION NO. 24. In early May 2002, the Division sent Vie a draft USOC/Vie

Sports Sales Agency and Fulfillment Agreement (the "Draft Sales Agency Agreement") between

the USOC and Vie. Vie returned the Draft Sales Agency Agreement to the Division with edits in

late May 2002. Vie sent another Draft Sales Agency Agreement to the Division in early June

2002.

REPLY: Vie admits that, in or about May and June 2002, the parties

exchanged drafts of a document entitled “Sales Agency and Fulfillment Agreement.”

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ALLEGATION NO. 25. Throughout the negotiation of the Draft Sales Agency

Agreement in 2002, Vie performed some work pursuant to, and USP fully performed its

obligations under, the Consulting Agreement as modified in March 2002.

REPLY:

Denied.

ALLEGATION NO. 26. In January 2003, as part of continued negotiations of the Draft

Sales Agency Agreement, the Division presented Vie with a proposed summary term sheet. In

response, Vie indicated it would not agree to the proposed terms, and negotiations between the

Division and Vie relating to a sales agency and fulfillment agreement ended at that time. In

addition, Vie terminated the Consulting Agreement with USP.

REPLY:

Denied.

ALLEGATION NO. 27. Prior to its termination of the Consulting Agreement, Vie had

been paid at least $438,233.76 pursuant to the Consulting Agreement with USP.

REPLY:

Denied.

ALLEGATION NO. 28. Vie filed its lawsuit against the USOC and USP in July 2003 for

breach of contract and promissory estoppel.

REPLY: Vie admits that in 2003, it filed suit against the USOC and USP,

asserting, among other claims, breach of contract and promissory estoppel claims.

Count I: Enforcement of the Consulting Agreement (Against Vie Sports Marketing, Inc.)

ALLEGATION NO. 29. USP realleges and incorporates by reference the allegations set

forth in this Counterclaim as if fully set forth herein.

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REPLY:

Vie incorporates by reference its replies to the allegations set forth

in the Counterclaim as if fully set forth herein.

ALLEGATION NO. 30. From September 1, 2001 through the date of Vie's termination of

the parties' relationship in January 2003, the parties operated pursuant to the Consulting

Agreement. The Consulting Agreement was the only contract between the parties.

REPLY: Denied.

ALLEGATION NO. 31. USP fully performed all of its obligations under the Consulting

Agreement.

REPLY:

Denied.

ALLEGATION NO. 32. Pursuant to the Consulting Agreement, USP is entitled to the

arbitration in Denver, Colorado, of Vie's breach of contract and promissory estoppel claims

against it.

REPLY:

Denied.

ALLEGATION NO. 33. USP has incurred reasonable attorneys' fees, costs and expenses

in defending against Vie's lawsuit and in asserting this Counterclaim to enforce the contract

between the parties.

REPLY:

Denied.

ALLEGATION NO. 34. Pursuant to the Consulting Agreement, USP is entitled to

recover all of its costs and expenses, including but not limited to reasonable attorneys' fees, court

costs and expert witness fees, incurred in defending against Vie's breach of contract and

promissory estoppel claims and in asserting this Counterclaim.

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REPLY:

Denied.

Defenses 1. USP’s Counterclaim fails to state a claim for relief. 2. Any arbitration requirement in the consulting agreement is inapplicable to this case because that agreement did not cover the services provided by Vie that are the subject of its claims in this litigation. 3. USP failed to mitigate its damages, if any. 4. USP’s claims are barred by the statute of limitations. 5. USP’s claims are barred by its failure to demand arbitration. 6. To the extent that the consulting agreement provided USP with a right to arbitration concerning the services provided by Vie at issue in this litigation, the monetary relief sought by USP is not available in this forum. 7. To the extent that the consulting agreement provided USP with a right to arbitration concerning the services provided by Vie at issue in this litigation, USP waived such right by, inter alia, waiting more than three years after the complaint was filed to seek arbitration, and filing a counterclaim with this Court seeking monetary relief.

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Respectfully submitted,
FOX & ROBERTSON, P.C.
/s Timothy P. Fox
Timothy P. Fox Amy F. Robertson Ari Krichiver Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Attorneys for Plaintiffs

Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775
Dated: February 28, 2007

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Certificate of Service
I hereby certify that on February 28, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses:
John William Cook jwcook@hhlaw.com
Jeffrey S. George jsgeorge@hhlaw.com
Amy F. Robertson arob@foxrob.com
Anne Hall Turner ahturner@hhlaw.com
Kevin William Williams kwilliams@ccdconline.org
And a copy was mailed by first class mail postage prepaid to:
Christopher Todd Handman Hogan & Hartson, LLP-DC 555 Thirteenth Street, N.W. Washington, DC 20004-1109
s/ Ari Krichiver Ari Krichiver Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700 Email: akrichiver@foxrob.com
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 Case 1:03-cv-01364-JLK Document 87 Filed 07/12/07 USDC Colorado Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 03-cv-1364-JLK
SCOT HOLLONBECK, JOSE ANTONIO INIGUEZ, JACOB WALTER JUNG HO HEILVEIL, and VIE SPORTS MARKETING, INC., a Georgia corporation,
Plaintiffs, v.
UNITED STATES OLYMPIC COMMITTEE, a federally chartered corporation, and U.S. PARALYMPICS, INC., f/k/a UNITED STATES PARALYMPIC CORPORATION, a Colorado non-profit corporation,
Defendants.

ORDER DISMISSING WITH PREJUDICE VIE SPORTS MARKETING, INC.’S CLAIMS AND
U.S. PARALYMPICS, INC.’S COUNTERCLAIM

This matter comes before the Court on the Stipulation of Dismissal With Prejudice of Vie Sports Marketing, Inc.’s Claims and U.S. Paralympics, Inc.’s Counterclaim, the Court being advised in the premises, IT IS HEREBY ORDERED:
1. All of the claims of Vie Sports Marketing, Inc. are dismissed with prejudice. 2. The counterclaim of U.S. Paralympics, Inc. f/k/a United States Paralympic Corporation is dismissed with prejudice. 3. Final judgment has already entered on all other claims in this action. Therefore, this action is hereby closed.

DATED: July 12, 2007

s/John L. Kane SENIOR U.S. DISTRICT JUDGE

 
 MARK E. SHEPHERD, Plaintiff, v. UNITED STATES OLYMPIC COMMITTEE, a corporation, Defendant; SCOT HOLLENBECK JOSE ANTONIO INGUEZ
JACOB WALTER JUNG HO HEILVEIL, and VIE SPORTS MARKETING, INC, a Georgia corporation, Plaintiffs, v. UNITED STATES OLYMPIC COMMITTEE, a federally chartered corporation, and U.S. PARALYMPICS, INC., f/k/a UNITED
STATES PARALYMPIC CORPORATION, a Colorado non-profit corporation, Defendants.

Civil Action No. 99-cv-02077-JLK, Civil Action No. 03-cv-1364-JLK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

June 14, 2006, Decided June 14, 2006, Filed

COUNSEL: [*1] For Mark E. Shepherd, Plaintiff: Amy Farr Robertson, Timothy Patrick Fox, Fox & Robertson, P.C., Denver, CO; Darold W. Kilmer, Kilmer, Lane & Newman, LLP, Denver, CO; Michael Wayne Breeskin, Arc of Denver, Inc., Denver, CO.
For United States Olympic Committee, a corporation, Defendant: Christopher Todd Handmanm Hogan & Hartson, LLP-DC, Washington, DC; Edward John Butler, Nancy Dawn Webber, Raymond Myles Deeny, Sherman & Howard, L.L.C. -- Colorado Springs CO, Colorado Springs, CO; John William Cook, Hogan & Hartson, LLP-Colorado Springs, Colorado Springs, CO.
Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc., a Georgia corporation, Plaintiffs: Amy Farr Robertson, Fox & Robertson, P.C., Denver, CO; Kevin William Williams, Colorado Cross-Disability Coalition, Denver, CO.
For United States Olympic Committee, a federallychartered corporation, Defendant: Christopher Todd Handman, Hogan & Hartson, LLP-DC, Washington, DC.
JUDGES: John L. Kane, SENIOR UNITED STATES DISTRICT JUDGE.
OPINION BY: John L. Kane
OPINION
ORDER
Before me are Plaintiffs' Motions for Ruling (Doc.

188 in 99-cv-2077 and Doc. 43 in 03-cv-1364) on the Motions in these [*2] related cases regarding the viability of Plaintiffs "Athlete Claims" as cognizable causes of action under the Americans with Disabilities Act. The Motions for Ruling are GRANTED. Despite having completed significant work on the parties' crossMotions for Summary Judgment in 99-cv-2077 (Docs. 139 & 140) and Defendants' Motion to Dismiss in 03-cv1364 (Doc. 3) in the weeks leading up to oral argument last fall, the intervening Cook v. Rockwell Rocky Flats class action trial and press of other business have conspired to deny the parties a written decision in a timely manner.
I recommit to completing my decision and, to aid in that effort, ask the parties over Defendants' objection to submit competing proposed orders on the Motions directed to Plaintiffs' Athlete Claims. Specifcially, the parties shall each present their respective proposed findings and conclusions with regard to the viability of Plaintiffs' Athlete Claims in a single Order with the combined caption above, and shall file their proposed Orders both in accordance with the Court's e-filing instructions as .pdf documents and as WordPerfect editable documents to my chambers email account at Kane_Chambers@cod.uscourts. [*3] gov. The proposed Orders shall include substantive and accurate citation to legal authority and present proposed rulings in defensible, competent legal analysis. The proposed Orders shall be filed on or before June 29, 2006.
Dated June 14, 2006
s/ John L. Kane
SENIOR U.S. DISTRICT JUDGE

 
 464 F.Supp.2d 1072 (2006)
Mark E. SHEPHERD, Plaintiff, v.
UNITED STATES OLYMPIC COMMITTEE, a corporation, Defendant. Scot Hollenbeck Jose Antonio Inguez Jacob Walter Jung Ho Heilveil,
and Vie Sports Marketing, Inc., a Georgia corporation, Plaintiffs, v.
United States Olympic Committee, a federally chartered corporation, and U.S. Paralympics, Inc., f/k/a United States Paralympic Corporation, a Colorado non-profit corporation, Defendants.
Civil Action Nos. 99-cv-2077-JLK, 03-cv-1364-JLK.
United States District Court, D. Colorado.
November 16, 2006.
1073*1073 1074*1074 1075*1075 Amy Farr Robertson, Timothy Patrick Fox, Fox & Robertson, P.C., Darold W. Killmer, Killmer, Lane & Newman, LLP, Michael Wayne Breeskin, Arc of Denver, Inc., Kevin William Williams, Colorado Cross-Disability Coalition, Denver, CO, for Plaintiffs.
Anne Hall Turner, John William Cook, Hogan & Hartson, LLP, Edward John Butler, Nancy Dawn Webber, Raymond Myles Deeny, Sherman & Howard, L.L.C., Colorado Springs, CO, Christopher Todd Handman, Hogan & Hartson, LLP, Washington, DC, for Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' DISPOSITIVE MOTIONS RE ATHLETE CLAIMS
KANE, Senior District Judge.
I. INTRODUCTION
These disability discrimination actions brought by elite Paralympic wheelchair athletes push the margins of federal disability discrimination laws as applied to the United States Olympic Committee (USOC) and Congress' enactment of our system of international amateur athletic competition. Civil Action No. 99-cv-2077-JLK, brought by wheelchair basketball Paralympian Mark Shepherd, challenges the USOC's purported failure to provide him with the services, benefits and financial and other support routinely provided to his Olympic counterparts. Civil Action 03-cv-1364 asserts similar claims on behalf of elite wheelchair

racers Scott Hollonbeck, Jose Antonio Iniguez and Jacob Walter Jun Ho Heilveil, as well as claims related to the USOC's marketing of U.S. Paralympic trademarks as they relate to Hollonbeck's marketing company Vie Sports.
According to the Plaintiff wheelchair athletes, the USOC was established by Congress to oversee matters pertaining to the selection, training and participation of elite disabled and non-disabled amateur athletes in international Olympic, Paralympic, and Pan-American competition. Charged with obtaining the best amateur representation possible in both Olympic and Paralympic events, Plaintiffs claim it is discriminatory for the USOC to provide 1076*1076 them programming, privileges, and financial support inferior to that provided non-disabled athletes under the Olympic program. Plaintiffs claim the USOC also discriminates against elite Paralympic athletes by promoting, marketing and selling (or limiting U.S. Paralympic's ability to promote, market and sell) rights to the Paralympic trademark at a level below the level it promotes, markets and sells rights to the Olympic mark, which has the effect of limiting the funds available for Paralympic programs and limiting the public's awareness of the Paralympics and individual Paralympic athletes. Finally, Plaintiffs claim the statutory governance structure of the USOC discriminates against Paralympic athletes by denying them representation. It is these "Athlete Claims,"brought under § 504 of the Rehabilitation Act and Title III of the Americans with Disabilities Act, and the parties' cross-motions regarding their viability under the federal anti-disability discrimination laws, that are before me now for consideration.[1]
Given the important and novel issues raised, I set the motions for oral argument. Argument has been completed, and my rulings follow.
A. Statutory Framework.
The ASA.
Congress originally chartered the United States Olympic Association in 1950 to organize and promote the United States' participation in international Olympic competition. The USOA became the USOC in 1954. In 1978, concerned with "`the disorganization and the serious factional disputes that seemed to plague amateur sports in the United States,'" Congress enacted the Ted Stevens Olympic and Amateur Sports Act ("ASA"), P.L. 95-606 (codified at 36 U.S.C. § 371 et seq. (1978)).San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522, 548-544, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987)(quoting from H.R. Rep. 95-1627 at p. 8)("1978 House Report"). The ASA charged the USOC with responsibility for coordinating amateur athletics for the Olympic and Pan-American Games and for resolving disputes involving national governing bodies of individual sports. See 1978 House Report at 8, 1978 WL 8517 (Leg.Hist.). The duties of developing interest and

participation in amateur athletics, as well as determining who may sponsor amateur athletic competition in the United States and what athletes will be sanctioned to compete on behalf of the United States in particular competitions, were left under the ASA to individual amateur sports organizations selected by the USOC as the "national governing bodies" in each sport on the Olympic or Pan-American program. 36 U.S.C. §§ 391 (selection and requirements for selection as "national governing body"), 392 (duties of national governing bodies).
1077*1077 With respect to the disabled, the original ASA identified as one of the 14 enumerated purposes of the USOC "to encourage and provide assistance to amateur athletic programs and competition for handicapped individuals, including where feasible, the expansion of opportunities for meaningful participation by handicapped individuals in programs of athletic competition for able-bodied individuals." 36 § 374(13).[2] National governing bodies were delegated the specific duty to "encourage and support amateur athletic sports programs for handicapped individuals and the participation of handicapped individuals in amateur athletic activity, including where feasible, the expansion of opportunities for meaningful participation by handicapped individuals in programs of athletic competition for able-bodied individuals." 36 U.S.C. § 392(7). The ASA made no mention of the Paralympic movement or Paralympic Games, and articulated its mission in terms of fostering and developing amateur international competition at the Olympic and PanAmerican Games only. See id., § 374, supra n. 2.
In 1998, the ASA was amended to reflect "significant changes"in Olympic and amateur sports at the time, specifically including the "significant" growth "in size and pres tige" of the Paralympics. See S. 1078*1078 Rep. 105-325 at p. 2, 1998 WL 604018 ("1998 Senate Report"). The 1998 version of the ASA, now codified at 36 U.S.C. § 220501 et seq., amended the statement of the USOC's purposes objectives at § 374(3) and (4) to add participation in the "Paralympic Games" (recodified at 36 U.S.C. § 220503(3), (4))[3] and amended § 391 to recognize "paralympic sports organizations" as national governing bodies for sports for which no national governing body had been designated. Id. § 220522(b). See 1998 Senate Rep. at 17.[4]
My overall impression in analyzing this legislative history is that the ASA distinguishes between authority and power the USOC has to oversee the United States' participation in international amateur athletic competition and the authority it has nationally to regulate and govern amateur sports nationally to obtain the best representation in the Olympic/PanAmerican and Paralympic Games. Visávis theinternational community, the USOC "represent[s] the United States as its national Olympic committee in relations with the International Olympic Committee and the Pan-American Sports Organization and as [the

United States'] national Paralympic committee in relations with the International Paralympic Committee," "coordinate[s] and develop[s] amateur athletic activity in the United States directly related to international amateur athletic competition,"and "organize[s], finance[s], and control[s] the representation of the United States in the competitions and events of the Olympic, Paralympic and Pan-American Games." 36 U.S.C. §§ 220505(c)(2), (3). Visàvis individual citizens, however, and while charged generally to "encourage and provide assistance to amateur athletic activities for women" (§ 220503(12)), "minorities" (§ 220503(14)), and "amateur athletes with disabilities" (§ 220503(13)), the USOC effects this purpose under the ASA first by selecting and recognizing"national governing bod[ies]" (or, where necessary because a sport exists only for the disabled, "paralympic sports organizations") for each amateur sport in the Olympic, Pan-American or Paralympic Games (§ 220521 & 22) and then delegating to themthe duties of "develop[ing] interest and participation throughout the United States" in that sport (§ 220524(1)), "allow[ing] an amateur athlete to compete in any [sanctioned] international amateur 1079*1079 athletic competition conducted by any amateur sports organization" (§ 220524(5)), and "encourag[ing] and support[ing] amateur athletic sports programs for individuals with disabilities and the participation of individuals with disabilities in amateur athletic activity." § 220524(7). Thus, while Plaintiffs are not incorrect in claiming the USOC is charged with "obtaining" the best amateur representation both for the Olympic and Paralympic Games, they cannot ignore that it does so through "the appropriate national governing bod[ies]"to which the responsibility for supporting athletic opportunities and participation for all athletes, including the disabled, is delegated. See 36 U.S.C. §§ 22503(4)("through the appropriate national governing body"), 22523-24 (authority and duties of national governing bodies include developing interest and participation in amateur sports they represent and to encourage and support amateur sports programs for individuals with disabilities).
Moreover, it is only those individual governing bodies that have any express duties under the ASA to provide equal or nondiscriminatory participation opportunities within their particular Olympic or Paralympic sport, and even then, only on the non-disability-based factors of race, color, age, religion, sex, or national origin. 36 U.S.C. § 220522(a)(8).[5] The omission of disability as a prohibited discriminatory factor under 36 U.S.C. § 220522(a)(8) is significant. It is precisely because athletes are classified within their sports (or provided disability-specific sports) on the basis of their disabilities that the need for protection on the basis of that disability becomes problematic. Under the ASA, for example, the NWBA may not discriminate on the basis of race, sex or national origin. A prohibition against disability discrimination is omitted, ostensibly because the limits of federal antidiscrimination law are reached simply by the accommodation. No proscription against disability discrimination binds the NWBA because the NWBA's charges are all disabled by definition.

The question, then, becomes whether some other statute or regulatory scheme operates to prohibit the USOC — as the umbrella organization charged with coordinating national governing organizations such as the NWBA and producing, through them, the best American representation at the Olympic, Pan-American and Paralympic Games — from allocating reduced or inferior benefits to athletes training for Paralympic, as opposed to Olympic or Paralympic competition. According to Plaintiffs, the ADA and Rehabilitation Act do so.
ADA/Rehabilitation Act.
The Rehabilitation Act of 1973 and ADA comprise a comprehensive federal mandate to remedy and eliminate discrimination against disabled individuals. Section 504 of the Rehabilitation Act states that "[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). The ADA, enacted in 1990, expanded liability for disability discrimination. 1080*1080 Title I of the ADA, codified at 42 U.S.C. § 12112, prohibits covered employers from discriminating against individuals on the basis of disability in the workplace regardless of their status as recipients of federal funding; Title II (§ 12132) prohibits public entities from discriminating against individuals or excluding them from participation in, or the benefits of, their services or programs on the basis of disability; and Title III (§ 12182) provides injunctive relief against private entities who discriminate against the disabled in the operation of "places of public accommodation." See PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-75, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001). It is Title III that provides the basis for Plaintiffs' claims in this case.
Title III provides "[n]o individual shall 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 by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). A "place of public accommodation" for purposes of Title III is a facility generally open to the public at large, including restaurants, hotels, libraries, stores, theaters, stadiums, zoos, and the like. Id. § 12181(7). General prohibitions under Title III include denying, on the basis of disability, opportunities to participate in or benefit from the goods, services, privileges or accommodations of the private entity (§ 12182(b)(1)(A)(i)); affording disabled individuals the opportunity to participate in or benefit from such goods or services in a manner "not equal to that afforded to other individuals" (§ (b)(1)(A)(ii)); or providing disabled individuals with a good, service, facility, privilege, or accommodation "separate from" that afforded other

individuals unless necessary to provide the individual a benefit "as effective" as that provided to others. (§ (b)(1)(A)(iii)). It is also unlawful under Title III to impose or apply eligibility criteria for use of a public accommodation that screen out or tend to screen out the disabled from fully and equally enjoying any goods, services, facilities, privileges, or advantages of that public accommodation (42 U.S.C. § 12182(b)(2)(A)(i)); to fail to modify policies or to take steps necessary to afford the disabled goods, services, facilities, etc. of the accommodation (§ (b)(2)(A)(ii) & (iii)); and failure to remove architectural and communication barriers to ensure that no person with a disability is excluded or denied goods, services, facilities, etc. (§ (b)(2)(A)(iv), (v)).
In their Amended Complaint, Plaintiffs assert three different theories of discrimination under Title III:(1) discrimination in the denial of participation in Olympic Programming in violation of § 12182(b)(1)(A)(i); (2) discrimination in the provision of an unequal participation opportunity in violation of § 12182(b)(1)(A)(ii); and (3) discrimination through the use an eligibility criterion for Olympic Programming that screens out the disabled from full and equal enjoyment of the public accommodation in violation of § 12182(b)(2)(A)(i). Am. Compl. ¶¶ 2, 4859.[6] Plaintiffs specifically do not assert a claim based on the provision of a separate benefit under § 12182(b)(1)(A)(iii).
Plaintiffs' Title III claim, then, rests on a set of carefully crafted assumptions. 1081*1081First, based on the USOC's "control" over administration, housing, training, and competition in the United States, together with its operation of Olympic Training Centers in Colorado Springs (Colorado), Chula Vista (California) and Lake Placid (New York), Plaintiffs claim the USOC "operates places of public accommodation" such that it is a covered entity under Title III. Am. Compl., 03-cv-1364, ¶¶ 24, 26-33. Plaintiffs then characterize programming benefits offered athletes by the USOC and Paralympic Committee as "goods, services, facilities, privileges, advantages, or accommodations" of those "places of public accommodation,"and contend the U.S. Olympic and Paralympic Committees discriminate against them by denying them, on the basis of their disabilities, the "full and equal enjoyment" of those programming benefits.[7] Id. ¶¶ 144-146. That each of these characterizations is strained is something I address in the next section.
For their relief, Plaintiffs seek an injunction requiring Defendants to cease their discrimination and provide them "full and equal enjoyment of their goods, services, facilities, privileges, advantages, and/or accommodations in a fashion to be specified following trial."Am. Compl., 03-cv-1364 at p. 24 "Prayer for Relief."[8] Plaintiffs equivocate as to the specifics of any injunction ultimately issued, acknowledging "equal" allocations would not necessarily be appropriate or required under the ADA, and urging the adoption of an "equitable" or "proportionate" remedial standard along the lines of that available under Title

IX and its implementing regulations.[9] Plaintiffs support their reliance on Title IX with a citation to Grove City College v. Bell, 465 U.S. 555, 566, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), and in particular 1082*1082 in the Supreme Court's look to the Rehabilitation Act as an interpretive guide for Title IX, on grounds both find their source in the antidiscrimination provisions of Title VI of the Civil Rights Act of 1964. While I appreciate the analogy and agree Title IX's regulatory remedial scheme works well with Plaintiffs' theory of relief in this case, I cannot agree federal courts are authorized to cobble together congressional enactments in this manner. As I will explain more fully below, Plaintiffs' request that I graft a remedial scheme promulgated under a statute banning sex discrimination onto statutes prohibiting disability discrimination, and then infuse both into the statute establishing the federally chartered corporation that oversees the country's amateur athletic system and has exclusive jurisdiction over matters pertaining to international Olympic, Paralympic and PanAmerican competition, simply falls outside the scope of federal judicial authority.
Defendants deny Plaintiffs have stated a viable claim for disability discrimination. The crux of the issues raised are set forth in the parties' cross-motions for summary judgment in Shepherd (Doc. Nos. 139 and 140) and in the USOC's 12(b)(6) Motion to Dismiss in Hollonbeck (Doc 3). The USOC denies the ADA or Rehabilitation Act confer a cause of action for disparate treatment or discrimination in the allocation of resources between Olympic/Pan-American athletes and Paralympians, maintaining these are separate programs across which differences in allocation are not discriminatory for purposes of federal civil rights legislation because they are not comparable.
B. The Problem of "Fit."
My ultimate and reluctant conclusion is that the USOC is correct and Plaintiffs have no actionable right under the ADA or Rehabilitation Act to enjoin the USOC's actions in allocating lesser privileges and benefits to Paralympic athletes than Olympic athletes. The overarching issue is duty, namely, whether the USOC has a duty to provide Paralympians with opportunities, support and benefits similar, proportionate, or equal to those provided Olympians. The language of the ASA imposes no such duty.[10] The question is whether, directly or by reference to other civil rights laws (such as Title IX, the ADA and Rehabilitation Act) give rise to one.
Subject matter jurisdiction is uncontested and under a liberal reading of the parties' pleadings I find it exists under 28 U.S.C. § 1343 and 1367. While I proceed to analyze Plaintiffs' claims under the ADA and Rehabilitation Acts, I pause to express my overarching concern that, absent an extension of existing law by Congress or a relevant regulatory

agency, neither the wrong of which Plaintiffs complain nor the relief they seek "fit" within the rubric of the ADA or Rehabilitation Act.
My initial concern is with the assertion that U.S. Olympic Training Centers are "places of public accommodation" within the contemplation of 42 U.S.C. § 12181(7) and that financial support, insurance, being able to walk in opening ceremonies, receiving prize money, or serving on governing bodies are "goods, services, facilities, privileges, [or] advantages" attendant the operation of those "places" for purposes of the ADA. Olympic Training Centers are venues to which only the most select athletes in the nation have access. They are not recreation centers, stadia or arenas held out for use by the non-disabled public at large. The question of the ADA's applicability, in my view, is a serious threshold question that the parties largely avoid.
1083*1083 The phrase "public accommodation" is defined for purposes of Title III in terms of 12 extensive categories of facilities leased or operated by private entities "if the operations of such entities affect commerce."The facilities covered are:
(A) an inn, hotel, motel, or other place of lodging . . . ;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
(D)an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
42 U.S.C. § 12181(7)(emphasis added), applied in Bauer v. Muscular Dystrophy Ass'n, Inc., 268 F.Supp.2d 1281, 1289-1290 (D.Kan.2003), aff'd 427 F.3d 1326 (10thCir.2005). Plaintiffs contend the USOC's training facilities fall within the category of "gymnasium, health spa . . . or other place of exercise or recreation" and therefore constitute a "place of public accommodation" under subsection (L). While the categories listed at § 12181(7) are to be "construed liberally to afford people with disabilities equal access to the wide variety of establishments available to the non-disabled," Bauer at 1290 (citing Martin, 532 U.S. at 666-67, 121 S.Ct. 1879), there is something fundamentally different about the establishments and "places of exercise and recreation" open to the non-disabled public generally — which appear to be what the category at § 12181(7)(L) describe — and the United States' four Olympic Training Centers.
Unlike the public and private golf courses operated or "leased" by the PGA in Martin— to which all paying customers have access regardless of ability — the training facilities operated by the USOC are accessible only to those already selected by the national governing bodies to the Olympic, Pan-American or Paralympic teams in their individual sports and identified as elite, world-class athletes. C.f. Martin, 532 U.S. at 677-78, 121 S.Ct. 1879 (among the "privileges" offered members of the general public who pay to play on PGA operated golf courses is the privilege of vying to qualify for and play in the PGA Tour); Akiyama v. United States Judo Inc., 181 F.Supp.2d 1179, 1183 (W.D.Wa.2002)(applying Martin and holding that the Civil Rights Act's prohibition against discrimination on basis of religion applied to amateur judo competition where members of general public were welcome to test their skills and talents in preliminary tournaments designed to identify the best competitors). Absent any allegation that the privileges and benefits afforded athletes at the U.S. Olympic Training Centers are available to members of the general public vying for a berth on the U.S. 1084*1084 Olympic or Paralympic team, it is difficult to say that Martinapplies. Does the ADA mandate "full and equal enjoyment" of world-class training facilities to which only the fewest among us have access, disabled or non-disabled? At best, the Supreme Court in Martin left unaddressed the question raised in the instant case, namely, whether "places of public accommodation" to which the nondisabled do not have general access fall within the purview of Title III.
Moreover, the benefits Plaintiffs seek relate less to the USOC's physical facilities than to the teams they put forth for international competition. This, too, stretches the "fit" between the discrimination alleged and the jurisdictional basis of Plaintiffs claims under the ADA. In Elitt v. U.S.A. Hockey, 922 F.Supp. 217, 223 (E.D.Mo.1996), for example, the district court

determined it lacked jurisdiction over a cognitively disabled child's Title III claim against U.S. amateur hockey organization because plaintiff was challenging the "denial of participation in the youth hockey league instead of denial of access to a place of accommodation, i.e. the ice rink." Id. (youth hockey league is not a "place of public accommodation" for purposes of Subchapter III of the ADA). Only because Plaintiffs in the instant case challenge the denial of their full and equal enjoyment of the USOC's physical facilities (in their relegation to third priority for their use) do they survive scrutiny under this threshold jurisdictional requirement.
The problem of "fit" is further underscored by a look at the selective comparisons on which Plaintiffs rely. Plaintiffs allege discrimination in their treatment as disabled individuals by the USOC as Paralympians compared to the USOC's treatment of "non-disabled" Olympic (and Pan-American) athletes. The distinction is muddled by the fact that disabled athletes are not per se disqualified from participation in the Olympics or Pan-American Games.[11] Because "disabled" individuals can and have participated in the Olympics and Pan-American Games, the comparison categories on which Plaintiffs rely are not necessarily the "disabled" and non-disabled as those distinctions are drawn under the ADA, but Olympic and Paralympic athletes.
Finally, I question the viability of Plaintiffs' theory of disability-based "discrimination" as conflating Olympic benefits offered or not offered to Paralympians with the benefits of access or equal enjoyment of public accommodations by the disabled. Because this conflation is ultimately what dooms Plaintiffs' claims under an ADA analysis, the question is largely academic in this prefatory context. Wheelchair athletes are obviously treated differently (i.e. "discriminated" against) on the basis of their disability in their relegation to the Paralympic wheelchair basketball event as opposed to the Olympic basketball event. This difference in treatment or access, however, which is obviously based on and defined solely by the player's disability, is not the "discrimination" Plaintiffs seek to call out. Rather, Plaintiffs challenge the lesser or inferior quality of the benefits allocated the Paralympic wheelchair basketball athletes by the USOC, claiming the different allocation is based on eligibility 1085*1085 criteria (membership on the Olympic team) that screens out or tends to screen out disabled elite athletes. Again, there is an amalgam of standards forming the basis for Plaintiffs' claim. Plaintiffs, for example, take pains to distinguish theirs from a claim that the USOC provides them with an ineffective "separate benefits" under § 12182(b)(1)(A)(iii) because that analysis forces them into a separate-program paradigm that constrains their theory discrimination. Yet the remedy Plaintiffs seek is precisely that they be given benefits and privileges "as effective" or "equivalent to" those provided Olympians. Is a lack of parity or inequality between Paralympic and Olympic programming actionable except as between "separate" programs? Given the significantly smaller population (the disabled) from which Paralympians are drawn, the Paralympic Games are smaller in scale

with fewer participants than the Olympics and Pan-American Games. Policies directing a lesser allocation of resources between the Olympians and Paralympians may simply reflect that fact wholly independently of any disability-based discrimination.[12]Plaintiffs concede this point, but again invoke Title IX and its implementing regulations to urge an application of the ADA that would compel the USOC's to comply with its mandated purpose to develop and increase amateur athletic opportunities for disabled athletes, not merely to reflect the status quo.
Plaintiffs' goals, noble and inspiring, extend beyond the reach of the courts to find and enforce under the ADA or the Rehabilitation Act. The Title IX analogy is apt only to the extent it suggests new legislation or the amendment of the USOC's federal charter pursuant to which a regulatory scheme for the equitable remediation of discriminatory allocations between disabled and non-disabled representatives on the United States' elite international athletic teams. Title IX does not infuse the ADA with a remedial scheme that then infuses the ASA with a cause of action for the "discrimination" alleged in this case. Title III of the ADA entitles disabled individuals with the right to seek to enjoin private entities from providing unequal or ineffective opportunities to enjoy or participate in accommodations made available to the public generally. The USOC's Paralympic program, with its attendant differences in perks and privileges compared to the USOC's Olympic program, exists to provide disabled individuals with participation opportunities fundamentally premised on and defined by the disabilities Plaintiffs argue cannot lawfully form the basis for separate treatment. There is an unavoidable non sequitur to the assertion.
In short, I am troubled that Plaintiffs' theory of relief fundamentally overreaches, looking to the courts and federal antidiscrimination law to remedy inequities in thequality of the accommodation afforded certain disabled elite athletes to compete internationally in amateur athletics — accommodations that are defined exclusively by those athletes' inability to compete without accommodation — that are not enjoyed by the non-disabled public at large and which exist solely as a reflection of political will (or lack thereof) within the 1086*1086 USOC and/or the legislative and executive branches of government directing its charter.
Do I decry a culture that relegates Paralympians to second class status in the quantity and quality of benefits and support they receive from the USOC? Emphatically yes. I conclude, however, that the ADA and Rehabilitation Act are aimed at the baser stuff of discrimination, such as the denial generally of a disabled person's right to participate fully and equally in public life, including places offering sports and recreation to the general public. The ADA and Rehabilitation Act simply do not apply to the wrongs alleged by Plaintiffs.

In my view, the inequities and injustices Plaintiffs describe are ultimately for the legislative or executive,[13] and not judicial, branches of government to acknowledge and rectify. It appears, however, that for purposes of the instant Motions Defendants agree the ADA and Rehabilitation Act apply to the USOC and the U.S. Paralympic Committee and reach their programming benefits and decisions. For purposes of appeal and in order fully to develop the record, I proceed to address Defendants' Motions directed to the merits of Plaintiffs' claims.
II. MERITS.
In its effort to train and obtain the best United States athletes for the Olympic Games, the USOC offers Olympic athletes benefits and incentives. This Olympic "programming" includes providing $25,000,$10,000, and $2,500, respectively, for each gold, silver, and bronze medal an athlete wins at the Olympic Games. (Am. Compl., 03-cv-1364, ¶ 52.). Olympic programming also includes, but is not limited to, providing Olympic athletes first priority in using USOC training facilities (¶ 54) and making Basic Grants, Tuition Assistance Grants, and Elite Athlete Health Insurance available to Olympic athletes. Id. ¶¶ 5557.
Olympic programming is not offered to Paralympic athletes. Rather, Paralympic athletes receive third priority in using USOC training facilities, id. at ¶ 54, and the Paralympic medalincentive is ten percent of that provided to Olympic athletes. Id. ¶ 53 ($2,500, $1,500, and $1,000, respectively, for each gold, silver, or bronze medal). Moreover, the USOC does not make Basic Grants, Tuition Assistance Grants, or Elite Athlete Health Insurance available to Paralympic athletes. Id. at ¶¶ 5557, 59. Plaintiffs assert the USOC's original and amended Constitutions discriminate against Paralympic athletes, first by denying them participation on the Athlete Advisory Committee all together, and now by limiting their representation to two members. Id.¶ 68-69.
Plaintiffs Scott Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil (collectively Athlete Plaintiffs), are all current or former Paralympic athletes. (Am. Compl.¶¶ 35, 39, 42-43, 45-47.) They assert the USOC's system of distributing benefits discriminates against them on the basis of their disabilities. Id. at ¶ 48. As a result of being denied Olympic programming, Athlete Plaintiffs assert they have incurred significant personal expense that 1087*1087 diminishes their ability to train and their opportunity to compete on behalf of the United States as Paralympians. See id.at ¶ 60. In addition, Plaintiff Hollenbeck states he was discriminated against during the 1992, 1996 and 2000 Olympic Games by being denied certain intangible benefits of participation, including medal compensation and marching in the opening ceremonies. Id. ¶¶ 61-67. As set forth above, Defendants move to dismiss.

A. Preemption.
Defendants contend Plaintiffs' ADA and Rehabilitation Act claims are "actually challenges to the method and reasoning by which the USOC decides to allocate its limited resources to numerous different athlete classes under its jurisdiction" and therefore within the USOC's exclusive jurisdiction 36 U.S.C. § 220503(3). See Defs.' Mot. Dismiss, 03-cv-1364, at 6. In support of this argument, Defendants cite several cases in which courts have held no private right of action exists under the ASA to challenge matters left exclusively to the USOC or the national governing bodies of individual amateur sports. Id. at 5 (citing Martinez v. USOC, 802 F.2d 1275 (10th Cir.1986)(holding Congress did not intend for USOC to be liable in tort for wrongful death of boxer injured during events not fully controlled by USOC); Oldfield v. Athletic Congress, 779 F.2d 505 (9th Cir.1985)(no private cause of action to challenge governing body's determination regarding loss of amateur status); Michels v. USOC,741 F.2d 155 (7th Cir. 1984)(weight lifter had no cause of action under ASA to challenge suspension for positive drug test); DeFrantz v. USOC, 492 F.Supp. 1181 (D.D.C.1980)(1978 ASA changed USOC's charter but did not alter USOC's exclusive authority to decide not to send an American team to 1980 Olympics), aff'd, 701 F.2d 221 (D.C.Cir.1980); Walton-Floyd v. USOC, 965 S.W.2d 35 (Tex.Ct.App.1998)(no private cause of action under ASA in tort for breaching duty of care in connection with drug testing hotline); Dolan v. U.S. Equestrian Team, Inc., 257 N.J.Super. 314, 608 A.2d 434 (1992)(USOC has exclusive jurisdiction over athlete eligibility determinations and no private cause of action is recognized under ASA to challenge nonselection for U.S. equestrian team)).
Athlete Plaintiffs agree with Defendants that the ASA bars private rights of action brought under the Act (Pls.' Opp'n at 18), but reject any characterization of their claims as "pertaining" exclusively to the United States' participation in the Olympic, Paralympic and Pan-American Games. Plaintiffs contend the duty to allocate benefits to Paralympians in a nondiscriminatory manner arises not from the ASA, but from the ADA and Rehabilitation Act, and requires them to effect their corporate mandate in a way that does not discriminate on the basis of disability. Id. at 23.
Plaintiffs support their argument with several cases in which courts have permitted plaintiffs to proceed with a variety of claims in spite of the defendants being governed by the ASA. Id. at 20-21 (citing Slaney v. Int'l Amateur Athletic Fed'n, 244 F.3d 580 (7th Cir.2001))(RICO and conspiracy allegations brought by athlete against USOC in blood doping case not preempted, but failed under 12(b)(6) standard to state claim);Akiyama, 181 F.Supp.2d at 1183 (holding title II of Civil Rights Act of 1964 applied to prevent discrimination on basis of religion at judo competition); Sternberg v. U.S.A. Nat'l Karate-Do

Fed'n, Inc., 123 F.Supp.2d 659 (E.D.N.Y.2000)(fem ale athlete stated valid Title IX claim against karate national governing body based on organization's decision to withdraw women's karate team from international competition).[14]
1088*1088 To this list we may add Lee v. United States Taekwondo Union, 331 F.Supp.2d 1252 (D.Haw.2004), in which the district court rejected the USOC's contention that the ASA preempted federal civil rights laws and allowed former U.S. Olympic coach to bring a race discrimination claim against the USOC and the national governing body for the sport of taekwondo under 42 U.S.C. § 1981. The district court applied the reasoning in Oldfield, Slaney and Michels to distinguish between private claims challenging eligibility or similar matters "pertaining to participation" regarding which the USOC and its national governing bodies have exclusive jurisdiction under 36 U.S.C. § 220503(3) and claims that invoke rights independently of this grant of jurisdiction. Thus, to the extent plaintiff Lee was seeking a declaration of eligibility and subsequent reinstatement as coach of the U.S. Olympic Taekwondo Team through his state tort and contract claims, the court concluded such claims were preempted.Lee, 331 F.Supp.2d at 1257. To the extent Lee was invoking protections afforded him under federal civil rights laws independently of and in addition rights governed exclusively by the ASA, however, his claims were not preempted. Id. at 1260-61 ("when two federal statutes may be reconciled, the court must give effect to both"), (citing Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981)). As long as the remedy sought does not require it to enter the realm of the USOC's exclusive jurisdiction, "the [ASA] does not nullify or supersede other federal laws that provide private rights of action to ensure freedom from discrimination." Id. at 1260 (because discrimination on the basis of race in violation of § 1981 did not pertain to the United States' participation in the Olympic Games, Lee could proceed with his § 1981 claim).
The instant case presents an exceedingly close call under Lee and related authorities because the matters of which Plaintiffs complain — priority usage of training facilities, training grants and insurance benefits, the USOC's Constitutional governance structure, medal incentives and decisions as to who walks or does not walk in Olympic opening ceremonies — indeed sound like "matters pertaining to" the United States' participation in the Olympic or Paralympic Games within the exclusive jurisdiction of the USOC under 36 U.S.C. § 220503(3). Given the predominate mandates of the ADA to call out and remedy disability-based discrimination, as well as the inexactness of the injunctive relief sought,[15] I cannot categorically state 1089*1089that Plaintiffs' Athlete Claims fall within the exclusive realm of "matters pertaining to the participation of the United States in the . . . Paralympic Games."

I proceed, then, to analyze Plaintiffs' allegations of discrimination under the ADA and Rehabilitation Act under a 12(b)(6) standard.
B. Standard of Review
The purpose of a Fed.R.Civ.P. 12(b)(6) motion to dismiss is to test the sufficiency of a complaint. U.S. Olympic Comm. v. Am. Media, Inc., 156 F.Supp.2d. 1200, 1204 (D.Colo.2001). A complaint must put the defendant on notice of the plaintiff's claim and the general facts upon which it is based. Brunetti v. Rubin, 999 F.Supp. 1408, 1409-40 (D.Colo.1998)(incorporating Fed.R.Civ.P. 8(a)). A plaintiff need not precisely state the elements of each claim, but he must provide direct or inferential allegations that would support recovery under some legal theory. Id. There is a strong presumption against granting a motion to dismiss for failure to state a claim, Maez v. Mtn. States Tel. & Tel., Inc., 54 F.3d 1488, 1496 (10th Cir.1995)(referring to the Federal Rules of Civil Procedure), and unless it is clear "the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,"such motions must be denied. American Media, 156 F.Supp.2d. at 1204 (internal citations and quotations omitted). Accordingly, well-pleaded allegations in the complaint must be treated as true, and any reasonable inferences arising from them must be construed in the plaintiff's favor. Id.
C. Conclusions of Law.
I have already expressed my doubts regarding the viability of Plaintiffs' ADA claim based on the disconnection between the goods and services being denied and Plaintiffs rights to them as "public accommodations,"as well as my concerns that at least some of Plaintiffs' complaints fall outside the scope of federal antidiscrimination laws because they pertain to matters over which the USOC has exclusive jurisdiction. Nevertheless, and in order to develop the record fully, I proceed to analyze Plaintiffs' Rehabilitation Act and ADA claims on their merits.
The ADA and Rehabilitation Act are interrelated Congressional mandates designed to remedy discrimination against disabled individuals. See McGeshick v. Principi, 357 F.3d 1146, 1149 (10th Cir. 2004). The Rehabilitation Act provides the baseline level of protection from disability discrimination when the ADA must be construed. See id. at § 12201(a)("Except as otherwise provided . . . nothing in this chapter shall be construed to apply a lesser standard than the standards applied under Title V of the Rehabilitation Act of 1973. . . . ").
Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . ." 29 U.S.C.A. § 794(a)(2006).[16] The prima facie elements of claim under section 504 of the Rehabilitation Act are straightforward, requiring a plaintiff to show (1) he is disabled; (2) he is otherwise qualified for participation in the program; (3) the program discriminates against the plaintiff; and (4) the program receives federal financial 1090*1090assistance. McGeshick, 357 F.3d at 1150 (citing cases).
On the other hand, the prima facie elements of an ADA claim depend on a number of factors, including the alleged theory of discrimination, see, e.g., Fortyune v. Am. MultiCinema, Inc., 364 F.3d 1075, 1082 (9th Cir.2004)(prima facie elements in Title III failure to accommodate case); Hubbard v. Twin Oaks Health and Rehab. Ctr., 408 F.Supp.2d 923, 929 (E.D.Cal.2004)(prim a facie elements in Title III failure to remove barrier case); In re Baby K, 832 F.Supp. 1022, 1028-29 (E.D.Va.1993)(prim a facie elements in Title III denial of participation case), and the factual circumstances of the case. See, e.g., Mershon v. St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir.2006)(plaintiff must show he was qualified academically where failure to accommodate alleged in post-secondary education context); cf.Rakity v. Dillon Companies, Inc., 302 F.3d 1152, 1164 (10th Cir.2002)(applying McDonnell Douglasburden shifting framework in Title I case "as modified to relate to differing factual situations"). As previously set forth, Plaintiffs in the instant case assert three different theories of discrimination under §§ 12182(b)(1)(A)(i) (denial of participation), (ii)(unequal participation opportunity) and (b)(2)(A)(i) (discriminatory eligibility criteria tending to screen them from full and equal enjoyment). Accordingly, to state a prima facie case of discrimination under the ADA and Rehabilitation Act, Plaintiffs must demonstrate (1) they are disabled; (2) Defendants operate places of public accommodation; (3) Plaintiffs are qualified for participation in the program or program benefits of the public accommodation; and (4) the USOC discriminated against Plaintiffs by denying them the opportunity to participate in the program, by providing them a participation opportunity unequal to that afforded non-disabled individuals, and/or by using eligibility criteria for program benefits that screens out or tends to screen out the disabled from fully enjoying the program.
I have already determined the USOC does not operate a "place of public accommodation" or, if it does, that the discrimination alleged by Plaintiffs relates not to their rights of access to that accommodation or, with the exception of priority access to gymnasia or other physical training facilities of the U.S. Olympic Training Centers, to the benefits thereof, but to their right to participate in and receive full and equal enjoyment of membership on a USOC-sponsored team. Looking beyond those "problems of fit," however, the question arises as to whether, in a Title III case premised on allegations of disparate treatment

between categories of disabled and non-disabled individuals in the benefits of an athletic program, a Title III plaintiff must, like his counterparts proceeding under the Rehabilitation Act and Titles I and II of the ADA,[17] demonstrate that he is both disabled and "otherwise qualified" to receive the benefits that form the basis of his claim of discrimination. Under the circumstances of this case, I agree with Defendants that he does.
The ADA addresses three broad categories of discrimination: disparate treatment, disparate impact, and a failure to provide a reasonable accommodation. E.g.Davidson v. America Online, Inc., 337 1091*1091 F.3d 1179, 1188-89 (10th Cir.2003)(making the assertion in a Title I employment case). Plaintiffs' allegations in this case are of classic disparate treatment, i e., that they, as Paralympians, receive reduced benefits and fewer privileges than their non-disabled counterparts purely on the basis of their disability. It is clear that in disparate treatment cases, an individual must be otherwise qualified to receive the benefit he asserts it is discriminatory to deny him.
The logical explanation for the omission of an "otherwise qualified" requirement under Title III is that, "in most circumstances, no qualifications are required to enjoy a public accommodation as secured by Title III." Mershon, 442 F.3d at 1076. Where, by contrast, the nature of a "public" accommodation is such that it provides programs only to qualified members of the general public, a disabled individual must show he is also qualified as an element of his prima facie case. See Martin, 532 U.S. at 680, 121 S.Ct. 1879 (significant in Title III case that, "[i]n consideration of the entry fee, any golfer with the requisite letters of recommendation acquires the opportunity to qualify for and compete in petitioner's tours"). See also Bowers, 118 F.Supp.2d at 517, n. 18 ("[w]hile words `otherwise qualified' or `qualified individual' do not appear in the language of Title III, Title II analysis can be applicable to Title III claims."); cf.Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 154 (1st Cir.1998)(finding little significance in lack of "qualified" language in Title III). This requirement is consistent with the law construing the Rehabilitation Act, and I conclude Plaintiffs must prove they were qualified individuals with a disability whose disparate treatment can only be explained as discrimination on the basis of disability.
A plaintiff is "otherwise qualified" under the Rehab Act if he "is able to meet all of a program's requirements in spite of his [disability]." Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). To satisfy the prima facie qualification element under both the ADA and Rehab Act, Athlete Plaintiffs must show that with or without reasonable modification to USOC rules, policies, or practices, they meet the essential eligibility requirements for Olympic benefits.

Appropriate Comparison Group — Unified or Separate Program.
Plaintiffs contend the necessary eligibility requirement for Olympic benefits is not membership on the U.S. Olympic team, but membership on any of the three teams under the USOC's purview under its federally mandated charter (i.e., the U.S. Olympic, PanAmerican or Paralympic Teams). In other words, because the USOC oversees a single, comprehensive program for that group of elite, world-class athletes who participate as representatives of the United States in the Olympic, Paralympic or Pan-American Games, Plaintiffs contend the USOC cannot discriminate in its allocation of benefits to that group on the basis of disability alone.
As previously set forth, Plaintiffs' characterization of the USOC as a single selection and training organization charged with allocating programming and benefits in a nondiscriminatory manner across all Olympic, Paralympic and Pan-American athletes is belied by the organizational structure established by the ASA, the USOC's federal charter and the legislative history evincing Congress's intent in enacting both. It suggests — inaccurately — that Congress's 1998 amendments to the ASA did more than formalize recognition of the existing Paralympic movement and add the Paralympics to the list of international competitions to which the United States will send representatives. It also 1092*1092 ignores the separate nature of the participation opportunity that forms the historical essence of the Paralympic experience, and glosses over the distinction between equality of access, in terms of participation opportunity, and the quality of that access once provided. Here, the participation opportunity for wheelchair athletes is clearly provided through a separate (Paralympic) program.
The cases Plaintiffs cite to urge a comparison with the USOC's "unified" Olympic/Paralympic/Pan-Am erican "program" do not compel a contrary conclusion because they turn on a denial of access to the unified "program," which is not at issue in this case.[18] Dreher Park, for example, involved the elimination, entirely, of all specialized recreational programs for the disabled and the district court's ruling that plaintiffs did not have to establish eligibility to participate in a specific recreational program to challenge that elimination. The court used wheelchair soccer as an example, concluding wheelchair-bound youth did not have to establish they were otherwise able "run" or "kick" to challenge the program's elimination, because the relevant program benefits they were seeking were not simply participation on a soccer team, but the benefits of the City's overall recreational/athletic program.
As a paradigmatic scenario, it may be the case that there are wheelchair-bound children who cannot meet the `essential requirements' for a soccer team because they cannot run or

cannot kick a ball. However, such an analysis would be persuasive only if the full and entire extent of the City's recreational program was one soccer team. An "essential eligibility requirement" of a soccer team may be the ability to run and kick, but the only "essential eligibility requirement" of the City'srecreational program (which is the sum of a variety of individual recreational, social, and educational activities and programs) is the request for the benefits of such a program. (Citations omitted.) Therefore, the only `essential eligibility requirement' that Plaintiffs must meet is to request the benefits of a recreational program.
Dreher Park, 846 F.Supp. at 990 (emphasis original). Here, the USOC has not eliminated its Paralympic Team (and doing so would violate its federal charter) and the benefits Plaintiffs seek are not of access to the Olympic experience or participation in elite athletics, but of the quality of their experience as Paralympians compared to the experience of non-disabled Olympians. Dreher Park does not get Plaintiffs there. By refusing to couch their claims in terms 1093*1093 of a comparison of separate benefits under 42 U.S.C. § 12182(b)(1)(A)(iii), there is simply no basis in the ASA, ADA or relevant case law to avoid the eligibility requirement of Olympic Team membership to claim discrimination in the denial of Olympic Team benefits.[19]
Next, Plaintiffs argue the criterion used to determine eligibility for Olympic programming (i.e., being selected to the Olympic, as opposed to Paralympic, Team) is invalid because it is facially discriminatory. Resp. at pp. 6-9 (arguing USOC eligibility criteria is invalid because it is a proxy for facial discrimination and is analogous to the inequities Title IX was designed to remedy). I find the argument somewhat facile and the analogy to Title IX inapt. Where factors such as disability or sex render individuals unable to participate without a separate program or participation opportunity, the question becomes one of the effectiveness or equality of the separate benefit and not that the creation of the separate participation opportunity itself is tantamount to unlawful discrimination.[20] Title III is grounded in this distinction, defining discrimination as the imposition of eligibility criteria that tend to screen out the disabled "unless . . . necessary for the provision of the goods, services, facilities . . . or accommodations being offered"; the failure to modify policies "unless . . . the entity can demonstrate that making modifications would fundamentally alter the nature of such goods, service . . ."; or failing to take steps to ensure the disabled are not segregated "unless . . . taking such steps would fundamentally alter the nature of the good, service . . .". See 42 U.S.C. § 12182(b)(2)(i)(iii). See H.R.Rep. No. 101-485, pt. 1, at 58 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 481 (providing illustrative examples such as a rule that prohibits the deaf or blind from entering a store or requiring customers to present a driver's license in order to purchase merchandise, because that would screen out persons with disabilities who do not drive). Because Plaintiffs do not challenge Paralympic programming under a separate benefit analysis, their claims hinge on the assertion that no

valid basis other than invidious discrimination justifies the "eligibility criteria" of being an Olympian to receive Olympic benefits.
The Necessary "Qualification" of being an Olympian does not Constitute Discrimination under 42 U.S.C. § 1282(b)(2)(A).
The method for challenging a qualification as discriminatory in violation 1094*1094 of the ADA and Rehab Act is to show that it either screens out or tends to screen out disabled individuals and is unnecessary or nonessential. See 42 U.S.C.A. § 12182(b)(2)(A)(i); 45 C.F.R. § 84.13 (analogous Rehabilitation Act regulation for challenging criteria that screen out or tend to screen out disabled individuals); see also Pottgen v. Missouri State High Sch. Activities Ass'n, 40 F.3d 926, 930 (8th Cir.1994)(using "necessary" and "essential" interchangeably in qualification analysis). Assuming the USOC's eligibility criteria of being an Olympic athlete screens out disabled individuals, the USOC urges it is essential to furthering its purpose of training and obtaining the best Olympic athletes to represent the United States. (Mot. Dismiss at 15.) Plaintiffs respond first by contending a determination of whether the USOC's eligibility criteria is necessary is inappropriate at this stage because they have not indicated the existence of an affirmative defense in the Amended Complaint. (Resp., p. 14.) Alternatively, Athlete Plaintiffs argue the eligibility criteria is unnecessary because the USOC mandate of training and obtaining the best athletes applies equally to Olympians and Paralympians, and therefore "limiting benefits to Olympic athletes is not necessary for the provision of the benefits being offered." Id. Both arguments fail.
First, where "the applicability of [an affirmative] defense [is] clearly indicated and . . . appear[s] on the face of the pleading,"a complaint is subject to dismissal on that basis. 5B C. Wright & A. Miller, Federal Practice and Procedure § 1357, pp. 708-10 (3d ed.2004). Here, it is apparent from the allegations in the Complaint that Athlete Plaintiffs are challenging the eligibility criterion used to deny them Olympic programming 42 U.S.C. § 12192(b)(A)(i), which invites the affirmative defense also stated in that statute that such a criterion is permissible if it is shown to be "necessary" for the provision of the accommodations being offered generally. Id.Accordingly, I turn to whether the facts as pleaded render the eligibility criterion of being an Olympic Team member "necessary" to the provision of Olympic programming, generally.
In assessing the necessity of the USOC's eligibility criteria for Olympic programming, the "goods, services, facilities, privileges, advantages, or accommodations" that Athlete Plaintiffs were allegedly wrongly denied must be identified. See 42 U.S.C. § 12182(b)(2)(A)(i). Plaintiffs assert the goods, services, facilities, and privileges at issue are the financial and other intangible benefits and training priority given Olympic, as opposed to

Paralympic, athletes. (Pls.' Resp. at 15.) Plaintiffs plead no facts tending to demonstrate these benefits are not "necessary" to the maintenance of the Olympic team, and simply rests on the assertion that the eligibility criterion of selection to the Olympic, as opposed to the Paralympic, team in order to receive Olympic benefits is invalid.
It is here that the concern over the characterization of the Olympic Training Centers as "public accommodations" merges with the necessary elements of a claim under the Rehabilitation Act and ADA. Assuming, for the sake of argument, that the ADA requires the USOC to provide anything as a "public accommodation,"it is the opportunity to represent one's country in a recognized amateur sport in one of three categories of sanctioned (Olympic/Pan-American or Paralympic) competition. SeeMartin, 532 U.S. at 680, 121 S.Ct. 1879 (the PGA provides an opportunity for any golfer, disabled and non-disabled alike, to vie for the opportunity to qualify for the PGA Tour); Henrietta D. v. Bloomberg, 331 F.3d 261, 274 (2d Cir.2003) (the ADA and Rehabilitation Act viewed as "helping individuals with disabilities access 1095*1095 public benefits to which both they and those without disabilities are legally entitled") (emphasis added). And unlike the golfer in Martin who could compete on the PGA Tour with accommodation, Plaintiff Paralympians cannot and do not purport to be able to compete in the Olympics with or without accommodation. Instead, they compete through the separate participation opportunity of representing the United States as Paralympians. Once afforded access to the benefits of the so-called "public accommodation" afforded by Congress through the ASA, the right to the nondiscriminatory provision of Olympic benefits stops.
Simply put, it is irrelevant that the USOC chooses to provide Olympic programming only to Olympic athletes as long as the gateway to that program operates in a nondiscriminatory manner. However unfair the fact that the participation opportunity afforded Plaintiffs as Paralympians does not include full Olympic benefits, Plaintiffs are afforded a participation opportunity defined by their disability, the benefits of which are lesser based not an additional layer of discrimination but by operation of eligibility criteria beyond the reach of the ADA and Rehabilitation Act.
In short, Paralympic athletes' expectations for the equitable allocation of benefits between Paralympians and Olympians competing on behalf of the United States under the auspices of the USOC is not a matter which courts, through the ADA, may mandate or enforce. While much to be desired, such a mandate must derive from the legislative branch or appropriate agency of the Executive. As urged by Plaintiffs' counsel at oral argument, Title IX and its implementing regulations may indeed form an apt analogy — not as infusing the ADA with additional remedies to then be grafted onto the ASA — but as a paradigm for appropriate congressional and agency action.

Based on the foregoing, I conclude that Plaintiffs' Athlete Claims, which challenge the USOC's inequitable allocation of resources and benefits to them as Paralympians compared to those afforded Olympians generally, fail to state a claim upon which relief under the ADA or Rehabilitation Act may be granted. I therefore GRANT Defendants' Motion to Dismiss in Hollonbeck, 03-cv-1364, which in turn disposes of the identical issue presented as a Motion for Summary Judgment in Shepherd, 99-cv-2077.
These cases will be set for a status conference within ten days of the date of this Memorandum Opinion and Order to formulate a pretrial plan for Plaintiffs' remaining claims. In anticipation of this conference, the parties are to submit a brief status report setting forth their respective positions regarding the continued viability of Plaintiffs' Vie Sports Marketingrelated claims in the wake of my decision.
[1] In addition to the "athlete" claims asserted on behalf of disabled athletes generallyin both cases under the Americans with Disabilities Act, there are individual common law claims for damages asserted byPlaintiff Shepherd in 99-2077 and by Plaintiff Vie Sports Marketing in 03-1364. Shepherd, who was employed by the USOC for a period of time during which he also trained as a Paralympic athlete, seeks damages from the USOC based on the USOC's refusal to allow him to train during work hours which Shepherd claims violated the express written and oral terms of his employment contract. Vic Sports, a sports marketing companyformed by Plaintiff Hollenbeck in 2000 to market the Paralympic brand and trademark, asserts separate breach of contract and promissoryestoppel claims against the USOC in 99-2077 based on the USOC's alleged failure to support or to allow Vie Sports to sell the rights to the Paralympic mark in the open market. These claims were addressed during oral argument in September 2005 and will proceed separatelyfrom any "athlete" claims that survive summaryjudgment.
[2] Specifically, the 1978 ASA stated the "objects and purposes" of the USOC as follow s:
(1) establish national goals for amateur athletic activities and encourage the attainment of those goals;
(2) coordinate and develop amateur athletic activity in the United States directly relating to international amateur athletic competition, so as to foster productive working relationships among sports-related organizations;
(3)exercise exclusive jurisdiction, either directly or through its constituent memb ers or committees, over all matters pertaining to the participation of the United States in the Olympic Games and in the Pan-American Games, including the representation of the United States in such games, and over the organization of the Olympic Games and the Pan American Games when held in the United States;
(4) obtain for the United States, either directly or by delegation to the appropriate national governing body, the most competent amateur representation possible in each competition and event of the Olympic Games and of the Pan American Games;
(5) promote and support amateur athletic activities involving the United States and foreign nations;
(6) promote and encourage physical fitness and public participation in amateur athletic activities;
(7) assist organizations and persons concerned with sports in the d evelopment of amateur athletic programs for amateur athletes;
(8) provide for the swift resolution of conflicts and disputes involving amateur athletes, national governing bodies, and amateur sports organizations, and protect the opportunity of any amateur athlete, coach, trainer, manager, administrator, or official to participate in amateur athletic competition;

(9) foster the development of amateur athletic facilities for use by amateur athletes and assist in making existing amateur athletic facilities available for use by amateur athletes;
(10) provide and coordinate technical information on physical training, equipment design, coaching, and performance analys is ;
(11) encourage and support research, development, and dissemination of information in the are as of sports medicine and sports safety;
(12) encourage and provide assistance to amateur athletic activities for women;
(13) encourage and provide assistance to amateur athletic programs and competition for handicapped individuals, including, where feasib le, the expansion of opportunities for meaningful participation b y handicapped individuals in programs of athletic competition for ab le-bodied individuals; and
(14) encourage and provide assistance to amateur athletes of racial and ethnic minorities for th e purpose of eliciting the participation of such minorities in amateur athletic activities in which they are under -represented.
36 U.S.C.A. § 374 (1990)(emphasis added).
[3] For example, as amended § 22503(3) and (4) charge the USOC
(3) to exercise exclusive jurisdiction, directlyor through constituent members of committees, over —
(A) all matters pertaining to United States participation in the Olympic Games, the Paralympic Games, and the PanAmerica Games, including representation of the United States in the games; and
(B) the organization of the Olympic Games, the Paralympic Games, and the Pan-American Games when held in the United States;
(4) to obtain for the United States, directly or by delegation to the appropriate national governing body, the most competent amateur representation possible in each event of the Olympic Games, theParalympic Games, and PanAmerican Games. . . .
36 U.S.C. § 22503(3), (4)(emphasis added.) In addition, § 374(13) was changed to replace the term "handicapped individuals" with the more appropriate "disabled amateur athletes." Id. § 22503(13)(object and purpose of USOC includes "to encourage and provide assistance to amateur athletic programs and competition for amateur athletes with disab ilities, including, where feasible, the expansion of opportunities for meaningful participation by such amateur athletes in programs of athletic competition for able-bodied amateur athletes.").
36 U.S.C. § 220503(13)(changes in italics).
[4] For example, the National Wheelchair Basketball Association (NWBA) serves as the national governing body for men's, women's and youth wheelchair basketball in the Unite States. Seehttp://www.nwba.org, "Mission Statement."
[5] An amateur sports organization is eligible to be recognized, or to continue to be recognized, as a national governing body only if it
* * * * * *
(8) provides an equal opportunity to amateur athletes . . . to participate in amateur athletic competition, wi thout discrimination on the basis of race, color, religion, sex, age, or national origin . . .
36 U.S.C. § 220522(a). The equal opportunityprovisions do not preclude discrimination on the basis of disability, ostensiblybecause disabled amateur athletes participate on the very basis of their disability.

[6] The theories of discrimination set forth in Title III of the ADA also constitute discrimination under the Rehabilitation Act. Compare 28 C.F.R. § §§ 41.51(b)(1)(i)-(vii) (2006)("General prohibitions against discrimination") with § 84.13 (Rehabilitation Act regulation from which 42 U.S.C. § 12182(b)(2)(A)(i) was d erived). See H.R.Rep. No. 101-485, pt. 2, at 105 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 388.
[7] For example, Plaintiffs claim they are relegated to lowest priorityin terms of using Olympic training facilities, receive few or reduced financial incentives, and are ineligible for tuition grants, the Resident Athlete Program, or insurance. The USOC, according to Plaintiffs, does not even supplyParalympians with uniforms. The result, Plaintiffs contend, is that, they must pay significant training expenses out of their own pockets, impairing their abilityto train for Paralympic competition. See Am. Compl., 03-cv-1364 at ¶¶ 48-60. Other complaints are less tangible, including Plaintiff Hollonbeck's allegations that he was discriminated against during exhibition events in the 1992, 1996 and 2000 Olympic Games by being denied benefits such as marching in the opening c eremonies or receiving prize moneyfor winning medals. Id. ¶¶ 61-67. Since Hollonbeck's participation in the 2000 Olympics, Paralympians now receive financial awards for gold, silver and bronze medals, but Plaintiffs contend the practice remains discrimina tory because awards are at 1/10th the amount of Olympic medal awards. Id. ¶¶ 51-53.
[8] Plaintiffs also seek a "declaration" that Defendants' discriminatorypractices violate the ADA and Rehabilitation Act. Declaratory relief is redundant and therefore unavailable under these circumstances, where it seeks nothing more than a legal determination alreadybefore the court on Plaintiffs' civil rights claims. See Saum v. Widnall, 912 F.Supp. 1384, 1394 (D.Colo.1996)(Kane, J.)("declaration" of constitutional violation would be gratuitous reiteration when constitutionalityof defendant's actions alreadybefore the court)(citing cases).
[9] As acknowledged byPlaintiffs' counsel at oral argument, the precise nature of Plaintiffs' claim for relief is difficult to articulate. See Rep. Tr. (10/4/05) at p. 16, 42, 59 (acknowledging "exact" or equal funding or benefits is not required under the ADA, and suggesting adoption of "equitable" or "proportionate" remedial standard along the lines of that which Plaintiffs claim is available under Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681, and its implementing regulations, which prohibit sexdiscrimination in the allocation of benefits between men's and women's athletic programs and suggest evolving standards for determ ining compliance.)
[10] See supra, n. 5 and accompanying text.
[11] The Paralympics provide participation opportunities for elite athletes belonging to six different disabilitygroups: amputee, cerebral palsy, visual impairment, spinal cord injuries, intellectual disabilityand a group which includes all those that do not fit into the aforementioned groups (les autres). Athletes whose disabilities do not impact their ability to participate in events recognized by the International Olympic Committee (i.e., deaf swimmer Terence Parkin, who won a silver medal in the 2000 Olympics in Sydney) are not required to participate in the Paralympics and are ostensiblynot part of Plaintiffs' theory of disabilitydiscrimination.
[12] As Defendants argue, the fewer number of participants and internationallyfielded teams in the Paralympic Games results in American Paralympians, for example, having significantlygreater chances of medaling at the Paralympic Games than American athletes competing in the Olympics. Parity in medal awards, then, would result in U.S. Paralympic athletes receiving far more than their Olympic counterparts. Of course, these fact-based scenarios are germane onlyto the extent they capture the complexity of the "discrimination" question and illustrate grounds for my unease on the issue of "fit." They are not germane, and I do not consider them, as part of my analysis of Plaintiffs' claims under a Rule 12(b)(6) standard.
[13] The legislative branch might amend the ASA or a relevant agency might promulgate regulations under the ASA to implement directives against discrimination or the fostering of athletic opportunities for disabled amateur athletes or risk losing federal funding. C.f. 34 C.F.R. § 106.41 (regulatoryprovisions implementing proscription against sex discrimination in education programs receiving federal funding stated in Title IX and requiring the proportionate allocation of athletic opportunities and moneys for college wome n or lose federal funding). See Rob erts v. Colorado State Bd. of Agriculture, 998 F.2d 824, 827-28 (10th Cir.1993)(applying Title IX and its im plem enting regulations to order state university to reinstate terminated Division I women's softball program).
[14] I note that in addition to allowing plaintiff athlete's Title IX claim to proceed, the district court in Sternb erg did, indeed, recognize an implied private right of action under the ASA to seek damages against a the karate national governing body for sex discrimination. Sternb erg, 123 F.Supp.2d at 664-666 (applying four factors identified in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975)and principles articulated in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) and Santa Clara Pueb lo v. Martinez, 436 U.S. 49, 98

S.Ct. 1670, 56 L.Ed.2d 106 (1978) to conclude Congress's statements in ASA prohibiting sexdiscrimination and requiring governing bodies to provide "support and encouragement" for participation by women permit "[a] narrow right of action regarding sexdiscrimination bynational governing sports bodies [to] be implied."). Plaintiffs do not rely on this aspect of Sternb erg, conceding that in the Tenth Circuit, at least, no private right of action exists to enforce the terms of the ASA. See Martinez, 802 F.2d at 1281(enactment of 1978 ASA included removing athlete's "bill of rights,"evincing Congress's consideration and rejection of a cause of action for athletes to enforce ASA's provisions).
[15] As previouslynoted, Plaintiffs request for relief in this case is in the nature of injunctive relief to be determined at trial, the goal of which is to provide Plaintiffs with benefits and incentives which, while not necessarily equal to those given Olympians, will ensure Paralympians their full and equal enjoyment of the Olympic experience.
[16] To the extent Section 504 was modified between the issuance of this Order and the time Shepherd was filed, those modifications are immaterial. Compare 29 U.S.C.A. § 794(a)(2002) with29 U.S.C.A. § 794(a)(1998).
[17] Compare 29 U.S.C. § 794(a) (Rehabilitation Act, prohibiting discrimination against any "qualified individual with a disability" on the basis of that disability), 42 U.S.C.A. § 12112(a)(Title I, prohibiting employment discrimination against a "qualified individual with a disability") and § 12132 (Title II, public entities shall not discriminate against a "qualified individual with a disability") with § 12182(a)(private entities maynot discriminate against any"individual . . . on the basis of disability,"where the term "qualified" does not appear).
[18] Both Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F.Supp. 986 (S.D.Fla.1994) and Rodde v. Bonta, 357 F.3d 988 (9th Cir.2004) involved the elimination of programs or facilities for the disabled. In Dreher Park, the district court held the elimination of specialized recreational programs for disabled children had the effect of denying disabled individuals the benefits of the city's overall recreational program in violation of Title II. The court rejected the city's argument that the elimination could not be deemed discriminatory because manyof its non-specialized programs were accessible bythe disabled, because the elimination had the effect of denying disabled individuals programming "needed to give equal benefits of recreation to persons with disabilities." 846 F.Supp. at 991-92. Similarlyin Rodde, the Ninth Circuit held the shutting down of defendant's only hospitals designed to serve disabled individuals violated Title II because the services designed for the general population, while available to the disabled, "would not adequatelyserve the uniqu e needs of the disabled who therefore would be effectively denied services that the non -disabled continued to receive." 357 F.3d at 998. The "benefits" denied plaintiffs in these cases were the benefits of access to meaningful programming, not the quality of access afforded (and access, I might add, not challenged as ineffective or unmeaningful).
[19] In this regard I agree with Defendants that Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir.1996) provides the better analogy. In Chandler, the Ninth Circuit ruled the legislature's welfare amendments to provide eligible needy individuals with dependent children benefits for unlimited duration while providing needydisabled individuals benefits for only one year did not violate Title II becaus e disabled individuals' ineligibilityfor the longer term benefits did not turn on their disabled status. In so holding, the Ninth Circuit rejected appellees' reliance on Dreher Park to argue the proper characterization of the "program" for eligibilitypurposes was the overall purpose of benefitting the needy. According to the Court, the fact that the non-disabled needywithout dependent children were not entitled to funds under the program suggested the proper view was of two discrete forms of benefit providing for two discrete subgroups of the needy population. As in Chandler, the better view of the USOC's purpose in fostering participation and competition in the Olympic/Pan-American and Paralympic Games is oversight over two discrete forms of benefits providing for two discrete subgroups of elite, world-class amateur athletes.
[20] See Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134 (10th Cir.2005)(in prisoner case, disabled prisoner would not have been "otherwise qualified" to receive medical treatment in absence of his alleged disability because his alleged disabilitywas reason whyhe was seeking medical treatment in the first instance). Accord Chandler, supra, n. 16.

 
 Case: 1:03-cv-01364-JLK As of: 06/07/2010 10:20 PM MDT 1 of 10
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:03−cv−01364−JLK

TERMED

Hollonbeck, et al v. US Olympic Committee, et al Assigned to: Judge John L. Kane Demand: $0 Case in other court: USCA, 07−01053 Cause: 42:12101 Americans With Disabilities Act (ADA)
Plaintiff

Date Filed: 07/28/2003 Date Terminated: 07/12/2007 Jury Demand: Both Nature of Suit: 443 Civil Rights: Accomodations Jurisdiction: Federal Question

Scot Hollonbeck

represented by Amy Farr Robertson Fox &Robertson, P.C. 104 Broadway #400 Denver, CO 80203 303−595−9700 Fax: 303−595−9705 Email: arob@foxrob.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Patrick Fox Fox &Robertson, P.C. 104 Broadway #400 Denver, CO 80203 303−595−9700 Fax: 303−595−9705 Email: tfox@foxrob.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ari Reuben Krichiver Smith &West, LLC−Denver 1860 Blake Street Blake Street Terrace #420 Denver, CO 80202 303−391−0100 Fax: 303−391−0102 Email: ari@smithandwest.com

Kevin William Williams Colorado Cross−Disability Coalition 655 Broadway #775 Denver, CO 80203 303−839−1775 Fax: 303−839−1782 Email: kwilliams@ccdconline.org ATTORNEY TO BE NOTICED

Plaintiff Jose Antonio Iniguez

represented by Amy Farr Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Patrick Fox (See above for address)

Case: 1:03-cv-01364-JLK As of: 06/07/2010 10:20 PM MDT 2 of 10

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ari Reuben Krichiver (See above for address)

Kevin William Williams (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jacob Walter Jung Ho Heilveil

represented by Amy Farr Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Patrick Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ari Reuben Krichiver (See above for address)

Kevin William Williams (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Vie Sports Marketing, Inc. a Georgia corporation

represented by Amy Farr Robertson (See above for address) LEAD ATTORNEY

Ari Reuben Krichiver (See above for address) ATTORNEY TO BE NOTICED

Kevin William Williams (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
United States Olympic Committee a federally−chartered corporation

represented by Anne Hall Turner Colorado Springs City Attorney's Office−South Nevada P.O. Box 1575, Mail Code 510 30 South Nevada Avenue #501 Colorado Springs, CO 80901−1575 719−385−5909 Fax: 719−385−5535 Email: cattorney@springsgov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Todd Handman Hogan Lovells US LLP−DC 555 13th Street, N.W. Columbia Square #1300

Case: 1:03-cv-01364-JLK As of: 06/07/2010 10:20 PM MDT 3 of 10

Washington, DC 20004−1109 202−637−5600 Fax: 202−637−5910 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John William Cook Hogan Lovells US LLP−Colorado Springs Two North Cascade Avenue #1300 Colorado Springs, CO 80903 719−448−5900 Fax: 719−448−5922 Email: jwcook@hhlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Virginia Starr Morgan Hogan Lovells US LLP−Colorado Springs Two North Cascade Avenue #1300 Colorado Springs, CO 80903 719−448−5900 Fax: 719−448−5922 Email: vsmorgan@hhlaw.com TERMINATED: 06/05/2006 LEAD ATTORNEY

Jeffrey S. George Hogan Lovells US LLP−Colorado Springs Two North Cascade Avenue #1300 Colorado Springs, CO 80903 719−448−5900 Fax: 719−448−5922 Email: jsgeorge@hhlaw.com ATTORNEY TO BE NOTICED

Defendant
U.S. Paralympics, Inc. a Colorado non−profit corporation formerly known as United States Paralympic Corporation

represented by Anne Hall Turner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John William Cook (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Virginia Starr Morgan (See above for address) TERMINATED: 06/05/2006 LEAD ATTORNEY

Jeffrey S. George (See above for address) ATTORNEY TO BE NOTICED

Counter Claimant
U.S. Paralympics, Inc. a Colorado non−profit corporation

represented by Anne Hall Turner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:03-cv-01364-JLK As of: 06/07/2010 10:20 PM MDT 4 of 10
John William Cook (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Virginia Starr Morgan (See above for address) TERMINATED: 06/05/2006 LEAD ATTORNEY
Jeffrey S. George (See above for address) ATTORNEY TO BE NOTICED

V.
Counter Defendant
Vie Sports Marketing, Inc. a Georgia corporation

represented by Amy Farr Robertson (See above for address) LEAD ATTORNEY
Ari Reuben Krichiver (See above for address) ATTORNEY TO BE NOTICED
Kevin William Williams (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/28/2003 07/28/2003 10/06/2003
10/06/2003 10/07/2003 10/08/2003
10/21/2003 10/21/2003 10/22/2003 10/22/2003

# Docket Text
1 COMPLAINT (Summons(es) issued); jury demand (bpm) (Entered: 07/29/2003)
FILING FEE PAID: on 7/28/03 in the amount of $ 150, receipt # 245055. (bpm) (Entered: 07/29/2003)
2 MOTION by defendants to dismiss Vie Sports claims for lack of subject matter jurisdiction purs to Fed.R.civ.P. 12(B)(1) (dlb) Modified on 01/21/2004 (Entered: 10/07/2003)
3 MOTION by defendants to dismiss pla's ADA and Rehab Act Claims purs to Fed.R.Civ.P. 12(B)(6) (dlb) (Entered: 10/07/2003)
4 Unopposed MOTION by plaintiffs to extend time to resp to dft's mtn to dismiss (dlb) (Entered: 10/08/2003)
5 MINUTE ORDER : by Judge John L. Kane granting motion to extend time to resp to dft's mtn to dismiss [4−1], regarding [3−1] dft's motion to dismiss pla's ADA and Rehab Act Claims, and [2−1] motion to dismiss for lack of jurisdiction; pla's resp due by 11/14/03; dft reply by 12/2/03; (cc: all counsel) ; entry date : 10/9/03 (dlb) (Entered: 10/09/2003)
6 MOTION by plaintiffs for leave to amend complaint [1−1] (dlb) (Entered: 10/22/2003)
Tendered Amended Complaint submitted by plaintiff re: motion for leave to amend complaint [1−1] [6−1] (dlb) (Entered: 10/22/2003)
7 ORDER by Judge John L. Kane granting motion for leave to amend complaint [1−1] [6−1] (cc: all counsel) ; entry date : 10/23/03 (dlb) (Entered: 10/23/2003)
8 AMENDED COMPLAINT [1−1] by plaintiff; jury demand (dlb) (Entered: 10/23/2003)

Case: 1:03-cv-01364-JLK As of: 06/07/2010 10:20 PM MDT 5 of 10

10/30/2003 11/04/2003
11/14/2003 11/24/2003 12/02/2003 12/02/2003 12/10/2003 12/11/2003
12/31/2003 01/20/2004 02/10/2004 02/12/2004
02/20/2004 04/09/2004 04/16/2004
06/18/2004 06/22/2004

9 Stipulated MOTION by plaintiff, defendant for order re: briefing schedule (dlb) (Entered: 10/30/2003)
10 ORDER by Judge John L. Kane granting stipulated motion for order re: briefing schedule [9−1] regarding [8−1] pla's amended complaint; USOC's ext of ddl to respond is 11/24/03; if USOC files an add'l mtn to dismiss; Vie Sports' shall respond by 12/17/03; USOC shall reply by 1/5/04; regarding [2−1] motion to dismiss for lack of jurisdiction, briefing is STAYED until the court has ruled on the NEW 12(b)(6) mtn; if the court grants the new 12(b)(6) mtn; Vie Sports shall respond to the USOC's mtn to dismiss within 15 days of that decision; Vie Sports shall reply no later 18 days; (cc: all counsel) ; entry date : 11/4/03 (dlb) (Entered: 11/04/2003)
11 BRIEF by plaintiffs in opposition to dft's motion to dismiss pla's ADA and Rehab Act Claims [3−1] (dlb) (Entered: 11/17/2003)
12 MOTION by defendants to dismiss Vie Sports federal discrimination claims for lack of subject matter jurisdiction purs to Fed.R.Civ.P. 12(B)(1) (dlb) Modified on 01/21/2004 (Entered: 11/25/2003)
13 REPLY by defendants to pla's response to dft's motion to dismiss pla's ADA and Rehab Act Claims [3−1] (dlb) (Entered: 12/03/2003)
14 MINUTE ORDER : by Judge John L. Kane regarding [12−1] dft's motion to dismiss for lack of jurisdiction, plas shall resp by 12/17/03; dfts shall reply by 1/5/04 (cc: all counsel) ; entry date : 12/3/03 (dlb) (Entered: 12/03/2003)
15 Unopposed MOTION by plaintiffs to extend time to 12/31/03 to respond to dft's mtn to dismiss (dlb) (Entered: 12/11/2003)
16 MINUTE ORDER : by Judge John L. Kane granting pla's motion to extend time to 12/31/03 to respond to dft's mtn to dismiss [15−1], regarding [12−1] dft's motion to dismiss for lack of jurisdiction (cc: all counsel) ; entry date : 1/12/04 (dlb) (Entered: 01/12/2004)
17 Opposition (RESPONSE) by plaintiffs to dft's motion to dismiss for lack of jurisdiction [12−1] (dlb) (Entered: 01/12/2004)
18 REPLY by dfts US Olympic Committee, U.S. Paralympics Inc to response to motion to dismiss Vie Sports federal discrimination claims for lack of subject matter jurisdiction [12−1] (gms) (Entered: 01/21/2004)
19 MOTION by plaintiffs for leave to submit recently−decided authority in opp to dft's mtn to dismiss pla's ADA and Rehab Act Claims purs to Fed.R.Civ.P. 12(b)(6) *attached to motion (dlb) (Entered: 02/10/2004)
20 MINUTE ORDER : by Judge John L. Kane granting motion for leave to submit recently−decided authority in opp to dft's mtn to dismiss pla's ADA and Rehab Act Claims [19−1], regarding [3−1] motion to dismiss pla's ADA and Rehab Act Claims, dfts may file a short response by 2/20/04 (cc: all counsel) ; entry date : 2/13/04 (dlb) (Entered: 02/13/2004)
21 RESPONSE by US Olympic Committee, U.S. Paralympics Inc to pla's supplemental authority [19−1] *included in motion (dlb) (Entered: 02/23/2004)
22 MOTION by plaintiffs for scheduling conference (hearing) and to commence discovery (dlb) (Entered: 04/12/2004)
23 MINUTE ORDER : by Judge John L. Kane granting in part pla's motion for scheduling conference (hearing) and to commence discovery [22−1]; the mtn is granted to the extent it req a sched conf; pla's mtn is denied to the extent it req discovery to commence immediately ; rule 16 conference set for 10:00 7/28/04 (cc: all counsel) ; entry date : 4/19/04 (dlb) (Entered: 04/19/2004)
24 Unopposed MOTION by plaintiffs for relief from 21 day ddl for Rule 26(f) meeting (dlb) (Entered: 06/21/2004)
25 MINUTE ORDER : by Judge John L. Kane granting motion for relief from 21 day ddl for Rule 26(f) meeting [24−1] (cc: all counsel) ; entry date : 6/22/04 (dlb)

Case: 1:03-cv-01364-JLK As of: 06/07/2010 10:20 PM MDT 6 of 10

07/08/2004 09/02/2004 09/22/2004 06/27/2005 06/29/2005 06/30/2005 08/01/2005
08/17/2005
09/15/2005 09/16/2005 09/21/2005
09/21/2005 10/04/2005
04/19/2006 04/20/2006

(Entered: 06/22/2004)
26 MINUTE ORDER : by Judge John L. Kane ; rule 16 conf VACATED on 7/8/04 to be reset after ruling on pending mtns (cc: all counsel) ; entry date : 7/9/04 (dlb) (Entered: 07/09/2004)
27 Submission of SUPPLEMENTAL Authority by plaintiff (dlb) (Entered: 09/03/2004)
28 RESPONSE by defendants to pla's supplemental authority [27−1] (dlb) (Entered: 09/23/2004)
29 MOTION for Ruling or Combined Oral Argument by Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc.. (Robertson, Amy) (Entered: 06/27/2005)
30 MOTION for Leave to Appear by Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc.. (Williams, Kevin) (Entered: 06/29/2005)
31 NOTICE of Entry of Appearance by Kevin William Williams on behalf of all plaintiffs (Williams, Kevin) (Entered: 06/30/2005)
32 Second Supplement to 17 Opposition (RESPONSE) by plaintiffs to dft's motion to dismiss for lack of jurisdiction [12−1] by Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc.. (Attachments: # 1 Appendix Supplemental Authority)(Robertson, Amy) (Modified on 8/2/2005 to correct linkage and verbiage) (dlb, ). (Entered: 08/01/2005)
33 MINUTE ORDER granting in part 29 MOTION for Ruling or Combined Oral Argument by Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc. Oral argument is set for 9/21/05 at 1:30 p.m., Ctrm A802. Argument w/be limited to the athlete issues common to this case and 99−cv−2077−JLK by Judge John L. Kane on 8/17/05. (dlb, ) (Modified on 8/17/2005 to add Minute)(dlb, ). (Entered: 08/17/2005)
34 NOTICE of Entry of Appearance of Christopher T. Handman by John William Cook on behalf of United States Olympic Committee, U.S. Paralympics, Inc. (Cook, John) (Entered: 09/15/2005)
35 NOTICE of Entry of Appearance (Amended) for Christopher T. Handman as Co−Counsel by John William Cook on behalf of United States Olympic Committee, U.S. Paralympics, Inc. (Cook, John) (Entered: 09/16/2005)
36 Minute Entry for proceedings held before Judge John L. Kane : Motion Hearing held on 9/21/2005. Denying 2 Motion to Dismiss/Lack of Jurisdiction filed by United States Olympic Committee, U.S. Paralympics, Inc. and taking under advisement 3 Motion to Dismiss filed by United States Olympic Committee, U.S. Paralympics, Inc. (Court Reporter Adrienne Whitlow.) (gms, ) (Entered: 09/23/2005)
37 ORDER denying 2 Motion to Dismiss for Lack of Jurisdiction, taking under advisement 3 Motion to Dismiss pursuant to the minutes by Judge John L. Kane on 9/21/05. (Text only entry − no document attached) (gms, ) (Entered: 09/23/2005)
TRANSCRIPT of Motions Hearing held on September 21, 2005 for Case No. 99−cv−02077−JLK and 03−cv−01364−JLK before Judge John L. Kane, Jr. Prepared by: Adrienne Whitlow, CSR. Pages: 1 − 61. (certified copy) Text Only Entry − Available in paper format at the Clerk's Office. [The paper formate copy is filed in case no. 99−cv−02077−JLK, Document #180]. (dlb, ) (Entered: 10/06/2005)
38 STIPULATION and Protective Order by Defendants United States Olympic Committee, U.S. Paralympics, Inc., U.S. Paralympics, Inc.. (Attachments: # 1 Exhibit A)(Morgan, Virginia) (Entered: 04/19/2006)
39 Joint MOTION for Protective Order by Defendants United States Olympic Committee, U.S. Paralympics, Inc.. (Attachments: # 1 Proposed Order (PDF Only) Stipulation and Protective Order# 2 Exhibit A)(Morgan, Virginia) (Entered:

Case: 1:03-cv-01364-JLK As of: 06/07/2010 10:20 PM MDT 7 of 10

04/25/2006 06/01/2006 06/05/2006 06/05/2006 06/05/2006
06/08/2006
06/14/2006 06/16/2006 06/20/2006 06/20/2006 06/21/2006 06/22/2006 07/12/2006
07/12/2006 11/16/2006 11/21/2006

04/20/2006)
40 STIPULATION AND PROTECTIVE ORDER pursuant to 39 Joint MOTION for Protective Order . Signed by Judge John L. Kane on 4/25/06. (dln, ) (Entered: 04/26/2006)
41 MOTION to Withdraw as Attorney by Virginia S. Morgan by Defendant United States Olympic Committee. (Attachments: # 1 Proposed Order (PDF Only) Granting Motion)(Morgan, Virginia) (Entered: 06/01/2006)
42 ORDER granting 41 Motion to Withdraw Attorney Virginia Starr Morgan as counsel for Defendant United States Olympic Committee. Signed by Judge John L. Kane on 6/5/06. (dln, ) (Entered: 06/05/2006)
43 MOTION for Ruling on 3 Motion to Dismiss by Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc.. (Robertson, Amy) (Entered: 06/05/2006)
44 MOTION for Hearing/Conference : Scheduling Conference and Commencement of Discovery by Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc.. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Robertson, Amy) (Entered: 06/05/2006)
45 MINUTE ORDER re: 44 MOTION for Hearing/Conference : Scheduling Conference and Commencement of Discovery by Plaintiffs. Defendants shall respond by 6/15/06. No reply is necessary unless requested by Judge John L. Kane on 6/7/06. (dln, ) (Entered: 06/08/2006)
46 ORDER granting as specified 43 MOTION for Ruling on 3 Motion to Dismiss by Plaintiffs . Signed by Judge John L. Kane on 6/14/06. (dln, ) (Entered: 06/14/2006)
47 NOTICE of Entry of Appearance by John William Cook on behalf of all defendants (Cook, John) (Entered: 06/16/2006)
48 MOTION For Extension of Time to Submit Proposed Orders by Defendants United States Olympic Committee, U.S. Paralympics, Inc.. (Attachments: # 1 Proposed Order (PDF Only) Order)(Cook, John) (Entered: 06/20/2006)
49 RESPONSE to Motion re 44 MOTION for Hearing/Conference : Scheduling Conference and Commencement of Discovery filed by Defendants United States Olympic Committee, U.S. Paralympics, Inc.. (Cook, John) (Entered: 06/20/2006)
50 ORDER granting to 7/12/06 48 MOTION For Extension of Time to Submit Proposed Orders by Defendants . Signed by Judge John L. Kane on 6/21/06. (dln, ) (Entered: 06/21/2006)
51 NOTICE of Entry of Appearance by Anne Hall Turner on behalf of all defendants (Turner, Anne) (Entered: 06/22/2006)
52 NOTICE re 3 Motion to Dismiss, 43 MOTION for Ruling on 3 Motion to Dismiss, 46 Order on Motion for Ruling, 11 Brief in Opposition to Motion, 13 Reply to Response to Motion Submission of Proposed Order by Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 07/12/2006)
53 NOTICE by Defendants United States Olympic Committee, U.S. Paralympics, Inc., U.S. Paralympics, Inc. (Attachments: # 1 Proposed Order (PDF Only) Defendants' Proposed Order)(Cook, John) (Entered: 07/12/2006)
54 MEMORANDUM OPINION AND ORDER: 3 MOTION by defendants to dismiss pla's ADA and Rehab Act Claims purs to Fed.R.Civ.P. 12(B)(6) is granted. Signed by Judge John L. Kane on 11/16/06. (dln, ) (Entered: 11/16/2006)
55 MINUTE ORDER : Status Conference set for 12/7/2006 10:00 AM in Courtroom A 802 before Judge John L. Kane. Parties to file Joint Status Report by 12/5/06 by Judge John L. Kane on 11/21/06.. Signed by Judge John L. Kane on 11/21/06. (dln, ) (Entered: 11/21/2006)

Case: 1:03-cv-01364-JLK As of: 06/07/2010 10:20 PM MDT 8 of 10

11/22/2006 11/30/2006 01/02/2007 01/02/2007
01/04/2007 01/10/2007 01/10/2007 01/10/2007 01/10/2007 02/01/2007 02/02/2007 02/06/2007 02/07/2007 02/07/2007
02/09/2007

56 NOTICE of Entry of Appearance by Jeffrey S. George on behalf of United States Olympic Committee (George, Jeffrey) (Entered: 11/22/2006)
57 MINUTE ORDER : RESETTING Status Conference for 1/4/2007 10:30 AM in Courtroom A 802 before Judge John L. Kane by Judge John L. Kane on 11/30/06. (dln, ) (Entered: 11/30/2006)
58 NOTICE of Entry of Appearance by Ari Reuben Krichiver on behalf of all plaintiffs (Krichiver, Ari) (Entered: 01/02/2007)
59 Joint STATUS REPORT by Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc., Defendants United States Olympic Committee, U.S. Paralympics, Inc.. (Attachments: # 1 Exhibit Stipulation Concerning Vie Sports Marketing, Inc.'s ADA and Rehabilitation Act Claims)(George, Jeffrey) (Entered: 01/02/2007)
60 Minute Entry for proceedings held before Judge John L. Kane: Status Conference held on 1/4/2007. Status Report due by 4/15/2007, Status Conference set for 6/25/2007 09:30 AM before Judge John L. Kane. (Court Reporter Adrienne Whitlow.) (jjh, ) (Entered: 01/04/2007)
61 NOTICE of Filing Proposed Direction of Final Judgment Pursuant to F.R.C.P. Rule 54(b) by Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc. (Attachments: # 1 Proposed Document Judgment)(Robertson, Amy) (Entered: 01/10/2007)
62 Direction of Final Judgment Pursuant to FRCP Rule 54(b) (ORDER): Judgment be entered on Claim I and Claim II of the Amended Complaint against all Plaintiffs. Signed by Judge John L. Kane on 01/10/07. (jjh, ) (Modified on 1/10/2007 to clarify entry is an Order not Judgment)(lamsl, ). (Entered: 01/10/2007)
63 Docket Annotation re: 62 Direction of Final Judgment. This entry was modified to clarify it is not the Final Judgment. Text only entry − no document attached. (lamsl, ) (Entered: 01/10/2007)
64 JUDGMENT by Clerk is entered against all Plaintiffs on Claim I and Claim II of the Amended Complaint. Signed on 01/10/07. (jjh, ) (Entered: 01/10/2007)
65 Minute ORDER denying without Prejudice Defendant's 12 Motion to Dismiss for Lack of Jurisdiction; denying as Moot Plaintiffs' 44 Motion for Scheduling Conference and Commencement of Discovery by Judge John L. Kane on 02/01/07.(jjh, ) (Entered: 02/01/2007)
66 ANSWER to Amended Complaint and Affirmative Defenses, COUNTERCLAIM against Vie Sports Marketing, Inc. by United States Olympic Committee, U.S. Paralympics, Inc..(George, Jeffrey) (Entered: 02/02/2007)
67 NOTICE OF APPEAL as to 64 Clerk's Judgment, 54 Memorandum &Opinion Joint Notice of Appeal by Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc. (Robertson, Amy) (Entered: 02/06/2007)
68 LETTER re Appeal to all counsel advising of the transmittal of the 67 Joint Notice of Appeal filed by Plaintiffs to the U.S. Court of Appeals. (Retained counsel; Fees not paid) (Attachments: # 1 Joint Notice of Appeal# 2 Docket Sheet)(bjr, ) (Entered: 02/07/2007)
70 TRANSCRIPT of Status Conference filed for dates of 01/04/07 before Judge John L. Kane, re 67 Notice of Appeal Prepared by: Adrienne Whitlow. Pages: 1−12. (certified copy) Text Only Entry − Per statute, copies of transcripts are available for inspection in the clerk's office. Parties interested in a copy may contact the court reporter or, in the case of a transcript prepared from a digital−audio taped record, the courtroom deputy for the judicial officer. (Transcript filed in appeal for 99−cv−02077−JLK)(bjr, ) (Entered: 02/12/2007)
69 USCA Case Number 07−1053 for 67 Notice of Appeal filed by Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc.. Appellant has 30 days to either pay the $455.00 filing fee or file an application for leave to proceed without prepayment of fees to the district court. (bjr, ) (Entered:

Case: 1:03-cv-01364-JLK As of: 06/07/2010 10:20 PM MDT 9 of 10

02/13/2007
02/16/2007 02/20/2007
02/21/2007 02/22/2007 02/22/2007 02/22/2007 02/28/2007 02/28/2007 03/13/2007 04/13/2007 04/13/2007 04/27/2007 06/28/2007 06/28/2007 07/02/2007

02/12/2007)
71 USCA Appeal Fees (USCA Case No. 07−1053); received $ 455 receipt number 274435 re 67 Notice of Appeal filed by Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc. (bjr, ) (Entered: 02/14/2007)
72 TRANSCRIPT ORDER FORM re 67 Notice of Appeal by Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc. (Robertson, Amy) (Entered: 02/16/2007)
73 LETTER TO USCA and all counsel certifying the record is complete as to 67 Notice of Appeal filed by Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc.. ( Appeal No. 07−1053) (bjr, ) (Entered: 02/20/2007)
74 Unopposed MOTION for Extension of Time to File Response/Reply to 66 Counterclaim by Counter Defendant Vie Sports Marketing, Inc.. (Krichiver, Ari) Modified on 2/22/2007 to add linkage (jjh, ). (Entered: 02/21/2007)
75 Docket Annotation re: 74 Unopposed MOTION for Extension of Time to File Response/Reply to 66 Counterclaim. Modified to add linkage. Text only entry − no document attached. (jjh, ) (Entered: 02/22/2007)
76 Minute ORDER granting Plaintiff Vie Sports Marketing Inc.'s Unopposed 74 Motion for Extension of Time to File Reply to Counterclaim by 03/01/07 by Judge John L. Kane on 02/22/07.(jjh, ) (Entered: 02/22/2007)
77 Utility Setting/Resetting Deadlines/Hearings: Pursuant to Minute Order of 02/22/07. Vie Sports Marketing, Inc. answer due 3/1/2007. Text only entry − no document attached. (jjh, ) (Entered: 02/22/2007)
78 ANSWER to Counterclaim by Vie Sports Marketing, Inc..(Krichiver, Ari) (Entered: 02/28/2007)
79 NOTICE of Entry of Appearance by Timothy Patrick Fox on behalf of all plaintiffs (Fox, Timothy) (Entered: 02/28/2007)
80 MINUTE ORDER Setting Status Conference for 7/2/2007 09:30 AM in Courtroom A 802 before Judge John L. Kane. Status Conference set for 06/25/07 is vacatedby Judge John L. Kane on 03/13/07. (jjh, ) (Entered: 03/13/2007)
81 Joint STATUS REPORT by Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc.. (Krichiver, Ari) (Entered: 04/13/2007)
82 MINUTE ORDER : Matter stayed pending continued settlement discussions. An additional Status Report due by 4/27/2007, by Judge John L. Kane on 4/13/07. (gms, ) (Entered: 04/13/2007)
83 Joint STATUS REPORT by Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc.. (Krichiver, Ari) (Entered: 04/27/2007)
84 Joint STATUS REPORT by Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc., Counter Defendant Vie Sports Marketing, Inc.. (Robertson, Amy) (Entered: 06/28/2007)
85 STIPULATION of Dismissal of Party by Counter Defendant Vie Sports Marketing, Inc., Plaintiff Vie Sports Marketing, Inc.. (Robertson, Amy) (Entered: 06/28/2007)
86 Minute Entry for proceedings held before Judge John L. Kane: Status Conference held on 7/2/2007. (Civil Action Nos. 99−cv−02077−JLKand 03−cv−01364−JLK are called together for discovery purposes only. The following Deadlines are set for 99−cv−02077 ONLY. ORDERED: A 2week Jury Trial is set for February 19−29, 2008 at 8:30am. ORDERED: The Final Trial Preparation Conference is set for 02/08/08 at 10:00 a.m. ORDERED: The Pretrial Conference is set for 12/12/07 at 10:00 a.m. Counsel are allowed to submit the Stipulated Pretrial Order on

Case: 1:03-cv-01364-JLK As of: 06/07/2010 10:20 PM MDT 10 of 10

07/12/2007 01/16/2008 03/04/2008 06/06/2008 10/14/2008

12/12/07. If not stipulated, counsel shall submit the Pretrial Order by 12/07/07. ORDERED: Any designation of experts must be submitted on or before 09/01/07. ORDERED: Any Daubert objections must be submitted on or before 10/02/07.. (Court Reporter Darlene Martinez.) (jjh, ) (Entered: 07/02/2007)
87 ORDER DISMISSING WITH PREJUDICE VIE SPORTS MARKETING, INC.S CLAIMS ANDU.S. PARALYMPICS, INC.S COUNTERCLAIM. The Final Judgment has already entered on all other claims in this action. Signed by Judge John L. Kane on 07/12/07. (jjh, ) (Entered: 07/12/2007)
88 USCA Opinion and Judgment as to 67 Notice of Appeal filed by Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc. : The judgment of the district court is affirmed. (USCA Case No. 07−1053) (This document is not the Mandate) (Attachments: # 1 USCA Judgment, # 2 Letter)(bjr2, ) (Entered: 01/17/2008)
89 MANDATE of USCA as to 67 Notice of Appeal filed by Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, Vie Sports Marketing, Inc., and 88 USCA Opinion and Judgment: The judgment of the district court is affirmed. (USCA Case No. 07−1053) (bjr2, ) (Entered: 03/04/2008)
90 Letter from 10CCA regarding writ of certiorari which was filed on 05/27/08 re 67 Notice of Appeal by Hoolenbeck et al ; assigned Supreme Court No. 07−1504 ( Appeal No. 07−1053 &07−1056) (Attachments: # 1 Supreme Court Letter)(bjr2, ) (Entered: 06/06/2008)
91 Letter from 10CCA regarding writ of certiorari which was denied on 10/06/08 re 67 Notice of Appeal by Scot Hollonbeck et al; assigned Supreme Court No. 07−1504 ( Appeal No. 07−1053 &07−1056) (Attachments: # 1 Supreme Court Letter)(bjr2, ) (Entered: 10/15/2008)

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 03-K-1364 (PAC) SCOT HOLLONBECK, JOSE ANTONIO INIGUEZ, JACOB WALTER JUNG HO HEILVEIL, and VIE SPORTS MARKETING, INC., a Georgia corporation,
Plaintiff, v. UNITED STATES OLYMPIC COMMITTEE, a federally-chartered corporation, and U.S. PARALYMPICS, INC., f/k/a UNITED STATES PARALYMPIC CORPORATION, a Colorado non-profit corporation,
Defendant.
AMENDED COMPLAINT
Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, and Vie Sports Marketing, Inc., by and through their attorneys, Fox & Robertson, P.C. and Kevin W. Williams, Esq., hereby bring this Amended Complaint against Defendants United States Olympic Committee (“USOC”) and U.S. Paralympics, Inc. (“USP”). Plaintiffs Hollonbeck, Iniguez and Heilveil (the “Athlete Plaintiffs”) bring claims for violations of Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189 (“Title III”), and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“the Rehabilitation Act”); Plaintiff Vie Sports Marketing (“Vie” or “Vie Sports”) brings claims for violation of Title III and the Rehabilitation Act, breach of contract and promissory estoppel.

Introduction 1. On July 26, 1990, President George H. W. Bush signed the Americans with Disabilities Act (“ADA”), establishing one of the most important civil rights law for persons with disabilities in our country’s history. One of the principal goals of the ADA was equality of opportunity, full participation, and integration of people with disabilities in our economic and social life. 2. Now, thirteen years later, the United States Olympic Committee -- a federally chartered corporation responsible for United States participation in the Olympic and Paralympic Games -- continues to discriminate against Paralympic athletes such as Plaintiffs Scot Hollonbeck, Jose Antonio Iniguez and Jacob Walter Jung Ho Heilveil by denying them benefits, funding, and other support provided to Olympic athletes. 3. The USOC admits to this discrimination, and attempts to justify it on the grounds that its primary focus is on Olympic, and not Paralympic, athletes, and that more equitable funding for Paralympic athletes would detract from its support for Olympic athletes. 4. At the same time that the USOC denies benefits to Paralympic athletes for these ostensibly financial reasons, however, it hinders U.S. Paralympic fund-raising efforts by, for example, failing to effectively market the rights to the U.S. Paralympic trademark -- valuable rights granted to the USOC by Congress. 5. In July, 2001, the USOC retained Plaintiff Vie Sports Marketing to develop the Paralympic brand and to market and sell the rights to the U.S. Paralympic trademark. Although Vie put significant work into this project and although potential sponsors showed significant
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interest, the USOC ultimately frustrated Vie’s attempts to secure the most valuable sponsorships for that mark, simultaneously breaching its contract with Vie and perpetuating its discrimination against Paralympic athletes and against Vie.
6. Plaintiffs bring this case to rectify the USOC’s discrimination against the Plaintiffs and to remedy the harm caused by that discrimination and by the breach of Defendants’ contract with, and repudiation of their promises to, Vie Sports.
Jurisdiction and Venue 7. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343 and 1367. 8. Venue is proper within this District pursuant to 28 U.S.C. § 1391.
Parties 9. Scot Hollonbeck is a resident of Georgia. Due to a spinal cord injury, he is paralyzed from the waist down and is substantially impaired in one or more major life activities including but not limited to walking. He uses a manual wheelchair for mobility. 10. Jose Antonio Iniguez is a resident of Illinois. Due to the effects of polio, he is substantially impaired in one or more major life activities including but not limited to walking. He uses a manual wheelchair for mobility. 11. Jacob Walter Jung Ho Heilveil is a resident of Washington. Due to the effects of polio, he is substantially impaired in one or more major life activities including but not limited to walking. He is able to walk with difficulty with the aid of crutches, and often uses a manual wheelchair for mobility.
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12. Plaintiff Vie Sports Marketing, Inc. is a Georgia corporation, with its principal place of business in Atlanta, Georgia.
13. Plaintiff Vie Sports Marketing, Inc., was founded and is owned and managed in part by Plaintiff Hollonbeck, an individual with a disability. Vie Sports was founded for the purpose of obtaining sponsors for the Paralympics and is closely associated with Paralympic and disabled athletes and sports. As such, Vie Sports has a known relationship or association with individuals with known disabilities.
14. Defendant United States Olympic Committee is a federally chartered corporation, 36 U.S.C. § 220502(a), registered to do business in the State of Colorado with its principal place of business in Colorado Springs, Colorado.
15. Defendant U.S. Paralympics, Inc., is a Colorado non-profit corporation with its principal place of business in Colorado Springs, Colorado. USP was formerly known as the Unites States Paralympic Corporation (“USPC”).
16. On information and belief, the USP is the alter ego of the USOC. 17. Because the USOC often referred to itself as the USP and/or USPC in its relationship with the Athlete Plaintiffs and Vie, the USOC and the USP will often be referred to jointly herein.
Facts 18. The Paralympic Games, held every two years immediately after the Olympic Games, are the equivalent of the Olympic Games for persons with disabilities.
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19. The Paralympic Games are the second largest sporting event in the world, after the Olympic Games.
20. The United States sent approximately 600 athletes to the 2000 Summer Olympic Games and approximately 250 athletes to the 2000 Summer Paralympic Games.
21. Congress created the USOC through the Ted Stevens Olympic and Amateur Sports Act (“ASA”), 36 U.S.C. §§ 220501 - 220529, and gave the USOC exclusive jurisdiction over “all matters pertaining to United States participation in the Olympic Games, the Paralympic Games, and the Pan-American Games, including representation of the United States in the games,” and obtaining “the most competent amateur representation possible in each event” in Olympic, Pan-American and Paralympic Games. Id. § 220503(3)(A) & (4).
22. Congress empowered the USOC to act as the national Paralympic committee of the United States. Id. § 220505(c)(2).
23. The USOC has responsibility for the United States Paralympic Team. 24. The USOC controls many aspects of Olympic and Paralympic organization, administration, housing, training, and competition in the United States, including but not limited to managing, regulating and/or controlling the conditions of such organization, administration, housing, training, and competition. 25. The USOC selects the U.S. cities that will submit bids to host the Olympic and Paralympic Games, thereby effectively controlling all aspects of the venues in which competition will take place.
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26. As such, the USOC operates the places of public accommodation where such organization, administration, housing, training, and competition take place.
27. The USOC operates and, on information and belief, owns several additional places of public accommodation.
28. On information and belief, the USOC owns the Colorado Springs Olympic Training Center in Colorado Springs, Colorado.
29. On information and belief, the USOC operates the Colorado Springs Olympic Training Center.
30. On information and belief, the USOC owns the Lake Placid Olympic Training Center in Lake Placid, New York.
31. On information and belief, the USOC operates the Lake Placid Olympic Training Center.
32. On information and belief, the USOC owns the ARCO Olympic Training Center, in Chula Vista, California.
33. On information and belief, the USOC operates the ARCO Olympic Training Center.
34. Plaintiff Hollonbeck is an elite wheelchair racer. 35. Plaintiff Hollonbeck has competed in three Paralympic Games, winning two gold medals and a silver medal in Barcelona in 1992, two silver medals in Atlanta in 1996 and competing as a finalist in three events in Sydney in 2000. He also competed in an exhibition
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wheelchair racing event -- the 1500 meter race -- in the corresponding Olympic Games, winning a silver medal in 1996.
36. Plaintiff Hollonbeck has held the United States records in the 800, 1500 and 5000 meter races, and world records in the former two events.
37. Plaintiff Hollonbeck has won 15 marathons and twice won the United States 10,000 meter championship.
38. Plaintiff Hollonbeck was the Wheelchair Sports USA Athlete of the Year in 1992. 39. Plaintiff Hollonbeck is currently in training for the 2004 Olympic and Paralympic games in Athens. 40. Plaintiff Iniguez is an elite wheelchair racer. He competed in the 1992 Paralympic Games, in the 100 and 800 meter races and the marathon. 41. Because he had to work full time, Plaintiff Iniguez was not able to afford the time to train and qualify for the 1996 Paralympic Games. 42. Plaintiff Iniguez qualified for the 2000 Paralympic Games in several distances and for the quarterfinal preliminary race for the 2000 Olympic 1500 meter wheelchair exhibition race. However, he was not able to afford to leave his job for the time required to attend the Paralympic Games. 43. Plaintiff Iniguez is currently in training for the 2004 Olympic and Paralympic games in Athens. 44. Plaintiff Heilveil is an elite wheelchair racer.
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45. Plaintiff Heilveil has competed in two Paralympic Games. In the 1996 Paralympic Games in Atlanta, he competed in the 800 meter, the 1500 meter, the 5000 meter, the 10,000 meter, and the marathon. He placed fourth in the 10,000 meter race. He also competed in the 1996 Olympic exhibition 1500 meter competition in Atlanta.
46. In 2000, Plaintiff Heilveil competed in the Paralympic Games in Sydney, racing in the 800 meter, the 1500 meter, the 5000 meter, the 10,000 meter, and the marathon. He did not win any medals.
47. Plaintiff Heilveil is currently in training for the 2004 Olympic and Paralympic games in Athens.
48. Defendants provide certain goods, services, facilities, privileges, advantages, and accommodations to elite non-disabled athletes that they either do not provide to elite athletes with disabilities, including the Athlete Plaintiffs, or provide to such athletes in inferior quantities, manners and/or forms.
49. Defendants’ discrimination includes but is not limited to discrimination in grants, and other financial support for individual athletes, programs and organizations as well as insurance, eligibility for the Resident Athlete Program, use of training facilities, representation in governance, marketing, and other goods, services, facilities, privileges, advantages, and accommodations.
50. Defendants’ discrimination against Paralympic athletes, including the Athlete Plaintiffs, includes but is not limited to that described in this Amended Complaint.
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51. Prior to 2002, the USOC awarded money to Olympic athletes for gold, silver, and bronze medals as well as fourth place finishes, but did not award any money to Paralympic athletes for gold, silver, or bronze medal or fourth place finish.
52. In 2002, the USOC awarded an athlete $25,000 for an Olympic gold medal, $15,000 for an Olympic silver medal, and $10,000 for an Olympic bronze medal.
53. In 2002, the USOC awarded an athlete $2,500 for a Paralympic gold medal, $1,500 for a Paralympic silver medal, and $1,000 for a Paralympic bronze medal.
54. To determine usage of its training facilities, the USOC prioritizes athletes by class. Olympic athletes are allocated an A (or first) priority level; Paralympic athletes are allocated a C (or third) priority level.
55. The USOC makes Basic Grants available to Olympic athletes but not Paralympic athletes.
56. The USOC makes Tuition Assistance Grants available to Olympic athletes but not Paralympic athletes.
57. The USOC makes Elite Athlete Health Insurance available to Olympic athletes but not Paralympic athletes.
58. During the 1997 to 2000 quadrennium, the USOC directed grants to some 2,300 individual Olympic athletes (with awards ranging from $200 to $100,000) for a total of $26 million.
59. Under USOC rules, Paralympic athletes, including the Athlete Plaintiffs, are not eligible to receive basic grants, tuition assistance grants or health insurance from the USOC.
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60. As a result, the Athlete Plaintiffs have had to pay significant training expenses out of their own pockets and Plaintiff Iniguez has had to work a full-time job both to earn enough to cover expenses and to secure health insurance. This has impaired their ability to train for Paralympic and Olympic competition.
61. Plaintiff Hollonbeck competed in the 1992, 1996 and 2000 Olympic Games in the 1500 meter wheelchair exhibition race.
62. He was denied many benefits that, on information and belief, non-disabled athletes participating in exhibition events enjoyed.
63. For example, Plaintiff Hollonbeck was not permitted to march in the opening ceremonies of the Olympic Games.
64. On information and belief, non-disabled U.S. Olympic athletes participating in exhibition events in the 1992 Olympics marched in the opening ceremonies.
65. On information and belief, non-disabled U.S. Olympic athletes participating in exhibition events in the 1996 Olympics marched in the opening ceremonies.
66. On information and belief, non-disabled U.S. Olympic athletes participating in exhibition events in the 2000 Olympics marched in the opening ceremonies.
67. Although he won several medals -- including an Olympic silver medal and silver and gold Paralympic medals -- Plaintiff Hollonbeck received no compensation, while Olympic athletes received monetary compensation for winning gold, silver and bronze medals in those same years.
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68. The governance structure of the USOC discriminates against Paralympic athletes. This discrimination includes but is not limited to that described in this Amended Complaint.
69. The USOC Constitution calls for the creation of an Athlete Advisory Committee (“AAC”), which plays a central role in USOC governance. See, .e.g., USOC Constitution arts. XII, XIII, XIX. Despite the fact that the definition of “amateur athlete” in the ASA includes Paralympic athletes, see 36 U.S.C. § 220501(b)(1), until recently, Paralympic athletes were excluded from the AAC. Even in the most recent version of the USOC Constitution, which includes Paralympic athletes in the AAC for the first time, each Olympic sport has a representative on the AAC, while a total of two Paralympic representatives are permitted. USOC Constitution art. XIX, sec. 1.
70. Congress granted the USOC the exclusive right to use, market and sell rights to the Olympic and Paralympic names, emblems and symbols. 36 U.S.C. § 220506(a).
71. The USOC relies on the sale of rights to the Olympic mark to generate revenue. 72. The USOC obtains most of its funding through sponsorship fees, suppliership agreements and fees obtained through licensing of media properties and merchandise. 73. These fees are used to house, feed, train and otherwise support U.S. Olympic athletes and to finance the United States’ participation the Olympic Games. 74. On information and belief, the USOC used the Olympic mark to generate over $300 million in corporate sponsor and other income during the 1997 to 2000 quadrennium. 75. The USOC discriminates against elite athletes with disabilities, including the Athlete Plaintiffs, by limiting the promotion, marketing and sale of rights to the Paralympic
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trademark to a level far below the level at which it promotes, markets and sells rights to the Olympic mark. This has the effect, among others, of limiting funds available for Paralympic programs and athletes, limiting public understanding, exposure and profile of the Paralympics and of individual Paralympic athletes, and generally suppressing the role of the Paralympics in public life.
76. In the spring and summer of 2000, the USOC convened a United States Paralympic Sport Corporation Working Group (“Working Group”) to address issues of Paralympic governance and structure.
77. The Working Group consisted of three representatives of Disabled Sport Organizations, one representative of a National Governing Body (an organization administering an Olympic sport), four representatives from the USOC, two at-large members and an athlete representative of the Paralympic Athletes Committee (“PAC”).
78. Plaintiff Hollonbeck was a member of the Working Group; he was the athlete representative of the PAC.
79. One of the tasks of the Working Group was to explore whether a separate entity should be created to administer U.S. participation in the Paralympic Games.
80. Among the early goals of the Working Group such a separate entity was that it would “[e]stablish value for Paralympic team rights.”
81. Ultimately, the USOC proposed to spin off the administration of United States participation in the Paralympic Games into a separate entity, with the goal that it become selfsustaining.
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82. The PAC declined to endorse the USOC’s proposal. Among other reasons, the PAC believed that the new structure would be “separate but unequal” and expressed concern that the USOC had not allocated sufficient funds to permit a successful startup or continuation of the separate entity.
83. Nevertheless, in August, 2000, the USOC Executive Committee resolved to create a separate corporation named the United States Paralympic Corporation (“USPC”).
84. The USPC was to be created with the stated purpose of providing Paralympic athletes access to funds, services and supports more comparable to those afforded Olympic athletes.
85. The USOC represented that it endorsed those objectives for Paralympic athletes but could not fund them in light of the fact that it believed its principal mission to be Olympic sport.
86. The USPC was to have authority over commercial use of Paralympic marks, images and terminology, and to market those marks, images and terminology to raise funds for the Paralympics.
87. The USOC made clear, in establishing the USPC, that only those sponsors who had explicit rights to the U.S. Paralympic trademark would be able to exercise such rights, and that those contracts ran, at most, through 2004. Sponsors without such rights would be given a right of first negotiation.
88. In August, 2000, USOC officials Norman P. Blake and William J. Hybl incorporated the USPC as a Colorado non-profit corporation.
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89. In or about November, 2002, the name of the USPC was changed to “U.S. Paralympics, Inc.”
90. The USOC never ultimately transferred authority for United States participation in the Paralympics to the USP or USPC.
91. Rather, the USOC administered and continues to administer United States participation in the Paralympics through a division of the USOC known as “U.S. Paralympics.”
92. In or about the fall of 2000, representatives of the USOC promised to representatives for Paralympic athletes that, whether United States participation in the Paralympics was administered within the USOC or through a separate corporation, the entity in question would have full authority over U.S. Paralympic trademarks.
93. Plaintiff Hollonbeck began taking steps to form Plaintiff Vie Sports Marketing during the year 2000. One of the primary purposes of Vie Sports Marketing was to provide marketing services to the USOC for the U.S. Paralympic trademark.
94. In early 2001, Mr. Hollonbeck started working with Daniel Dooley, a successful businessman and father of a child with a disability, on a plan to provide marketing services to the USPC for the rights to the U.S. Paralympic trademark.
95. Mr. Hollonbeck also recruited Svein Romstad, who at that time was with Meridian Management, the marketing agency for the IOC. Mr. Romstad provided consulting services to Vie Sports in 2001 and joined the company in the spring of 2002.
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96. On or about April 18, 2001, Mr. Hollonbeck and Mr. Dooley made a presentation to the USOC concerning services they could provide in marketing and selling rights to the U.S. Paralympic trademark.
97. In the spring of 2001, the USPC issued a “Reason for Proposal” (“RFP”) for a marketing agency for the U.S. Paralympic trademark.
98. In June, 2001, Vie submitted a bid to become the exclusive marketing agency for the U.S. Paralympic trademark.
99. In July, 2001, Defendants selected Vie to be the exclusive marketing agency for the U.S. Paralympic trademark.
100. Among the terms of the agreement between Defendants and Vie were that Vie would be the exclusive marketing agency for U.S. Paralympics and that it would receive a base fee of $20,000 per month for the first 12 months of the contract and $12,500 per month for the remainder of the term as well as 15% of total gross revenues on all sponsor and supplier sales. The parties agreed that the contract would extend from 2001 through the 2005-2008 quadrennium.
101. Both before and after the Vie proposal, representatives of Defendants stated to representatives of Vie that Vie would be able to sell rights to the U.S. Paralympic mark to companies that had existing sponsorship contracts with the USOC or the IOC provided that the sponsor did not have explicit rights to that mark.
102. Defendants stated that those USOC and IOC sponsors who did not have such rights were to be provided a right of first negotiation for the rights to the U.S. Paralympic mark.
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103. Finally, Defendants stated that even those sponsors with rights to the U.S. Paralympic mark only owned those rights through 2004, so that Vie would immediately be able to sell the U.S. Paralympic rights for use starting in 2005.
104. The parties referred to this access to USOC and IOC sponsors as the “open market.”
105. Starting in August, 2001, through January, 2003, Vie did a substantial amount of work pursuant to its contract with Defendants.
106. For example, Vie developed a strategic plan to market the rights to the U.S. Paralympic trademark, conducted market research and brand analysis, and developed the products through which the brand would be marketed.
107. Vie kept Defendants informed of its substantial efforts by sending Defendants drafts of Vie’s products and presentations, meeting with representatives of Defendants on several occasions, holding weekly conference calls with Defendants, and exchanging numerous emails with Defendants’ representatives concerning Vie’s activities.
108. Defendants approved of and encouraged Vie to continue its work pursuant to the parties’ contract.
109. Throughout this time, Vie repeatedly sought reassurance from Defendants of the open market principle.
110. Defendants repeatedly provided these reassurances. 111. Specifically, Defendants assured Vie that a certain category of IOC sponsors -known as “The Olympic Programme” or “TOP” sponsors -- did not own rights to the U.S.
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Paralympic trademark, and that Vie could sell rights to the Paralympic trademark to them or (if they declined) to their competitors.
112. As of June, 2001, it was the USOC’s view that TOP sponsors did not have rights to the U.S. Paralympic trademark.
113. Plaintiff Hollonbeck would not have taken the steps he took to form Vie, Messrs. Dooley and Romstad would not have joined Vie, and Vie would not have bid on Defendants’ RFP if not for the promise of an open market.
114. When Vie met with USOC and IOC sponsors to sell the U.S. Paralympic brand, a number of sponsors showed significant interest.
115. However, Defendants undermined, discouraged and deterred Vie’s attempts to secure sponsorships.
116. Among other things, several sponsors took the position that they already owned rights to the U.S. Paralympic brand.
117. Despite the fact that this was contrary to Defendants’ own view of the sponsors’ contracts, Defendants discouraged further meetings with those sponsors and their competitors, and prohibited Vie from attempting to sell them rights to the U.S. Paralympic brand.
118. In September, 2002, representatives of the U.S. Paralympics division of the USOC submitted a memorandum to the USOC Executive Committee raising the question whether or not the USOC should “yield to TOP sponsors” and recognize “implied” rights to the U.S. Paralympic brand.
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119. In this memorandum, the U.S. Paralympics division asserted that these sponsors had “[n]o contractual rights.”
120. The effect of “yield[ing] to TOP sponsors” would be to close the major sponsor categories to sale of the rights to the U.S. Paralympic mark.
121. That is, not only would sponsors who had purchased rights to the Olympic mark from the USOC receive “implied” rights to the U.S. Paralympic mark, but the category in which each such sponsor fell would be completely closed to the sale of the U.S. Paralympic mark.
122. This would radically curtail the ability to raise funds to support the U.S. Paralympics.
123. That is, if the USOC had permitted Vie Sports Marketing to sell rights to the Paralympic mark as originally promised, there would be significantly more money available to fund Paralympic programs.
124. The USOC’s September 2002 submission to its Executive Committee estimated the loss of revenue from a decision to “yield to TOP sponsors” at $18-24 million.
125. Nevertheless, the U.S. Paralympics division of the USOC submitted to the Executive Committee of the USOC a question that Defendants had represented to Paralympic athletes and Vie as having been resolved long ago, the USOC’s long-standing position on which had formed the basis both for Vie’s acceptance of the role of exclusive marketing agency and for a over a year of its hard work in building and promoting the U.S. Paralympic mark.
126. On information and belief, the determination was made to close access to major sponsor categories to the independent sale of rights to the U.S. Paralympic mark.
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127. During the period around the September Executive Committee meeting, Defendants urged Vie to try to sell the rights to the U.S. Paralympics mark to more disabilityoriented sponsors, for example, durable medical equipment companies.
128. By blocking Vie’s attempts to market and sell the rights to the U.S. Paralympics trademark to current major sponsor categories and asking Vie to obtain sponsorships from smaller, disability-oriented sponsors, Defendants blocked access to millions of dollars of revenue that could have been devoted to supporting Paralympic athletes and sports.
129. Defendants continue to market and promote the Olympics in more ways -- and more effective ways -- than they promote the Paralympics.
130. This has the effect of denying funding to Paralympic athletes and programs. 131. This has the further effect of significantly reducing the public profile of the Paralympics, Paralympic sports and Paralympic athletes, suppressing public awareness of the Paralympics, Paralympic athletes and sports, and generally frustrating the ability of athletes with disabilities to achieve competitive success, public understanding and integration. 132. Defendants also denied Vie the amounts it would have earned had it been permitted access to the open market as originally promised. 133. In January, 2003, Defendants attempted unilaterally to renegotiate the terms of their contract with Vie to far less advantageous terms. 134. At least two sponsors were obtained for the U.S. Paralympics through Vie’s efforts and/or during the period of its exclusive agency. Defendants have not paid Vie the amounts it is owed for those sponsorships.
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135. All of the work Vie did for Defendants was required by the contract between the parties, and would not have been performed but for that contract. Vie’s work is referable to no other theory than that of the contract between the parties.
136. All of the work Vie did for Defendants was done in reliance on the Defendants’ representations, including that it would be able to market the U.S. Paralympic brand on the open market and that it would receive a 15% commission on all sponsor and supplier sales for the U.S. Paralympics.
137. Defendants should reasonably have expected their promises to have induced substantial action and/or forbearance on the part of Vie.
138. Based on (among other things) Defendants’ representations to the public concerning the marketing of the U.S. Paralympics brand and the purposes of the USPC, this reliance was reasonable.
139. Defendants’ actions in breaching its contract with, and/or reneging on its promise to, Vie Sports were part of its overall policy and practice of discriminating against athletes with disabilities. Vie was harmed by Defendants’ discrimination against Paralympic athletes.
140. Paralympic athletes were harmed by the fact that the USOC discriminated against, breached its contract with, and/or reneged on its promise to, Vie Sports.
141. Paralympic athletes will benefit -- through the increased funding available for their support -- if the contract and/or promise between the USOC and Vie Sports is enforced as originally agreed.
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142. Defendants discriminated against Vie Sports based on the fact that its primary purpose was to obtain sponsorships for the Paralympics, based on the fact that it was closely associated with Paralympic and disabled athletes and sports, and/or based on the fact that one if its principals was an individual with a disability.
Claim I: Violation of Title III of the Americans with Disabilities Act (All Plaintiffs against both Defendants)
143. Plaintiffs reallege and incorporate by reference the allegations set forth in this Amended Complaint as if fully set forth herein.
144. The USOC owns, operates, leases and/or leases to one or more places of public accommodation as that term is defined in 42 U.S.C. § 12181(7).
145. The USP owns, operates, leases and/or leases to one or more places of public accommodation as that term is defined in 42 U.S.C. § 12181(7).
146. Defendants have discriminated and continue to discriminate against Plaintiffs on the basis of disability in the full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq.
147. Plaintiffs have been and continue to be harmed by Defendants’ violations of Title III of the Americans with Disabilities Act.
Claim II: Violation of the Rehabilitation Act (All Plaintiffs against both Defendants)
148. Plaintiffs reallege and incorporate by reference the allegations set forth in this Amended Complaint as if fully set forth herein.
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149. The USOC receives federal financial assistance as that term is used in 29 U.S.C. § 794.
150. The USP receives federal financial assistance as that term is used in 29 U.S.C. § 794.
151. Defendants have discriminated and continue to discriminate against Plaintiffs on the basis of disability in violation of section 504 of the Rehabilitation Act of 1973. 29 U.S.C. § 794.
152. In violating the Rehabilitation Act, Defendants acted intentionally, maliciously, and/or with reckless, callous and/or deliberate indifference to Plaintiffs’ federally protected rights.
153. Plaintiffs have been and continue to be harmed by Defendants’ violations of section 504 of the Rehabilitation Act of 1973.
Claim III: Breach of Contract (Plaintiff Vie Sports Marketing against both Defendants) 154. Plaintiffs reallege and incorporate by reference the allegations set forth in this Amended Complaint as if fully set forth herein. 155. Defendant USOC, either on its own or acting through its alter ego, Defendant USP, entered into a contract with Plaintiff Vie Sports Marketing pursuant to which Vie was to be the exclusive marketing agency for the U.S. Paralympic brand and was to be able to sell rights to that trademark in the open market, as more fully described above, in return for an agreed-upon compensation.
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156. Plaintiff Vie Sports Marketing performed substantial work pursuant to the contract.
157. Defendant USOC, either on its own or acting through its alter ego, Defendant USP, prevented Vie Sports from selling the rights to the Paralympic mark in the open market and otherwise fully performing under the contract.
158. Defendant USOC, either on its own or acting through its alter ego, Defendant USP, failed to compensate Plaintiff Vie Sports as required under the contract.
159. Plaintiff Vie Sports has been damaged by Defendants’ breach of contract. Claim IV: Promissory Estoppel
(Plaintiff Vie Sports Marketing against both Defendants) 160. Plaintiffs reallege and incorporate by reference the allegations set forth in this Amended Complaint as if fully set forth herein. 161. Defendant USOC, either on its own or acting through its alter ego, Defendant USP, made promises to Plaintiff Vie Sports Marketing, including but not limited to promises that the latter would be the exclusive marketing agency for the U.S. Paralympics, that it would have access to the open market, and that it would be compensated as described above. 162. It was reasonable for Defendant USOC, either on its own or acting through its alter ego, Defendant USP, to expect its promises to induce action and/or forbearance of a definite and substantial character on behalf of Vie Sports Marketing. For example, it was reasonable for Defendants to expect that its promises would induce Vie Sports to undertake substantial work to
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market and sell the U.S. Paralympic trademark and to forego other opportunities so it could perform that work.
163. Plaintiff Vie Sports Marketing performed substantial work in reliance on Defendants’ promises, and passed up other business opportunities to perform that work.
164. Defendants broke their promises to Vie Sports. For example, Defendants did not permit Vie Sports to have access to the open market and did not compensate Vie Sports as promised.
165. Injustice can only be avoided by the enforcement of Defendants’ promises. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray: 1. That this Court assume jurisdiction; 2. That this Court declare the actions of Defendants USOC and USP described in this Amended Complaint to be in violation of the Americans with Disabilities Act and the Rehabilitation Act and to constitute breach of contract or breach of a legally enforceable promise; 3. That this Court enter an injunction, pursuant to Title III of the ADA, the Rehabilitation Act, and/or state law, enforcing the contract and/or promise between the USOC and Vie Sports Marketing, ordering Defendants to cease discrimination in their programs and activities, ordering Defendants to provide the Athlete Plaintiffs full and equal enjoyment of their goods, services, facilities, privileges, advantages, and/or accommodations in a fashion to be specified following trial, and awarding any further injunctive or equitable relief allowed by law;
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4. That this Court award Plaintiffs compensatory and/or other appropriate damages under the Rehabilitation Act and/or state law, in amounts to be proved at trial;
5. That this Court award Plaintiffs their reasonable attorneys’ fees and costs; and 6. That this Court award such additional or alternative relief as may be just, proper and equitable. JURY DEMAND: Plaintiff demands a jury on all issues which can be heard by a jury.
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Respectfully submitted, FOX & ROBERTSON, P.C.

Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Attorneys for Plaintiffs

Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775
Dated: October 21, 2003

Address of Plaintiff Scot Hollonbeck
1052 Washita Ave., N.E. Atlanta, GA 30307
Address of Plaintiff Jose Antonio Iniguez
1105 Brunswick Lane Aurora, IL 60504
Address of Jacob Walter Jung Ho Heilveil
9910 Northeast 190th Street Apt.B Bothell, WA 98011
Address of Plaintiff Vie Sports Marketing
1052 Washita Ave., N.E. Atlanta, GA 30307

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 No. 07-_________ ================================================================
In The
Supreme Court of the United States
--------------------------------- ♦ ---------------------------------
SCOT HOLLONBECK, et al.,
Petitioners, v.
UNITED STATES OLYMPIC COMMITTEE,
Respondent.
--------------------------------- ♦ ---------------------------------
On Petition For A Writ Of Certiorari To The United States Court Of Appeals
For The Tenth Circuit
--------------------------------- ♦ ---------------------------------
PETITION FOR A WRIT OF CERTIORARI
--------------------------------- ♦ ---------------------------------
ERIC SCHNAPPER School of Law University of Washington P.O. Box 353020 Seattle, WA 98195 (206) 616-3167
AMY F. ROBERTSON* TIMOTHY P. FOX
FOX & ROBERTSON, P.C. 910 16th Street, Suite 610 Denver, CO 80202 (303) 595-9700
KEVIN W. WILLIAMS COLORADO CROSS DISABILITY COALITION 655 Broadway, Suite 775 Denver, CO 80203 (303) 839-1775
*Counsel of Record
Counsel for Petitioners
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831

i
QUESTION PRESENTED
Section 504 of the Rehabilitation Act of 1973 forbids “discrimination [on the basis of disability] under any program or activity receiving Federal financial assistance.” Where a recipient establishes a number of subsidiary programs, does section 504 forbid discrimination in the recipient’s covered actions as a whole, or only discrimination within each such subsidiary recipient program considered separately?

ii
PARTIES
The petitioners are Scot Hollonbeck, Jose Antonio Iniguez and Jacob Walter Jung Ho Heilveil.
Respondent United States Olympic Committee is a federally chartered corporation.

iii
TABLE OF CONTENTS Page
Question Presented ................................................ i Parties ..................................................................... ii Opinions Below ....................................................... 1 Statement of Jurisdiction....................................... 1 Statutes and Regulation Involved ......................... 2 Statement of the Case ............................................ 4 Reasons for Granting the Writ............................... 15
I. The Tenth Circuit Has Decided An Important Question Of Federal Civil Rights Law That Should Be Settled By This Court ....... 15
II. The Court Of Appeals Has Decided An Important Question of Federal Law In A Manner That Conflicts With Decisions Of This Court .................................................... 24
III. The Decision Of The Tenth Circuit Is In Conflict With The Decision Of Several Courts Of Appeals ........................................ 28
Conclusion............................................................... 34
APPENDIX Opinion of the Court of Appeals for the Tenth
Circuit, January 16, 2008 .......................................1a Memorandum Opinion of the District Court for
the District of Colorado, November 16, 2006.......21a

iv
TABLE OF CONTENTS – Continued Page
Order of the Court of Appeals for the Tenth Circuit Denying Rehearing and Rehearing En Banc, February 25, 2008.................................72a
Federal Statutes Prohibiting Discrimination “Under” A “Program or Activity” Receiving Federal Financial Assistance ...............................74a

v
TABLE OF AUTHORITIES Page
CASES Alexander v. Choate, 469 U.S. 287 (1985)......24, 25, 29 Babbitt v. Sweet Home Chapter of Community
for a Greater Oregon, 515 U.S. 687 (1995) .............28 Barnes v. Gorman, 536 U.S. 181 (2002).....................22 Cannon v. University of Chicago, 441 U.S. 677
(1979) .......................................................................22 Gratz v. Bollinger, 539 U.S. 244 (2003)......................24 Grove City College v. Bell, 465 U.S. 555 (1984) .........26
Gutierrez v. Ada, 528 U.S. 250 (2000)........................28 Klinger v. Department of Corrections, 107 F.3d
609 (8th Cir. 1997) ......................................30, 31, 32
NCAA v. Smith, 525 U.S. 459 (1999) .........................22 Regents of Univ. of California v. Bakke, 438
U.S. 265 (1978)........................................................25
Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004) ....28, 29, 30 Safeco Ins. Co. of America v. Burr, 127 S. Ct.
2201 (2007) ..............................................................28
School Board of Nassau County v. Arline, 480 U.S. 273 (1987)........................................................22
United States Dept. of Transportation v. Paralyzed Veterans of America, 477 U.S. 597 (1986) .......................................................................22
Washington State Dept. of Social and Health Services v. Guardianship Estate of Keffler, 537 U.S. 371 (2003) .................................................28

vi
TABLE OF AUTHORITIES – Continued Page
STATUTES 20 U.S.C. § 1681 .........................................................22 20 U.S.C. § 1687 .........................................................31 28 U.S.C. § 1254(1) .......................................................1 29 U.S.C. § 794(a) .......................................................27 29 U.S.C. § 794(b) ...........................................13, 26, 31 36 U.S.C. § 220503(4) ...................................................2 36 U.S.C. § 220505(c) ...................................................3 42 U.S.C. § 6101 .........................................................26 42 U.S.C. § 2000d .......................................................21 42 U.S.C. § 2000d-4a(2)(A).........................................23 Amateur Sports Act ......................................................5 Civil Rights Act of 1964, Title VI ................... 21-23, 26 Civil Rights Restoration Act of 1987......................2, 31 Education Act Amendments of 1972, Title IX
.......................................................... 21-22, 26, 31-33 Rehabilitation Act of 1973, Section 504.............passim
RULES AND REGULATIONS 28 C.F.R. § 41.51(b).......................................................3 28 C.F.R. § 41.51(b)(3) ................................................24 Rule 12(b)(6), Federal Rules of Civil Procedure........11

vii
TABLE OF AUTHORITIES – Continued Page
Rule 35(a), Federal Rules of Appellate Procedure ......................................................................14
Rule 35.1(A), Tenth Circuit Rules..............................15
OTHER AUTHORITIES S.Rep. No. 105-325 .......................................................5

1
Petitioners Scot Hollonbeck, Jose Antonio Iniguez and Jacob Walter Jung Ho Heilveil respectfully pray that this Court grant a writ of certiorari to review the judgment and opinion of the United States Court of Appeals entered on January 16, 2008.
--------------------------------- ♦ ---------------------------------
OPINIONS BELOW
The January 16, 2008 opinion of the court of appeals is reported at 513 F.3d 1191 (10th Cir. 2008), and is set out at pp. 1a-20a of the Appendix. The February 25, 2008 order of the court of appeals denying rehearing, which is not officially reported, is set out at pp. 72a-73a. The November 16, 2006 memorandum opinion of the district court, which is reported at 464 F. Supp. 2d 1072 (D. Colo. 2006), is set out at pp. 21a-71a.
--------------------------------- ♦ ---------------------------------
STATEMENT OF JURISDICTION
The decision of the court of appeals was entered on January 16, 2008. A timely petition for rehearing was denied on February 25, 2008. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).
--------------------------------- ♦ ---------------------------------

2

STATUTES AND REGULATION INVOLVED

29 U.S.C. § 794(a), originally enacted as section 504 of the Rehabilitation Act of 1973, provides in pertinent part:

No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .

29 U.S.C. § 794(b), originally enacted as part of the Civil Rights Restoration Act of 1987, provides in pertinent part:

“Program or activity” defined

For the purposes of this section, the term “program or activity” means all of the operations of –

*

*

*

(3)(A) an entire corporation, . . .

(i) if assistance is extended to such corporation . . . as a whole

36 U.S.C. § 220503(4), which established the purposes of the federally chartered United States Olympic Committee (“USOC”), states that one of those purposes is

to obtain for the United States, directly or by delegation to the appropriate national governing body, the most competent amateur representation possible in each event of the

3

Olympic Games, the Paralympic Games, and Pan-American Games.

36 U.S.C. § 220505(c), which establishes the authority of the United States Olympic Committee, states in pertinent part:

The corporation may – organize, finance, and control the representation of the United States in the competitions and events of the Olympic Games, the Paralympic Games, and the Pan-American Games. . . .

28 C.F.R. § 41.51(b), a provision of the Department of Justice coordinating regulation governing section 504, provides in pertinent part:

(1) A recipient, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap:

(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others:

*

*

*

(3) A recipient may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:

4
(i) That have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap. . . .
--------------------------------- ♦ ---------------------------------
STATEMENT OF THE CASE
The United States Olympic Committee (“USOC”) is a federally chartered corporation charged by Congress with responsibility for overseeing and supporting participation by American athletes in the Olympics, the Pan-American Games, and the Paralympics. Because the USOC has received federal financial assistance, it is subject to the requirements of section 504 of the Rehabilitation Act of 1973, which forbids disability-based “discrimination under any program or activity receiving [such assistance].” The district court concluded that the USOC “relegates Paralympians to second class status in the quantity and quality of benefits and support they receive from the USOC.” (App. 47a).
A divided panel of the Tenth Circuit nonetheless upheld as entirely lawful the USOC’s treatment of the disabled athletes who comprise the United States Paralympic team. (App. 5a-15a). Judge Holloway dissented, objecting that “[w]hat the statute forbids is exactly what has occurred and is occurring here.” (App. 15a). Six members of the Tenth Circuit concluded that the case was sufficiently important to warrant rehearing en banc, but en banc rehearing was rejected on a 6-6 tie vote. (App. 72a-73a).

5
The Paralympic, Olympic and Pan-American Games
In 1950, Congress chartered what is now the USOC to organize and promote United States’ participation in international Olympic competition. In 1978, Congress enacted the Amateur Sports Act, which gave the USOC broad responsibility for coordinating amateur athletics, and expanded its mandate to include coordinating and supporting United States participation in the Pan-American Games. In 1998, the responsibilities and authority of the USOC were again increased, this time to include overseeing and supporting participation in the Paralympic Games. (App. 27a-28a).1
The Paralympic Games are held immediately after the Olympic Games in the same host city and involve between 1,100 and 4,000 athletes. (App. 4a). The Paralympics provides competition for elite athletes belonging to six different disability groups: amputee, cerebral palsy, visual impairment, spinal cord injuries, intellectual disability, and certain others. (App. 43a-44a n.11). Many of the events at the Paralympics are the same as the competitions at the Olympics; the discus, javelin, shot, bow and arrow and other equipment used are the same at both events. Paralympic competitions are as physically
1 The Senate Report explained that “[t]he legislation would fully incorporate the Paralympics into the Amateur Sports Act” and “would give the USOC the same duties with respect to the Paralympic Games as it has with the Olympic Games.” S.Rep. No. 105-325 at 2, 5 (1998).

6
demanding as competitions in the other Games; the Paralympic marathon, for example, certainly takes more strength and endurance than the Pan-American Games sport of bowling.
The plaintiffs in this action are elite Paralympic athletes who have competed in at least one Paralympic Games. All three have disabilities that cause them to use wheelchairs for mobility, and all compete as wheelchair racers. Petitioner Hollonbeck has won two gold medals and three silver medals and fifteen wheelchair marathons, and has held three United States and two World Records. At the 1992, 1996, and 2000 Olympics, at which wheelchair racing was an exhibition event conducted under the auspices of the International Olympic Committee, Hollonbeck competed on behalf of the United States. The USOC, however, would not permit Hollonbeck to participate with the United States team during the opening ceremonies, although wheelchair racers from other nations participated with their own teams. (JA 30508).
The complaint alleges, and the USOC did not deny, that the USOC has a policy of denying to Paralympic athletes many of the benefits that are provided to participants in, or athletes preparing for, the Olympic and the Pan-American Games, and in some instances a policy of providing Paralympic athletes with inferior forms of those benefit. All of the Paralympians denied benefits, or accorded only inferior benefits, are disabled. Virtually all of the Olympic and Pan-American athletes who do receive those

7
benefits (or who receive the more generous benefits) are able-bodied. The USOC has been able to identify only two disabled athletes in the last century of Olympic competition who were members of a United States Olympic Team, one in 1906 and one in 2000.2 The USOC has not identified a single disabled individual who has ever received benefits under the Basic Plus Grants, the Tuition Grants, or Operation Gold. The facts3 regarding the nature of the discriminatory policies were essentially undisputed.
There are four principal benefits which the USOC provides to Olympic and Pan-American athletes but denies to Paralympic athletes. Athletes training for the Olympic or Pan-American Games can obtain these benefits even though those athletes have not yet been and may never be selected for those teams; conversely, even Paralympic athletes who are chosen as members of the United States Paralympic Team, including those who win medals, cannot receive any of these four benefits. Basic Grants and Basic Plus Grants are cash payments made directly (and only) to Olympic and Pan-American Game athletes. These grants are important because they
2 Those athletes were George Eyser, a 1906 gymnast, and Marla Runyan, a 2000 runner. The USOC was able to identify only two other disabled athletes who had ever competed in the Olympics: Neroli Fairhall from New Zealand and Terence Parkin from South Africa. Brief for Appellee, p. 21.
3 The stipulated facts described the USOC practice at the time of the district court proceedings.

8
permit recipients to train full time for the Olympic and Pan-American Games; Paralympic athletes generally have to hold regular jobs and can train only in their spare time. Between 1997 and 2000 the USOC provided $26 million in such grants; none of those funds were paid to Paralympic athletes. The USOC Tuition Assistance Program makes payments to an athlete’s college or university; Paralympic athletes are ineligible for those benefits. The USOC offers certain athletes an Elite Athlete Health Insurance Program; enjoyment of that benefit is limited as well to Olympic and Pan-American Games athletes.
There are two USOC programs under which Paralympic athletes received inferior benefits. The USOC has a program denoted “Operation Gold,” under which substantial cash awards are made directly to athletes who win medals. Prior to 2000, only Olympic and Pan-American Game athletes received these payments. Since 2000, Paralympic medal winners receive cash awards under Operation Gold, but the benefits they receive are far smaller than those paid to Olympic medalists. Medalists at the Paralympic Games are paid awards about onetenth the size of awards to Olympic medalists. (App. 35a-36a n.7). The USOC operates a number of USOC sports training centers. (JA 304). Use of these facilities is allocated on a priority basis. Olympic athletes get the first priority; Pan-American Games athletes get the second priority. Paralympic athletes can use the training facility only when no Olympic or PanAmerican Game athlete wants to do so.

9
The USOC, and the courts below, referred to all of these discriminatory programs as the Athlete Support Programs.
The Proceedings Below
The complaint was filed in July 2003 in the District Court for the District of Colorado. The USOC does not dispute that it has received federal financial assistance, and thus is subject to the provisions of section 504 of the Rehabilitation Act, which forbid discrimination on the basis of disability.4 In the litigation in the courts below, plaintiffs argued only that the level of benefits for the Paralympic athletes had to be “equitable” or in some sense “proportionate,” not that they must invariably be identical to the benefits for Olympic and Pan-American Games athletes. (App. 36a).5 The USOC insisted that under section 504
4 The USOC initially disputed the allegation that it had received federal financial assistance within the meaning of section 504. It subsequently stipulated that it had received such assistance. (App. 16a n.1).
Petitioners also alleged claims under the Americans With Disabilities Act; those contentions were rejected by the district court, and were not pursued on appeal. (App. 5a.).
5 At the oral argument in the district court, counsel for plaintiffs reassured the court that the plaintiffs were not “demanding exactly the same thing” that was provided to Olympic and Pan-American Game athletes. (JA 449; see id. (benefits need not be “perfect[ly] identical”)). Counsel indicated the plaintiffs were asking only that the USOC benefits be “allocat[ed] fairly.” (Id.).

10
it is free to deny Paralympic athletes any benefits whatever.
In October 2003, the USOC moved under Rule 12(b)(6) to dismiss the complaint for failure to state a claim on which relief could be granted.6 The USOC contended, and the Tenth Circuit ultimately held, that section 504 permits the USOC to deny the disputed benefits to Paralympic athletes regardless of the USOC’s motive for doing so, and regardless of whether doing so advances, interferes with, or has no impact at all on the USOC’s statutory responsibilities.
6 USOC contends, in arguments of counsel, that the inferior treatment accorded to Paralympic athletes was not motivated by any discriminatory or invidious purpose. Counsel for the USOC has argued at various times that there are five reasons why it needs to give preferential benefits to Olympic and Pan-American Game athletes: (a) greater benefits are needed to provide incentives for American athletes to seek to take part in the Olympics; (b) the grants and health insurance programs would be inefficient if Paralympic athletes were included; (c) the Olympic Team would be “strapped for cash” if Paralympic athletes got any of these benefits; (d) training for an Olympic competition is more expensive than training for the same event at the Paralympics; and (e) the Paralympic athletes were already winning so many medals without benefits that the Olympic Team needed the help more. Brief for Appellees, p. 53; Response to the Petition for Rehearing and Rehearing En Banc, p. 2; JA 487. The USOC did not, however, seek summary judgment regarding these contentions, or proffer affidavits or documentary material in support of them. Such a summary judgment motion would have raised a range of factual issues and could not have been filed until the completion of discovery.

11
The district court recognized that the actions of the USOC “relegate[ ] Paralympians to second class status in the quantity and quality of the benefits and support they receive from the USOC.” (App. 47a). It nonetheless concluded that those disparities were lawful under section 504 without regard to the purpose or possible factual justification for such disparities. The court reasoned that under section 504 each of the Athlete Support Programs, as well as USOC activities regarding the Olympic, Pan-American and Paralympic Games, all “are separate programs across which differences in allocation are not discriminatory for the purposes of federal civil rights legislation because they are not comparable.” (App. 38a). Because under the district court’s interpretation of section 504 each of these functions was to be analyzed as a “separate program[ ] ,” that court concluded that the eligibility requirements for the various disputed USOC benefits – requirements which barred Paralympic athletes from the most important USOC benefits – were “beyond the reach of the . . . Rehabilitation Act.” (App. 46a).
The central issue in the court of appeals was the meaning of the phrase “program or activity” in the section 504 prohibition against discrimination “under any program or activity receiving Federal financial assistance.” Although section 504(b) defines “program or activity” to mean “all of the operations” of a recipient, the majority held that in the phrase “discrimination under any program or activity” the term “program” refers not to the recipient’s actions “as a

12
whole,” but rather to each separate subsidiary program created or operated by the recipient. (App. 10a). “The relevant universe for analysis under § 504 is the individual programs under the USOC’s umbrella.” (Id.). Under this interpretation of section 504, the court of appeals insisted, courts must examine separately, and can examine only, the actions within each distinct subsidiary program that a recipient has created.
The Tenth Circuit regarded this interpretation of section 504 as fatal to all of plaintiffs’ claims. First, because, on the majority’s view, the Olympics, the Pan-American Games and the Paralympics are distinct “programs” within the meaning of section 504, the Rehabilitation Act simply does not apply to USOC decisions to withhold from athletes training for or competing in the Paralympics benefits that are provided to athletes training for or competing in the Olympics or Pan-American Games. Decisions about the allocation of benefits among these separate groups of athletes are not decisions (and thus could not be discrimination) “under” a program. The Tenth Circuit did not hold that the USOC’s actions were not discriminatory; rather, it construed section 504 as providing that these types of decisions – discriminatory or not – are not actions “under [a] program . . . receiving [f]ederal financial assistance” at all.
Second, the Tenth Circuit reasoned that the eligibility requirement that a recipient creates for a particular recipient program is not subject to scrutiny under section 504. Such an eligibility requirement,

13
the court reasoned, merely defines the contours of the recipient’s program, and cannot therefore be action within or under that program. “[C]ourts are not free to rewrite eligibility requirements” for a recipient program because doing so would “alter[ ] the nature of the program.” (App. 13a). Thus section 504 simply did not apply to the USOC’s decision to declare Paralympians ineligible for most of the Athlete Support Programs, regardless of why the USOC had made that decision.
Judge Holloway, in a dissenting opinion, agreed with the majority that “resolution of these appeals turns on whether the USOC is operating one ‘program’ or separate programs, one for the disabled and one for the able-bodied.” (App. 16a).7 Judge Holloway insisted that the definition of “program or activity” under section 504 is controlled by section 504(b), which states:
For the purposes of this section, the term “program or activity” means all of the operations of . . . an entire corporation . . . if assistance is extended to such corporation . . . as a whole.
29 U.S.C. § 794(b). He argued that under section 504 “ ‘all the operations of ’ the covered entity” are a single program. (App. 16a) (quoting 29 U.S.C. § 794(b)). On
7 App. 17a (“The underlying issue . . . is whether, in examining the USOC’s challenged activities, we should consider the USOC as operating a single program or several separate ones.”).

14
this interpretation of section 504, he concluded, the disputed decisions were subject to scrutiny under the Rehabilitation Act. Applying that definition of “program or activity,” Judge Holloway readily concluded that an arrangement under which specific valuable benefits are provided only to Olympic and PanAmerican athletes (virtually all of them able-bodied), and are denied to every Paralympic athlete (all of whom are disabled), constitutes disability-based discrimination. (App. 18a).
Petitioners sought rehearing and rehearing en banc. The panel denied the petition for rehearing by a vote of 2-1; Judge Holloway would have granted the petition. Petitioners also sought rehearing en banc. Judges Henry, Briscoe, Lucero, Murphy, Hartz and O’Brien voted to grant rehearing en banc. (App. 72a73a). Judge Holloway, who had voted to grant rehearing by the panel, was not eligible to vote on the petition for rehearing en banc because he held senior status.8 Six active members of the court of appeals opposed rehearing en banc. The petition for rehearing en banc was thus denied by a 6-6 tie vote.
--------------------------------- ♦ ---------------------------------
8 Rule 35(a) of the Federal Rules of Appellate Procedure permits only “judges . . . in regular active service” to vote on whether rehearing en banc should be granted.

15
REASONS FOR GRANTING THE WRIT
I. THE TENTH CIRCUIT HAS DECIDED AN IMPORTANT QUESTION OF FEDERAL CIVIL RIGHTS LAW THAT SHOULD BE SETTLED BY THIS COURT
For more than four decades, prohibitions against discrimination by entities receiving federal funds have been an essential element of national civil rights policy. Today there are twenty-nine federal laws, including in the instant case section 504 of the Rehabilitation Act, which in essentially identical terms forbid “discrimination under” a “program or activity” receiving federal financial assistance.9 The antidiscrimination statutes framed in these terms prohibit discrimination on the basis of race, national origin, sex, pregnancy, age, religion, creed, political affiliation or belief, and disability.
The decision of the Tenth Circuit in the instant case substantially limits the protections of these laws, carving out a set of potentially discriminatory decisions which are immune from scrutiny under section 504. Six members of the Tenth Circuit, correctly recognizing that the issue in this case is one of “exceptional public importance,” Tenth Circuit Rule 35.1(A), voted for rehearing en banc.
9 A list of those statutes is set forth in an appendix to this petition.

16
Section 504, like numerous other federal laws, forbids discrimination “under any program or activity” receiving federal financial assistance. Most recipients of federal assistance, like the respondent USOC, engage in a range of functions and set up a variety of subsidiary programs. The question presented, and of potential importance to all of these statutes, is whether those laws apply only to decisions made within each of those distinct subsidiary recipient-created programs, or more broadly forbid discrimination in a recipient’s operations “as a whole.”10
The definition of “program” under section 504 (and other, identically worded federal statutes) is of considerable importance because it determines the nature of the anti-discrimination prohibition. Section 504 forbids only discrimination “under” a federally assisted “program.” If a recipient’s various separate functions each constitute distinct “program[s]” within the meaning of section 504, the Rehabilitation Act would indeed prohibit only discrimination within each such subsidiary program.
The decision of the Tenth Circuit, construing “program” to mean “recipient program,” expressly excludes from “analysis” (App. 10a) or scrutiny under
10 The courts below in addressing this issue drew no distinction between “program” and “activity,” and framed the question before them as whether each of the benefits provided by the USOC constitutes a separate program, rather than a separate program or activity.

17
section 504 two important – and potentially discriminatory – types of actions by a recipient of federal financial assistance. (App. 11a). First, because on the Tenth Circuit’s view section 504 forbids only discrimination within a particular recipient-created program, section 504 would not apply to discrimination by a recipient in the allocation of a benefit between two or more programs. If a recipient operated or organized its beneficiaries into two programs, in one of which all participants were disabled and in the other of which no participants were disabled, section 504 would not apply to the recipient’s decision to allocate resources only, or preferentially, to the latter. That would be true even where, as here, the recipient’s own actions are responsible for the composition of the two groups of program participants. Under the Tenth Circuit’s interpretation of “program or activity,” section 504 would not apply to such a decision, even though it would have a severe discriminatory effect, and regardless of whether the recipient was motivated by a discriminatory purpose.
Second, the Tenth Circuit holds that construing “program” to mean “recipient program” means that the eligibility requirements for each such program (unless facially discriminatory11) also are not subject
11 Under the Tenth Circuit decision a subsidiary program would violate section 504 if it imposed a facially discriminatory eligibility requirement, e.g., if the USOC established a scholarship program for “non-disabled Olympians.” (12a, 14a). The court of appeals’ view of what constituted facial discrimination was exceedingly narrow; it insisted that USOC rules are not
(Continued on following page)

18
to scrutiny or analysis under section 504. (App. 13a). On the Tenth Circuit’s view, the eligibility standard is part of the essence of the program to which it controls entry, and thus cannot be scrutinized under section 504. (Id.). Thus an excluded would-be participant cannot challenge the eligibility requirement for a recipient program either on the ground that it was adopted with a discriminatory purpose, or on the ground that it has a discriminatory effect.
The circumstances of the instant case are a stark illustration of the impact and importance of whether the phrase “program or activity” in section 504 (and the other identically worded federal laws) applies only (and separately) to the conduct of such recipient subsidiary programs. The USOC provides coordination and assistance to several thousand American athletes who take part in international competitions. Virtually all of the recipients of the most valuable direct aid – grants, scholarships, and health insurance – are able-bodied; not a single Paralympian – every one of whom, by definition, is disabled – receives any such benefits. In 1997-2000 the USOC made $26 million in grants to Olympic and PanAmerican Game athletes, but not a single such grant
facially discriminatory when they deny benefits to Paralympians (who under the relevant governing body rules had to be disabled), while granting such benefits only to Olympic and PanAmerican Game athletes (who are chosen pursuant to governing body rules under which disabled athletes, in practice, can virtually never be selected.).

19
to any Paralympic Games competitors. If the USOC support (or lack thereof) for the athletes for whom it has statutory responsibility is considered “as a whole” and thus constitutes a single program under section 504 (in the words of the court below, if “the relevant universe for analysis is all amateur athletes over which the USOC has responsibility”), the USOC’s actions would be a classic violation of the Rehabilitation Act absent a compelling factual showing – which the USOC has not yet attempted to make – that this extraordinary disparity is required to meet the USOC’s statutory responsibilities.
Under the Tenth Circuit’s interpretation of section 504, there would be few significant limitations on the degree or manner in which the USOC could discriminate against disabled Paralympic athletes. If the USOC support for the groups of athletes competing in the three international Games constitutes distinct programs under the Rehabilitation Act, section 504 would be virtually meaningless; it would forbid only disability-based discrimination within the Olympic Games “program” (among Olympic athletes, virtually all of whom are able-bodied), within the Pan-American Games “program” (among Pan-American athletes, virtually all of whom are able-bodied) or within the Paralympic Games “program” (among Paralympic athletes, all of whom, by definition, are disabled). Nothing in section 504 would bar the USOC, for example, from refusing to provide Paralympic athletes reimbursement for the travel and housing expenses involved in participating in the

20
Paralympics Games or from eliminating Paralympic funding altogether.
The decision of six members of the Tenth Circuit to support rehearing en banc reflected a well-founded recognition of the importance of the panel’s decision. The very nature of disabilities dictates that benefits, programs and activities for disabled individuals will frequently be provided at a different location, or in a different form, or under different auspices, than is the case for those who are not disabled. The Tenth Circuit decision permits recipients to characterize or structure those benefits as separate “programs,” and then reduce or eliminate the benefits in the programs used by disabled, but not non-disabled, individuals.
Vocational training for workers who have lost their sight will be distinct from (and often at a different location than) vocational training for workers who have lost their jobs to outsourcing. The program providing medical benefits for an accident victim left paralyzed will be distinct from (and usually provided in a different unit than) the program providing benefits for the victim who suffered only scratches and bruises. Certain highly debilitating illnesses will require specialized forms of physical therapy distinct from the physical therapy non-disabled individuals may need for sprained ankles or broken arms. Pretrial detainees or prison inmates may for security reasons be held in separate detention units.
Under the Tenth Circuit decision, those differences would permit a recipient to characterize the

21
systems for providing benefits to the disabled as separate “programs,” and then to discriminate against the disabled would-be beneficiaries by providing them with lesser benefits, or no benefits at all. The very fact that people with disabilities must at times receive certain benefits separately would, paradoxically, permit recipients to relegate individuals in need of such programs, in the words of the district court here, to “second class status.” (App. 47a).
The decision below construing the phrase “program or activity receiving federal financial assistance” is equally applicable to all of the twenty-eight other federal laws that use that identical language. The Tenth Circuit decision did not purport to be based on any unique language in the Rehabilitation Act; the terms of that statute are indistinguishable from the other twenty-eight similar federal laws. The decision below does not rely on either the legislative history of the Rehabilitation Act, or any federal regulation construing that Act.
As this Court has repeatedly noted, section 504 was based on the similarly worded provisions of Title VI of the 1964 Civil Rights Act,12 which forbids discrimination on the basis of race, color, or national origin under any federally assisted program or activity. For that reason, section 504 and Title VI are usually construed in the same manner. Similarly, the Court has recognized that Title IX of the Education
12 42 U.S.C. § 2000d et seq.

22
Act Amendments of 1972,13 which forbids genderbased discrimination under federally assisted education programs, also derives from and is to be interpreted in light of Title VI.14
The Tenth Circuit decision opens the door to discrimination on the basis of race, color, national origin and gender in the same way in which it permits that discrimination under section 504. Within individual school districts it is common for some schools to be overwhelmingly white, and others to be overwhelmingly non-white. Under the decision below, a school district could deem particular schools to be different programs (they have different locations and staffs, and usually have different geography-based eligibility requirements); having done so, the school district’s decisions to provide benefits to some schools but not others would be immune from scrutiny under Title VI. Similarly, higher education systems in the South often include one or more colleges or universities which are overwhelmingly white and others which are predominantly non-white. Under the Tenth Circuit’s interpretation of “program,” the largely
13 20 U.S.C. § 1681. 14 Barnes v. Gorman, 536 U.S. 181, 185 (2002) (Title VI and Title IX); NCAA v. Smith, 525 U.S. 459, 467 (1999) (Title IX and section 504); School Board of Nassau County v. Arline, 480 U.S. 273, 278 n.2 (1987) (Title VI and section 504); United States Dept. of Transportation v. Paralyzed Veterans of America, 477 U.S. 597, 605 (1986) (Title VI, Title IX, and section 504); Cannon v. University of Chicago, 441 U.S. 677, 694-95 (1979) (Title VI and Title IX).

23
white University of Mississippi would constitute a different program than the overwhelmingly black Jackson State University.15 If Mississippi officials were to decide to provide scholarships and medical insurance only to University of Mississippi students, the Tenth Circuit decision would immunize that decision from examination under Title VI.
The Tenth Circuit decision would have a similar impact on the effectiveness of Title IX. At many schools, for example, men are over 90% of the students in certain majors (e.g., mechanical engineering), while women constitute a similar proportion of other majors (e.g., nursing). Under the decision below, a university could decide to accord medical insurance to mechanical engineering students but not nursing students, or to give mechanical engineering students preferential status in access to library carrels or desirable student jobs. As we explain below, under the Tenth Circuit’s interpretation of Title IX, a school could largely abolish women’s sports by the simple expedient of permitting women to try out for all the traditional men’s teams. Under the Tenth Circuit’s interpretation of “program,” all of these decisions would be immune from scrutiny under Title IX.
15 That would be true even though Title VI, in language identical to section 504(b), defines “program or activity” to mean “all the operations of . . . a public system of higher education.” 42 U.S.C. § 2000d-4a(2)(A). It is precisely this “all operations of” language which, over Judge Holloway’s dissent, the majority refused to apply in the instant case.

24
II. THE COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF FEDERAL LAW IN A MANNER THAT CONFLICTS WITH DECISIONS OF THIS COURT
Judge Holloway correctly objected that the decision of the Tenth Circuit was in square conflict with this Court’s decision in Alexander v. Choate, 469 U.S. 287 (1985). (App. 18a).
Under the decision below the action of the USOC in, for example, denying scholarships to Paralympic athletes, was lawful only because it was carried out in a particular manner. If the USOC had created a tuition program open to participants in all three Games, but then used a preference for Olympic and Pan-American Games athletes as a method of selection, that would have been subject to scrutiny both with regard to whether it was the result of a discriminatory motive and under the section 504 regulation forbidding use of selection “criteria . . . [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap.” 28 C.F.R. § 41.51(b)(3). Thus the USOC could have violated section 504 if it had created a tuition grant program open to Olympic, Pan-American and Paralympic athletes, but then administered that program in a biased manner – e.g., giving extra points to Olympic and Pan-American (but not Paralympic) athletes, Gratz v. Bollinger, 539 U.S. 244, 270 (2003), or reserving a fixed number of scholarships only for Olympic and Pan-American athletes and assigning the awarding of those grants to a separate committee.

25
Regents of Univ. of California v. Bakke, 438 U.S. 265, 271, 273 n.1 (1978). A program open to all but covertly administered in a discriminatory manner could have violated section 504, even though at least some Paralympic athletes might have received some tuition grants.
Under the Tenth Circuit decision, however, the USOC was able to achieve the same result – or worse – by overtly reserving all of the tuition grants to Olympic and Pan-American athletes, and expressly declaring that very purpose of this exclusionary system was to benefit only Olympic and PanAmerican athletes. As Judge Holloway correctly objected, the majority opinion
exonerates the USOC for doing just what the Supreme Court instructs must not be done – defining the benefit “in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled. . . .” Alexander v. Choate, 469 U.S. 287, 301 (1985).
(App. 18a) (emphasis in original).
The effect of the Tenth Circuit decision is that the exclusion of Paralympic athletes may be forbidden if achieved in one way (by subjective student-by-student preferences in a tuition grant program open to all), but is permitted if a different technique is used (by declaring that Paralympic athletes simply were not eligible for those grants). Affording to a recipient the option of evading its section 504 obligations in that

26
manner is clearly inconsistent with this Court’s decision in Grove City College v. Bell, 465 U.S. 555 (1984):
[A recipient’s] choice of administrative mechanisms, we hold, neither expands nor contracts the breadth of the “program or activity” . . . that may be regulated under Title IX.
465 U.S. at 572.
The central textual issue raised by this case (and common to Title VI, Title IX, and the Age Discrimination Act16), is that section 504(b) expressly “define[s]” “program or activity.” The relevant portion of that definition provides that
[f]or the purposes of this section, the term “program or activity” means all the operations of . . . an entire corporation . . . if assistance is extended to such corporation . . . as a whole. . . .
29 U.S.C. § 794(b). The Tenth Circuit agreed that this definition controls which USOC operations (all of them) are covered by section 504. Thus in the phrase “program or activity receiving Federal financial assistance,” the court of appeals acknowledged, “program” means “all of the operations” of a recipient. (App. 13a). The Tenth Circuit insisted, however, that the section 504(b) definition did not
16 42 U.S.C. § 6101 et seq.

27
apply to what constitutes forbidden discrimination. Thus in the phrase that delineates that prohibition, “discrimination under any program,” the court of appeals held, the term “program” means each recipient program. (App. 10a).
The fatal flaw in this distinction is that the phrases “program or activity receiving Federal financial assistance” and “discrimination under any program or activity” are not in separate subsections of section 504, or even in separate sentences. Rather, these phrases are merely slightly different excerpts from a single sentence, which states that no person
shall, solely by reason of her or his disability, be . . . subjected to discrimination under any program or activity receiving Federal financial assistance. . . .
29 U.S.C. § 794(a). The first phrase consists of the seven words beginning with the word “program,” and the second phrase consists of the six words ending with the word “activity.” The term “program” appears only once in section 504(a), yet under the Tenth Circuit that word has two very different meanings, one (from section 504(b)) insofar as that term determines which recipient operations are within the scope of section 504, and a different one (recipient program) insofar as that term delineates what practices are forbidden.
The decisions of this Court have recognized that a single statutory term could be sufficiently broad or ambiguous as to be capable of having two or more

28
conflicting meanings. But this Court has without exception insisted that the Courts must choose between those competing interpretations. E.g., Safeco Ins. Co. of America v. Burr, 127 S. Ct. 2201, 2208 (2007) (choosing among the “many meanings” of “willfully”); Washington State Dept. of Social and Health Services v. Guardianship Estate of Keffler, 537 U.S. 371, 384 (2003) (choosing among the “many meanings” of “other legal process”); Gutierrez v. Ada, 528 U.S. 250, 256 (2000) (choosing among the “many meanings” of “any election”); Babbitt v. Sweet Home Chapter of Community for a Greater Oregon, 515 U.S. 687, 711 (1995) (choosing among the “many meanings” of “direct.”)
III. THE DECISION OF THE TENTH CIRCUIT IS IN CONFLICT WITH THE DECISIONS OF SEVERAL COURTS OF APPEALS
In Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004), the Ninth Circuit applied the standard in Alexander v. Choate to invalidate a disparity in funding and benefits created by the differing treatment of distinct programs. The defendant county in Rodde initially operated six hospitals, five of which provided general medical services (and which were and remained open to disabled patients) and one of which provided specialized services particularly likely to be needed by patients with disabilities. Facing a budgetary crisis, the county decided to close the specialized hospital and the programs it provided. Individuals who might otherwise have gone to the closed hospital

29
were free to seek admission to or treatment from the programs at the five remaining hospitals – that is, there was no discrimination within each remaining program – but if they required certain specialized services they would be turned away because those remaining hospitals did not provide such services. 357 F.3d at 991-92, 993, 997-98.
The Ninth Circuit held that the resulting disparity violated the holding of Alexander v. Choate.
Alexander may allow the County to step down services equally for all who rely on it for their healthcare needs, but it does not sanction the wholesale elimination of services relied upon disproportionately by the disabled because of their disabilities.
357 F.3d 997. The attempts by the court below to distinguish Rodde are entirely unpersuasive. The Tenth Circuit asserted that Rodde was distinguishable because the defendant there had cancelled the benefits in question, whereas the USOC had merely decided not to create the disputed benefits. (App. 9a10a). It noted that the benefits at issue in Rodde had earlier been consolidated into one program; in the instant case that had not occurred because the USOC had never provided the disputed benefits in any form to Paralympic athletes. The Tenth Circuit noted that Rodde involved “the provision of health . . . services” rather than, as here, health insurance. (App. 9a). The Tenth Circuit offered no explanation of why any of these differences would be legally relevant, and none is readily imaginable.

30
The Tenth Circuit also suggested that Rodde was distinguishable because the hospital that the county proposed to close, and the various treatment units and wards, did not constitute a “program.” For example, on this view “Operation Gold” would be a program, but not the hospital medical unit providing actual operations (for pediatric orthopedic neuromuscular disorders). See 357 F.3d at 990. The Tenth Circuit proffered no definition of “program” that could justify such a distinction.17 The Tenth Circuit describes the defendant in Rodde as having “cancell[ed] . . . services for the disabled.” (App. 10a). But that defendant did not announce that the disabled could not have services which were open to the nondisabled; rather, in Rodde, as here, the defendant was merely proposing a facially neutral decision not to provide a benefit of particular importance to the disabled. In Rodde, however, the benefits to be withheld were in at least some instances utilized by (and thus to be withdrawn from) non-disabled individuals; in the instant case, on the other hand, only disabled individuals were affected by the disputed decision to deny benefits to the Paralympic athletes.
In Klinger v. Department of Corrections, 107 F.3d 609 (8th Cir. 1997), the Eighth Circuit did precisely
17 In Rodde both the county and the court had characterized units within the hospital in question as “programs.” 357 F.3d at 992-93 n.3 (“Pressure Ulcer Management Program” at the hospital), 998 (“specialized programs for the disabled.”).

31
what the Tenth Circuit (over Judge Holloway’s dissent) refused to do in the instant case. The Eighth Circuit used the definition of “program or activity” in the 1987 Civil Rights Restoration Act – codified in 42 U.S.C. § 794(b) for the Rehabilitation Act and in 20 U.S.C. § 1687 for Title IX – to evaluate the merits of a discrimination claim. In Klinger the plaintiffs claimed that certain disparities in the education benefits accorded to male and female prisoners in the Nebraska prison system constituted sex “discrimination under [a] program or activity” receiving federal financial assistance. In deciding that claim, the Eighth Circuit compared the benefits available at the women’s prison with those in “the Nebraska prison system as a whole.” 107 F.3d at 615. The Eighth Circuit reasoned that a comparison with the system “as a whole” – the very mode of analysis rejected by the Tenth Circuit in the instant case – was required by the Title XI definition of “program or activity,” which is identical to the definition in section 504(b) relied on by Judge Holloway. That definition
requires comparison of educational opportunities for female and male prisoners within the entire system of institutions operated by a state’s federally-funded correctional department or agency, taking into account the objective differences between the male and female prison populations and such penological and security considerations as are necessary to accommodate this unique context.
107 F.3d at 616.

32
The Tenth Circuit correctly stated the holding in Klinger. Under the reasoning in Klinger, the panel acknowledged,
the USOC’s three programs should only be compared considering the significant distinctions between each program in purpose, scope, success, and all other relevant differences.
(App. 9a). Having recognized that the Eighth Circuit decision in Klinger requires a context-specific comparison of all the recipient’s operations, the Tenth Circuit opinion inexplicably refused to engage in such a comparison, in light of relevant distinctions, of the benefit levels in the USOC programs for Paralympic athletes, Olympic athletes, and Pan-American athletes. The court below neither argued that the Eighth Circuit’s requirement of such a comparison – which is what plaintiffs in the instant case had sought – was mistaken, nor suggested that the holding in Klinger could be distinguished from the dispute in the instant case.
The Tenth Circuit understood that under decades of circuit court decisions under Title IX a school could not, for example, limit scholarships to football students. Under the Tenth Circuit decision, however, a school’s football team, or football scholarships, assuredly could be treated as a separate “program.” The panel’s attempt to distinguish the entrenched interpretation of Title IX – under which all of a school’s sports activities are properly regarded as a single

33
program – merely underlined the radical reinterpretation of “program or activity” in the decision below.
The court of appeals argued that under Title IX “separation based on gender may be necessary, thus requiring an institution-wide analysis to determine whether a Title IX violation has occurred.” (App. 10a) (emphasis added). On Tenth Circuit’s new construction of Title IX, institution-wide analysis of a school’s sports program would only be warranted where the school required separate teams based on gender. But under the Tenth Circuit decision, Title IX would be rendered largely inapplicable to a school’s sports program if the school opted to permit girls or women to try out for and (if successful) play on boys’ or men’s teams, even if in practice few girls or women might seek to do so and few of them might ever succeed. That loophole is far from hypothetical. In fact, many schools have already abandoned prohibitions against female athletes trying out for traditional boys’ or men’s teams. Under the Tenth Circuit decision, a school could effectively escape its Title IX obligations – thus be able to shift all its scholarship funds to football and men’s basketball or largely eliminate girl’s teams – by the simple expedient of declaring women and girls eligible for the traditional men’s or boys’ teams.
--------------------------------- ♦ ---------------------------------

34
CONCLUSION
For the above reasons, a writ of certiorari should issue to review the judgment and opinion of the Court of Appeals for the Tenth Circuit. In the alternative, the Solicitor General should be invited to file a brief expressing the views of the United States.
Respectfully submitted,
ERIC SCHNAPPER School of Law University of Washington P.O. Box 353020 Seattle, WA 98195 (206) 616-3167
AMY F. ROBERTSON* TIMOTHY P. FOX
FOX & ROBERTSON, P.C. 910 16th Street, Suite 610 Denver, CO 80202 (303) 595-9700
KEVIN W. WILLIAMS COLORADO CROSS DISABILITY COALITION 655 Broadway, Suite 775 Denver, CO 80203 (303) 839-1775
*Counsel of Record
Counsel for Petitioners

1a
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
SCOT HOLLONBECK; JOSE ANTONIO INIGUEZ; JACOB WALTER JUNG HO HEILVEIL; VIE SPORTS MARKETING, INC., a Georgia corporation,
Plaintiffs-Appellants,
v.
UNITED STATES OLYMPIC COMMITTEE, a federally-chartered corporation; U.S. PARALYMPICS, No. 07-1053 and 07-1056 INC., f/k/a United States Paralympic Corporation, a Colorado non-profit corporation,
Defendants-Appellees,
and
MARK E. SHEPHERD, SR.,
Plaintiff-Appellant,
v.

2a
UNITED STATES OLYMPIC COMMITTEE, a corporation,
Defendant-Appellee. – – – – – – – – –
DISABILITY RIGHTS EDUCATION AND DEFENSE FUND; DISABILITY RIGHTS ADVOCATES; NATIONAL FEDERATION OF THE BLIND; LEGAL CENTER FOR PEOPLE WITH DISABILITIES; RAFAEL IBARRA; KARIN KORB; TATYANA McFADDEN,
Amici Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. Nos. 03-cv-1364-JLK
and 99-CV-02077-JLK)
Amy Robertson of Fox & Robertson, P.C., Denver, Colorado (and Timothy P. Fox of Fox & Robertson, P.C., Denver, Colorado; Kevin W. Williams, Legal Program Director of Colorado Cross Disability Coalition, Denver, Colorado, with her on the briefs), for Plaintiffs-Appellants.
Christopher Handman of Hogan & Hartson, L.L.P., Washington, D.C. (Jeffrey S. George, John W. Cook, and Anne H. Turner of Hogan & Hartson, L.L.P.,

3a
Colorado Springs, Colorado, with him on the brief), for Defendants-Appellees.
Samuel R. Bagenstos, St. Louis, Missouri, filed a brief for Amici Curiae.
Before KELLY, HOLLOWAY, and HOLMES, Circuit Judges.
KELLY, Circuit Judge.
In these consolidated appeals, paralympic athletes appeal the district court’s dismissal of their claims under § 504 of the Rehabilitation Act against the United States Olympic Committee (“USOC”). In 07-1053, Plaintiffs-Appellants Scot Hollonbeck, Jose Antonio Iniguez, and Jacob Walter Jung Ho Heilveil appeal the district court’s grant of a motion to dismiss in favor of the USOC on their § 504 claim. In 07-1056, Plaintiff Mark Shepherd appeals the district court’s grant of summary judgment in favor of the USOC on his § 504 claim. As both cases raise identical legal issues, we consolidated the cases for briefing and submission. Prior to our disposition, Mr. Shepherd and the USOC stipulated to a dismissal of the appeal in 07-1056 under Fed. R. App. P. 42(b). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
Background The USOC is a federally-chartered corporation that has exclusive jurisdiction over U.S. participation

4a
in three athletic competitions: the Olympic Games, the Paralympic Games, and the Pan American Games. 36 U.S.C. §§ 220502, 220503(3)(A). Under the Ted Stevens Olympic and Amateur Sports Act (“ASA”) as amended, id. §§ 220501-220529, Congress has charged the USOC to “obtain for the United States, . . . the most competent amateur representation possible in each event of the Olympic Games, the Paralympic Games, and the Pan-American Games.” Id. § 220503(4).
The first Paralympic Games were held in 1960. Now the Paralympic Games immediately follow the Olympic Games in the same host city and involve between 1,100 and 4,000 athletes. Plaintiffs are all elite paralympic athletes who have competed in at least one Paralympic Games. Plaintiffs are wheelchair racing paralympians. U.S. Paralympians have been very successful compared to their Olympic counterparts with 42% of the Paralympians winning medals in 2000 and 75% winning medals in 2002 (compared to 16% of Olympians winning medals in both 2000and 2002). Aplt. App. at 241.
To achieve its mission under the ASA, the USOC provides Athlete Support Programs which include various types of grants, tuition assistance, and health insurance benefits. The criterion that the USOC uses to distribute the benefits under its Resource Allocation Policy is that the applicant must be an athlete who is eligible to represent the United States and who intend[s] to compete, if selected, in the next Olympic or Pan American Games. Id. at 110.

5a
Plaintiffs challenge the USOC’s policy of providing Athlete Support Programs only to Olympic team members, to the exclusion of Paralympic team members, as violating § 504 of the Rehabilitation Act. The district court consolidated two separate cases for oral argument which the parties and the court agreed raise identical legal issues under Title III of the Americans with Disabilities Act (“ADA”), and § 504 of the Rehabilitation Act: Hollonbeck v. USOC, No. 071053, on a motion to dismiss; and Shephard v. USOC, No. 07-1056, on cross-motions for summary judgment. The district court ruled for the USOC on the Title III and § 504 claims in both cases and entered final judgment pursuant to Fed. R. Civ. P. 54(b) on those claims. Prior to our disposition, Mr. Shepherd and the USOC stipulated to the dismissal of the appeal in 071056 pursuant to Fed. R. App. P. 42(b). Plaintiffs Hollonbeck, Iniguez, and Heilveil only appeal the district court’s dismissal of their § 504 claims.
On appeal, Plaintiffs argue that (1) the relevant universe for analysis should be all amateur athletes over which the USOC has responsibility; (2) they are “otherwise qualified” for the Athlete Support Programs; (3) the USOC’s policy discriminates against them; and (4) the USOC’s policy has the effect of screening out amateur athletes with disabilities.
Discussion
We review the grant of a motion for summary judgment de novo, applying the same standard as the

6a
district court. Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1112-13 (10th Cir. 2007). Summary judgment is appropriate if “there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We review the grant of a Rule 12(b)(6) motion to dismiss de novo as well, considering whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974 (2007). All facts alleged in the Hollonbeck complaint are assumed to be true in reviewing the motion to dismiss. The parties stipulated to a set of facts in Shepherd for the purpose of the cross-motions for summary judgment. Aplee. Br. at 5 n. 1. Because the facts are undisputed, we consider whether Plaintiffs state a claim or whether the USOC is entitled to judgment as a matter of law.
Section 504 of the Rehabilitation Act states: “No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .” 29 U.S.C. § 794(a). A prima facie case under § 504 consists of proof that (1) plaintiff is handicapped under the Act; (2) he is “otherwise qualified” to participate in the program; (3) the program receives federal financial assistance; and (4) the program discriminates against plaintiff. Powers v.

7a
MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir. 1999).
Plaintiffs first argue that the relevant universe for analysis is all amateur athletes over which the USOC has responsibility, and the district court erred in restricting its discrimination analysis to the Olympics. Plaintiffs argue that the ASA’s use of the term “amateur athlete” and § 504’s definition of “program or activity,” in light of the history of the definition and precedent applying Title IX, compel an analysis of the USOC programs for Olympic, Pan American, and Paralympic athletes as a whole. Thus, Plaintiffs argue that we should compare the USOC’s treatment of all amateur athletes, no matter the competition in which they compete.
The ASA defines “amateur athlete” to be “an athlete who meets the eligibility standards established by the national governing body or paralympic sports organization for the sport in which the athlete competes.” 36 U.S.C. § 220501(b)(1). In 1998, the ASA was amended to give the USOC jurisdiction and responsibility over United States participation in the Paralympic Games in addition to the Olympic and Pan American Games. See 36 U.S.C. § 220503; S. Rep. 105-325 (1998). However, the ASA as amended does not direct the USOC’s activities in any detail with respect to Olympic or Paralympic athletes other than requiring it to “obtain . . . the most competent amateur representation possible in each event” of the three competitions. 36 U.S.C. § 220503(4). The mere use of the term “amateur athlete” in the statute does

8a
not enlarge the relevant universe to include all athletes under the USOC’s purview.
The cases that Plaintiffs rely upon also do not support analyzing the USOC’s three programs as a whole. First, Plaintiffs rely on Klinger v. Department of Corrections, where women prisoners sued the Nebraska Department of Corrections under Title IX for failing to provide equal educational opportunities for male and female prisoners. 107 F.3d 609, 611 (8th Cir. 1997). The prisoners compared the educational opportunities available at their facility with the opportunities available at one specific male facility. Id. at 612. The court rejected the comparison holding that Title IX requires comparison of opportunities for male and female prisoners within the entire prison system taking into account the objective differences between the two populations and other relevant penological and security considerations. Id. at 615-16.
Plaintiffs’ reliance on Klinger to alter § 504’s definition of program or activity is misplaced.1 The
1 In Grove City College v. Bell, the Supreme Court held that receipt of federal funds by a college’s financial aid office did not trigger institution-wide Title IX coverage because the financial aid office was the “program or activity receiving Federal financial assistance.” 465 U.S. 555, 570-72 (1984) (quoting 20 U.S.C. § 1681(a)). The Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28, abrogated the Supreme Court’s holding in Bell and broadened the Court’s narrow definition of “program or activity” to expand the application of Title IX, the Rehabilitation Act, Title VI, and the Age Discrimination Act to an entire institution if any part of the institution receives federal funds.
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case only holds that, under Title IX, the comparison between only the female facility and one specific male facility is not meaningful. See id. 615-16. A meaningful comparison requires viewing the jails in the context of the security, penological, and size differences among the various facilities. This holding does not support Plaintiffs’ theory, and the reasoning in Klinger contradicts Plaintiffs’ argument. The court noted that differences in programs between jails are permissible when considering the different circumstances in each jail. See id. at 616. Thus, the case’s reasoning suggests that the USOC’s three programs should only be compared considering the significant distinctions between each program in purpose, scope, success, and all other relevant differences.
Plaintiffs also rely on two ADA cases to suggest an analysis of the USOC as a whole: Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004), and Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F. Supp. 986 (S.D. Fla. 1994). Both cases are readily distinguishable because they involve the consolidation of services for the disabled at a single facility and then cancellation of those services. See Rodde, 357 F.3d at 998 (noting these similarities in these two cases). These cases did not involve separate programs with separate eligibility requirements – they involved the provision of health and recreation services
There is no dispute that the Rehabilitation Act applies to all of the USOC’s programs, so this analysis is inapposite here.

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and the cancellation of those services for the disabled on a county-wide basis. Cf. Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996) (concluding that a Hawaii general assistance program is functionally two programs – one for needy families and one for the needy disabled – and holding that “[t]he ADA does not require equivalent benefits in different programs”). Nothing in the analysis of these two cases supports a conclusion that the USOC’s programs should be analyzed as a whole.
The additional Title IX precedent cited by Plaintiffs is not applicable here because it is based on a regulatory framework unique to the Title IX context. Title IX regulations recognize that separation based on gender may be necessary thus requiring an institution-wide analysis to determine whether a Title IX violation has occurred. See e.g., 34 C.F.R. § 106.41(b), (c); Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 829-32 (10th Cir. 1993). Therefore, the relevant universe for analysis under § 504 is the individual programs under the USOC’s umbrella. Plaintiffs must show that they are otherwise qualified for the Athlete Support Programs and that the program discriminates against them.
Second, Plaintiffs argue that they are “otherwise qualified” for the Athlete Support Programs because they are amateur athletes under the ASA. A plaintiff is “otherwise qualified” under the Rehabilitation Act if he “is able to meet all of a program’s requirements in spite of his [disability].” Se. Cmty. Coll. v. Davis, 442 U.S. 397, 406 (1979). Normally, if a plaintiff is

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unable to meet a program’s requirements, a court must consider whether reasonable modifications or accommodations may be made that do not fundamentally alter the program. See Sch. Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 288 n. 17 (1987); Alexander v. Choate, 469 U.S. 287, 300 (1985). Plaintiffs’ argument requires us to accept a premise that we already rejected, namely, that the relevant universe for analysis is all amateur athletes. In the alternative, Plaintiffs contend that the requirement of being on the Olympic team is not an “essential eligibility requirement” to qualify for the Athlete Support Programs. 28 C.F.R. § 41.32(b). Plaintiffs argue that the USOC could open the benefits to Paralympic athletes and that doing so would further the USOC’s program as a whole. However, § 504 is not the vehicle to compel discretionary acts of administrators absent discrimination.
Third, Plaintiffs argue that the USOC’s policy of excluding Paralympic athletes from Athlete Support Programs is both facially discriminatory and discriminatory by proxy. Even if Plaintiffs were “otherwise qualified” for the benefits, the USOC’s policy does not discriminate against Plaintiffs by reason of their disability. First, Plaintiffs err in contending that the eligibility requirements for the Athlete Support Programs are intentionally discriminatory. The criterion that the USOC uses to distribute the benefits under its Resource Allocation Policy is that the athlete must be “eligible to represent the United States and . . . intend to compete, if selected, in the

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next Olympic or Pan American Games.” The policy, on its face, clearly does not contain an explicit requirement of not being disabled. Cf. Bangerter v. Orem City Corp., 46 F.3d 1491, 1500 (10th Cir. 1995) (considering a city zoning ordinance for group homes for the disabled that “facially single[d] out the handicapped and appl[ied] different rules to them”).
Plaintiffs also contend that the program discriminates against Paralympic athletes by proxy as the policy specifically excludes Paralympic athletes and the term “Paralympic athletes” is a proxy for amateur athletes with disabilities. The designation of “Olympic athlete” as a requirement for Athlete Support Programs is not a proxy for non-disabled athletes because there is no fit between being an Olympic athlete and not being disabled. The requirement of being an Olympic athlete is not “directed at an effect or manifestation of a handicap.” McWright v. Alexander, 982 F.2d 222, 228 (7th Cir. 1992). Thus, the requirement to be an Olympic athlete to be eligible for the Athlete Support Programs is not discriminatory to Paralympic athletes “by reason of [their] disability.” See 29 U.S.C. § 794(a).2
Fourth, Plaintiffs argue that the USOC’s policy has the effect of screening out amateur athletes with
2 Plaintiffs also refer in their briefs to a “separate benefit” regulation in 28 C.F.R. § 41.51(b)(1)(iv), and note that it is irrelevant to our analysis. We agree that it is irrelevant to our analysis for a different reason – Plaintiffs are not “qualified” as required by the regulation.

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disabilities. Plaintiffs’ argument appears to allege that the USOC’s policy impermissibly creates a disparate impact on disabled athletes, thus violating § 504. The Supreme Court has held that disparate impact, by itself, does not state a prima facie case under § 504. Choate, 469 U.S. at 299. Rather, actionable disparate impact requires analysis of whether the individual is otherwise qualified and whether reasonable accommodations may provide meaningful access. See id. at 299-301. Plaintiffs raise no additional argument here that we do not address above.
The dissent concludes that Plaintiffs are “otherwise qualified” for the Athlete Support Program because § 504 defines “program or activity” to include “all of the operations of ” a covered entity. 29 U.S.C. § 794(b). However, Congress included the phrase “all of the operations of ” a covered entity in § 504 to ensure that § 504 applies to an institution as a whole once any part of the institution receives federal funds. See supra note 2; see also DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1384-85 (10th Cir. 1990). The phrase does not create a parity requirement across an institution’s individual programs (unlike the requirements under the specialized Title IX regulations). Further, the dissent’s reading of the statute would change the eligibility requirements set by the USOC – being an Olympic team member – altering the nature of the program. Courts are not free to rewrite eligibility requirements but must analyze whether a plaintiff is “otherwise qualified” against the requirements set by the covered entity.

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See Davis, 442 U.S. at 413-14 (rejecting a challenge to a nursing program because the requested modifications would have fundamentally altered the purposes and eligibility requirements of the program set by the college). Courts must ask whether reasonable modifications or accommodations may be made that do not fundamentally alter the program, see Choate, 469 U.S. at 300, or whether the requirement is not an “essential eligibility requirement” to qualify for the benefits or program, 28 C.F.R. § 41.32(b).
The dissent also argues that only extending the benefits at issue to Olympic athletes “has a discriminatory effect” against Paralympic athletes. However, disparate impact, by itself, does not state a prima facie case under § 504. Choate, 469 U.S. at 299. Further, our holding clearly does not permit denying benefits on the basis of gender, as the dissent suggests, because such a classification would be facially discriminatory. Here, the classification is facially neutral and is not “directed at an effect or manifestation of a handicap” as required for proxy discrimination. McWright, 982 F.2d at 228.
We sympathize with Plaintiffs’ efforts to obtain benefits similar to those received by their Olympic counterparts. However, we cannot modify the Rehabilitation Act to reach a result in their favor absent statutory or regulatory authority to import, wholesale, Title IX regulations and precedent into § 504. See Choate, 469 U.S. at 293 n. 7. Plaintiffs should

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seek a remedy with the legislative or executive branches, not the courts.
AFFIRMED.
HOLLOWAY, Circuit Judge, dissenting:
I respectfully dissent. Section 504 of the Rehabilitation Act provides that a qualified individual with a disability may not, solely because of his disability, be “excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .” 29 U.S.C. § 794(a). What the statute forbids is exactly what has occurred and is occurring here. This defiance of plain legislative intent is crystal-clear from the congressional statement that the Paralympics are “the Olympics for disabled amateur athletes.” S. Rep. No. 105-325 at 2, 1998 WL 604018 (1998).
The issues presented.
A prima facie case under section 504 requires proof (1) that the plaintiff has a disability; (2) that plaintiff is otherwise qualified to participate in the program; (3) that the program receives federal money; and (4) that the program discriminated against the plaintiff. Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir. 1999). In these appeals it is not contested that Plaintiffs have disabilities and that the USOC receives federal money.

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Therefore, the questions before us are whether the Plaintiffs are “otherwise qualified” to participate in the program and whether the USOC discriminated against the Plaintiffs.
The plaintiffs are qualified to participate in the program.
Quite obviously, this court cannot answer the first question without determining what “the program” is in this case. Indeed, resolution of these appeals turns on whether the USOC is operating one “program” or separate programs, one for the disabled and one for the able-bodied. The clear answer to that question has been provided by Congress. Section 504 defines “program or activity” to include “all of the operations of” the covered entity. 29 U.S.C. § 794(b).1 Plaintiffs are qualified to participate in the program; they are recognized as elite paralympic athletes whose competition in the Paralympic Games is, Congress has mandated, to be promoted by the USOC.
Thus, this case can and should be resolved by simple application of the plain language of the statute, and this court should reverse the judgment of the district court. The majority reaches the wrong result
1 The district court expressed substantial doubt about whether the USOC is a “covered entity.” That question is not before this court, however, as the USOC has not argued that the judgment should be affirmed on the alternative ground that it is not subject to the Act.

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because its analysis goes off the track at the outset by failing to follow the statutory definition of “program.” As noted by the majority, Congress specifically amended the Rehabilitation Act and other statutes to broaden the definition of “program or activity.” Maj. op. at 8, n.2. But the majority inexplicably ignores the definition, insisting that the definition is of no moment because it is undisputed in this appeal that the Act “applies to all of the USOC’s programs. . . .” Id. (emphasis added).2
This use of the plural reveals the circular nature of the majority’s analysis. The underlying issue (easily resolved by the plain language of the statute) is whether, in examining the USOC’s challenged activities, we should consider the USOC as operating a single program or several separate ones. The majority incorrectly assumes – there is certainly no explanation for the approach – that we are dealing with separate programs. And it is only by ignoring the statutory definition and making this assumption of dealing with separate programs that the majority is able to assert that the unequal treatment afforded to the Plaintiffs is permissible.
2 Indeed, the majority even accuses Plaintiffs of trying to “alter” section 504’s definition of “program or activity” by discussing the reasoning of Klinger v. Dept. of Corrections, 107 F.3d 609 (8th Cir. 1997). I fail to see how Plaintiffs are trying to “alter” the definition. Plaintiffs rely on the legislative definition of “program,” while the majority ignores it.

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Not only does the majority ignore the statutory definition of “program,” but its assumption that separate programs are involved exonerates the USOC for doing just what the Supreme Court instructs must not be done – defining the benefit “in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled. . . .” Alexander v. Choate, 469 U.S. 287, 301 (1985).
The USOC’s program discriminates against the plaintiffs.
Plaintiffs are subject to discrimination by being denied access to benefits that are provided to Olympic and Pan American Games athletes who are not disabled. The USOC’s practice of providing health insurance and other benefits to Olympic and Pan American Games athletes, but not Paralympic athletes, clearly has a discriminatory effect. Section 504 prohibits not only intentional discrimination but, I am satisfied, also the use of criteria or methods of administration such as those involved here that have the effect of subjecting people with disabilities to discrimination. 28 C.F.R. § 41.51(b)(3)(1). See also Alexander v. Choate, 469 U.S. at 299.3
3 In Choate, the Court assumed without deciding that section 504 reaches conduct that has a disparate impact on the disabled, after having noted compelling reasons to conclude that Congress intended such an interpretation and that all the circuits that have reached the issue had reached that conclusion.
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Denying benefits to Plaintiffs because they are athletes training for the Paralympic Games, and not the Olympic or Pan American Games, is a proxy for discriminating against them because of their disabilities. The majority’s assertion that “there is no fit between being an Olympic athlete and not being disabled,” maj. op. at 11, demonstrates the faulty aim of its analysis. Presumably the majority would not countenance the denial of equal benefits based on gender. Yet, if such blatant discrimination existed, even then it could be said that there was “no fit” between being an Olympic athlete and being male. The USOC has shown four examples in one hundred years of disabled athletes who have competed in the Olympics or Pan American Games. The exceptions prove the rule: The policy of awarding benefits to athletes training for the Olympics or the Pan American Games while excluding those training for the Paralympic Games discriminates against the disabled. The reason that courts inquire about the “fit” between a practice and a class of protected individuals is because the fact that a practice does not discriminate against every member of a protected class is not sufficient to show that members of the protected class have the meaningful access to which they are entitled. See Lovell v. Chandler, 303 F.3d 1039, 1054 (9th Cir. 2002).
469 U.S. at 295-97 & n. 17. In the instant appeal, the defendants do not contend otherwise.

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For these reasons I am compelled to respectfully but emphatically dissent.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-cv-2077-JLK
MARK E. SHEPHERD, Plaintiff,
v. UNITED STATES OLYMPIC COMMITTEE, a corporation,
Defendant.
Civil Action No. 03-cv-1364-JLK
SCOT HOLL[O]NBECK JOSE ANTONIO IN[I]GUEZ JACOB WALTER JUNG HO HEILVEIL, and VIE SPORTS MARKETING, INC., a Georgia corporation,
Plaintiffs, v. UNITED STATES OLYMPIC COMMITTEE, a federally chartered corporation, and U.S. PARALYMPICS, INC., f/k/a UNITED STATES PARALYMPIC CORPORATION, a Colorado nonprofit corporation,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ DISPOSITIVE
MOTIONS RE ATHLETE CLAIMS
KANE, J.

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I. INTRODUCTION
These disability discrimination actions brought by elite Paralympic wheelchair athletes push the margins of federal disability discrimination laws as applied to the United States Olympic Committee (USOC) and Congress’ enactment of our system of international amateur athletic competition. Civil Action No. 99-cv-2077-JLK, brought by wheelchair basketball Paralympian Mark Shepherd, challenges the USOC’s purported failure to provide him with the services, benefits and financial and other support routinely provided to his Olympic counterparts. Civil Action 03-cv-1364 asserts similar claims on behalf of elite wheelchair racers Scott Hollonbeck, Jose Antonio Iniguez and Jacob Walter Jun Ho Heilveil, as well as claims related to the USOC’s marketing of U.S. Paralympic trademarks as they relate to Hollonbeck’s marketing company Vie Sports.
According to the Plaintiff wheelchair athletes, the USOC was established by Congress to oversee matters pertaining to the selection, training and participation of elite disabled and non-disabled amateur athletes in international Olympic, Paralympic, and Pan-American competition. Charged with obtaining the best amateur representation possible in both Olympic and Paralympic events, Plaintiffs claim it is discriminatory for the USOC to provide them programming, privileges, and financial support inferior to that provided non-disabled athletes under the Olympic program. Plaintiffs claim the USOC also discriminates against elite Paralympic athletes by

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promoting, marketing and selling (or limiting U.S. Paralympic’s ability to promote, market and sell) rights to the Paralympic trademark at a level below the level it promotes, markets and sells rights to the Olympic mark, which has the effect of limiting the funds available for Paralympic programs and limiting the public’s awareness of the Paralympics and individual Paralympic athletes. Finally, Plaintiffs claim the statutory governance structure of the USOC discriminates against Paralympic athletes by denying them representation. It is these “Athlete Claims,” brought under § 504 of the Rehabilitation Act and Title III of the Americans with Disabilities Act, and the parties’ cross-motions regarding their viability under the federal anti-disability discrimination laws, that are before me now for consideration.1
1 In addition to the “athlete” claims asserted on behalf of disabled athletes generally in both cases under the Americans with Disabilities Act, there are individual common law claims for damages asserted by Plaintiff Shepherd in 99-2077 and by Plaintiff Vie Sports Marketing in 03-1364. Shepherd, who was employed by the USOC for a period of time during which he also trained as a Paralympic athlete, seeks damages from the USOC based on the USOC’s refusal to allow him to train during work hours which Shepherd claims violated the express written and oral terms of his employment contract. Vie Sports, a sports marketing company formed by Plaintiff Holl[o]nbeck in 2000 to market the Paralympic brand and trademark, asserts separate breach of contract and promissory estoppel claims against the USOC in 99-2077 based on the USOC’s alleged failure to support or to allow Vie Sports to sell the rights to the Paralympic mark in the open market. These claims were addressed during oral
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Given the important and novel issues raised, I set the motions for oral argument. Argument has been completed, and my rulings follow.
A. Statutory Framework.
The ASA.
Congress originally chartered the United States Olympic Association in 1950 to organize and promote the United States’ participation in international Olympic competition. The USOA became the USOC in 1964. In 1978, concerned with “ ‘the disorganization and the serious factional disputes that seemed to plague amateur sports in the United States,’ ” Congress enacted the Ted Stevens Olympic and Amateur Sports Act (“ASA”), P.L. 95-606 (codified at 36 U.S.C. § 371 et seq. (1978)). San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522, 543544 (1987) (quoting from H.R. Rep. 95-1627 at p. 8) (“1978 House Report”). The ASA charged the USOC with responsibility for coordinating amateur athletics for the Olympic and Pan-American Games and for resolving disputes involving national governing bodies of individual sports. See 1978 House Report at 8, 1978 WL 8517 (Leg. Hist.). The duties of developing interest and participation in amateur athletics, as well as determining who may sponsor amateur athletic competition in the United States and what
argument in September 2005 and will proceed separately from any “athlete” claims that survive summary judgment.

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athletes will be sanctioned to compete on behalf of the United States in particular competitions, were left under the ASA to individual amateur sports organizations selected by the USOC as the “national governing bodies” in each sport on the Olympic or PanAmerican program. 36 U.S.C. §§ 391 (selection and requirements for selection as “national governing body”), 392 (duties of national governing bodies).
With respect to the disabled, the original ASA identified as one of the 14 enumerated purposes of the USOC “to encourage and provide assistance to amateur athletic programs and competition for handicapped individuals, including where feasible, the expansion of opportunities for meaningful participation by handicapped individuals in programs of athletic competition for able-bodied individuals.” 36 U.S.C. § 374(13).2 National governing bodies were
2 Specifically, the 1978 ASA stated the “objects and purposes” of the USOC as follows:
(1) establish national goals for amateur athletic activities and encourage the attainment of those goals;
(2) coordinate and develop amateur athletic activity in the United States directly relating to international amateur athletic competition, so as to foster productive working relationships among sports-related organizations; (3) exercise exclusive jurisdiction, either directly or through its constituent members or committees, over all matters pertaining to the participation of the United States in the Olympic Games and in the PanAmerican Games, including the representation of the United States in such games, and over the organization
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of the Olympic Games and the Pan-American Games when held in the United States;
(4) obtain for the United States, either directly or by delegation to the appropriate national governing body, the most competent amateur representation possible in each competition and event of the Olympic Games and of the Pan-American Games;
(5) promote and support amateur athletic activities involving the United States and foreign nations;
(6) promote and encourage physical fitness and public participation in amateur athletic activities;
(7) assist organizations and persons concerned with sports in the development of amateur athletic programs for amateur athletes;
(8) provide for the swift resolution of conflicts and disputes involving amateur athletes, national governing bodies, and amateur sports organizations, and protect the opportunity of any amateur athlete, coach, trainer, manager, administrator, or official to participate in amateur athletic competition;
(9) foster the development of amateur athletic facilities for use by amateur athletes and assist in making existing amateur athletic facilities available for use by amateur athletes;
(10) provide and coordinate technical information on physical training, equipment design, coaching, and performance analysis;
(11) encourage and support research, development, and dissemination of information in the areas of sports medicine and sports safety;
(12) encourage and provide assistance to amateur athletic activities for women;
(13) encourage and provide assistance to amateur athletic programs and competition for handicapped individuals, including, where feasible, the expansion of opportunities for meaningful participation by
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delegated the specific duty to “encourage and support amateur athletic sports programs for handicapped individuals and the participation of handicapped individuals in amateur athletic activity, including where feasible, the expansion of opportunities for meaningful participation by handicapped individuals in programs of athletic competition for able-bodied individuals.” 36 U.S.C. § 392(7). The ASA made no mention of the Paralympic movement or Paralympic Games, and articulated its mission in terms of fostering and developing amateur international competition at the Olympic and Pan-American Games only. See id., § 374, supra n. 2.
In 1998, the ASA was amended to reflect “significant changes” in Olympic and amateur sports at the time, specifically including the “significant” growth “in size and prestige” of the Paralympics. See S. Rep. 105-325 at p. 2, 1998 WL 604018 (“1998 Senate Report”). The 1998 version of the ASA, now codified at 36 U.S.C. § 220501 et seq., amended the statement of the USOC’s purposes objectives at § 374(3) and (4) to add participation in the “Paralympic Games”
handicapped individuals in programs of athletic competition for able-bodied individuals; and (14) encourage and provide assistance to amateur athletes of racial and ethnic minorities for the purpose of eliciting the participation of such minorities in amateur athletic activities in which they are underrepresented. 36 U.S.C.A. § 374 (1990) (emphasis added).

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(recodified at 36 U.S.C. § 220503(3), (4))3 and amended § 391 to recognize “paralympic sports organizations” as national governing bodies for sports for which no national governing body had been designated. Id. § 220522(b). See 1998 Senate Rep. at 17.4
3 For example, as amended § 22503(3) and (4) charge the USOC
(3) to exercise exclusive jurisdiction, directly or through constituent members of committees, over –
(A) all matters pertaining to United States participation in the Olympic Games, the Paralympic Games, and the Pan-America Games, including representation of the United States in the games; and (B) the organization of the Olympic Games, the Paralympic Games, and the Pan-American Games when held in the United States; (4) to obtain for the United States, directly or by delegation to the appropriate national governing body, the most competent amateur representation possible in each event of the Olympic Games, the Paralympic Games, and Pan-American Games. . . . 36 U.S.C. § 22503(3), (4) (emphasis added.) In addition, § 374(13) was changed to replace the term “handicapped individuals” with the more appropriate “disabled amateur athletes.” Id. § 22503(13) (object and purpose of USOC includes “to encourage and provide assistance to amateur athletic programs and competition for amateur athletes with disabilities, including, where feasible, the expansion of opportunities for meaningful participation by such amateur athletes in programs of athletic competition for able-bodied amateur athletes.”). 36 U.S.C. § 220503(13) (changes in italics). 4 For example, the National Wheelchair Basketball Association (NWBA) serves as the national governing body for men’s,
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My overall impression in analyzing this legislative history is that the ASA distinguishes between authority and power the USOC has to oversee the United States’ participation in international amateur athletic competition and the authority it has nationally to regulate and govern amateur sports nationally to obtain the best representation in the Olympic/PanAmerican and Paralympic Games. Vis á vis the international community, the USOC “represent[s] the United States as its national Olympic committee in relations with the International Olympic Committee and the Pan-American Sports Organization and as [the United States’] national Paralympic committee in relations with the International Paralympic Committee,” “coordinate[s] and develop[s] amateur athletic activity in the United States directly related to international amateur athletic competition,” and “organize[s], finance[s], and control[s] the representation of the United States in the competitions and events of the Olympic, Paralympic and Pan-American Games.” 36 U.S.C. §§ 220505(c)(2), (3). Vis á vis individual citizens, however, and while charged generally to “encourage and provide assistance to amateur athletic activities for women” (§ 220503(12)), “minorities” (§ 220503(14)), and “amateur athletes with disabilities” (§ 220503(13)), the USOC effects this purpose under the ASA first by selecting and recognizing “national governing bod[ies]” (or, where
women’s and youth wheelchair basketball in the United States. See http://www.nwba.org, “Mission Statement.”

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necessary because a sport exists only for the disabled, “paralympic sports organizations”) for each amateur sport in the Olympic, Pan-American or Paralympic Games (§ 220521 & 22) and then delegating to them the duties of “develop[ing] interest and participation throughout the United States” in that sport (§ 220524(1)), “allow[ing] an amateur athlete to compete in any [sanctioned] international amateur athletic competition conducted by any amateur sports organization” (§ 220524(5)), and “encourag[ing] and support[ing] amateur athletic sports programs for individuals with disabilities and the participation of individuals with disabilities in amateur athletic activity.” § 220524(7). Thus, while Plaintiffs are not incorrect in claiming the USOC is charged with “obtaining” the best amateur representation both for the Olympic and Paralympic Games, they cannot ignore that it does so through “the appropriate national governing bod[ies]” to which the responsibility for supporting athletic opportunities and participation for all athletes, including the disabled, is delegated. See 36 U.S.C. §§ 22503(4) (“through the appropriate national governing body”), 22523-24 (authority and duties of national governing bodies include developing interest and participation in amateur sports they represent and to encourage and support amateur sports programs for individuals with disabilities).
Moreover, it is only those individual governing bodies that have any express duties under the ASA to provide equal or nondiscriminatory participation

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opportunities within their particular Olympic or Paralympic sport, and even then, only on the nondisability-based factors of race, color, age, religion, sex, or national origin. 36 U.S.C. § 220522(a)(8).5 The omission of disability as a prohibited discriminatory factor under 36 U.S.C. § 220522(a)(8) is significant. It is precisely because athletes are classified within their sports (or provided disability-specific sports) on the basis of their disabilities that the need for protection on the basis of that disability becomes problematic. Under the ASA, for example, the NWBA may not discriminate on the basis of race, sex or national origin. A prohibition against disability discrimination is omitted, ostensibly because the limits of federal antidiscrimination law are reached simply by the accommodation. No proscription against disability discrimination binds the NWBA because the NWBA’s charges are all disabled by definition.

5 An amateur sports organization is eligible to be recognized, or to continue to be recognized, as a national governing body only if it

*

*

*

(8) provides an equal opportunity to amateur athletes . . . to participate in amateur athletic competition, without discrimination on the basis of race, color, religion, sex, age, or national origin . . .

36 U.S.C. § 220522(a). The equal opportunity provisions do not preclude discrimination on the basis of disability, ostensibly because disabled amateur athletes participate on the very basis of their disability.

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The question, then, becomes whether some other statute or regulatory scheme operates to prohibit the USOC – as the umbrella organization charged with coordinating national governing organizations such as the NWBA and producing, through them, the best American representation at the Olympic, PanAmerican and Paralympic Games – from allocating reduced or inferior benefits to athletes training for Paralympic, as opposed to Olympic or Paralympic competition. According to Plaintiffs, the ADA and Rehabilitation Act do so.
ADA/Rehabilitation Act.
The Rehabilitation Act of 1973 and ADA comprise a comprehensive federal mandate to remedy and eliminate discrimination against disabled individuals. Section 504 of the Rehabilitation Act states that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The ADA, enacted in 1990, expanded liability for disability discrimination. Title I of the ADA, codified at 42 U.S.C. § 12112, prohibits covered employers from discriminating against individuals on the basis of disability in the workplace regardless of their status as recipients of federal funding; Title II (§ 12132) prohibits public entities from discriminating against individuals or excluding them from participation in,

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or the benefits of, their services or programs on the basis of disability; and Title III (§ 12182) provides injunctive relief against private entities who discriminate against the disabled in the operation of “places of public accommodation.” See PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-75 (2001). It is Title III that provides the basis for Plaintiffs’ claims in this case.
Title III provides “[n]o individual shall 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). A “place of public accommodation” for purposes of Title III is a facility generally open to the public at large, including restaurants, hotels, libraries, stores, theaters, stadiums, zoos, and the like. Id. § 12181(7). General prohibitions under Title III include denying, on the basis of disability, opportunities to participate in or benefit from the goods, services, privileges or accommodations of the private entity (§ 12182(b)(1)(A)(i)); affording disabled individuals the opportunity to participate in or benefit from such goods or services in a manner “not equal to that afforded to other individuals” (§ (b)(1)(A)(ii)); or providing disabled individuals with a good, service, facility, privilege, or accommodation “separate from” that afforded other individuals unless necessary to provide the individual a benefit “as effective” as that provided to others.

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(§ (b)(1)(A)(iii)). It is also unlawful under Title III to impose or apply eligibility criteria for use of a public accommodation that screen out or tend to screen out the disabled from fully and equally enjoying any goods, services, facilities, privileges, or advantages of that public accommodation (42 U.S.C. § 12182(b)(2)(A)(i)); to fail to modify policies or to take steps necessary to afford the disabled goods, services, facilities, etc. of the accommodation (§ (b)(2)(A)(ii) & (iii)); and failure to remove architectural and communication barriers to ensure that no person with a disability is excluded or denied goods, services, facilities, etc. (§ (b)(2)(A)(iv), (v)).
In their Amended Complaint, Plaintiffs assert three different theories of discrimination under Title III: (1) discrimination in the denial of participation in Olympic Programming in violation of § 12182(b)(1)(A)(i); (2) discrimination in the provision of an unequal participation opportunity in violation of § 12182(b)(1)(A)(ii); and (3) discrimination through the use an eligibility criterion for Olympic Programming that screens out the disabled from full and equal enjoyment of the public accommodation in violation of § 12182(b)(2)(A)(i). Am. Compl. ¶¶ 2, 4859.6 Plaintiffs specifically do not assert a claim based
6 The theories of discrimination set forth in Title III of the ADA also constitute discrimination under the Rehabilitation Act. Compare 28 C.F.R. § §§ 41.51(b)(1)(i)-(vii) (2006) (“General prohibitions against discrimination”) with § 84.13 (Rehabilitation Act regulation from which 42 U.S.C. § 12182(b)(2)(A)(i) was
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on the provision of a separate benefit under § 12182(b)(1)(A)(iii).
Plaintiffs’ Title III claim, then, rests on a set of carefully crafted assumptions. First, based on the USOC’s “control” over administration, housing, training, and competition in the United States, together with its operation of Olympic Training Centers in Colorado Springs (Colorado), Chula Vista (California) and Lake Placid (New York), Plaintiffs claim the USOC “operates places of public accommodation” such that it is a covered entity under Title III. Am. Compl., 03-cv-1364, ¶¶ 24, 26-33. Plaintiffs then characterize programming benefits offered athletes by the USOC and Paralympic Committee as “goods, services, facilities, privileges, advantages, or accommodations” of those “places of public accommodation,” and contend the U.S. Olympic and Paralympic Committees discriminate against them by denying them, on the basis of their disabilities, the “full and equal enjoyment” of those programming benefits.7 Id.
derived). See H.R. Rep. No. 101-485, pt. 2, at 105 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 388.
7 For example, Plaintiffs claim they are relegated to lowest priority in terms of using Olympic training facilities, receive few or reduced financial incentives, and are ineligible for tuition grants, the Resident Athlete Program, or insurance. The USOC, according to Plaintiffs, does not even supply Paralympians with uniforms. The result, Plaintiffs contend, is that, they must pay significant training expenses out of their own pockets, impairing their ability to train for Paralympic competition. See Am. Compl., 03-cv-1364 at ¶¶ 48-60. Other complaints are less tangible, including Plaintiff Hollonbeck’s allegations that he was
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¶¶ 144-146. That each of these characterizations is strained is something I address in the next section.
For their relief, Plaintiffs seek an injunction requiring Defendants to cease their discrimination and provide them “full and equal enjoyment of their goods, services, facilities, privileges, advantages, and/or accommodations in a fashion to be specified following trial.” Am. Compl., 03-cv-1364 at p. 24 “Prayer for Relief.”8 Plaintiffs equivocate as to the specifics of any injunction ultimately issued, acknowledging “equal” allocations would not necessarily be appropriate or required under the ADA, and urging the adoption of an “equitable” or “proportionate” remedial standard along the lines of that available under Title IX and its implementing
discriminated against during exhibition events in the 1992, 1996 and 2000 Olympic Games by being denied benefits such as marching in the opening ceremonies or receiving prize money for winning medals. Id. ¶¶ 61-67. Since Hollonbeck’s participation in the 2000 Olympics, Paralympians now receive financial awards for gold, silver and bronze medals, but Plaintiffs contend the practice remains discriminatory because awards are at 1/10th the amount of Olympic medal awards. Id. ¶¶ 51-53.
8 Plaintiffs also seek a “declaration” that Defendants’ discriminatory practices violate the ADA and Rehabilitation Act. Declaratory relief is redundant and therefore unavailable under these circumstances, where it seeks nothing more than a legal determination already before the court on Plaintiffs’ civil rights claims. See Saum v. Widnall, 912 F. Supp. 1384, 1394 (D. Colo. 1996) (Kane, J.) (“declaration” of constitutional violation would be gratuitous reiteration when constitutionality of defendant’s actions already before the court) (citing cases).

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regulations.9 Plaintiffs support their reliance on Title IX with a citation to Grove City College v. Bell, 465 U.S. 555, 566 (1984), and in particular in the Supreme Court’s look to the Rehabilitation Act as an interpretive guide for Title IX, on grounds both find their source in the antidiscrimination provisions of Title VI of the Civil Rights Act of 1964. While I appreciate the analogy and agree Title IX’s regulatory remedial scheme works well with Plaintiffs’ theory of relief in this case, I cannot agree federal courts are authorized to cobble together congressional enactments in this manner. As I will explain more fully below, Plaintiffs’ request that I graft a remedial scheme promulgated under a statute banning sex discrimination onto statutes prohibiting disability discrimination, and then infuse both into the statute establishing the federally chartered corporation that oversees the country’s amateur athletic system and has exclusive jurisdiction over matters pertaining to international Olympic, Paralympic and Pan-American
9 As acknowledged by Plaintiffs’ counsel at oral argument, the precise nature of Plaintiffs’ claim for relief is difficult to articulate. See Rep. Tr. (10/4/05) at p. 16, 42, 59 (acknowledging “exact” or equal funding or benefits is not required under the ADA, and suggesting adoption of “equitable” or “proportionate” remedial standard along the lines of that which Plaintiffs claim is available under Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681, and its implementing regulations, which prohibit sex discrimination in the allocation of benefits between men’s and women’s athletic programs and suggest evolving standards for determining compliance.)

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competition, simply falls outside the scope of federal judicial authority.
Defendants deny Plaintiffs have stated a viable claim for disability discrimination. The crux of the issues raised are set forth in the parties’ crossmotions for summary judgment in Shepherd (Doc. Nos. 139 and 140) and in the USOC’s 12(b)(6) Motion to Dismiss in Hollonbeck (Doc 3). The USOC denies the ADA or Rehabilitation Act confer a cause of action for disparate treatment or discrimination in the allocation of resources between Olympic/Pan-American athletes and Paralympians, maintaining these are separate programs across which differences in allocation are not discriminatory for purposes of federal civil rights legislation because they are not comparable.
B. The Problem of “Fit.”
My ultimate and reluctant conclusion is that the USOC is correct and Plaintiffs have no actionable right under the ADA or Rehabilitation Act to enjoin the USOC’s actions in allocating lesser privileges and benefits to Paralympic athletes than Olympic athletes. The overarching issue is duty, namely, whether the USOC has a duty to provide Paralympians with opportunities, support and benefits similar, proportionate, or equal to those provided Olympians. The language of the ASA imposes no such duty.10 The
10 See supra, n. 5 and accompanying text.

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question is whether, directly or by reference to other civil rights laws (such as Title IX, the ADA and Rehabilitation Act) give rise to one.
Subject matter jurisdiction is uncontested and under a liberal reading of the parties’ pleadings I find it exists under 28 U.S.C. § 1343 and 1367. While I proceed to analyze Plaintiffs’ claims under the ADA and Rehabilitation Acts, I pause to express my overarching concern that, absent an extension of existing law by Congress or a relevant regulatory agency, neither the wrong of which Plaintiffs complain nor the relief they seek “fit” within the rubric of the ADA or Rehabilitation Act.
My initial concern is with the assertion that U.S. Olympic Training Centers are “places of public accommodation” within the contemplation of 42 U.S.C. § 12181(7) and that financial support, insurance, being able to walk in opening ceremonies, receiving prize money, or serving on governing bodies are “goods, services, facilities, privileges, [or] advantages” attendant the operation of those “places” for purposes of the ADA. Olympic Training Centers are venues to which only the most select athletes in the nation have access. They are not recreation centers, stadia or arenas held out for use by the non-disabled public at large. The question of the ADA’s applicability, in my view, is a serious threshold question that the parties largely avoid.
The phrase “public accommodation” is defined for purposes of Title III in terms of 12 extensive

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categories of facilities leased or operated by private entities “if the operations of such entities affect commerce.” The facilities covered are:
(A) an inn, hotel, motel, or other place of lodging . . . ;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of display or collection;
(I) a park, zoo, amusement park, or other place of recreation;

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(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
42 U.S.C. § 12181(7) (emphasis added), applied in Bauer v. Muscular Dystrophy Ass’n, Inc., 268 F. Supp.2d 1281, 1289-1290 (D. Kan. 2003), aff ’d 427 F.3d 1326 (10th Cir. 2005). Plaintiffs contend the USOC’s training facilities fall within the category of “gymnasium, health spa . . . or other place of exercise or recreation” and therefore constitute a “place of public accommodation” under subsection (L). While the categories listed at § 12181(7) are to be “construed liberally to afford people with disabilities equal access to the wide variety of establishments available to the non-disabled,” Bauer at 1290 (citing Martin, 532 U.S. at 666-67), there is something fundamentally different about the establishments and “places of exercise and recreation” open to the non-disabled public generally – which appear to be what the category at § 12181(7)(L) describe – and the United States’ four Olympic Training Centers.
Unlike the public and private golf courses operated or “leased” by the PGA in Martin – to which all paying customers have access regardless of ability –

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the training facilities operated by the USOC are accessible only to those already selected by the national governing bodies to the Olympic, PanAmerican or Paralympic teams in their individual sports and identified as elite, world-class athletes. C.f. Martin, 532 U.S. at 677-78 (among the “privileges” offered members of the general public who pay to play on PGA operated golf courses is the privilege of vying to qualify for and play in the PGA Tour); Akiyama v. United States Judo Inc., 181 F. Supp.2d 1179, 1183 (W.D. Wa. 2002) (applying Martin and holding that the Civil Rights Act’s prohibition against discrimination on basis of religion applied to amateur judo competition where members of general public were welcome to test their skills and talents in preliminary tournaments designed to identify the best competitors). Absent any allegation that the privileges and benefits afforded athletes at the U.S. Olympic Training Centers are available to members of the general public vying for a berth on the U.S. Olympic or Paralympic team, it is difficult to say that Martin applies. Does the ADA mandate “full and equal enjoyment” of world-class training facilities to which only the fewest among us have access, disabled or non-disabled? At best, the Supreme Court in Martin left unaddressed the question raised in the instant case, namely, whether “places of public accommodation” to which the non-disabled do not have general access fall within the purview of Title III.
Moreover, the benefits Plaintiffs seek relate less to the USOC’s physical facilities than to the teams

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they put forth for international competition. This, too, stretches the “fit” between the discrimination alleged and the jurisdictional basis of Plaintiffs claims under the ADA. In Elitt v. U.S.A. Hockey, 922 F. Supp. 217, 223 (E.D. Mo. 1996), for example, the district court determined it lacked jurisdiction over a cognitively disabled child’s Title III claim against U.S. amateur hockey organization because plaintiff was challenging the “denial of participation in the youth hockey league instead of denial of access to a place of accommodation, i.e. the ice rink.” Id. (youth hockey league is not a “place of public accommodation” for purposes of Subchapter III of the ADA). Only because Plaintiffs in the instant case challenge the denial of their full and equal enjoyment of the USOC’s physical facilities (in their relegation to third priority for their use) do they survive scrutiny under this threshold jurisdictional requirement.
The problem of “fit” is further underscored by a look at the selective comparisons on which Plaintiffs rely. Plaintiffs allege discrimination in their treatment as disabled individuals by the USOC as Paralympians compared to the USOC’s treatment of “nondisabled” Olympic (and Pan-American) athletes. The distinction is muddled by the fact that disabled athletes are not per se disqualified from participation in the Olympics or Pan-American Games.11 Because
11 The Paralympics provide participation opportunities for elite athletes belonging to six different disability groups: amputee, cerebral palsy, visual impairment, spinal cord injuries,
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“disabled” individuals can and have participated in the Olympics and Pan-American Games, the comparison categories on which Plaintiffs rely are not necessarily the “disabled” and non-disabled as those distinctions are drawn under the ADA, but Olympic and Paralympic athletes.
Finally, I question the viability of Plaintiffs’ theory of disability-based “discrimination” as conflating Olympic benefits offered or not offered to Paralympians with the benefits of access or equal enjoyment of public accommodations by the disabled. Because this conflation is ultimately what dooms Plaintiffs’ claims under an ADA analysis, the question is largely academic in this prefatory context. Wheelchair athletes are obviously treated differently (i.e. “discriminated” against) on the basis of their disability in their relegation to the Paralympic wheelchair basketball event as opposed to the Olympic basketball event. This difference in treatment or access, however, which is obviously based on and defined solely by the player’s disability, is not the “discrimination” Plaintiffs seek to call out. Rather, Plaintiffs challenge the lesser or inferior quality of the benefits
intellectual disability and a group which includes all those that do not fit into the aforementioned groups (les autres). Athletes whose disabilities do not impact their ability to participate in events recognized by the International Olympic Committee (i.e., deaf swimmer Terence Parkin, who won a silver medal in the 2000 Olympics in Sydney) are not required to participate in the Paralympics and are ostensibly not part of Plaintiffs’ theory of disability discrimination.

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allocated the Paralympic wheelchair basketball athletes by the USOC, claiming the different allocation is based on eligibility criteria (membership on the Olympic team) that screens out or tends to screen out disabled elite athletes. Again, there is an amalgam of standards forming the basis for Plaintiffs’ claim. Plaintiffs, for example, take pains to distinguish theirs from a claim that the USOC provides them with an ineffective “separate benefits” under § 12182(b)(1)(A)(iii) because that analysis forces them into a separate-program paradigm that constrains their theory discrimination. Yet the remedy Plaintiffs seek is precisely that they be given benefits and privileges “as effective” or “equivalent to” those provided Olympians. Is a lack of parity or inequality between Paralympic and Olympic programming actionable except as between “separate” programs? Given the significantly smaller population (the disabled) from which Paralympians are drawn, the Paralympic Games are smaller in scale with fewer participants than the Olympics and Pan-American Games. Policies directing a lesser allocation of resources between the Olympians and Paralympians may simply reflect that fact wholly independently of any disability-based discrimination.12 Plaintiffs
12 As Defendants argue, the fewer number of participants and internationally fielded teams in the Paralympic Games results in American Paralympians, for example, having significantly greater chances of medaling at the Paralympic Games than American athletes competing in the Olympics. Parity in medal awards, then, would result in U.S. Paralympic athletes
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concede this point, but again invoke Title IX and its implementing regulations to urge an application of the ADA that would compel the USOC’s to comply with its mandated purpose to develop and increase amateur athletic opportunities for disabled athletes, not merely to reflect the status quo.
Plaintiffs’ goals, noble and inspiring, extend beyond the reach of the courts to find and enforce under the ADA or the Rehabilitation Act. The Title IX analogy is apt only to the extent it suggests new legislation or the amendment of the USOC’s federal charter pursuant to which a regulatory scheme for the equitable remediation of discriminatory allocations between disabled and non-disabled representatives on the United States’ elite international athletic teams. Title IX does not infuse the ADA with a remedial scheme that then infuses the ASA with a cause of action for the “discrimination” alleged in this case. Title III of the ADA entitles disabled individuals with the right to seek to enjoin private entities from providing unequal or ineffective opportunities to enjoy or participate in accommodations made available to the public generally. The USOC’s Paralympic program, with its attendant differences in perks and privileges
receiving far more than their Olympic counterparts. Of course, these fact-based scenarios are germane only to the extent they capture the complexity of the “discrimination” question and illustrate grounds for my unease on the issue of “fit.” They are not germane, and I do not consider them, as part of my analysis of Plaintiffs’ claims under a Rule 12(b)(6) standard.

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compared to the USOC’s Olympic program, exists to provide disabled individuals with participation opportunities fundamentally premised on and defined by the disabilities Plaintiffs argue cannot lawfully form the basis for separate treatment. There is an unavoidable non sequitur to the assertion.
In short, I am troubled that Plaintiffs’ theory of relief fundamentally overreaches, looking to the courts and federal antidiscrimination law to remedy inequities in the quality of the accommodation afforded certain disabled elite athletes to compete internationally in amateur athletics – accommodations that are defined exclusively by those athletes’ inability to compete without accommodation – that are not enjoyed by the non-disabled public at large and which exist solely as a reflection of political will (or lack thereof) within the USOC and/or the legislative and executive branches of government directing its charter.
Do I decry a culture that relegates Paralympians to second class status in the quantity and quality of benefits and support they receive from the USOC? Emphatically yes. I conclude, however, that the ADA and Rehabilitation Act are aimed at the baser stuff of discrimination, such as the denial generally of a disabled person’s right to participate fully and equally in public life, including places offering sports and recreation to the general public. The ADA and Rehabilitation Act simply do not apply to the wrongs alleged by Plaintiffs.

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In my view, the inequities and injustices Plaintiffs describe are ultimately for the legislative or executive,13 and not judicial, branches of government to acknowledge and rectify. It appears, however, that for purposes of the instant Motions Defendants agree the ADA and Rehabilitation Act apply to the USOC and the U.S. Paralympic Committee and reach their programming benefits and decisions. For purposes of appeal and in order fully to develop the record, I proceed to address Defendants’ Motions directed to the merits of Plaintiffs’ claims.
II. MERITS.
In its effort to train and obtain the best United States athletes for the Olympic Games, the USOC offers Olympic athletes benefits and incentives. This Olympic “programming” includes providing $25,000, $10,000, and $2,500, respectively, for each gold, silver, and bronze medal an athlete wins at the Olympic
13 The legislative branch might amend the ASA or a relevant agency might promulgate regulations under the ASA to implement directives against discrimination or the fostering of athletic opportunities for disabled amateur athletes or risk losing federal funding. C.f. 34 C.F.R. § 106.41 (regulatory provisions implementing proscription against sex discrimination in education programs receiving federal funding stated in Title IX and requiring the proportionate allocation of athletic opportunities and moneys for college women or lose federal funding). See Roberts v. Colorado State Bd. of Agriculture, 998 F.2d 824, 827-28 (10th Cir. 1993) (applying Title IX and its implementing regulations to order state university to reinstate terminated Division I women’s softball program).

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Games. (Am. Compl., 03-cv-1364, ¶ 52.). Olympic programming also includes, but is not limited to, providing Olympic athletes first priority in using USOC training facilities (¶ 54) and making Basic Grants, Tuition Assistance Grants, and Elite Athlete Health Insurance available to Olympic athletes. Id. ¶¶ 55-57.
Olympic programming is not offered to Paralympic athletes. Rather, Paralympic athletes receive third priority in using USOC training facilities, id. at ¶ 54, and the Paralympic medal-incentive is ten percent of that provided to Olympic athletes. Id. ¶ 53 ($2,500, $1,500, and $1,000, respectively, for each gold, silver, or bronze medal). Moreover, the USOC does not make Basic Grants, Tuition Assistance Grants, or Elite Athlete Health Insurance available to Paralympic athletes. Id. at ¶¶ 55-57, 59. Plaintiffs assert the USOC’s original and amended Constitutions discriminate against Paralympic athletes, first by denying them participation on the Athlete Advisory Committee all together, and now by limiting their representation to two members. Id. ¶ 68-69.
Plaintiffs Scott[ ] Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil (collectively Athlete Plaintiffs), are all current or former Paralympic athletes. (Am. Compl. ¶¶ 35, 39, 42-43, 45-47.) They assert the USOC’s system of distributing benefits discriminates against them on the basis of their disabilities. Id. at ¶ 48. As a result of being denied Olympic programming, Athlete Plaintiffs assert they have incurred significant personal expense that

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diminishes their ability to train and their opportunity to compete on behalf of the United States as Paralympians. See id. at ¶ 60. In addition, Plaintiff Holl[o]nbeck states he was discriminated against during the 1992, 1996 and 2000 Olympic Games by being denied certain intangible benefits of participation, including medal compensation and marching in the opening ceremonies. Id. ¶¶ 61-67. As set forth above, Defendants move to dismiss.
A. Preemption.
Defendants contend Plaintiffs’ ADA and Rehabilitation Act claims are “actually challenges to the method and reasoning by which the USOC decides to allocate its limited resources to numerous different athlete classes under its jurisdiction” and therefore within the USOC’s exclusive jurisdiction 36 U.S.C. § 220503(3). See Defs.’ Mot. Dismiss, 03-cv-1364, at 6. In support of this argument, Defendants cite several cases in which courts have held no private right of action exists under the ASA to challenge matters left exclusively to the USOC or the national governing bodies of individual amateur sports. Id. at 5 (citing Martinez v. USOC, 802 F.2d 1275 (10th Cir. 1986) (holding Congress did not intend for USOC to be liable in tort for wrongful death of boxer injured during events not fully controlled by USOC); Oldfield v. Athletic Congress, 779 F.2d 505 (9th Cir. 1985) (no private cause of action to challenge governing body’s determination regarding loss of amateur status); Michels v. USOC, 741 F.2d 155 (7th Cir. 1984) (weight

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lifter had no cause of action under ASA to challenge suspension for positive drug test); DeFrantz v. USOC, 492 F. Supp. 1181 (D.D.C. 1980) (1978 ASA changed USOC’s charter but did not alter USOC’s exclusive authority to decide not to send an American team to 1980 Olympics), aff ’d,701 F.2d 221 (D.C. Cir. 1980); Walton-Floyd v. USOC, 965 S.W.2d 35 (Tex. Ct. App. 1998) (no private cause of action under ASA in tort for breaching duty of care in connection with drug testing hotline); Dolan v. U.S. Equestrian Team, Inc., 608 A.2d 434 (N.J. Super. Ct. App. Div. 1992) (USOC has exclusive jurisdiction over athlete eligibility determinations and no private cause of action is recognized under ASA to challenge nonselection for U.S. equestrian team)).
Athlete Plaintiffs agree with Defendants that the ASA bars private rights of action brought under the Act (Pls.’ Opp’n at 18), but reject any characterization of their claims as “pertaining” exclusively to the United States’ participation in the Olympic, Paralympic and Pan-American Games. Plaintiffs contend the duty to allocate benefits to Paralympians in a nondiscriminatory manner arises not from the ASA, but from the ADA and Rehabilitation Act, and requires them to effect their corporate mandate in a way that does not discriminate on the basis of disability. Id. at 23.
Plaintiffs support their argument with several cases in which courts have permitted plaintiffs to proceed with a variety of claims in spite of the defendants being governed by the ASA. Id. at 20-21 (citing

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Slaney v. Int’l Amateur Athletic Fed’n, 244 F.3d 580 (7th Cir. 2001)) (RICO and conspiracy allegations brought by athlete against USOC in blood doping case not preempted, but failed under 12(b)(6) standard to state claim); Akiyama, 181 F. Supp .2d at 1183 (holding Title II of Civil Rights Act of 1964 applied to prevent discrimination on basis of religion at judo competition); Sternberg v. U.S.A. Nat’l KarateDo Fed’n, Inc., 123 F. Supp. 2d 659 (E.D.N.Y. 2000) (female athlete stated valid Title IX claim against karate national governing body based on organization’s decision to withdraw women’s karate team from international competition).14
14 I note that in addition to allowing plaintiff athlete’s Title IX claim to proceed, the district court in Sternberg did, indeed, recognize an implied private right of action under the ASA to seek damages against a the karate national governing body for sex discrimination. Sternberg, 123 F. Supp. 2d at 664-666 (applying four factors identified in Cort v. Ash, 422 U.S. 66 (1975) and principles articulated in Cannon v. University of Chicago, 441 U.S. 677 (1979) and Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) to conclude Congress’s statements in ASA prohibiting sex discrimination and requiring governing bodies to provide “support and encouragement” for participation by women permit “[a] narrow right of action regarding sex discrimination by national governing sports bodies [to] be implied.”). Plaintiffs do not rely on this aspect of Sternberg, conceding that in the Tenth Circuit, at least, no private right of action exists to enforce the terms of the ASA. See Martinez, 802 F.2d at 1281 (enactment of 1978 ASA included removing athlete’s “bill of rights,” evincing Congress’s consideration and rejection of a cause of action for athletes to enforce ASA’s provisions).

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To this list we may add Lee v. United States Taekwondo Union, 331 F. Supp. 2d 1252 (D. Haw. 2004), in which the district court rejected the USOC’s contention that the ASA preempted federal civil rights laws and allowed former U.S. Olympic coach to bring a race discrimination claim against the USOC and the national governing body for the sport of taekwondo under 42 U.S.C. § 1981. The district court applied the reasoning in Oldfield, Slaney and Michels to distinguish between private claims challenging eligibility or similar matters “pertaining to participation” regarding which the USOC and its national governing bodies have exclusive jurisdiction under 36 U.S.C. § 220503(3) and claims that invoke rights independently of this grant of jurisdiction. Thus, to the extent plaintiff Lee was seeking a declaration of eligibility and subsequent reinstatement as coach of the U.S. Olympic Taekwondo Team through his state tort and contract claims, the court concluded such claims were preempted. Lee, 331 F. Supp. 2d at 1257. To the extent Lee was invoking protections afforded him under federal civil rights laws independently of and in addition rights governed exclusively by the ASA, however, his claims were not preempted. Id. at 1260-61 (“when two federal statutes may be reconciled, the court must give effect to both”), (citing Watt v. Alaska, 451 U.S. 259, 267 (1981)). As long as the remedy sought does not require it to enter the realm of the USOC’s exclusive jurisdiction, “the [ASA] does not nullify or supersede other federal laws that provide private rights of action to ensure freedom from discrimination.” Id. at 1260 (because

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discrimination on the basis of race in violation of § 1981 did not pertain to the United States’ participation in the Olympic Games, Lee could proceed with his § 1981 claim).
The instant case presents an exceedingly close call under Lee and related authorities because the matters of which Plaintiffs complain – priority usage of training facilities, training grants and insurance benefits, the USOC’s Constitutional governance structure, medal incentives and decisions as to who walks or does not walk in Olympic opening ceremonies – indeed sound like “matters pertaining to” the United States’ participation in the Olympic or Paralympic Games within the exclusive jurisdiction of the USOC under 36 U.S.C. § 220503(3). Given the predominate mandates of the ADA to call out and remedy disability-based discrimination, as well as the inexactness of the injunctive relief sought,15 I cannot categorically state that Plaintiffs’ Athlete Claims fall within the exclusive realm of “matters pertaining to the participation of the United States in the . . . Paralympic Games.”
15 As previously noted, Plaintiffs request for relief in this case is in the nature of injunctive relief to be determined at trial, the goal of which is to provide Plaintiffs with benefits and incentives which, while not necessarily equal to those given Olympians, will ensure Paralympians their full and equal enjoyment of the Olympic experience.

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I proceed, then, to analyze Plaintiffs’ allegations of discrimination under the ADA and Rehabilitation Act under a 12(b)(6) standard.
B. Standard of Review
The purpose of a Fed. R. Civ. P. 12(b)(6) motion to dismiss is to test the sufficiency of a complaint. U.S. Olympic Comm. v. Am. Media, Inc., 156 F. Supp. 2d. 1200, 1204 (D. Colo. 2001). A complaint must put the defendant on notice of the plaintiff ’s claim and the general facts upon which it is based. Brunetti v. Rubin, 999 F. Supp. 1408, 1409-10 (D. Colo. 1998) (incorporating Fed. R. Civ. P. 8(a)). A plaintiff need not precisely state the elements of each claim, but he must provide direct or inferential allegations that would support recovery under some legal theory. Id. There is a strong presumption against granting a motion to dismiss for failure to state a claim, Maez v. Mtn. States Tel. & Tel., Inc., 54 F.3d 1488, 1496 (10th Cir. 1995) (referring to the Federal Rules of Civil Procedure), and unless it is clear “the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” such motions must be denied. American Media, 156 F. Supp. 2d. at 1204 (internal citations and quotations omitted). Accordingly, well-pleaded allegations in the complaint must be treated as true, and any reasonable inferences arising from them must be construed in the plaintiff ’s favor. Id.

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C. Conclusions of Law.
I have already expressed my doubts regarding the viability of Plaintiffs’ ADA claim based on the disconnection between the goods and services being denied and Plaintiffs rights to them as “public accommodations,” as well as my concerns that at least some of Plaintiffs’ complaints fall outside the scope of federal antidiscrimination laws because they pertain to matters over which the USOC has exclusive jurisdiction. Nevertheless, and in order to develop the record fully, I proceed to analyze Plaintiffs’ Rehabilitation Act and ADA claims on their merits.
The ADA and Rehabilitation Act are interrelated Congressional mandates designed to remedy discrimination against disabled individuals. See McGeshick v. Principi, 357 F.3d 1146, 1149 (10th Cir. 2004). The Rehabilitation Act provides the baseline level of protection from disability discrimination when the ADA must be construed. See id. at § 12201(a) (“Except as otherwise provided . . . nothing in this chapter shall be construed to apply a lesser standard than the standards applied under Title V of the Rehabilitation Act of 1973. . . .”).
Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .” 29 U.S.C.A. § 794(a)

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(2006).16 The prima facie elements of claim under section 504 of the Rehabilitation Act are straightforward, requiring a plaintiff to show (1) he is disabled; (2) he is otherwise qualified for participation in the program; (3) the program discriminates against the plaintiff; and (4) the program receives federal financial assistance. McGeshick, 357 F.3d at 1150 (citing cases).
On the other hand, the prima facie elements of an ADA claim depend on a number of factors, including the alleged theory of discrimination, see, e.g., Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004) (prima facie elements in Title III failure to accommodate case); Hubbard v. Twin Oaks Health and Rehab. Ctr., 408 F. Supp. 2d 923, 929 (E.D. Cal. 2004) (prima facie elements in Title III failure to remove barrier case); In re Baby K, 832 F. Supp. 1022, 1028-29 (E.D. Va. 1993) (prima facie elements in Title III denial of participation case), and the factual circumstances of the case. See, e.g., Mershon v. St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir. 2006) (plaintiff must show he was qualified academically where failure to accommodate alleged in post-secondary education context); cf. Rakity v. Dillon Companies, Inc., 302 F.3d 1152, 1164 (10th Cir. 2002) (applying McDonnell Douglas burden
16 To the extent Section 504 was modified between the issuance of this Order and the time Shepherd was filed, those modifications are immaterial. Compare 29 U.S.C.A. § 794(a) (2002) with 29 U.S.C.A. § 794(a) (1998).

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shifting framework in Title I case “as modified to relate to differing factual situations”). As previously set forth, Plaintiffs in the instant case assert three different theories of discrimination under §§ 12182(b)(1)(A)(i) (denial of participation), (ii) (unequal participation opportunity) and (b)(2)(A)(i) (discriminatory eligibility criteria tending to screen them from full and equal enjoyment). Accordingly, to state a prima facie case of discrimination under the ADA and Rehabilitation Act, Plaintiffs must demonstrate (1) they are disabled; (2) Defendants operate places of public accommodation; (3) Plaintiffs are qualified for participation in the program or program benefits of the public accommodation; and (4) the USOC discriminated against Plaintiffs by denying them the opportunity to participate in the program, by providing them a participation opportunity unequal to that afforded non-disabled individuals, and/or by using eligibility criteria for program benefits that screens out or tends to screen out the disabled from fully enjoying the program.
I have already determined the USOC does not operate a “place of public accommodation” or, if it does, that the discrimination alleged by Plaintiffs relates not to their rights of access to that accommodation or, with the exception of priority access to gymnasia or other physical training facilities of the U.S. Olympic Training Centers, to the benefits thereof, but to their right to participate in and receive full and equal enjoyment of membership on a USOCsponsored team. Looking beyond those “problems of

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fit,” however, the question arises as to whether, in a Title III case premised on allegations of disparate treatment between categories of disabled and nondisabled individuals in the benefits of an athletic program, a Title III plaintiff must, like his counterparts proceeding under the Rehabilitation Act and Titles I and II of the ADA,17 demonstrate that he is both disabled and “otherwise qualified” to receive the benefits that form the basis of his claim of discrimination. Under the circumstances of this case, I agree with Defendants that he does.
The ADA addresses three broad categories of discrimination: disparate treatment, disparate impact, and a failure to provide a reasonable accommodation. E.g. Davidson v. America Online, Inc., 337 F.3d 1179, 1188-89 (10th Cir. 2003) (making the assertion in a Title I employment case). Plaintiffs’ allegations in this case are of classic disparate treatment, i.e., that they, as Paralympians, receive reduced benefits and fewer privileges than their nondisabled counterparts purely on the basis of their disability. It is clear that in disparate treatment
17 Compare 29 U.S.C. § 794(a) (Rehabilitation Act, prohibiting discrimination against any “qualified individual with a disability” on the basis of that disability), 42 U.S.C.A. § 12112(a) (Title I, prohibiting employment discrimination against a “qualified individual with a disability”) and § 12132 (Title II, public entities shall not discriminate against a “qualified individual with a disability”) with § 12182(a) (private entities may not discriminate against any “individual . . . on the basis of disability,” where the term “qualified” does not appear).

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cases, an individual must be otherwise qualified to receive the benefit he asserts it is discriminatory to deny him.
The logical explanation for the omission of an “otherwise qualified” requirement under Title III is that, “in most circumstances, no qualifications are required to enjoy a public accommodation as secured by Title III.” Mershon, 442 F.3d at 1976. Where, by contrast, the nature of a “public” accommodation is such that it provides programs only to qualified members of the general public, a disabled individual must show he is also qualified as an element of his prima facie case. See Martin, 532 U.S. at 680 (significant in Title III case that, “[i]n consideration of the entry fee, any golfer with the requisite letters of recommendation acquires the opportunity to qualify for and compete in petitioner’s tours”). See also Bowers, 118 F. Supp. 2d at 517, n. 18 (“[w]hile words ‘otherwise qualified’ or ‘qualified individual’ do not appear in the language of Title III, Title II analysis can be applicable to Title III claims.”); cf. Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 154 (1st Cir. 1998) (finding little significance in lack of “qualified” language in Title III). This requirement is consistent with the law construing the Rehabilitation Act, and I conclude Plaintiffs must prove they were qualified individuals with a disability whose disparate treatment can only be explained as discrimination on the basis of disability.
A plaintiff is “otherwise qualified” under the Rehab Act if he “is able to meet all of a program’s

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requirements in spite of his [disability].” Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979). To satisfy the prima facie qualification element under both the ADA and Rehab Act, Athlete Plaintiffs must show that with or without reasonable modification to USOC rules, policies, or practices, they meet the essential eligibility requirements for Olympic benefits.
Appropriate Comparison Group – Unified or Separate Program.
Plaintiffs contend the necessary eligibility requirement for Olympic benefits is not membership on the U.S. Olympic team, but membership on any of the three teams under the USOC’s purview under its federally mandated charter (i.e., the U.S. Olympic, Pan-American or Paralympic Teams). In other words, because the USOC oversees a single, comprehensive program for that group of elite, world-class athletes who participate as representatives of the United States in the Olympic, Paralympic or Pan-American Games, Plaintiffs contend the USOC cannot discriminate in its allocation of benefits to that group on the basis of disability alone.
As previously set forth, Plaintiffs’ characterization of the USOC as a single selection and training organization charged with allocating programming and benefits in a nondiscriminatory manner across all Olympic, Paralympic and Pan-American athletes is belied by the organizational structure established

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by the ASA, the USOC’s federal charter and the legislative history evincing Congress’s intent in enacting both. It suggests – inaccurately – that Congress’s 1998 amendments to the ASA did more than formalize recognition of the existing Paralympic movement and add the Paralympics to the list of international competitions to which the United States will send representatives. It also ignores the separate nature of the participation opportunity that forms the historical essence of the Paralympic experience, and glosses over the distinction between equality of access, in terms of participation opportunity, and the quality of that access once provided. Here, the participation opportunity for wheelchair athletes is clearly provided through a separate (Paralympic) program.
The cases Plaintiffs cite to urge a comparison with the USOC’s “unified” Olympic/Paralympic/PanAmerican “program” do not compel a contrary conclusion because they turn on a denial of access to the unified “program,” which is not at issue in this case.18
18 Both Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F. Supp. 986 (S.D. Fla. 1994) and Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004) involved the elimination of programs or facilities for the disabled. In Dreher Park, the district court held the elimination of specialized recreational programs for disabled children had the effect of denying disabled individuals the benefits of the city’s overall recreational program in violation of Title II. The court rejected the city’s argument that the elimination could not be deemed discriminatory because many of its non-specialized programs were accessible by the disabled, because the elimination had the
(Continued on following page)

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Dreher Park, for example, involved the elimination, entirely, of all specialized recreational programs for the disabled and the district court’s ruling that plaintiffs did not have to establish eligibility to participate in a specific recreational program to challenge that elimination. The court used wheelchair soccer as an example, concluding wheelchair-bound youth did not have to establish they were otherwise able “run” or “kick” to challenge the program’s elimination, because the relevant program benefits they were seeking were not simply participation on a soccer team, but the benefits of the City’s overall recreational/athletic program.
As a paradigmatic scenario, it may be the case that there are wheelchair-bound children who cannot meet the ‘essential requirements’ for a soccer team because they cannot run or cannot kick a ball. However, such an analysis would be persuasive only if the full and entire extent of the City’s
effect of denying disabled individuals programming “needed to give equal benefits of recreation to persons with disabilities.” 846 F. Supp. at 991-92. Similarly in Rodde, the Ninth Circuit held the shutting down of defendant’s only hospitals designed to serve disabled individuals violated Title II because the services designed for the general population, while available to the disabled, “would not adequately serve the unique needs of the disabled who therefore would be effectively denied services that the non-disabled continued to receive.” 357 F.3d at 998. The “benefits” denied plaintiffs in these cases were the benefits of access to meaningful programming, not the quality of access afforded (and access, I might add, not challenged as ineffective or unmeaningful).

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recreational program was one soccer team. An “essential eligibility requirement” of a soccer team may be the ability to run and kick, but the only “essential eligibility requirement” of the City’s recreational program (which is the sum of a variety of individual recreational, social, and educational activities and programs) is the request for the benefits of such a program. (Citations omitted.) Therefore, the only ‘essential eligibility requirement’ that Plaintiffs must meet is to request the benefits of a recreational program.
Dreher Park, 846 F. Supp. at 990 (emphasis original). Here, the USOC has not eliminated its Paralympic Team (and doing so would violate its federal charter) and the benefits Plaintiffs seek are not of access to the Olympic experience or participation in elite athletics, but of the quality of their experience as Paralympians compared to the experience of nondisabled Olympians. Dreher Park does not get Plaintiffs there. By refusing to couch their claims in terms of a comparison of separate benefits under 42 U.S.C. § 12182(b)(1)(A)(iii), there is simply no basis in the ASA, ADA or relevant case law to avoid the eligibility requirement of Olympic Team membership to claim discrimination in the denial of Olympic Team benefits.19
19 In this regard I agree with Defendants that Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996) provides the better analogy. In Chandler, the Ninth Circuit ruled the legislature’s
(Continued on following page)

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Next, Plaintiffs argue the criterion used to determine eligibility for Olympic programming (i.e., being selected to the Olympic, as opposed to Paralympic, Team) is invalid because it is facially discriminatory. Resp. at pp. 6-9 (arguing USOC eligibility criteria is invalid because it is a proxy for facial discrimination and is analogous to the inequities Title IX was designed to remedy). I find the argument somewhat facile and the analogy to Title IX inapt. Where factors such as disability or sex render individuals unable to participate without a separate program or participation opportunity, the question becomes one of the effectiveness or equality of the separate benefit and not that the creation of the separate participation opportunity itself is tantamount
welfare amendments to provide eligible needy individuals with dependent children benefits for unlimited duration while providing needy disabled individuals benefits for only one year did not violate Title II because disabled individuals’ ineligibility for the longer term benefits did not turn on their disabled status. In so holding, the Ninth Circuit rejected appellees’ reliance on Dreher Park to argue the proper characterization of the “program” for eligibility purposes was the overall purpose of benefitting the needy. According to the Court, the fact that the non-disabled needy without dependent children were not entitled to funds under the program suggested the proper view was of two discrete forms of benefit providing for two discrete subgroups of the needy population. As in Chandler, the better view of the USOC’s purpose in fostering participation and competition in the Olympic/Pan-American and Paralympic Games is oversight over two discrete forms of benefits providing for two discrete subgroups of elite, world-class amateur athletes.

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to unlawful discrimination.20 Title III is grounded in this distinction, defining discrimination as the imposition of eligibility criteria that tend to screen out the disabled “unless . . . necessary for the provision of the goods, services, facilities . . . or accommodations being offered”; the failure to modify policies “unless . . . the entity can demonstrate that making modifications would fundamentally alter the nature of such goods, service . . . ”; or failing to take steps to ensure the disabled are not segregated “unless . . . taking such steps would fundamentally alter the nature of the good, service . . . ”. See 42 U.S.C. § 12182(b)(2)(i)-(iii). See H.R. Rep. No. 101-485, pt. 1, at 58 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 481 (providing illustrative examples such as a rule that prohibits the deaf or blind from entering a store or requiring customers to present a driver’s license in order to purchase merchandise, because that would screen out persons with disabilities who do not drive). Because Plaintiffs do not challenge Paralympic programming under a separate benefit analysis, their claims hinge on the assertion that no valid basis other than invidious discrimination justifies the “eligibility criteria” of being an Olympian to receive Olympic benefits.
20 See Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134 (10th Cir. 2005) (in prisoner case, disabled prisoner would not have been “otherwise qualified” to receive medical treatment in absence of his alleged disability because his alleged disability was reason why he was seeking medical treatment in the first instance). Accord Chandler, supra, n. 16.

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The Necessary “Qualification” of being an Olympian does not Constitute Discrimination
under 42 U.S.C. § 1282(b)(2)(A).
The method for challenging a qualification as discriminatory in violation of the ADA and Rehab Act is to show that it either screens out or tends to screen out disabled individuals and is unnecessary or nonessential. See 42 U.S.C.A. § 12182(b)(2)(A)(i); 45 C.F.R. § 84.13 (analogous Rehabilitation Act regulation for challenging criteria that screen out or tend to screen out disabled individuals); see also Pottgen v. Missouri State High Sch. Activities Ass’n, 40 F.3d 926, 930 (8th Cir. 1994) (using “necessary” and “essential” interchangeably in qualification analysis). Assuming the USOC’s eligibility criteria of being an Olympic athlete screens out disabled individuals, the USOC urges it is essential to furthering its purpose of training and obtaining the best Olympic athletes to represent the United States. (Mot. Dismiss at 15.) Plaintiffs respond first by contending a determination of whether the USOC’s eligibility criteria is necessary is inappropriate at this stage because they have not indicated the existence of an affirmative defense in the Amended Complaint. (Resp., p. 14.) Alternatively, Athlete Plaintiffs argue the eligibility criteria is unnecessary because the USOC mandate of training and obtaining the best athletes applies equally to Olympians and Paralympians, and therefore “limiting benefits to Olympic athletes is not necessary for the provision of the benefits being offered.” Id. Both arguments fail.

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First, where “the applicability of [an affirmative] defense [is] clearly indicated and . . . appear[s] on the face of the pleading,” a complaint is subject to dismissal on that basis. 5B C. Wright & A. Miller, Federal Practice and Procedure § 1357, pp. 708-10 (3d ed. 2004). Here, it is apparent from the allegations in the Complaint that Athlete Plaintiffs are challenging the eligibility criterion used to deny them Olympic programming 42 U.S.C. § 12192(b)(A)(i), which invites the affirmative defense also stated in that statute that such a criterion is permissible if it is shown to be “necessary” for the provision of the accommodations being offered generally. Id. Accordingly, I turn to whether the facts as pleaded render the eligibility criterion of being an Olympic Team member “necessary” to the provision of Olympic programming, generally.
In assessing the necessity of the USOC’s eligibility criteria for Olympic programming, the “goods, services, facilities, privileges, advantages, or accommodations” that Athlete Plaintiffs were allegedly wrongly denied must be identified. See 42 U.S.C. § 12182(b)(2)(A)(i). Plaintiffs assert the goods, services, facilities, and privileges at issue are the financial and other intangible benefits and training priority given Olympic, as opposed to Paralympic, athletes. (Pls.’ Resp. at 15.) Plaintiffs plead no facts tending to demonstrate these benefits are not “necessary” to the maintenance of the Olympic team, and simply rests on the assertion that the eligibility criterion of selection to the Olympic, as opposed to the

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Paralympic, team in order to receive Olympic benefits is invalid.
It is here that the concern over the characterization of the Olympic Training Centers as “public accommodations” merges with the necessary elements of a claim under the Rehabilitation Act and ADA. Assuming, for the sake of argument, that the ADA requires the USOC to provide anything as a “public accommodation,” it is the opportunity to represent one’s country in a recognized amateur sport in one of three categories of sanctioned (Olympic/PanAmerican or Paralympic) competition. See Martin, 532 U.S. at 680 (the PGA provides an opportunity for any golfer, disabled and non-disabled alike, to vie for the opportunity to qualify for the PGA Tour); Henrietta D. v. Bloomberg, 331 F.3d 261, 274 (2d Cir.2003) (the ADA and Rehabilitation Act viewed as “helping individuals with disabilities access public benefits to which both they and those without disabilities are legally entitled”) (emphasis added). And unlike the golfer in Martin who could compete on the PGA Tour with accommodation, Plaintiff Paralympians cannot and do not purport to be able to compete in the Olympics with or without accommodation. Instead, they compete through the separate participation opportunity of representing the United States as Paralympians. Once afforded access to the benefits of the socalled “public accommodation” afforded by Congress through the ASA, the right to the nondiscriminatory provision of Olympic benefits stops.

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Simply put, it is irrelevant that the USOC chooses to provide Olympic programming only to Olympic athletes as long as the gateway to that program operates in a nondiscriminatory manner. However unfair the fact that the participation opportunity afforded Plaintiffs as Paralympians does not include full Olympic benefits, Plaintiffs are afforded a participation opportunity defined by their disability, the benefits of which are lesser based not an additional layer of discrimination but by operation of eligibility criteria beyond the reach of the ADA and Rehabilitation Act.
In short, Paralympic athletes’ expectations for the equitable allocation of benefits between Paralympians and Olympians competing on behalf of the United States under the auspices of the USOC is not a matter which courts, through the ADA, may mandate or enforce. While much to be desired, such a mandate must derive from the legislative branch or appropriate agency of the Executive. As urged by Plaintiffs’ counsel at oral argument, Title IX and its implementing regulations may indeed form an apt analogy – not as infusing the ADA with additional remedies to then be grafted onto the ASA – but as a paradigm for appropriate congressional and agency action.
Based on the foregoing, I conclude that Plaintiffs’ Athlete Claims, which challenge the USOC’s inequitable allocation of resources and benefits to them as Paralympians compared to those afforded Olympians generally, fail to state a claim upon which relief under

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the ADA or Rehabilitation Act may be granted. I therefore GRANT Defendants’ Motion to Dismiss in Hollonbeck, 03-cv-1364, which in turn disposes of the identical issue presented as a Motion for Summary Judgment in Shepherd, 99-cv-2077.
These cases will be set for a status conference within ten days of the date of this Memorandum Opinion and Order to formulate a pretrial plan for Plaintiffs’ remaining claims. In anticipation of this conference, the parties are to submit a brief status report setting forth their respective positions regarding the continued viability of Plaintiffs’ Vie Sports Marketing-related claims in the wake of my decision.
Dated November 16, 2006.
s/ John L. Kane SENIOR U.S. DISTRICT JUDGE

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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
------------------------------------------------------------------------------------------------------------------------------------------------------

SCOT HOLLONBECK, et. al.,

Plaintiffs-Appellants,

v.

UNITED STATES OLYMPIC COMMITTEE, a federallychartered corporation; et. al.
Defendants-Appellees,

No. 07-1053

- - - - - - - - - - - - - - - - - - - -

DISABILITY RIGHTS EDUCATION AND DEFENSE FUND;

Amici Curiae.

------------------------------------------------------------------------------------------------------------------------------------------------------

ORDER

(Filed Feb. 25, 2008)
------------------------------------------------------------------------------------------------------------------------------------------------------

Appellants’ petition for panel rehearing is denied. Judge Holloway would grant panel rehearing.

The petition for rehearing en banc was transmitted to all of the judges of the court who are in regular active service. Judge Holloway called for a poll on the en banc suggestion and the vote was 6-6. Consequently, the suggestion fails. See Fed. R. App. P. 35(a). The en banc request is accordingly denied. Judges

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Henry, Briscoe, Lucero, Murphy, Hartz and O’Brien voted to grant rehearing en banc.
Entered for the Court, ELISABETH A. SHUMAKER, Clerk

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Federal Statutes Prohibiting Discrimination “Under” A “Program or Activity”
Receiving Federal Financial Assistance 15 U.S.C. § 775 (discrimination on the basis of sex)
15 U.S.C. § 3151(a) (discrimination on the basis of sex, age, race, color, religion, national origin or handicap)
20 U.S.C. § 1681(a) (discrimination on the basis of sex) (Title IX)
23 U.S.C. § 324 (discrimination on the basis of sex)
29 U.S.C. § 794(a) (discrimination on the basis of disability) (Rehabilitation Act)
29 U.S.C. § 2938(a)(2) (discrimination on the basis of age, race, color, religion, sex, national origin, disability, or political affiliation or belief)
40 U.S.C. § 122(a) (discrimination on the basis of sex)
40 U.S.C. § 14702 (discrimination on the basis of sex)
42 U.S.C. § 290cc-33(a)(2) (discrimination on the basis of sex or religion)
42 U.S.C. § 300w-7(a)(2) (discrimination on the basis of sex or religion)
42 U.S.C. § 300x-57(a)(2) (discrimination on the basis of sex, pregnancy, or religion)
42 U.S.C. § 708(a)(2) (discrimination on the basis of sex or religion)

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42 U.S.C. § 2000d (discrimination on the basis of race, color, or national origin) (Title VI)
42 U.S.C. § 3123 (discrimination on the basis of sex)
42 U.S.C. § 3789d(c)(1) (discrimination on the basis of race, color, religion, national origin, or sex)
42 U.S.C. § 5309(a) (discrimination on the basis of race, color, national origin, religion, or sex)
42 U.S.C. § 5891 (discrimination on the basis of sex)
42 U.S.C. § 6102 (discrimination on the basis of age)
42 U.S.C. § 6727(a)(1) (discrimination on the basis of race, color, national origin, or sex)
42 U.S.C. § 8625(a) (discrimination on the basis of race, color, national origin, or sex)
42 U.S.C. § 9821(b) (discrimination on the basis of sex)
42 U.S.C. § 9849(b) (discrimination on the basis of sex)
42 U.S.C. § 9918(c)(1) (discrimination on the basis of race, color, national origin, or sex)
42 U.S.C. § 10406(a)(2) (discrimination on the basis of sex or religion)
42 U.S.C. § 12832 (discrimination on the basis of race, color national origin, religion, or sex)
43 U.S.C. § 1747(10) (discrimination on the basis of race, color, religion, national origin, or sex)

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49 U.S.C. § 306(b) (discrimination on the basis of race, color, national origin, or sex) 49 U.S.C. § 5332(b) (discrimination on the basis of race, color, creed, national origin, sex, or age)

 
 No. 07-1504 ================================================================
In The
Supreme Court of the United States
--------------------------------- ♦ ---------------------------------
SCOT HOLLONBECK, et al.,
Petitioners, v.
UNITED STATES OLYMPIC COMMITTEE,
Respondent.
--------------------------------- ♦ ---------------------------------
On Petition For A Writ Of Certiorari To The United States Court Of Appeals
For The Tenth Circuit
--------------------------------- ♦ ---------------------------------
REPLY BRIEF FOR PETITIONERS
--------------------------------- ♦ ---------------------------------
ERIC SCHNAPPER School of Law University of Washington P.O. Box 353020 Seattle, WA 98195 (206) 616-3167
AMY F. ROBERTSON* TIMOTHY P. FOX
FOX & ROBERTSON, P.C. 910 16th Street, Suite 610 Denver, CO 80202 (303) 595-9700
KEVIN W. WILLIAMS COLORADO CROSS DISABILITY COALITION 655 Broadway, Suite 775 Denver, CO 80203 (303) 839-1775
*Counsel of Record
Counsel for Petitioners
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS Page
I. The Solicitor General Should Be Invited To File A Brief Expressing The Views of The United States ............................................... 1
II. The Issues Presented Are Substantial........ 7 III. The Unique Importance And Responsibili-
ties of The United States Olympic Committee Warrant Review of The Question Presented ..................................................... 10 Conclusion............................................................... 15 Appendix .....................................................................1a

ii
TABLE OF AUTHORITIES Page
CASES Alexander v. Choate, 469 U.S. 287 (1985).......... passim Auer v. Robbins, 519 U.S. 452 (1997)...........................6 Barnes v. Gorman, 536 U.S. 181 (2002).......................6 Brown v. Board of Education, 347 U.S. 483
(1954) .......................................................................11 Consolidated Rail Corporation v. Darrone, 465
U.S. 624 (1984)..........................................................1 National Collegiate Athletic Association v.
Smith, 525 U.S. 459 (1999).....................................10 Southeastern Community College v. Davis, 442
U.S. 397 (1979)..........................................................1 United States Dept. of Transp. v. Paralyzed
Veterans of America, 477 U.S. 597 (1986) ................1
STATUTES 29 U.S.C. § 794(a) .........................................................1 42 U.S.C. § 12134(b) .....................................................4 Rehabilitation Act, Section 504..........................passim
REGULATIONS 28 C.F.R. § 41.4(a).........................................................8 28 C.F.R. § 41.51(b)(3) ..................................................8 28 C.F.R. § 41.51(b)(3)(1) ..............................................5 29 C.F.R. § 1630.7 .........................................................4

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TABLE OF AUTHORITIES – Continued Page
34 C.F.R. § 106.37(b)(1) ................................................4 34 C.F.R. § 106.41(c) .....................................................3 45 C.F.R. § 84.46(a)(2) ..................................................4
OTHER AUTHORITIES Clarification of Intercollegiate Athletics Policy
Guidance: The Three-Part Test (1996).....................7 Intercollegiate Athletics Policy Interpretation,
44 Fed. Reg. 71413 (1979).........................................7 S. Rep. No. 93-1297 ......................................................2

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I. THE SOLICITOR GENERAL SHOULD BE INVITED TO FILE A BRIEF EXPRESSING THE VIEWS OF THE UNITED STATES
The Rehabilitation Act assigns to the executive branch a central role in the interpretation of section 504. Section 504(a) requires each federal agency that provides federal assistance to issue regulations implementing the Rehabilitation Act, and mandates submission of those regulations to the appropriate authorizing committees of Congress.1 Because the substantive requirement of the statute itself is set out in a single word (“discrimination”), delineating what constitutes “discrimination against the handicapped continues to be an important responsibility” of those federal agencies. Southeastern Community College v. Davis, 442 U.S. 397, 413 (1979).
In construing section 504 this Court has repeatedly relied on section 504 regulations,2 and has at times looked as well at regulations under similarly phrased federal anti-discrimination statutes.3 In the instant case the significance of the various federal
1 29 U.S.C. § 794(a). 2 United States Dept. of Transp. v. Paralyzed Veterans of America, 477 U.S. 597, 612 n.14 (1986); Alexander v. Choate, 469 U.S. 287, 297 n.17, 304-05 (1985); Consolidated Rail Corporation v. Darrone, 465 U.S. 624, 633-34 (1984); Southeastern Community College v. Davis, 442 U.S. at 406, 412. 3 Alexander v. Choate, 469 U.S. at 294 n.11; United States Department of Transportation v. Paralyzed Veterans of America, 477 U.S. at 612 n.14.

2
anti-discrimination regulations is a matter of dispute. In light of the substantial importance of those regulations to the question presented, the Solicitor General should be invited to file a brief expressing the views of the United States.
Petitioner has consistently urged that section 504 should be construed in light of the Title IX regulations. Not only is the language of Title IX and section 504 identical,4 but the Title IX regulations expressly deal in detail with the very issue in this case – how the anti-discrimination requirement should apply where a recipient supports separate athletic teams because of differences in the physical capacities of the athletes involved. Respondent objects that the protections now accorded by federal law to girls’ and women’s sports programs derive, not from the text of Title IX, but from “detailed regulations issued by the Department of Education.” (Br.Opp. 24-25; emphasis in original). But that is precisely the point; because the text of Title IX and section 504 are the same, the regulations under one can be instructive as to the meaning of the other.
The USOC suggests that the type of preferential treatment it accords to Olympic and Pan American Game athletes would be permissible under the Title IX regulations. (Br.Opp. 25). It relies on a Title IX
4 See S. Rep. No. 93-1297, reprinted in 1974 U.S.C.C.A.N. 6373, 6390 (section 504 was “patterned after and is almost identical to the anti-discrimination language of ” Title IX).

3
regulation stating in part that “[u]nequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams ... will not constitute non-compliance with this section.” 34 C.F.R. § 106.41(c). But the quoted language merely states that such inequality is not a per se violation; the remainder of the provision, not quoted by respondent, makes clear that such a disparity could be “consider[ed] ... in assessing equality of opportunity for members of each sex.” Id. Section 106.41(c) explains that although no single type of disparity – e.g., unequal “equipment and supplies” – is a per se violation, all such differences are assessed in combination in determining whether a recipient has provided “equal athletic opportunity for members of both sexes.”
Respondent argues that “the Department[ ] of ... Health and Human Services ... [has] never promulgated any [section 504] regulations that even hint at a Title IX-like framework.” (Br.Opp. 25; emphasis in original). To the contrary, the Department of Health and Human Services has adopted just such a section 504 regulation. A recipient may administer a scholarship or other form of financial assistance
on the basis of factors that ... have the effect of discriminating on the basis of handicap only if the overall effect of the award of scholarships, fellowships, and other forms of financial assistance is not discriminatory on the basis of handicap.

4
45 C.F.R. § 84.46(a)(2). This section 504 regulation regarding scholarships is essentially identical to the Title IX regulations regarding such financial assistance. See 34 C.F.R. § 106.37(b)(1).
Respondent urges that section 504 should be interpreted in light of an EEOC Policy Guidance regarding Title I of the ADA. (Br.Opp. 18-19). The USOC practice of limiting grants and tuition assistance to the Olympic and Pan American Games athletes, it contends, is “exactly” like a regular retirement plan which provides greater benefits than a disability retirement plan. (Br.Opp. 18-19). To the contrary, the analogous pension plan would be one which provides special higher pensions limited to retirees who had at one time been members of the United States Olympic Team. That type of pension plan would assuredly violate the EEOC ADA regulations, which expressly forbid employment practices with such a discriminatory effect. 29 C.F.R. § 1630.7. The text of the ADA, moreover, makes clear that only Title II of that statute (regarding state and local governments), not the employment provisions of Title I (at issue in the EEOC guidance), must be construed in a manner consistent with section 504. See 42 U.S.C. § 12134(b).
If the USOC provided general support for all athletes seeking to represent the United States at any of the major international competitions covered by the USOC charter, the USOC could not administer that assistance on a case-by-case basis in a manner that had the purpose or the effect of discriminating

5
against disabled Paralympic athletes. 28 C.F.R. § 41.51(b)(3)(1). The USOC’s core argument is that it has avoided any obligations under section 504 by the way in which it has defined the benefits it provides. The USOC “Athlete Support Program” is not an athlete-support-program, but an “Athlete-competingin-the-Olympics-or-Pan-American-Games” Support Program. The benefit at the USOC Training Center is a “Training-for-Paralympic-athletes-so-long-as-noOlympic-or-Pan-American-Games-athlete-wants-to-usethe-facility” Center. The United States, however, has concluded, in a brief filed in this Court, that a recipient of federal funds may not avoid compliance with section 504 simply by incorporating otherwise impermissible limitations into the definition of the benefit being provided.
One can conceive of the benefit being distributed ... [at] a rampless library ... as ... “books-in-a-building-without-ramps,” and [a recipient then arguing] that that service is available equally to all .... [But] [a]ntidiscrimination legislation can obviously be emptied of meaning if every discriminatory policy is “collapsed” into one’s definition of what is the relevant benefit.
Brief for the United States, Alexander v. Choate, 469 U.S. 287 (1985), at 28. This Court expressly quoted and adopted the government’s interpretation of section 504. 469 U.S. at 301 n.21.
It would for several reasons be appropriate to invite the Solicitor General to file a brief expressing

6
the views of the United States. The United States has a substantial interest in the proper interpretation of section 504 and its implementing regulations, both of which are enforced by several dozen federal agencies.5 The resolution of the instant case turns to a significant degree on the interpretation of the regulations implementing section 504 and other federal antidiscrimination laws; the government’s interpretation of its own regulations is properly accorded substantial weight. Auer v. Robbins, 519 U.S. 452, 461 (1997). Executive Order 11250 confers upon the Attorney General responsibility for overseeing and coordinating all federal regulations implementing section 504, Title IX, and Title VI. Because the role of American teams in major international competitions at times has significant foreign policy implications, a consideration which may have prompted Congress to charter the USOC in the first place, an expression of the views of the United States regarding this particular controversy would be especially appropriate.
The USOC insists that it would be impractical to administer a rule forbidding discrimination against Paralympic athletes. The Department of Education, however, has extensive experience with the closely
5 In briefs filed with this Court, the United States has repeatedly emphasized its interest in the interpretation of section 504 and its implementing regulations. E.g., Brief for the United States as Amicus Curiae, Barnes v. Gorman, 536 U.S. 181 (2002), No. 01-682, at 1.

7
analogous problem of guaranteeing equal athletic opportunity to members of girls’ and women’s teams.6 The government’s views regarding this intensely practical issue would thus be of obvious relevance.
II. THE ISSUES PRESENTED ARE SUBSTANTIAL
Respondent suggests that the question presented is insubstantial because the majority opinion in the court below characterized the claim in this case as “push[ing] the margins of federal disability discrimination laws.” (Br.Opp. 1; Pet. App. 22a). The dissenting opinion, on the other hand, insisted that the actions of the USOC were an obvious violation of section 504; “[w]hat the statute forbids is exactly what has occurred and is occurring here.” (Pet. App. 15a). The rhetorical force of these conflicting opinions attests, not to the clarity of the issue, but only to its importance.
Respondent acknowledges that under Alexander v. Choate a recipient cannot define its benefit “in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled.” 469 U.S. at 301 (Br.Opp. 26). The
6 See Title IX and Intercollegiate Athletics Policy Interpretation, 44 Fed. Reg. 71413 (1979); Clarification of Intercollegiate Athletics Policy guidance: The Three-Part Test (1996), http:// www.ed/gov/about/offices/list/ocr/docs/clarific.html

8
USOC nonetheless insists that it is in compliance with the interpretation of section 504 set out in Choate because
[t]here is but one criterion for gaining access to that benefit: the individual must be eligible to represent the United States at the Olympic Games.... [T]he ... eligibility criterion is “neutral on its face ....” ... Choate, 469 U.S. at 302.
(Br.Opp. 26). Respondent’s quotation from Choate, however, omits the beginning of the sentence, in which the Court emphasized that the practice in that case also did not involve “criteria that have a particular exclusionary effect on the handicapped.” 469 U.S. at 302. Such an exclusionary effect, also prohibited by the Department of Justice section 504 coordinating regulations,7 is precisely the consequence of the criterion at issue in this case. Choate does not permit a recipient to utilize any criterion so long as it is “neutral on its face”; the criterion is also subject to challenge if it denies “meaningful access.” The criterion at issue – eligibility to represent the United States in the Olympics – has not been satisfied by
7 The Department of Justice section 504 coordinating regulations provide that “[a] recipient may not ... utilize criteria ... [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap.” 28 C.F.R. § 41.51(b)(3). All federal agencies are required to issue and enforce regulations “consistent with” this provision. 28 C.F.R. § 41.4(a).

9
any disabled athlete since 2000. (Br.Opp. 7-8). Near total exclusion cannot constitute meaningful access.8
Respondent agrees that section 504 would forbid a recipient from allocating benefits between its programs if it acted out of discriminatory purpose. The USOC maintains, however, that it did not act with any “discriminatory animus” toward disabled athletes, and has no “history of de jure segregation.” (Br.Opp. 29, 30 n.5). The forms of discriminatory motive forbidden by section 504, however, are not limited to outright antipathy towards the disabled. In enacting section 504, Congress concluded that purposeful discrimination was “most often the product, not of invidious animus, but rather of thoughtlessness and indifference – of benign neglect.” Alexander v. Choate, 469 U.S. 287, 295 (1985).
Respondent recognizes that under section 504 it could not engage in practices that had the effect of favoring able-bodied over disabled athletes who were in “a single program.” (Br.Opp. 23). The USOC describes its mission as “promot[ing] the overall standing of the United States in these international competitions” (Br.Opp. 3; emphasis added), referring
8 Respondent represents that since this case was considered in the district court there have been some changes in degree to which benefits are provided to Paralympic athletes. (Br.Opp. 5 n.3). Respondent makes no assertion as to the level of those benefits or the numbers of Paralympic athletes who have ever received them, and does not contend that any such changes are permanent or have rendered this case moot.

10
to the Olympic Games, the Paralympic Games, and the Pan American Games. Id. Respondent insists, however, that for the purposes of section 504 its support of athletes in the Olympics, of athletes in the Paralympics and of athletes in the Pan American games are all “different programs.” (Br.Opp. i, 2, 14). Traditional basketball and Paralympic basketball, respondent argues, are “different program[s] designed for different athletes competing ... at different competitions.” (Br.Opp. 14). But precisely the same thing could be said about a university’s men’s and women’s basketball teams. Respondent does not explain why such differences are legally irrelevant under Title IX, but yet somehow dispositive of the instant claim under the identically worded language of section 504.
III. THE UNIQUE IMPORTANCE AND RESPONSIBILITIES OF THE UNITED STATES OLYMPIC COMMITTEE WARRANT REVIEW OF THE QUESTION PRESENTED
In National Collegiate Athletic Association v. Smith, 525 U.S. 459 (1999), the petitioner persuasively argued in support of certiorari that the question of whether the NCAA is subject to Title IX was “exceptionally important solely as it pertains to the NCAA, the organization charged with the ‘critical

11
role’ of regulating intercollegiate athletics.”9 The United States Olympic Committee plays an equally critical role in the participation of American athletes in international competitions; whether section 504 applies to the USOC in a meaningful manner is of similarly exceptional import. The United States Olympic Committee is a unique American institution, chartered by Congress for the very purpose of representing the interests of the nation in the international arena. The USOC’s successes have been matters of national acclaim and its failures have properly been matters of concern to the federal government and to the American public.
The USOC’s treatment of Paralympic athletes, which the district judge aptly characterized as “relegat[ing] Paralympians to second class status” (Pet. App. 47a), offends the very purpose of the Paralympics, and of the congressional decision to confer on the USOC responsibility for overseeing American participation in those games. The symbolism of that unequal treatment sends the worst possible message to Americans with disabilities, athletes as well as non-athletes. See Brown v. Board of Education, 347 U.S. 483, 494 (1954). For Paralympic athletes, the denial of financial support from the USOC is particularly serious. Those athletes cannot expect to benefit from lucrative endorsement contracts, rarely have
9 Petition for Writ of Certiorari, No. 98-84, at 2.

12
collegiate sports programs to rely on, and cannot look forward to the possibility of making a living as coaches or professional athletes.
Counsel for respondent emphasizes that the USOC, in its commitment to equal opportunity, permits paraplegic athletes as well as the able-bodied to compete for the financial assistance available to those who excel at the 400 meter hurdles, the high jump, or the pole vault. (Br.Opp. 13, 19). Paralympic athletes might understandably regard that proffered opportunity as an empty gesture.
It is not the case that United States Paralympic athletes, despite the practices at issue in this case, have been more successful than our Olympic athletes. At the 2006 winter games the United States Olympic Team won 10% of the medals, and ranked second; the Paralympic Team won 7% of the medals, and ranked seventh. At the 2004 summer games the United States Olympic Team won 11% of the medals and ranked first; the Paralympic Team won 6% of the medals and ranked fourth. The data relied on by respondent, estimating the proportion of athletes who won medals, is misleading, because the number of Paralympic competitors is far smaller than the number of Olympic competitors.10
10 For example, at the 2006 Winter Olympics 2508 athletes competed for 252 medals. At the 2006 Paralympics, which awarded 174 medals, there were only 477 athletes. Detailed
(Continued on following page)

13
Judicial understanding of the problem posed by this case will not be improved by further litigation against other defendants. There is, after all, but a single United States Olympic Committee. There is little likelihood that any subsequent section 504 lawsuits against the USOC itself would add anything, particularly since such claims would have to be brought in (or likely would be transferred to) the Tenth Circuit, where under the decision below those claims would promptly be dismissed without discovery or other substantive proceedings. This case is not merely a good vehicle for assessing the legality of the USOC’s policies; it may, as a practical matter, be the only vehicle for doing so.
Respondent argues that judicial enforcement of section 504 against the USOC is unnecessary because the USOC regularly submits reports to both Houses of Congress detailing its efforts with regard to disabled individuals. (Br.Opp. 33). Certiorari assertedly is unwarranted because Congress already “carefully monitors and assesses the opportunities for disabled individuals in amateur athletics.” Id. The USOC does not, however, contend that it ever disclosed to Congress in those reports any of the discriminatory practices at issue in the instant litigation.
In light of the unique national role and responsibilities of the United States Olympic Committee, and
data regarding the Olympic and Paralympic Games is set out in an Appendix to the reply brief.

14
the compelling arguments against the legality of its practices, it is hardly surprising that six members of the Tenth Circuit Court of Appeals concluded that rehearing en banc was warranted. In the present posture of this litigation, the USOC has prevailed essentially by chance, because of the randomly chosen composition of the particular appellate panel whose decision remained in effect only because the circuit as a whole was evenly divided. A legal issue of such palpable national importance should not be resolved by sheer caprice.

15
CONCLUSION
For the above reasons, a writ of certiorari should issue to review the judgment and opinion of the Court of Appeals for the Tenth Circuit. In the alternative, the Solicitor General should be invited to file a brief expressing the views of the United States.
Respectfully submitted,
ERIC SCHNAPPER School of Law University of Washington P.O. Box 353020 Seattle, WA 98195 (206) 616-3167
AMY F. ROBERTSON* TIMOTHY P. FOX
FOX & ROBERTSON, P.C. 910 16th Street, Suite 610 Denver, CO 80202 (303) 595-9700
KEVIN W. WILLIAMS COLORADO CROSS DISABILITY COALITION 655 Broadway, Suite 775 Denver, CO 80203 (303) 839-1775
*Counsel of Record
Counsel for Petitioners

1a

Year/ Competition 1996 Summer Olympics 1998 Winter Olympics 2000 Summer Olympics 2002 Winter Olympics 2004 Summer Olympics 2006 Winter Olympics

Location
Atlanta
Nagano
Sydney Salt Lake City
Athens
Turin

1996 Summer Paralympics Atlanta

1998 Winter Paralympics

Nagano

2000 Summer Paralympics 2002 Winter Paralympics

Sydney
Salt Lake City

2004 Summer Paralympics

Athens

2006 Winter Paralympics

Turin

Pan Am Games total 1951-2007 Pan Am Games 2007

Total

US US %

Medals Medals of Total

842

101 12%

205

13

6%

927

97 10%

234

34 15%

929

102 11%

252

25 10%

US Rank 1 6 1 2 1 2

% of Athletes Total Who Won Athletes Medals

URL for Total Medals and US Medals

10,318 2,176
10,651

http://www.olympic.org/uk/games/past/table_ 8% uk.asp?OLGT=1&OLGY=1996
http://www.olympic.org/uk/games/past/table_ 9% uk.asp?OLGT=2&OLGY=1998
http://www.olympic.org/uk/games/past/table_ 9% uk.asp?OLGT=1&OLGY=2000

2,399

http://www.olympic.org/uk/games/past/table_ 10% uk.asp?OLGT=2&OLGY=2002

10,625

http://www.olympic.org/uk/games/past/table_ 9% uk.asp?OLGT=1&OLGY=2004

2,508

http://www.olympic.org/uk/games/past/table_ 10% uk.asp?OLGT=2&OLGY=2006

URL for Number of Athletes
http://www.olympic.org/uk/games/past/ index_uk.asp?OLGT=1&OLGY=1996 http://www.olympic.org/uk/games/past/ index_uk.asp?OLGT=2&OLGY=1998 http://www.olympic.org/uk/games/past/ index_uk.asp?OLGT=1&OLGY=2000 http://www.olympic.org/uk/games/past/ index_uk.asp?OLGT=2&OLGY=2002 http://www.olympic.org/uk/games/past/ index_uk.asp?OLGT=1&OLGY=2004 http://www.olympic.org/uk/games/past/ index_uk.asp?OLGT=2&OLGY=2006

1577

158 10%

1

367

34

9%

Tied 4

1657

109

7%

3

276

43 16%

1

1568

88

6%

4

174

12

7%

7

3,195 571
3,843 416
3,806 477

http://www.paralympic.org/release/Main_Sections_ http://www.paralympic.org/release/Main_

Menu/Sports/Results/paralympics_reports.html? Sections_Menu/Paralympic_Games/Past_

49% type=medalstandings&games=1996PG

Games/Summer_Games_Overview.html

http://www.paralympic.org/release/Main_Sections_ http://www.paralympic.org/release/Main_

Menu/Sports/Results/paralympics_reports.html? Sections_Menu/Paralympic_Games/Past_

64% type=medalstandings&games=1998PWG

Games/Winter_Games_Overview.html

http://www.paralympic.org/release/Main_Sections_ http://www.paralympic.org/release/Main_

Menu/Sports/Results/paralympics_reports.html? Sections_Menu/Paralympic_Games/Past_

43% type=medalstandings&games=2000PG

Games/Summer_Games_Overview.html

http://www.paralympic.org/release/Main_Sections_ http://www.paralympic.org/release/Main_

Menu/Sports/Results/paralympics_reports.html? Sections_Menu/Paralympic_Games/Past_

66% type=medalstandings&games=2002PWG

Games/Winter_Games_Overview.html

http://www.paralympic.org/release/Main_Sections_ http://www.paralympic.org/release/Main_

Menu/Sports/Results/paralympics_reports.html? Sections_Menu/Paralympic_Games/Past_

41% type=medalstandings&games=2004PG

Games/Summer_Games_Overview.html

http://www.paralympic.org/release/Main_Sections_ http://www.paralympic.org/release/Main_

Menu/Sports/Results/paralympics_reports.html? Sections_Menu/Paralympic_Games/Past_

36% type=medalstandings&games=2006PWG

Games/Winter_Games_Overview.html

10847 1076

3916 237

1 all but 2 years

from 1951 to

36%

present

22%

1

http://en.wikipedia.org/wiki/Pan_American_Games http://en.wikipedia.org/wiki/2007_Pan_American _Games_medal_count

 
 Nos. 07-1053 & 07-1056 UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
SCOT HOLLONBECK, JOSE ANTONIO INIGUEZ, and JACOB WALTER JUNG HO HEILVEIL, Plaintiffs-Appellants v.
UNITED STATES OLYMPIC COMMITTEE, a federally chartered corporation, Defendant-Appellee. and
MARK E. SHEPHERD, SR., Plaintiff-Appellant, v.
UNITED STATES OLYMPIC COMMITTEE, a federally chartered corporation, Defendant-Appellee.
On Appeal from the United States District Court for the District of Colorado The Honorable John L. Kane, United States District Judge Civil Action Nos. 99-cv-2077-JLK & 03-cv-1364-JLK
APPELLANTS’ CONSOLIDATED OPENING BRIEF
STATEMENT REGARDING ORAL ARGUMENT Oral argument is requested.

Respectfully submitted,
Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Attorneys for Plaintiffs-Appellants Shepherd, Hollonbeck, Iniguez and Heilveil.

Kevin W. Williams Legal Program Director Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775
Attorney for Plaintiffs-Appellants Hollonbeck, Iniguez and Heilveil.

TABLE OF CONTENTS Statement of Related Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Issue Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Shepherd v. United States Olympic Committee, No. 07-1056 . . . . . . . . . . . 4
Hollonbeck v. United States Olympic Committee, No. 07-1053 . . . . . . . . . 6
Cases Consolidated for Oral Argument and Decision . . . . . . . . . . . . . . . . . 7
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
I. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
II. Elements of a Claim under Section 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
III. The Fact That Olympic and Paralympic Athletes Participate in Separate International Competitions Does Not Justify Denying Paralympic Athletes Benefits Offered Other Amateur Athletes . . . . . . . . 19
A. Legislative History and the USOC’s Structure Demonstrate that It Has Direct and Equal Responsibility for all Amateur Athletes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
B. The District Court Erred in Focusing its Analysis Only on the Olympics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
C. Other Cases Decided Under Section 504 and Title IX Suggest That The Proper Focus of Analysis is the USOC as a Whole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-i-

1. The Fact That An Organization’s Disabled Participants May be In a Separate Program Does not Excuse Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2. Cases Decided under Title IX Demonstrate That it Is Appropriate to Analyze Discrimination on an Institution-Wide Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3. The District Court Erred In Rejecting The Relevance of Title IX Precedent . . . . . . . . . . . . . . . . . . . . . . 31
IV. The District Court Erred in Holding That the Athlete Plaintiffs Were Not Qualified for the Benefits at Issue Here . . . . . . . . . . . 34
V. The District Court Erred In Holding That Exclusion of Paralympic Athletes from Athlete Support Programs Was Not Discriminatory . . . . . . 38
A. Exclusion of Paralympic Athletes from the Athlete Support Programs is Facial Disability Discrimination . . . . . . . . . . . 38
B. “Paralympic Athlete” Is a Proxy for Disabled Amateur Athlete, Making Discrimination Against the Former Facial Discrimination Against the Latter . . . . . . . . . . . . . . . 39
C. It Is Irrelevant That the Occasional Olympic Athlete May Have a Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
D. The District Court Erred In Concluding that The Mere Existence of the Paralympics Satisfied Section 504 . . . . . . . . . . . 43
E. The So-Called “Separate Benefit” Provision Is Irrelevant Here and Is, in Any Event, an Affirmative Defense Not Pleaded or Proved by the USOC . . . . . . . . . . . . . . . . . . . . . . . . 45
VI. The District Court Erred in Rejecting the Athlete Plaintiffs’ Claim That the Challenged Criterion Had the Effect of Screening Out Amateur Athletes with Disabilities . . . . . . . . . . . . . . . . . . . 46
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
-ii-

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Certificate Regarding Length of Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Addendum

Tab 1:

Memorandum Opinion and Order Granting Defendants’ Dispositive Motions re: Athlete Claims.

Tab 2: 29 U.S.C. § 794

Tab 3: 28 C.F.R. § 41.32

Tab 4: 28 C.F.R. § 41.51

Tab 5: 20 U.S.C. § 1681

Tab 6: 20 U.S.C. § 1687

Tab 7: 36 U.S.C. § 220501

Tab 8: 36 U.S.C. § 220503

-iii-

TABLE OF AUTHORITIES
Cases
Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 37, 43, 46
Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155 (10th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Bangerter v. Orem City Corp., 46 F.3d 1491 (10th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Barnes v. Gorman, 536 U.S. 181 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32-33
Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Bryant v. Independent School Dist. No. I-38, 334 F.3d 928 (10th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Chaffin v. Kansas State Fair Board, 348 F.3d 850 (10th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 44, 46
Children’s Alliance v. City of Bellevue, 950 F. Supp. 1491 (W.D. Wash. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Clark v. Va. Bd. of Bar Exam’rs, 880 F. Supp. 430 (E.D. Va. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Cohen v. Brown Univ., 991 F.2d 888 (1st Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Colorado Cross Disability Coalition v. Hermanson Family Ltd. P’ship I, 264 F.3d 999 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45-46
Community Services, Inc. v. Wind Gap Municipal Auth., 421 F.3d 170 (3d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41-42
-iv-

Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F. Supp. 986 (S.D. Fla. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-27
Erie County Retirees Ass’n v. County of Erie, 220 F.3d 193 (3d Cir.2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-41
Grove City College v. Bell, 465 U.S. 555 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Hargrave v. Vermont, 340 F.3d 27 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Jeldness v. Pearce, 30 F.3d 1220 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
John Does 1-5 v. Chandler, 83 F.3d 1150 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-29
Klinger v. Department of Corrections, 107 F.3d 609 (8th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24, 31
Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42-43
Lovell v. State Farm Mut. Auto. Ins. Co., 466 F.3d 893 (10th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
McWright v. Alexander, 982 F.2d 222 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40, 41
National Collegiate Athletic Ass’n v. Smith, 525 U.S. 459 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
N.L.R.B. v. Ky. River Cmty. Care, Inc., 532 U.S. 706 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Powers v. MJB Acquisition Corp., 184 F.3d 1147 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372 (10th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 31-32
Roberts v. Colo. State Bd. of Agric., 998 F.2d 824 (10th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 30
Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-27
Ryan v. Shawnee Mission U.S.D. 512, 437 F. Supp. 2d 1233 (D. Kan. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Sharpvisions v. Borough of Plum, 475 F. Supp. 2d 514 (W.D. Pa. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Sternberg v. U.S.A. Nat’l Karate-Do Fed’n, Inc., 123 F. Supp. 2d 659 (E.D.N.Y. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Sullivan v. Vallejo City Unified Sch. Dist., 731 F.Supp. 947 (E.D.Cal.1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Wells v. Colo. Dep’t of Transp., 325 F.3d 1205 (10th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Statutes
Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988) . . . . . . . . . . . . . . . . . . . . . . . 23-24
Title IX of the Education Amendments of 1972
20 U.S.C. § 1681 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
20 U.S.C. § 1687 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Rehabilitation Act of 1973
Section 501, 29 U.S.C. § 791 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Section 504, 29 U.S.C. § 794 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim The Ted Stevens Olympic and Amateur Sports Act 36 U.S.C. §§ 220501-220529 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 36 U.S.C. § 220501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 20 36 U.S.C. § 220502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 36 U.S.C. § 220503 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 20, 35 Title VI of the Civil Rights Act of 1964 42 U.S.C. § 2000d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-25, 31-32 The Age Discrimination Act of 1975 42 U.S.C. § 6101 - 6107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 32 The Americans with Disabilities Act of 1990 Title I, 42 U.S.C. §§ 12111 - 12117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Title II, 42 U.S.C. §§ 12131 - 12165 . . . . . . . . . . . . . . . . . . . . . . . . . passim Title III
42 U.S.C.§§ 12181 - 12189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 8
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42 U.S.C. § 12182(b)(1)(A)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 42 U.S.C. § 12182(b)(2)(A)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Regulations 28 C.F.R. pt. 35, app. A (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 28 C.F.R. 36.307(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 28 C.F.R. § 41.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 28 C.F.R. § 41.32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 34 28 C.F.R. § 41.51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Rules Federal Rule of Appellate Procedure 4(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Federal Rules of Civil Procedure
Rule 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 17, 45 Rule 54(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2, 8 Rule 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 45
Legislative History H. R. Rep. No. 101-485, pt. 2 (1990), reprinted in 1990 U.S.C.C.A.N. 303. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 47 S. Rep. No. 100-64 (1988), reprinted in 1988 U.S.C.C.A.N. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25, 32 S. Rep. No. 105-325 (1998) 1998 WL 604018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
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Other Authorities “U.S. going to Rio for 2007 Pan Am Games,” http://www.rio2007.org.br/pan2007/ingles/jogos_historico.asp (last accessed April 28, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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STATEMENT OF RELATED CASES Hollonbeck v. United States Olympic Committee, No. 07-1053, and Shepherd v. United States Olympic Committee, No. 07-1056, are related and have been consolidated for briefing. There are no other related cases.
JURISDICTIONAL STATEMENT The District Court’s subject-matter jurisdiction arose under 28 U.S.C. §§ 1331 and 1343, because Plaintiffs-Appellants Mark Shepherd, Scot Hollonbeck, Jose Antonio Iniguez, and Jacob Walter Jung Ho Heilveil (“the Athlete Plaintiffs”) allege discrimination on the basis of disability by Defendant-Appellee the United States Olympic Committee (“USOC”) in violation of Section 504 of the Rehabilitation Act of 1973 (“Section 504”). 29 U.S.C. § 794. This Court’s jurisdiction arises under 28 U.S.C. § 1291 because the Athlete Plaintiffs appeal from a final judgment of the United States District Court for the District of Colorado. Judgment entered on January 10, 2007. (Joint Appendix (“JA”) at 545, 550.) The Athlete Plaintiffs filed their Notice of Appeal on February 6, 2007 (JA at 595), within 30 days of that judgment. This appeal is therefore timely pursuant to Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure. This appeal is from a judgment pursuant to Rule 54(b) of the Federal
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Rules of Civil Procedure as to the claims of the Athlete Plaintiffs under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 - 12189.
STATEMENT OF ISSUE PRESENTED FOR REVIEW Does the United States Olympic Committee, which is responsible for supporting the Amateur Athletes who compete in the Olympics, Pan-American Games, and Paralympics, violate Section 504 when it excludes Paralympic athletes -- all of whom are disabled -- from the grants, tuition support, and health insurance provided to competitors in the Olympic and Pan-American Games? This question was raised in the parties’ cross-motions for summary judgment and partial summary adjudication in Shepherd v. United States Olympic Committee and in the parties’ briefing on the USOC’s motion to dismiss in Hollonbeck v. United States Olympic Committee. (JA at 73, 135, 178, 227, 246, 260, 277, 325, 355.) It was ruled on in the district court’s Memorandum Opinion and Order Granting Defendants’ Dispositive Motions re Athlete Claims, dated November 16, 2006. (JA at 500.)
STATEMENT OF THE CASE The USOC offers benefits through its Athlete Support Programs -including, for example, grants, tuition assistance, and health insurance -- to
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Olympic and Pan-American athletes that it denies to Paralympic athletes, a class that the USOC itself defines as elite disabled athletes. Plaintiffs allege that this denial of benefits constitutes a violation of Section 504, which prohibits discrimination on the basis of disability by recipients of federal financial assistance.
The USOC defends its right to deny these benefits to Paralympic athletes based on its assertion that the Olympics are a separate program from the Paralympics and that its treatment of participants in the two programs cannot be compared -- under any circumstances -- to determine whether disabled athletes were denied the benefits of” the USOC’s programs or activities in violation of Section 504. The USOC does not attempt to put before the Court -- much less legally defend -- any particular level of funding or support for the Paralympics. Rather, it reserves for itself the unilateral right to determine what benefits, if any, it may elect to provide to Paralympic athletes, free from the antidiscrimination requirements that apply to all other recipients of federal financial assistance.
This issue arose in two cases before the United States District Court for the District of Colorado: Shepherd v. United States Olympic Committee, 99-cv-2077JLK, and Hollonbeck v. United States Olympic Committee, 03-cv-1364-JLK. Although the two cases came before that court in differing procedural postures,
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there are no facts in dispute in either case and very little relevant discovery has been conducted in either case. The district court consolidated the cases for oral argument and decision of the issues now before this Court. Shepherd v. United States Olympic Committee, No. 07-1056
Mark Shepherd filed suit against the USOC on October 26, 1999. His Third Amended Complaint included claims under Section 504 as well as title I and title III (“Title III”) of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12111 - 12117, 12181 - 12189, and two state-law employment-related claims. (JA at 54-61.) Mr. Shepherd’s Section 504 and Title III claims (the “Athlete Claims”) related to his status as a Paralympic athlete; the remainder, to his status as a former employee of the USOC. In his Athlete Claims, Mr. Shepherd asserted that the USOC violated Title III and Section 504 by providing benefits to Olympic and Pan-American athletes that it did not provide to Paralympic athletes. Only the Section 504 claim is at issue here.
In 2002, the parties reached an impasse concerning the proper scope of discovery relating to the Athlete Claims. Because the USOC asserted that it had the power and discretion to provide benefits to Olympic athletes that it did not provide to Paralympic athletes, unfettered by the antidiscrimination provisions of Section 504 and Title III, it refused to produce in discovery certain information
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and documents relating to such benefits. Plaintiff Shepherd moved to compel. In an attempt to resolve the impasse, the parties agreed to stay discovery on the Athlete Claims and to submit to the district court -- on stipulated facts and cross-motions for summary judgment -- the question whether the USOC violates Section 504 and/or Title III by providing benefits to Olympic and Pan-American athletes that it does not provide to Paralympic athletes. (JA at 142-45.) As part of that agreement, the parties entered a series of stipulations concerning the benefits that the USOC denies to Paralympic athletes. (JA at 171.)
The question of discrimination under Title III and Section 504 was thus before the district court based on these stipulations and a limited set of undisputed exhibits submitted by the parties. No evidence was before the court concerning the USOC’s actual levels of funding or support for Olympic, Pan-American, or Paralympic athletes.
In accordance with the parties’ agreement, in the fall of 2002, the USOC moved for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure and Mr. Shepherd moved for partial summary adjudication pursuant to Rule 56(d) on the designated question. (JA at 73, 135.) The USOC argued that the Athlete Plaintiffs were in reality asserting claims under the Ted Stevens Olympic and Amateur Sports Act (“ASA”), 36 U.S.C. §§ 220501-220529, which
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does not have a private right of action. In the alternative, it argued that the Olympics and Paralympics were separate programs that could not be compared for purposes of an antidiscrimination analysis, that Paralympic athletes were not qualified for the benefits at issue because they were not Olympic athletes, and that the Athlete Plaintiffs were requesting “accessible or special goods,” in violation of Title III regulations, 28 C.F.R. § 36.307(a).
The Athlete Plaintiffs responded by demonstrating that the ASA does not preempt federal antidiscrimination claims, that the USOC in fact discriminates against Paralympic athletes by denying them the benefits of the Athlete Support Programs that it provides to Olympic and Pan-American athletes, and that the Athlete Plaintiffs were not asking for anything special, but rather that they be eligible for the same types of Athlete Support Programs provided Olympic and Pan-American athletes.
While those motions were pending, Scot Hollonbeck and his co-plaintiffs filed suit. Hollonbeck v. United States Olympic Committee, No. 07-1053
Scot Hollonbeck, Jose Antonio Iniguez, Jacob Walter Jung Ho Heilveil, and Vie Sports Marketing, Inc. (“Vie Sports”), filed suit against the USOC on July 28, 2003, alleging claims under Title III and Section 504 that raised the same issues as
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the Athlete Claims in Shepherd. The complaint also included claims for breach of contract and promissory estoppel on behalf of Vie Sports. (JA at 299.)
In lieu of filing an answer, on October 6, 2003, the USOC moved to dismiss the Hollonbeck Athlete Claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (JA at 277.) The parties’ briefs made virtually the same arguments as they had made in connection with the cross-motions in Shepherd. Cases Consolidated for Oral Argument and Decision.
The parties and the district court agreed that the Athlete Claims in the Shepherd and Hollonbeck cases raised identical legal issues. The district court consolidated the cases for purposes of oral argument on the cross-motions in Shepherd and the motion to dismiss in Hollonbeck, which argument was held on September 21, 2005. (JA at 439.)
On November 16, 2006, the district court issued its consolidated decision, granting the USOC’s motion for summary judgment and denying Mr. Shepherd’s motion for partial summary adjudication as to the Athlete Claims in the Shepherd case and granting the USOC’s motion to dismiss in the Hollonbeck case. (JA at 500.)
The district court held that the Athlete Plaintiffs’ claims were not preempted by the ASA. (JA at 527.) The USOC has not appealed this holding.
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The district court went on to analyze the merits of the Title III and Section 504 claims, holding -- in relevant part1 -- (1) that the Paralympics were a separate program from the Olympics and Pan-American games, and thus the USOC could deny benefits to Paralympic athletes that it provided to Olympic and Pan-American athletes (JA 534), and (2) that Paralympic athletes were not qualified for the benefits at issue because they were not Olympic athletes, a necessary criterion (JA at 532). The court did not address the USOC’s “accessible or special goods” argument.
On January 10, 2007, the district court issued an order directing entry of judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure as to the Athlete Claims in each case. (JA at 542, 546.) On the same date, final judgment entered as to those claims. (JA at 545, 550.)
The Athlete Plaintiffs appeal only their Section 504 claims, that is, the granting of the USOC’s motion for summary judgment on Mr. Shepherd’s Section 504 claim and the granting of the USOC’s motion to dismiss the Section 504 claims of Messrs. Hollonbeck, Iniguez, and Heilveil. The Athlete Plaintiffs do not
1 The district court also questioned whether the USOC was a “place of public accommodation” as that term is defined in Title III. (JA at 531.) Because the Athlete Plaintiffs do not appeal their Title III claims, this holding is not relevant to the present appeal.
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appeal their Title III claims and Vie Sports does not appeal either its Section 504 or Title III claims. Mr. Shepherd’s employment claims, Vie Sports’s breach of contract and promissory estoppel claims, and the USOC’s counterclaim against Vie Sports remain pending before the district court.
The Athlete Plaintiffs in both cases filed an unopposed motion before this Court to consolidate the Shepherd and Hollonbeck cases for briefing, which motion was granted by Order dated February 23, 2007.
STATEMENT OF FACTS Because the questions before this Court were presented to the district court on cross motions for summary judgment and summary adjudication based on stipulated facts (in Shepherd) and on a motion to dismiss (in Hollonbeck), the following facts are undisputed. The Paralympics are a series of highly competitive elite athletic competitions for athletes with disabilities. They are the second-largest sporting event in the world behind the Olympics. (JA at 169, 303.) Paralympic athletes are elite athletes with disabilities that include, for example, blindness, cerebral palsy, spinal cord injury, multiple sclerosis, and dwarfism. (JA at 170.) The first Paralympic Games were held in 1960. Recent Paralympic Games -- now occurring immediately after the Olympic Games in the same host city -- have involved more
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than 4,000 athletes in the summer games and more than 1,100 athletes in the winter games. (JA at 169.)
The USOC equates Paralympic athletes with elite athletes with disabilities. It states that the Paralympics “showcas[e] the talents and abilities of the world’s most elite athletes with physical disabilities” (JA at 169), and that “[t]he Paralympics are the equivalent of the Olympic Games for the physically challenged” (JA at 167, 302). Similarly, the legislative history of the 1998 amendments that gave the USOC responsibility for the Paralympics and Paralympic athletes described the Paralympics as “the Olympics for disabled amateur athletes.” S. Rep. No. 105-325 at 2 (1998), 1998 WL 604018.
The Athlete Plaintiffs are all Paralympic athletes. Mark Shepherd is a wheelchair basketball player who was a member of the United States Paralympic Wheelchair Basketball team in 1996. (JA at 171.) Scot Hollonbeck, Jose Antonio Iniguez, and Jacob Walter Jung Ho Heilveil are all wheelchair racers. Mr. Hollonbeck has competed in three Paralympic Games, winning two gold medals and a silver medal in 1992, two silver medals in 1996, and competing as a finalist in three events in 2000. (JA at 304.) Mr. Iniguez competed in the 1992 Paralympic Games, in the 100 and 800 meter races and the marathon and qualified for the 2000 Paralympic Games in several distances. (JA at 305.) Mr. Heilveil
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competed in the Paralympic Games in 2000, racing in the 800 meter, the 1500 meter, the 5000 meter, the 10,000 meter, and the marathon. (JA at 306.) The Athlete Plaintiffs all have disabilities that cause them to use wheelchairs for mobility. (JA at 171, 301.)
The USOC is a federally chartered corporation, 36 U.S.C. § 220502(a), that receives federal financial assistance (JA at 43, 320). The corporation is defined by the ASA, which gives it responsibility for “all matters pertaining to United States participation in the Olympic Games, the Paralympic Games, and the Pan-American Games, including representation of the United States in the games.” Id. § 220503(3)(A).2 The USOC’s purposes include “obtain[ing] for the United States the most competent amateur representation possible in each event” in the Olympic, Pan-American, and Paralympic Games. Id. § 220503(4).
The term “amateur athlete” -- which plays a role in so many of the USOC’s purposes, see, e.g., id. § 220503(1), (2), (5) - (9) -- is central to understanding what the USOC does and who it serves. Although to read the USOC’s briefing
2 “The Pan American games are a continental version of the Olympic Games which includes the Olympic Program sports and others that are not part of the Olympics.” “U.S. going to Rio for 2007 Pan Am Games,” http://www.rio2007.org.br/pan2007/ingles/jogos_historico.asp (last accessed April 28, 2007). This evidence was not in the record below; it is included here as explanatory material.
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below, one might believe that Olympic and Pan American athletes enjoy a more favored status under the ASA than Paralympians, that is not the case.
The ASA defines “amateur athlete” -- capitalized as “Amateur Athlete” herein to reference the statutory definition -- as “an athlete who meets the eligibility standards established by the national governing body or paralympic sports organization for the sport in which the athlete competes.” 36 U.S.C. § 220501(b)(1). That is, the term “Amateur Athlete” includes Paralympic athletes. Further, in crafting the amendment to the ASA that assigned the USOC responsibility for Paralympic athletes and the development of our country’s Paralympic team, Congress stated that “[t]he legislation would fully incorporate the Paralympics into the Amateur Sports Act . . .” and “would give the USOC the same duties with respect to the Paralympic Games as it has with the Olympic Games.” S. Rep. No. 105-325 at 2, 5 (1998), 1998 WL 604018. The legislation was also intended to “make clear that disabled athletes are ‘amateur athletes’ under the Act’s existing definition . . .” Id. at 5.
Despite this comprehensive definition of the participants in its program, the USOC provides a number of benefits and services to the (largely non-disabled) Amateur Athletes who participate in the Olympic Games and Pan-American Games that it denies to the (by definition disabled) Amateur Athletes who
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participate in the Paralympic Games. The USOC’s “Resource Allocation Policy” states that “Participation in Athlete Support Programs is available only to athletes who are eligible to represent the United States and who intend to compete, if selected, in the next Olympic or Pan American Games.” (JA at 110.) Paralympic athletes are not eligible to apply for Athlete Support Programs. For example, the USOC provides grants and health insurance to Olympic and Pan-American athletes for which Paralympic athletes are ineligible to apply. (JA at 112, 173, 307.) For the purposes of this case, the USOC denominates these benefits “Olympic Programming.” (See, e.g., JA at 171.) The USOC’s Resource Allocation Policy, however, refers to these benefits as “Athlete Support Programs.” (JA at 110.) This is more accurate: the Resource Allocation Policy makes clear that both Olympic and Pan-American athletes are eligible to apply for the Athlete Support Programs from which Paralympic athletes are excluded. (Id.)3
3 The only one of the Athlete Support Programs that has, more recently, been opened to Paralympic athletes is the award of cash for medals. This part of the program excluded Paralympic athletes completely until 2002. (JA at 103-04, 110-15.) That is, during the period when the Athlete Plaintiffs were competing and winning medals, the USOC provided such cash awards to Olympic and Pan American athletes but not to Paralympic athletes. Starting in 2002, Paralympic athletes who won medals were awarded cash in amounts one-tenth that awarded Olympic athletes. (JA at 103.)
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While there is much discussion in the USOC’s briefs below and in the district court’s opinion concerning “separate benefits,” this phrase is a misnomer. The benefits at issue here are in a unified program -- the Athlete Support Programs -- from which the USOC has elected to exclude Paralympic athletes. It is true that the Amateur Athletes for which the USOC is responsible all compete in different sports comprising different international competitions; however, the Athlete Plaintiffs do not seek to alter the rules of or qualifications for any of those sports or competitions. The USOC’s benefits, on the other hand, are not -- nor need they be -- separated for Olympic, Pan-American, and Paralympic athletes, except to the extent the USOC has artificially -- and circularly -- labeled the Athlete Support Programs “Olympic Programming” for purposes of this litigation.
In sum, the Athlete Plaintiffs are all Amateur Athletes as that term is defined by Congress. Yet, they are not eligible for Athlete Support Programs for which similarly-situated non-disabled Amateur Athletes -- participating in either the Olympic or Pan-American Games -- are eligible.
SUMMARY OF ARGUMENT The district court’s central error was to focus its analysis on one discrete part of the USOC’s overall program -- the Olympics. This error led it to conclude that the qualification of being an Olympic athlete to obtain the benefits at issue
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here was necessary and that, because the Olympics were technically (even if not effectively) open to all, no discrimination had occurred.
This erroneously narrow focus was based on the district court’s incorrect factual assessment that Congress had essentially given the USOC responsibility for the Paralympics as an afterthought, when in fact Congress intended to fully incorporate the Paralympics into the USOC, and to “give the USOC the same duties with respect to the Paralympic Games as it has with the Olympic Games.” S. Rep. 105-325 at 2, 5 (1998), 1998 WL 604018.
The district court’s narrow focus on the Olympics was contrary to Section 504’s definition of “program or activity,” which requires an institution-wide analysis of discrimination, see 29 U.S.C. § 794(b)(3)(A). A proper antidiscrimination analysis here requires comparison of the USOC’s treatment of Amateur Athletes who compete in the Olympic, Pan-American and Paralympic Games. This approach is supported by years of precedent interpreting Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, (“Title IX”), prohibiting discrimination on the basis of sex by recipients of federal funding. Title IX contains an identical definition of “program or activity,” compare 20 U.S.C. § 1687 with 29 U.S.C. § 794(b), and this Court has stated that Section 504 was “‘patterned after and is almost identical to the anti-discrimination language of’”
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Title IX. Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1379 (10th Cir. 1981) (quoting S. Rep. No. 93-1297, 1974 U.S.C.C.A.N. 6373, 6390). Under this “almost identical” statute, courts compare the treatment of male and female college athletes who compete on separate teams. See, e.g., Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 829-32 (10th Cir. 1993) (holding that university violated Title IX when it cut its women’s softball team).
Once the proper focus of the analysis is recognized to be the USOC’s entire program, it is clear that Paralympic athletes -- who are Amateur Athletes as that term is defined by statute -- are qualified for the Athlete Support Programs the USOC makes available to Olympic and Pan-American athletes. There is no evidence that the eligibility requirement of being an Olympic or Pan-American athlete is essential to the Athlete Support Programs. See 28 C.F.R. § 41.32(b) (defining “qualified” as a person with a disability who “meets the essential eligibility requirements for” for receiving the services in question).
Under a proper, institution-wide, analysis, it also becomes clear that the policy excluding Paralympic Amateur Athletes from Athlete Support Programs discriminates on the basis of disability, either outright or because “Paralympic athlete” is a proxy for “Amateur Athlete with a disability.” In addition, that policy violates the Section 504 regulation barring criteria or methods of administration
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that have the effect of excluding people with disabilities. 28 C.F.R. § 41.51(b)(3)(i).
ARGUMENT I. Standard of Review
The district court granted the USOC’s motion for summary judgment in the Shepherd case. This Court “review[s] the district court’s grant of summary judgment de novo, considering the evidence in the light most favorable to the appellant.” Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1209 (10th Cir. 2003). “In reviewing such dispositions, this court repeatedly has emphasized that we must draw all inferences in favor of the party opposing summary judgment.” O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1096 (10th Cir. 1999).
The district court granted the USOC’s motion to dismiss the Hollonbeck plaintiffs’ Section 504 claim pursuant to Rule 12(b)(6) for failure to state a claim. “This Court reviews a district court’s order granting a motion to dismiss for failure to state a claim de novo, . . . accept[ing] all well-pleaded factual allegations in the complaint as true and view[ing] them in the light most favorable to the nonmoving party. A dismissal pursuant to 12(b)(6) will be affirmed ‘only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle the
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plaintiff to relief.’” Lovell v. State Farm Mut. Auto. Ins. Co., 466 F.3d 893, 89899 (10th Cir. 2006) (citations omitted). II. Elements of a Claim under Section 504.
Under Section 504, a qualified individual with a disability may not, solely by reason of his or her disability, be “excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). Regulations implementing Section 504 define discrimination to include, among others things, denying qualified individuals with disabilities “the opportunity to participate in or benefit from” a benefit offered by the recipient, and affording such individuals “an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others.” 28 C.F.R. § 41.51(b)(1)(i), (ii).4 Section 504 also prohibits criteria or methods of administration that have the effect of subjecting people with disabilities to discrimination. 28 C.F.R. § 41.51(b)(3)(i); see also Alexander v. Choate, 469 U.S. 287, 299 (1985).
4 The Department of Justice Coordination Regulations, 28 C.F.R. pt. 41, apply “to each Federal department and agency that is empowered to extend Federal financial assistance.” 28 C.F.R. § 41.2. These regulations “are of particular significance” because there were issued by “the agency responsible for coordinating the implementation and enforcement of § 504.” Bragdon v. Abbott, 524 U.S. 624, 632 (1998).
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Under Section 504, the Athlete Plaintiffs are required to show that (1) they have a disability; (2) they are otherwise qualified to participate in the program; (3) the program receives federal financial assistance; and (4) the program discriminated against them. Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir. 1999). The USOC has stipulated in Shepherd and the Athlete Plaintiffs have properly alleged in Hollonbeck that the USOC receives federal financial assistance and that the Athlete Plaintiffs have disabilities. (JA at 43, 171, 301, 320.) Thus the only questions at issue here are whether the Athlete Plaintiffs are “otherwise qualified” to participate in the USOC’s program and whether the USOC discriminated against the Athlete Plaintiffs. III. The Fact That Olympic and Paralympic Athletes Participate in
Separate International Competitions Does Not Justify Denying Paralympic Athletes Benefits Offered Other Amateur Athletes. The district court erred in concluding that any attempt to analyze the USOC’s obligation to all Amateur Athletes -- Olympic, Pan American and Paralympic -- in a unified fashion was belied by legislative history and the USOC’s structure. (JA at 534.) Based on that essentially factual error, the district court erred in restricting its discrimination analysis to the Olympics, rather than considering the USOC as a whole, as compelled by Section 504’s definition of “program or activity”: “all of the operations of” the recipient of federal funding.
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29 U.S.C. § 794(b). The history of that definition and an Eighth Circuit case based on identical language in Title IX demonstrate that it precludes the narrow single-program focus of the district court’s decision. A number of cases under both Section 504 and Title IX provide additional support for this conclusion.
A. Legislative History and the USOC’s Structure Demonstrate that It Has Direct and Equal Responsibility for all Amateur Athletes.
The ASA defines the USOC’s duties and purposes. This statute makes clear that the USOC has responsibility for Olympic, Pan-American, and Paralympic athletes, and places no one category of athlete above the others. It defines “amateur athlete” to include all of these athletes, and “amateur athletic competition” as games in which amateur athletes compete. 36 U.S.C. § 220501(b)(1), (2). It then defines the USOC’s purposes in terms of Amateur Athletes and amateur athletic competition and activities, and expressly assigns the USOC responsibility for “all matters pertaining to” the Olympic, Pan American, and Paralympic games and for “obtain[ing] for the United States . . . the most competent amateur representation possible in each event of the Olympic Games, the Paralympic Games, and Pan-American Games.” 36 U.S.C. § 220503(3)(A), (4). Nothing in the language of the statute suggests that one of these games or categories of Amateur Athletes is paramount or privileged over the others.
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Because this language is unambiguous, there should be no need to explore the legislative history to determine what Congress intended when it gave the USOC responsibility for the Paralympics and Paralympic athletes. See, e.g., Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 1177 (10th Cir. 2005).
Despite this, the district court looked to the legislative history of the 1998 amendments that assigned the USOC responsibility for the Paralympics and Paralympic athletes and concluded that these amendments merely “formalize[d] recognition of the existing Paralympic movement and add[ed] the Paralympics to the list of international competitions to which the United States will send representatives.” (JA at 534.) This is inaccurate. The 1998 legislative history makes clear that the amendments did far more than that. The legislation was intended to “fully incorporate the Paralympics into the Amateur Sports Act . . .” and to “give the USOC the same duties with respect to the Paralympic Games as it has with the Olympic Games.” S. Rep. No. 105-325 at 2, 5 (1998), 1998 WL 604018. It also was to “make clear that disabled athletes are ‘amateur athletes’ under the Act’s existing definition . . .” Id. at 5. Congress did not just staple the Paralympics to the USOC as an afterthought; it intended fully to incorporate that program and its athletes into the USOC.
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The district court’s analysis of the USOC’s structure was also incorrect. That court articulated its belief that while the USOC represents the United States internationally as its national Paralympic committee, “vis á vis individual citizens” the USOC works through national governing bodies (“NGBs”) and paralympic sports organizations (“PSOs”). (JA at 507.) This is an incomplete picture. While the USOC delegates organizational responsibility to NGBs and PSOs, it also provides direct support to athletes. The USOC’s Resource Allocation Policy states that the USOC “shall allocate performance-based resources to the NGBs and direct athlete support to the athletes . . .” and specifies that “[g]rants awarded to athletes by the USOC shall be paid directly to athletes . . ..” (JA at 110-11, see also id. at 171, 307.)
Ultimately, the USOC is a single institution assigned responsibility for three categories of Amateur Athletes -- Olympic, Pan-American, and Paralympic -- only two of which are eligible for its Athlete Support Programs. Paralympic athletes -the category that both the USOC and Congress equate with elite disabled athletes -- are excluded from those programs. The fact that these athletes do not compete in the same sports or set of Games does not justify the district court’s decision to restrict the focus of its antidiscrimination analysis only to the Olympics.
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B. The District Court Erred in Focusing its Analysis Only on the Olympics.
Section 504 prohibits disability discrimination by “any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The statute defines “program or activity” in relevant part as “all of the operations of . . . an entire corporation, partnership or other private organization . . .” Id. § 794(b)(3)(A).
This definition and its history were crucial to the Eighth Circuit when it addressed a question similar to the present -- what program is the proper focus of an antidiscrimination analysis under this language? -- in Klinger v. Department of Corrections, 107 F.3d 609, 615-16 (8th Cir. 1997). In Klinger, female prisoners in Nebraska’s only facility for women had alleged that their training opportunities were inferior to those provided at one specific facility for male prisoners, in violation of Title IX. Id. at 612. The Eighth Circuit held that it was inappropriate to compare only those two facilities; rather, the discrimination analysis should consider “[t]he Nebraska prison system as a whole.” Id. at 615. This conclusion was based on Title IX’s definition of “program or activity,” which is identical to that of Section 504. Id.; compare 20 U.S.C. § 1687 with 29 U.S.C. § 794(b). Both definitions were added simultaneously to their respective statutes by the Civil
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Rights Restoration Act of 1987 (“CRRA”). Pub. L. No. 100-259, § 4, 102 Stat. 28 (1988).
The Eighth Circuit gave considerable weight to the legislative history of the CRRA. The court noted that the statute had been passed to reverse the Supreme Court’s decision in Grove City College v. Bell, 465 U.S. 555 (1984), which had held that the term “program or activity” in Title IX was limited only to that discrete program within an institution that actually received federal funding. Klinger, 107 F.3d at 615 n.7. The court concluded that “the purpose of [the definition] was ‘to make clear that discrimination is prohibited throughout entire agencies or institutions if any part receives Federal financial assistance.’” Id. at 615 (citing S. Rep. No. 100-64, at 4, reprinted in 1988 U.S.C.C.A.N. 3, 6). Thus, the definition of “program or activity” in Title IX, the Eighth Circuit held, “requires comparison of educational opportunities for female and male prisoners within the entire system of institutions operated by a state’s federally-funded correctional department or agency . . .” Id. at 616.
The identical definition in Section 504 requires comparison of benefits provided to disabled and non-disabled Amateur Athletes within the entire institution of the USOC. Indeed, the legislative history of the CRRA states further that it would restore Section 504 -- as well as Title IX, Title VI of the Civil Rights
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Act (“Title VI”), 42 U.S.C. § 2000d, and the Age Discrimination Act of 1975, 42
U.S.C. § 6101 - 6107 -- “to the broad, institution-wide application which
characterized coverage and enforcement from the time of initial passage until the
Grove City decision.” S. Rep. No. 100-64, at 4, reprinted in 1988 U.S.C.C.A.N. 3,
6.
C. Other Cases Decided under Section 504 and Title IX Suggest That the Proper Focus of Analysis Is the USOC as a Whole.
1. The Fact That an Organization’s Disabled Participants May Be in a Separate Program Does Not Excuse Discrimination.
The fact that an organization may provide services to participants with
disabilities through a separate program does not insulate it from an
antidiscrimination analysis. For example, in the Ninth Circuit case of Rodde v.
Bonta, 357 F.3d 988 (9th Cir. 2004), the plaintiffs challenged, under Title II of the ADA (“Title II”),5 the closure of a rehabilitation hospital that provided a unique
range of services necessary for individuals with certain disabilities, id. at 990-91,
in other words, a separate program for disabled county residents. The defendant
5 42 U.S.C. § 12131 - 12165 (prohibiting discrimination on the basis of disability by public entities). Title II “‘essentially simply extends the anti-discrimination prohibition embodied in section 504 . . . to all actions of state and local governments.’” Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 859 (10th Cir. 2003) (quoting H.R. Rep. No. 101-485, pt. 2, at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367).
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argued that the disabled plaintiffs could use any one of several hospitals that remained open and that they did not have a right to the services provided by the separate rehabilitation hospital. Id. at 995, 998. The Ninth Circuit disagreed, holding that if the county were to close the rehabilitation hospital, “it will reduce, and in some instances eliminate, necessary medical services for disabled Medi-Cal patients while continuing to provide the medical care required and sought by Medi-Cal recipients without disabilities” in violation of Title II. Id. at 998.
The Ninth Circuit also endorsed the similar holding of Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F. Supp. 986 (S.D. Fla. 1994), in which the court had held that it violated Title II when a city recreation department shut down its (separate) programs for individuals with disabilities, while continuing to provide programs -- theoretically open to all -- to nondisabled city residents. Rodde, 357 F.3d at 998; see also Dreher Park, 846 F. Supp. at 991.
In Rodde and Dreher Park, the fact that the program for people with disabilities was separate did not insulate it from review for disability discrimination. Rather, the analysis focused on the treatment of people with disabilities systemwide.
The district court distinguished Rodde and Dreher Park on the grounds that the programs for people with disabilities in those cases were eliminated
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completely, while the Paralympics still exist. (JA at 534-37.) This misinterprets both the absolutism of the USOC’s position and the posture of the present case.
The USOC does not argue that its current level of Paralympic support is sufficient to satisfy Section 504. Rather, it argues that the fact that the programs are separate removes them completely from scrutiny under Section 504. Under the USOC’s theory, it could in fact eliminate all support for Paralympic athletes and those athletes would be without recourse under Section 504.
The district court did not, in any event, have the facts necessary to evaluate the support provided to Paralympic athletes. Largely due to the USOC’s absolutist stance, there was no evidence before the district court concerning the actual level of support that the USOC provides to either Olympic or Paralympic athletes. Rather, the legal question was before the court in Shepherd precisely because the USOC -- based on its position that the relative levels of support between Olympic and Paralympic athletes were beyond scrutiny under Section 504 -- had refused to produce in discovery certain documents and information concerning the support provided its various categories of Amateur Athletes. To resolve the Athlete Plaintiffs’ motion to compel this information, the parties stayed discovery, entered stipulations, and submitted the pure legal question to the Court. Those stipulations and the other limited evidence in the record in Shepherd, as well as the
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allegations in Hollonbeck, demonstrate that there are a number of programs for which Paralympic athletes simply are not eligible at all.6
The USOC urged that the reasoning of John Does 1-5 v. Chandler, 83 F.3d 1150 (9th Cir. 1996), was more applicable than that of Rodde or Dreher Park. The district court agreed. (JA at 536.) In Does 1-5, the Ninth Circuit held that the state of Hawai’i could place a durational limit on a program providing benefits to needy persons with disabilities, despite the fact that a program providing benefits to needy families with dependent children was not so limited. Id. at 1155. This decision was based in part on the court’s determination that the benefit programs were separate and should be analyzed separately, rather than as part of a unitary general assistance program. Id. This alone makes the case inapposite here, as the Athlete Support Programs for which Olympic and Pan-American athletes are
6 Because of this, the district court also erred in relying on its perception that the “differences in perks and privileges” between Olympic and Paralympic teams are “premised on and defined by” the disabilities of Paralympic athletes and that differences in the allocation of resources may be based on the fact that the Paralympics are “smaller in scale” than the Olympics. (JA at 519-20.) Again, no such nuanced differences were before the district court and the only “premises” the USOC offered for denying benefits to Paralympic athletes was that they were not Olympic athletes. Similarly, the Athlete Plaintiffs are not complaining of the “quality” of the benefits provided them (see JA 519, 521, 53436), but the fact that the Athlete Support Programs are not open to them at all.
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eligible are not properly analyzed as separate from any benefits provided to Paralympic athletes.
The present case differs from Does 1-5 in another crucial respect: the favored program in Does 1-5 -- the one for needy families with dependant children -- was in fact open to all, that is, it did not exclude needy families with dependent children that included family members with disabilities. The category “families with dependent children” was in no way tantamount to or a proxy for7 “non-disabled families,” and the criterion of having dependent children does not have the effect of excluding individuals with disabilities.8 The plaintiffs in Does 1-5 made no such arguments and it is simply common sense that many families with dependent children will have one or more members who have disabilities. This was essential to the court’s approval of the differing durational limitations. Id. at 1155 (holding that “a program would not violate the ADA as long as disabled people with children were not excluded from full participation in the program.”) In contrast, the Athlete Support Programs at issue here explicitly exclude the precise category of Amateur Athletes that Congress and the USOC define as elite disabled athletes.
7 See infra at 39-42. 8 See infra at 46-49.
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2. Cases Decided under Title IX Demonstrate That it Is Appropriate to Analyze Discrimination on an InstitutionWide Basis.
Precedent under Title IX -- especially in the arena of college athletics -provides additional support for the principle that it is proper to compare separate programs of protected class and non-protected class participants within a single institution for purposes of an antidiscrimination analysis. Courts have widely interpreted Title IX to require equitable treatment of male and female athletes participating in separate teams and programs. See, e.g., Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 829-32 (10th Cir. 1993) (holding that university violated Title IX when it cut its women’s softball team); Cohen v. Brown Univ., 991 F.2d 888, 903-04 (1st Cir. 1993) (holding that demoting two women’s varsity teams to club status violated Title IX); Sternberg v. U.S.A. Nat’l Karate-Do Fed’n, Inc., 123 F. Supp. 2d 659, 661-62 (E.D.N.Y. 2000) (holding that female athlete stated cause of action against the NGB of karate for sex discrimination under Title IX based on the NGB’s decision to withdraw a women’s team from world championship competition while permitting the equivalent men’s team to participate).
Several other courts have held that, under Title IX, male and female prisoners -- who are segregated by gender and often reside in different institutions
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-- must be offered comparable educational opportunities. See, e.g., Klinger, 107 F.3d at 615-16 (holding that Title IX applied to segregated male and female prisoners, requiring “comparison of educational opportunities . . . within the entire system of institutions”); Jeldness v. Pearce, 30 F.3d 1220, 1229 (9th Cir. 1994) (holding that Title IX would prohibit, for example, “offering of educational programs only in the men’s prisons, without offering equivalent programs in the women’s prison.”).
In each of these cases, the men’s and women’s programs were separate -either involving separate teams playing different sports or segregated men’s and women’s prisons -- yet the courts recognized that Title IX prohibited actions that favored the men’s program over the women’s program. Furthermore, in none of these cases did the defendant eliminate the women’s program entirely; rather, the conduct held to violate Title IX was the provision of certain opportunities or support to the men’s program that were not provided to the women’s program.
3. The District Court Erred In Rejecting The Relevance of Title IX Precedent.
Cases decided under Title IX are especially relevant to this Court’s analysis of the Athlete Plaintiffs’ claims because Section 504 was “‘patterned after and is almost identical to the anti-discrimination language of’” Title IX and Title VI.
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Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1379 (10th Cir. 1981) (quoting S. Rep. No. 93-1297, 1974 U.S.C.C.A.N. 6373, 6390); see also S. Rep. No. 100-64, at 5 (1987), reprinted in 1988 U.S.C.C.A.N. 3, 7 (Section 504 and Title IX were “modeled on Title VI with respect to both language and intended effect.”). Of particular importance, as noted above, is the fact that the definition of “program or activity” is identical in both statutes. The legislative history of the bill that added these identical definitions stated that “[e]ach of [Title VI, Title IX, Section 504, and the Age Discrimination Act of 1975] employs the same careful language to describe coverage so that the same standards are used to interpret and enforce all four laws.” S. Rep. No. 100-64, at 3, reprinted in 1988 U.S.C.C.A.N. 3, 5-6.
Many courts -- when interpreting one of these four statutes -- rely on precedents interpreting the other three to address a variety of different questions including: whether prohibited discrimination under the statute includes retaliation, Ryan v. Shawnee Mission U.S.D. No. 512, 437 F. Supp. 2d 1233, 1256 (D. Kan. 2006) (relying on Title IX precedent to interpret Section 504; citing Pushkin); what constitutes actionable harassment, Bryant v. Independent School District. No. I-38, 334 F.3d 928, 934 (10th Cir. 2003) (relying on Title IX precedent to interpret Title VI); what damages are available, Barnes v. Gorman,
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536 U.S. 181, 185 (2002) (noting that the same standards apply to all four statutes); and what constitutes receipt of federal financial assistance, Nat’l Collegiate Athletic Ass’n v. Smith, 525 U.S. 459, 466 n.3, 468 (1999) (same).
The district court refused to consider precedent under Title IX in analyzing the Athlete Plaintiffs’ claims, stating that the Athlete Plaintiffs were attempting to “graft” or “infuse” the Title IX regulatory scheme onto or into the ADA. (JA at 513, 521, 541.) This is not so. There is no need to borrow the Title IX regulations as Section 504 already has regulations that prohibit the conduct challenged here. See, e.g., 28 C.F.R. § 41.51(b)(1)(i) (barring recipients of federal funding from denying participants with disabilities “the opportunity to participate in or benefit from” benefits offered by the recipient). Rather, Title IX precedents are instructive because they apply a statute this Court has recognized to be almost identical to Section 504 to a factual scenario similar to the one at issue here.
The “institution-wide application” that Congress intended by the current definition of “program or activity” -- which does not rely on Title IX regulations but rather identical statutory language -- does not permit the USOC’s approach of limiting the analysis only to the Olympics. Rather, it requires analysis of the USOC’s treatment of all of the Amateur Athletes for whom the USOC has responsibility. So analyzed, as set forth in greater detail below, it is clear that the
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USOC discriminates against Amateur Athletes with disabilities in violation of Section 504. IV. The District Court Erred in Holding That the Athlete Plaintiffs Were
Not Qualified for the Benefits at Issue Here. The Athlete Plaintiffs are qualified for the benefits at issue here because they are “Amateur Athletes” -- the category of individual for which the USOC is responsible -- as that term is defined by statute. A person with a disability is “qualified” under the applicable regulations if he “meets the essential eligibility requirements for” for receiving the services in question. 28 C.F.R. § 41.32(b). Being an Amateur Athlete -- as defined by statute -- is an essential eligibility requirement for the USOC’s Athlete Support Programs; being an Olympic athlete is not. It is important to be clear which eligibility requirement the Athlete Plaintiffs challenge here. The Athlete Plaintiffs are not asking for any modification to the physical or athletic eligibility requirements for any Olympic or Pan-American sport. Rather, the eligibility requirement they challenge is a purely administrative one: that Olympic and Pan-American athletes are eligible to apply for a series of benefits -- completely unrelated to sport -- for which Paralympic athletes are not eligible. Amateur Athletes do not have to have any particular set of physical
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abilities or athletic talents to make use of a cash grant, tuition support, or health insurance. This is best illustrated by the fact that all Olympic athletes -- ranging from weight lifters to figure skaters -- are eligible to apply for these benefits. Thus the question of whether the Athlete Plaintiffs are qualified physically or athletically to compete in the Olympics is completely irrelevant.
Instead, the question whether the Athlete Plaintiffs are qualified is simply this: Is the eligibility requirement restricting Athlete Support Programs such as grants, tuition assistance, and health insurance to Olympic and Pan-American athletes essential? It is certainly not essential to the benefits themselves: again, there is nothing inherent to cash grants and health insurance that limits their usability to Olympic and Pan-American athletes. Without changing any aspect of the grants or insurance, the USOC could open up eligibility for its Athlete Support Programs to Paralympic athletes.
The restriction is also not essential to the USOC’s program as a whole. The USOC’s purpose includes “obtain[ing] for the United States . . . the most competent amateur representation possible in each event of the Olympic Games, the Paralympic Games, and Pan-American Games.” 36 U.S.C. § 220503(4). Restricting the Athlete Support Programs to two of these three categories is not essential to that purpose. In fact, eliminating that restriction and permitting
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Paralympic athletes to be eligible for Athlete Support Programs will promote that purpose.
The district court erred by focusing its analysis only on the Olympics, concluding that the Athlete Plaintiffs failed to demonstrate that “these benefits are not ‘necessary’ to the maintenance of the Olympic team.” (JA at 539.) As demonstrated above, the proper focus is institution-wide, so the question is necessity to the USOC’s entire program, not just the Olympics. In addition, the question is not whether the benefits are necessary, but whether an eligibility requirement that excludes Paralympic athletes from those benefits is necessary. The USOC has presented no evidence that this is the case. In any event, so phrased, it is clear that this approach would be improper: if exclusion of a protected class could be excused on the grounds that it was necessary to reserve more benefits or resources for the non-protected class, the whole point of antidiscrimination laws would be defeated. Based on the necessity of reserving jobs for men, workplaces could not be integrated; in order to reserve slots for white students, schools could not be integrated.
The USOC argued below that the Athlete Plaintiffs were not qualified for what it calls “Olympic programming” simply because they were not Olympic
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athletes. (See, e.g., JA at 87.) This is circular.9 Defendants have defined the qualification in terms of the precise category the Athlete Plaintiffs challenge as discriminatory: The limitation of certain benefits to Olympic athletes. The Supreme Court has held, in interpreting Section 504, that “[t]he benefit itself, of course, cannot be defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled . . .” Choate, 469 U.S. at 301 (1985); see also Clark v. Va. Bd. of Bar Exam’rs, 880 F. Supp. 430, 441 (E.D. Va. 1995) (noting, in addressing mental health question on bar application, that “[w]hile Defendant argues that [the plaintiff] is not an ‘otherwise qualified individual’ because she failed to answer [the mental health question], this argument begs the question of whether [the question] must be answered at all.”). The USOC’s argument is equivalent a college labeling its athletic benefits the “Men’s Athletic Program,” and then asserting that female college athletes are not “qualified” for the benefits because they are not men.
9 It is also arguably a pretext, because Pan American athletes are also eligible for what the USOC calls “Olympic Programming” for purposes of this case -- but “Athletic Support Programs” in its non-litigation documentation -without, apparently, being Olympic athletes. (See JA at 110.)
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V. The District Court Erred In Holding That Exclusion of Paralympic Athletes from Athlete Support Programs Was Not Discriminatory. Once it is clear that Amateur Athletes competing in Paralympic Games are
qualified for the USOC’s Athlete Support Programs, it becomes equally clear that excluding those athletes from the Athlete Support Programs constitutes facial discrimination on the basis of disability, whether outright or by proxy.
A. Exclusion of Paralympic Athletes from the Athlete Support Programs is Facial Disability Discrimination.
The USOC discriminates against Amateur Athletes with disabilities by excluding Paralympic athletes from eligibility for Athlete Support Programs, and denying them benefits such as grants, tuition assistance, and health insurance that it provides to Olympic and Pan-American athletes. This policy thereby denies Paralympic athletes -- who are, by definition, disabled -- “the opportunity to participate in or benefit from” the Athlete Support Programs, including grants, assistance, and health insurance, and thereby provides benefits that are not equal to that afforded Olympic athletes, in violation of Section 504. See 28 C.F.R. § 41.51(b)(1)(i), (ii).
The exclusion of Paralympic athletes from the Athlete Support Programs constitutes intentional disability discrimination. “By showing that a protected group has been subjected to explicitly differential -- i.e. discriminatory --
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treatment” the Athlete Plaintiffs demonstrate intentional discrimination. Bangerter v. Orem City Corp., 46 F.3d 1491, 1501 (10th Cir. 1995). Providing benefits to Amateur Athletes competing in the Olympic and Pan American Games but denying eligibility to Amateur Athletes competing in the Paralympic Games subjects the protected group of athletes with disabilities to explicitly differential treatment. Plaintiffs have thus demonstrated intentional disability discrimination.
B. “Paralympic Athlete” Is a Proxy for Disabled Amateur Athlete, Making Discrimination Against the Former Facial Discrimination Against the Latter.
The fact that the USOC’s discrimination is against Paralympic athletes rather than against disabled athletes per se is not to the contrary. In the present case, the USOC has recognized that the Paralympics are “the equivalent of the Olympic Games for the physically challenged” (JA at 167, see also JA at 302), and Congress has described the Paralympics as “the Olympics for disabled amateur athletes,” S. Rep. 105-325 at 2 (1998), 1998 WL 604018. Using such a “proxy” for a protected class constitutes facial discrimination. Thus, by excluding Paralympic athletes from its Athlete Support Programs, the USOC engages in facial disability discrimination.
In McWright v. Alexander, 982 F.2d 222 (7th Cir. 1992), for example, the plaintiff, who was infertile due to a disability, asserted a claim under section 501
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of the Rehabilitation Act, 29 U.S.C. § 791,10 based on the fact that her employer set terms for maternity leave -- including, for example, specifying a date certain on which it would begin -- that were more favorable to women bearing children naturally than those adopting children. Id. at 224. The district court had dismissed on the grounds that the policy of advance notice for maternity leave did not appear to be intentional discrimination on the basis of disability. The Seventh Circuit reversed, observing that
discrimination “because of” handicap is frequently directed at an effect or manifestation of a handicap rather than being literally aimed at the handicap itself. Thus, a school’s exclusion of a service dog has been held to be discrimination “because of” handicap, and no doubt a policy excluding wheelchairs would be such discrimination . . .. Id. at 228 (citing Sullivan v. Vallejo City Unified Sch. Dist., 731 F.Supp. 947, 958 (E.D. Cal.1990)). The Seventh Circuit stressed that the fit did not have to be perfect: “An example is using gray hair as a proxy for age: there are young people with gray hair (a few), but the ‘fit’ between age and gray hair is sufficiently close that they would form the same basis for invidious classification.” Id.; see also Erie County Retirees Ass’n v. County of Erie, 220 F.3d 193, 211 (3d Cir.
10 Section 501 prohibits employment discrimination on the basis of disability by federal agencies. 29 U.S.C. § 791. The Seventh Circuit stated that the plaintiff’s intentional discrimination claim “might as easily come under § 504 as under § 501.” McWright, 982 F.2d at 227.
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2000) (holding that offering Medicare-eligible retirees different benefits than nonMedicare-eligible retirees constitutes age discrimination because “Medicare status is a direct proxy for age”); Sharpvisions v. Borough of Plum, 475 F. Supp. 2d 514 (W.D. Pa. 2007) (holding that definition of “group home” as up to ten persons “plus staff” was a proxy for persons with disabilities) (no pinpoint cite available).
The district court did not address the Athlete Plaintiffs’ proxy discrimination argument, but rather appeared to confuse it with what that court called the separate benefit analysis. (See JA at 536.) The Athlete Plaintiffs address that issue below. See infra at 45-46.
The USOC relied below on Community Services, Inc. v. Wind Gap Municipal Authority, 421 F.3d 170 (3d Cir. 2005). This case is not, however, contrary to the Athlete Plaintiffs’ proxy discrimination argument. In fact, the Wind Gap case reconfirmed that proxy discrimination constitutes intentional discrimination. Id. at 177-178 (citing McWright and Erie County). However, the Third Circuit concluded that the “fit” at issue was not close enough to constitute a proxy. The plaintiff in Wind Gap was a for-profit home for individuals with disabilities. The city of Wind Gap had classified it as a “commercial facility” which invoked a more burdensome permitting process than that for residential facilities. Id. at 173. The Third Circuit focused on the fact that the designation
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“commercial facility” included many non-disability-related facilities such as hotels, motels, and restaurants. Id. at 181. Thus, the excluded classification was in no way a proxy for persons with disabilities. Here, in contrast, it is only Paralympic athletes -- those the USOC and Congress equate with elite disabled athletes -- who are excluded from the Athlete Support Programs, for which both Olympic and Pan-American athletes are eligible. The “fit” is sufficiently close between Paralympic athletes and Amateur Athletes with disabilities to make facial discrimination against the former a proxy for facial discrimination against the latter.
C. It Is Irrelevant That the Occasional Olympic Athlete May Have a Disability.
The district court erred when it relied on the fact that some athletes whose disabilities (for example, deafness) do not impact their ability to play Olympic sports may qualify for the Athlete Support Programs from which Paralympic athletes are excluded. (JA at 519.) It is irrelevant that the occasional Olympic athlete with a disability may be entitled to the benefits at issue here. “The . . . appropriate treatment of some disabled persons does not permit [the defendant] to discriminate against other disabled people . . ..” Lovell v. Chandler, 303 F.3d 1039, 1054 (9th Cir. 2002) (rejecting the argument that a healthcare benefit
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program for the working poor that categorically excluded individuals with disabilities did not violate section 504 because some individuals with disabilities were poor enough to receive benefits under Medicaid); Hargrave v. Vermont, 340 F.3d 27, 30, 36-37 (2d Cir. 2003) (holding that statute affecting individuals with mental illness who were civilly committed or in prison violated Title II of the ADA despite the fact that it only affected a subset of individuals with mental illness); Children’s Alliance v. City of Bellevue, 950 F. Supp. 1491, 1496 n.8 (W.D. Wash. 1997) (“That a law may not burden all members of the protected class does not remove its facially discriminatory character.”).
The USOC’s argument is essentially equivalent to that of a city park that bars people who use wheelchairs, but asserts that the rule is not discriminatory because deaf and blind people can still use the park. The categorical denial of benefits to Paralympic athletes constitutes discrimination even if the occasional athlete with a non-sport-related disability competes in the Olympics.
D. The District Court Erred In Concluding that The Mere Existence of the Paralympics Satisfied Section 504.
Ultimately, Section 504 requires that Paralympic athletes have “meaningful access” to the USOC’s Athlete Support Programs. Choate, 469 U.S. at 301. The district court, while not alluding to that standard, held that it was sufficient that
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“the participation opportunity for wheelchair athletes is . . . provided through a separate (Paralympic) program.” (JA at 534.) This, again, misconstrues the nature of the discrimination the Athlete Plaintiffs challenge here. They do not argue that there are no, or restricted, opportunities for athletic participation. Rather, they argue that it constitutes discrimination under Section 504 that the one category of Amateur Athlete consisting of disabled athletes has no access whatsoever to specific non-athletic benefits.
The bare existence of a Paralympic program within the USOC does not, in any event, constitute “meaningful access” to that organization’s program. In Chaffin, this Court held that “[a] violation of Title II does not occur only when a disabled person is completely prevented from enjoying a service, program, or activity. . .” 348 F.3d at 861 (quoting Shotz v. Cates, 256 F.3d 1077, 1080 (11th Cir. 2001)). Again, the evidence before the district court in Shepherd was that Paralympic athletes were excluded completely from the Athlete Support Programs. (JA at 110; 173-74.) In Hollonbeck, the plaintiffs properly alleged a number of benefits for which Olympic athletes were eligible but Paralympic athletes were not. (JA at 307-08.) There were no allegations or evidence before the court sufficient to sustain the conclusion -- under Rule 12(b)(6) or 56(b) -- that the USOC provided meaningful access to its programs for Paralympic athletes.
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E. The So-Called “Separate Benefit” Provision Is Irrelevant Here and Is, in Any Event, an Affirmative Defense Not Pleaded or Proved by the USOC.
The district court repeatedly noted that the Athlete Plaintiffs did not rely on
what it called the “separate benefit” provision. (See, e.g., JA at 511, 519, 536-37.)
This provision states that a recipient of federal funding may not
[p]rovide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons than is provided to others unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;
28 C.F.R. 41.51(b)(1)(iv).11 This provision is not relevant here for the simple
reason that the USOC does not provide separate benefits. Olympic and
Paralympic athletes may compete in separate sports on separate teams, but there is
one set of benefits: the Athlete Support Programs -- including grants, tuition
support, and insurance -- from which Paralympic athletes are excluded.
In any event, this “separate benefit provision” is an affirmative defense as to
which the USOC has the burden of proof: benefits “may not” be separate “unless
[it] is necessary” to ensure effectiveness, 28 C.F.R. 41.51(b)(1)(iv). See Colo.
11 Because the district court was reviewing the Athlete Plaintiffs’ ADA claim as well as their Section 504 claim, it referred throughout to the ADA’s separate benefit provision. (See, e.g., JA at 511 (citing 42 U.S.C. § 12182(b)(1)(A)(iii)).) The language of that provision is virtually identical to that of the regulation cited in text.
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Cross Disability Coalition v. Hermanson Family Ltd. P’ship I, 264 F.3d 999, 1003 (10th Cir. 2001) (stating that three provisions of Title III that impose requirements on covered entities “unless” certain conditions apply establish affirmative defenses on which the defendant has the burden of proof); N.L.R.B. v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 711 (2001) (Discussing “‘the general rule of statutory construction that the burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits.’” (Internal citations omitted).) Thus the benefits at issue here -- grants, tuition assistance, insurance -- may not be provided to Paralympic athletes in a separate benefit program unless the USOC can show that such separation is necessary. The USOC -- which has the burden of proof -- has provided no evidence that this is the case. VI. The District Court Erred in Rejecting the Athlete Plaintiffs’ Claim That
the Challenged Criterion Had the Effect of Screening Out Amateur Athletes with Disabilities. Section 504 prohibits “criteria or methods of administration . . . that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability.” 28 C.F.R. § 41.51(b)(3)(i); see also Choate, 469 U.S. at 299; Chaffin, 348 F.3d at 859-60 (Section 504 was intended “to remedy . . . disparate impact discrimination.”).
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The USOC’s criterion requiring that Amateur Athletes be eligible to compete in the Olympics or Pan-American games to qualify for Athlete Support Programs has the effect of subjecting Amateur Athletes with disabilities to discrimination. Congress stated that the analogous provision in Title III of the ADA “makes it discriminatory to impose policies or criteria that, while not creating a direct bar to individuals with disabilities, diminish such individuals’ chances of participation.” H. R. Rep. No. 101-485, pt. 2, at 105 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 388. Given that no Paralympic athletes are eligible for the Athlete Support Programs, the chances of most Amateur Athletes with disabilities receiving such benefits are close to zero.
The district court rejected this theory12 on the grounds that the criterion of being an Olympic athlete was “necessary” to the maintenance of the Olympic team and that “it is irrelevant that the USOC chooses to provide Olympic programming only to Olympic athletes as long as the gateway to that program operates in a nondiscriminatory manner.” (JA at 539-40.)13 The Athlete Plaintiffs addressed
12 Because the district court was focusing on the Athlete Plaintiffs’ claims under Title III, it analyzed a similar provision in that statute. (See JA at 538 (citing 42 U.S.C. § 12182(b)(2)(A)(i)).)
13 The district court’s analysis of the disparate impact question was somewhat entwined with its rejection of the USOC as a “place of public
(continued...) -47-

the former point above, in their discussion of “essential eligibility requirements.” See supra at 34-37. The criterion of being an Olympic athlete to be eligible for Athlete Support Programs -- in fact, both Olympic and Pan-American athletes are eligible -- is only “necessary” if the purpose of those programs is improperly constrained to the maintenance of a subset -- the non-protected class subset -- of the Amateur Athletes for which the USOC has responsibility. Again, this is equivalent to excluding female athletes from insurance and grants provided to male athletes, and justifying on the grounds that doing so is necessary to maintain the men’s teams.
The district court’s second grounds for rejecting the Athlete Plaintiffs’ argument misses the point of the regulation barring criteria that have the effect of discriminating on the basis of disability. If the statement that the “gateway . . . operates in a nondiscriminatory manner” means that the criterion requiring eligibility for the Olympics to qualify for Athlete Support Programs is facially neutral, that makes it precisely the type of criterion that is appropriate for analysis under this regulation. As the Department of Justice stated, in interpreting almost identical language in the regulations implementing Title II, the provision
13(...continued) accommodation” under Title III. (JA at 539-40.) Because the Athlete Plaintiffs do not proceed under Title III, that discussion is not relevant here.
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prohibits both blatantly exclusionary policies or practices and nonessential policies and practices that are neutral on their face, but deny individuals with disabilities an effective opportunity to participate. 28 C.F.R. pt. 35, app. A at 550 (2006). If, on the other hand, the district court’s phrasing was intended to indicate that the “gateway” does not have a discriminatory effect, it is patently wrong: the criterion of having to be an Olympic athlete excludes all Paralympic athletes, the vast majority of Amateur Athletes with disabilities. This criterion has “the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap” in violation of Section 504. 28 C.F.R. § 41.51(b)(3)(i).
CONCLUSION For the reasons set forth above, Appellants respectfully request that this Court reverse the District Court’s decision granting the USOC’s motion for summary judgment in the Shepherd case and its motion to dismiss in the Hollonbeck case and remand for further proceedings in both cases.
STATEMENT REGARDING ORAL ARGUMENT Appellants request oral argument because this case involves questions that this Circuit has not yet addressed, including the “program or activity” that is the proper focus of an antidiscrimination analysis under Section 504.
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Certificate of Service and Digital Submission
The undersigned hereby certifies that,
1. Appellants’ Consolidated Opening Brief including the Addendum thereto and Volumes I and II of the Joint Appendix were filed in writing and in Digital Form (as that term is defined in the Emergency General Order of October 20, 2004) and/or scanned PDF with the United States Court of Appeals for the Tenth Circuit on May 2, 2007.
2. No redactions being required, every document submitted in Digital Form (as that term is defined in the Emergency General Order of October 20, 2004) or scanned PDF format is an exact copy of the written document filed with the Court.
3. The digital submissions references in Paragraph 1 have been scanned for viruses with the most recent version of eTrust Antivirus and, according to the program, are free of viruses.
4. On May 2, 2007, copies of Appellants’ Consolidated Opening Brief including the Addendum thereto, and Volumes I and II of the Joint Appendix were sent on a compact disc and in hard copy, by first-class mail, postage prepaid, to:
John W. Cook Jeffrey S. George Anne H. Turner Hogan & Hartson, LLP 2 N Cascade Ave., Suite 1300 Colorado Springs, CO 80903
Christopher Todd Handman Hogan & Hartson, LLP 555 Thirteenth Street, N.W. Washington, DC 20004-1109

 
 Nos. 07-1053 & 07-1056 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

SCOT HOLLONBECK, JOSE ANTONIO INIGUEZ, and JACOB WALTER JUNG HO HEILVEIL, Plaintiffs-Appellants,
v.
UNITED STATES OLYMPIC COMMITTEE, a federally chartered corporation, Defendant-Appellee.
and
MARK E. SHEPHERD, SR., Plaintiff-Appellant,
v.
UNITED STATES OLYMPIC COMMITTEE, a federally chartered corporation, Defendant-Appellee.

On Appeal from the United States District Court for the District of Colorado The Honorable John L. Kane, United States District Judge Civil Action Nos. 99-cv-2077-JLK & 03-cv-1364-JLK

APPELLANTS’ REPLY BRIEF

Respectfully submitted,
Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Attorneys for Appellants.

Kevin W. Williams Legal Program Director Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775
Attorney for Appellants Hollonbeck, Iniguez and Heilveil.

TABLE OF CONTENTS
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. The Athlete Plaintiffs Are Otherwise Qualified for the Athlete Support Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II. Denying Benefits to Paralympic Athletes That Are Provided to Pan American and Olympic Athletes Violates Section 504. . . . . . . . . . . 7
A. Section 504 Mandates Meaningful Access to, and Equal Opportunity to Participate in or Benefit from, the Benefits and Services of a Recipient of Federal Funding. . . . . . 7
B. The USOC Does Not Provide Equal Opportunity or Meaningful Access to its Athlete Support Programs for Elite Athletes with Disabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
C. Denying Athlete Support Programs to Paralympic Athletes is a Proxy for Disability Discrimination. . . . . . . . . . . . . . 14
D. Patton and Choate Do Not Permit The USOC to Deny Athlete Support Programs to Paralympic Athletes . . . . . . . . . . . . . . . . . . . . 17
III. The USOC’s Separate Benefits Argument Fails . . . . . . . . . . . . . . . . . . . . . 20
A. The Separate Benefits Argument is Based on a False Premise . . . . 21
B. Separate Benefits Are Prohibited By Section 504 Because the USOC Has Not Demonstrated That it is Necessary in Order to Provide Benefits That Are As Effective As Those Provided Others . . . . . . . . . . . . . . . . . . . . . . 22
C. The USOC’s Separate Benefits Argument is a Pretext . . . . . . . . . . 22
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D. Even If Separate Benefits Programs Were, Theoretically, Permitted, the USOC Could Not Provide Systematically Inferior Benefits to Paralympic Athletes . . . . . . . . . . . . . . . . . . . . . 24
E. The Prohibition on Discrimination among Equivalent Programs for Disabled and Nondisabled Participants Does Not Require Equal Funding Across All Programs . . . . . . . . . . . . . . 29
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Certificate Regarding Length of Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Addendum Tab 1: 45 C.F.R. § 84.52(a)(2), 42 Fed. Reg. 22676, 22685 (June 3, 1977) Tab 2: 45 C.F.R. § 85.51(b)(1)(ii), 43 Fed. Reg. 2132, 2138 (January 13, 1978)
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TABLE OF AUTHORITIES
Cases
Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9, 17-19
Asbury v. Brougham, 866 F.2d 1276 (10th Cir.1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14
Bass v. City of Orlando, 57 F. Supp. 2d 1318 (M.D. Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Castellano v. City of New York, 142 F.3d 58 (2d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28-29, 31
Chaffin v. Kansas State Fair Board, 348 F.3d 850 (10th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10, 19
Children’s Alliance v. City of Bellevue, 950 F. Supp. 1491 (W.D. Wash. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F. Supp. 986 (S.D. Fla. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-26
Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Fobar v. City of Dearborn Heights, 994 F. Supp. 878 (E.D. Mich. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Jeldness v. Pearce, 30 F.3d 1220 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 31
John Does 1-5 v. Chandler, 83 F.3d 1150 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-27, 31
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Klinger v. Department of Corrections, 107 F.3d 609 (8th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 30-31
Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
McFadden v. Grasmick, 485 F. Supp. 2d 642 (D. Md. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
McWright v. Alexander, 982 F.2d 222 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16
Patton v. TIC United Corp., 77 F.3d 1235 (10th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-19
Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-26
Sharpvisions, Inc. v. Borough of Plum, 475 F. Supp. 2d 514 (W.D. Pa. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Statutes
Title IX of the Education Amendments of 1972 20 U.S.C. § 1681 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
The Rehabilitation Act of 1973 Section 504, 29 U.S.C. § 794 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
The Americans with Disabilities Act of 1990 42 U.S.C. § 12131 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 42 U.S.C. § 12183(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
-iv-

Regulations 28 C.F.R. § 41.51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9, 22
28 C.F.R. § 41.58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
34 C.F.R. § 106.41(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 31
45 C.F.R. § 84.52(a)(2), 42 Fed. Reg. 22676, 22685 (June 3, 1977) . . . . . . . . . . 11
45 C.F.R. § 85.51(b)(1)(ii), 43 Fed. Reg. 2132, 2138 (January 13, 1978) . . . . . . 11
Legislative History S. Rep. No. 105-325 (1998) 1998 WL 604018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Other Authorities Linda Toms Barker and Vida Maralani, “Challenges and Strategies of Disabled Parents: Findings From a National Survey of Parents with Disabilities,” Berkeley Planning Associates (July 1997) . . . . . . . . . . . . . . . . . . . 27
Mitchell P. LaPlante, et al., “Families with Disabilities in the United States,” 8 Disability Statistics Report, Nat’l Inst. on Disability and Rehabilitation Report No. ED-OSERS-96-12, Univ. of Cal. San Francisco (Sept. 1996) . . . . . . . . . . . . . . . 27
“The Pan American Games: History,” http://www.cob.org.br/pan2007/ingles/jogos_historico.asp . . . . . . . . . . . . . . . . 23
“The Pan American Games: PASO,” http://www.cob.org.br/pan2007/ingles/jogos_odepa.asp . . . . . . . . . . . . . . . . . . . 23
“Prevalence of Disability by Age, Sex, Race, and Hispanic Origin: 2002,” http://www.census.gov/hhes/www/disability/sipp/disab02/ds02t1.pdf. . . . . . . . 29
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USA Track & Field 2007 Competition Rules, http://www.usatf.org/about/rules/2007/2007USATFRules.pdf . . . . . . . . . . . . . . 12 Webster’s Third New International Dictionary Unabridged (2002) . . . . . . . . . . . . 8
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INTRODUCTION Appellees’ brief is long on adjectives -- “high-pitched,” “sprawling,” “newly-minted”1 -- but short on substance, presenting a series of unsupported facts and meritless legal arguments to defend the policy of the United States Olympic Committee (“USOC”) of providing its Athlete Support Programs to two of the three teams for which it is responsible, denying them only to the one team that consists entirely of athletes with disabilities. The USOC’s brief confirms that it is responsible for the U.S. teams in the Olympic, Pan American and Paralympic Games, not amateur athletes in general. (USOC Br. at 39.) Paralympic athletes are, thus, “otherwise qualified” for benefits offered to participants in the other two Games. The mere fact that the Olympics are technically open to individuals with disabilities does not provide the meaningful access required by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”), and does not, therefore justify the categorical exclusion of Paralympic athletes from the Athlete Support Programs. Finally, where a single entity administers separate but equivalent programs for disabled and nondisabled individuals, it cannot provide benefits to the latter that it does not provide -- or provides in systematically inferior amounts -- to the former.
1 Brief for Appellees (“USOC Brief” or “USOC Br.”) at 19, 42, 25. -1-

Appellants Mark Shepherd, Scot Hollonbeck, Jose Antonio Iniguez, and Jacob Walter Jung Ho Heilveil (the “Athlete Plaintiffs”) begin by summarizing the key undisputed facts and identifying several unsupported assertions on which the USOC relies in its brief.
The parties agree that the scope of the USOC’s responsibility is organizing, financing and controlling U.S. participation in the Olympic, Pan American, and Paralympic Games. (USOC Br. at 39.) The teams for which the USOC asserts responsibility will be referred to herein as “The International Teams.”
The parties agree that “[t]he Paralympics are the equivalent of the Olympic Games for the physically challenged.” (JA at 167, 302.) Indeed, Congress has stated that the Paralympics are “the Olympics for disabled amateur athletes.” S. Rep. No. 105-325 at 2 (1998), 1998 WL 604018.
Contrary to the USOC’s assertion, there is no evidence that Pan American Athletes are “almost always the same athletes” as Olympic athletes. (See USOC Br. at 7 n.2.) This assertion is not only unsupported within or outside the record in this case -- the USOC offers no citations for it -- it also requires the implausible assumption that Olympic level sprinters, swimmers, or skaters, for example, spend their off-season not training for their own sport but pursuing Pan American medals in non-Olympic sports like bowling or water skiing.
-2-

There is no evidence that the USOC provides separate benefits for separate programs. The only evidence in the record is that the USOC administers a single benefits program: the Athlete Support Programs. (JA at 110.) This program is made available to participants on two of the three International Teams: Olympic and Pan American. There is no evidence of separate Pan American benefits; those athletes are eligible for the Athlete Support Programs just as Olympic athletes are. And there is no evidence of separate Paralympic benefits: those athletes are not eligible for benefits at all.2 Thus, when the USOC states that it “operates . . . a separate Paralympic Team benefits package . . .” (USOC Br. at 40), this is unsupported in the record. If such a program exists, it was the USOC’s decision not to produce evidence of it in Shepherd v. United States Olympic Committee, No. 07-1056 -- but instead to defend the pure legal position that it has the right to deny benefits to Paralympic athletes -- and to move to dismiss before discovery in
2 Paralympic athletes were not eligible for any Athlete Support Programs during the period relevant to the events in the record. After the Shepherd litigation commenced and after the Athlete Plaintiffs had already won a number of Paralympic medals for which they were not compensated, Paralympic athletes became eligible for one small part of the Athlete Support Programs: they are eligible to receive monetary rewards for medals in amounts lower than those afforded Olympic athletes but similar to those awarded Pan American athletes. Compare JA at 103-04 with JA at 115. There is no evidence of a separate benefit program.
-3-

Hollonbeck v. United States Olympic Committee, No. 07-1053. (See Appellants’ Consolidated Opening Brief (“Athletes’ Br.”) at 4-5, 7.)
There is no evidence that the USOC excludes Paralympic athletes from the Athlete Support Programs to promote U.S. standing or obtain the best delegation of athletes for international competition. (See USOC Br. at 6, 38.) The USOC has a bright line rule: Olympic and Pan American athletes are eligible for Athlete Support Programs; Paralympic athletes are not. The USOC presented no evidence of any more nuanced analysis concerning the use of funds to promote U.S. teams. the USOC’s record citations for these points are to a recitation of medal statistics without any explanation of how they influenced funding decisions (JA at 240-45) and a portion of counsel’s oral argument on summary judgment (JA 486-88).
ARGUMENT I. The Athlete Plaintiffs are Otherwise Qualified for the Athlete Support
Programs. The USOC has done precisely what the Supreme Court told it not to do. In limiting its benefits to Olympians, it has “defined [its benefits] in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled.” See Alexander v. Choate, 469 U.S. 287, 301 (1985). Indeed, the effort the USOC has to put into this act of redefinition
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underscores how improper it is. First, the USOC ignores the definition that would flow naturally from the category that the USOC itself insists is the most salient: the athletes on the International Teams (see USOC Br. at 39), and defines eligibility only by membership on the Olympic team. Next, the USOC takes what it called -- pre-litigation -- its “Athlete Support Programs” (see JA at 110), and relabels them “Olympic Team benefits.” (See, e.g., USOC Br. at 3, 14-21.) Finally, since it is inconvenient for this new label that Pan American athletes are also qualified for “Olympic Team benefits,” the USOC declares -- without support -- that Pan American athletes are “almost always the same athletes” as Olympic athletes. (USOC Br. at 7 n.4.)
After relabeling its benefits, artificially limiting their scope to Olympic athletes, and counterfactually declaring all Pan American athletes to be Olympic athletes, the USOC declares circularly that it does not constitute discrimination to limit “Olympic Team benefits” to the Olympic team. Both parties -- and Congress -- agree, however, that the Paralympics are the equivalent of the Olympics and Congress assigned the USOC responsibility for all three International Teams. Thus, the proper qualifying criterion is membership on one of those teams, a criterion Paralympic athletes meet.
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This conclusion defeats the USOC’s assertion that it does not discriminate against Paralympians on the basis of disability but rather “because they -- like more than 99% of the general population -- are not training for the Olympic team.” (USOC Br. at 15.) The USOC’s responsibility does not extend to the general population but rather is limited to the International Teams which, again, include the Paralympics. This argument makes as much sense as a Denver law firm refusing to hire lawyers with gray hair, and asserting that they do not discriminate on the basis of age because the gray-haired lawyers who it refused to hire are treated the same as the over 99% of the population of Colorado who do not have law licenses. The relevant universe is, of course, lawyers, not the population of the entire state, just as here the relevant universe consists of the International Teams, not the population of the United States, athlete and couch potato alike.3
The USOC’s example of a special benefits package for active-duty soldiers or foot-patrol police officers suffers from a similar analytical flaw. (See USOC Br. at 30-31.) In neither case is there -- at least in the example constructed by the USOC -- an equivalent but disabled group that is systematically denied those
3 Likewise, it is clear that -- within the relevant universe as defined by the USOC (see USOC Br. at 39), limiting benefits to Olympic athletes “has the effect” of discriminating on the basis of disability. See 28 C.F.R. § 41.51(b)(3)(i). It is not relevant that it screens out 99% of the American population.
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benefits. For example, if a city had two sets of police officers, one who patrolled on foot, while another patrolled in wheelchairs, but provided benefits only to the former, we would easily recognize the situation as discriminatory. II. Denying Benefits to Paralympic Athletes That Are Provided to Pan
American and Olympic Athletes Violates Section 504. A. Section 504 Mandates Meaningful Access to, and Equal
Opportunity to Participate in or Benefit from, the Benefits and Services of a Recipient of Federal Funding. The USOC attempts improperly to restrict the requirements of Section 504, asserting that it only requires “evenhanded treatment” or the “same access” for individuals with disabilities. (See, e.g., USOC Br. at 12, 52.) This proposition is essential to the success of its argument, because the Olympics and Pan American Games are effectively closed to most elite disabled athletes, especially those with mobility disabilities. Thus, the USOC’s policy of offering benefits only to athletes on those two teams -- and denying them athletes in the third, all-disabled, of the International Teams -- is only defensible if Section 504’s mandate is limited to technical access rather than meaningful access. Throughout its brief, the USOC attempts to contrast the ostensibly barebones requirements of Section 504 with what it portrays as the “unique”4 and
4 See, e.g., USOC Br. at 8, 13, 25, 33. -7-

presumably more onerous requirements of Title IX of the Education Amendments
of 1972, 20 U.S.C. § 1681 (“Title IX”). The USOC labels this “unique”
requirement “parity” -- often followed by a hyphen and the word “like” in order to increase the aura of strangeness.5 The word “parity” is not found in Title IX’s
statutory or regulatory language, however, and it is not, in any event, an alien concept: “parity” means simply “equality,”6 a concept that is common to Section
504, Title IX, and other antidiscrimination statutes.
As part of its effort to use the alleged contrast with Title IX to water down
Section 504, the USOC asserts that “the inquiry under [Title IX] is necessarily
much different than it is with any other anti-discrimination statute. Thus, the
[Title IX] regulations try to guarantee ‘equality’ by requiring that a college
‘provide equal opportunities for members of both sexes.’” (USOC Br. at 37-38 (quoting 34 C.F.R. § 106.41(c)).)7 According to the USOC, Title IX is irrelevant
5 See id. at 8, 11, 25. 6 See Webster’s Third New International Dictionary 1642 (2002) (“the quality or state of being equal”). 7 The reason Title IX inquiry is “much different,” per the USOC, is that, “unlike all other anti-discrimination statutes -- including [Section 504] -- the [Title IX] regulations recognize that there are many times in which it will be necessary to segregate along strictly gendered lines.” USOC Br. at 37. This is incorrect. As explained in greater detail below, where a defendant can
(continued...) -8-

to the Court’s analysis here because it requires “equal opportunity” while Section 504 requires only “the same access.”
To the contrary: Section 504 explicitly requires equal opportunity and meaningful -- not just technical -- access. Thus while reference to Title IX precedent is helpful in this case -- in light of the similarity of the situations in which the cases arise and the fact that both Congress and this Court have noted the similarity of the two laws in scope and effect8 -- it is in no way necessary. Cases interpreting, and regulations implementing, Section 504 demonstrate that providing benefits to Olympic and Pan American athletes while denying them to Paralympic athletes constitutes illegal disability discrimination.
Section 504 requires that “an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers.” Choate, 469 U.S. at 301. In Chaffin v. Kansas State Fair Board, 348 F.3d 850 (10th Cir. 2003), this Court rejected the assertion that mere access was sufficient
7(...continued) demonstrate that it is necessary to the provision of equally effective benefits, it may provide separate benefits or services to individuals with disabilities. 28 C.F.R. § 41.51(b)(1)(iv); see infra at 21-22.
8 See Athletes’ Br. at 31-32. -9-

under the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (“ADA”).9 In that case, individuals who used wheelchairs challenged the physical access at the Kansas State Fair. The state argued that because the plaintiffs had access to the fairgrounds, the ADA did not require it to provide specialized facilities designed to ensure that people with disabilities could use the restrooms or enjoy a concert. Id. at 857. This Court held: “We reject the argument that the ADA requires no more than mere physical access. Instead, we have held that the ADA requires public entities to provide disabled individuals ‘meaningful access’ to their programs and services. . . ..” Id. This Court further observed that, with the ADA, “Congress prohibited a broad, comprehensive concept of discrimination . . . includ[ing] . . . relegation to lesser services, programs, activities, benefits, and other opportunities.” Id. at 858. Here, the USOC has taken an entire category of disabled athletes who participate on International Teams and relegated them to lesser services, programs, and benefits.
There is nothing “radically new,” “newly-minted,” or “novel” (see USOC Br. at 25, 33, 34) about this right to equal opportunity and meaningful access. Section 504 regulations have required recipients to provide qualified individuals
9 Both parties agree that precedent interpreting the ADA is instructive in interpreting Section 504. See USOC Br. at 17 n.3.
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with disabilities an equal opportunity to participate in their benefits since 1977. 28 C.F.R. § 41.51(b)(1)(ii) (2007); see also 45 C.F.R. § 84.52(a)(2), 42 Fed. Reg. 22676, 22685 (June 3, 1977) (Addendum Tab 1); 45 C.F.R. § 85.51(b)(1)(ii), 43 Fed. Reg. 2132, 2138 (January 13, 1978) (Addendum Tab 2).10 The commentary to these latter regulations made clear what this meant:
[I]t is equal opportunity, not merely equal treatment, that is essential to the elimination of discrimination on the basis of handicap. Thus, in some situations, identical treatment of handicapped and nonhandicapped persons is not only insufficient but is itself discriminatory. 43 Fed. Reg. at 2134. Another helpful example appeared in the commentary to the earlier regulations: “eliminating . . . gross exclusions and denials of equal treatment is not sufficient to assure genuine equal opportunity. . . . [I]t is meaningless to ‘admit’ a handicapped person in a wheelchair to a program if the program is offered only on the third floor of a walk-up building.” 42 Fed. Reg. at 22676.
10 The Supreme Court has held that these 1978 regulations “particularly merit deference.” Consol. Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984).
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B. The USOC Does Not Provide Equal Opportunity or Meaningful Access to its Athlete Support Programs for Elite Athletes with Disabilities.
The USOC asserts that it satisfies Section 504 because the Olympics are technically open to all, that is, there is no rule barring people with disabilities. This is nonsense: athletes with mobility disabilities -- the wide variety of conditions that impair one’s ability to walk, run, jump, swim, ski, or skate -cannot, by definition, compete in most of the events of the Olympics, and do not, therefore, have meaningful access. Indeed, the USOC points to four disabled Olympic athletes over a period of 101 years, only two of whom have mobility disabilities. (See USOC Br. at 21.) It is clear that the Athlete Plaintiffs would neither be able to compete in Olympic track trials without their racing wheelchairs nor be welcome to compete in them.11 The fact that the occasional deaf or blind runner might be able to participate in an Olympic sport does not provide meaningful access for Paralympic wheelchair racers, amputee swimmers, soccer players with cerebral palsy, and other elite athletes who are unable to compete in the Olympics precisely because of their disability.
11 See, e.g., USA Track & Field 2007 Competition Rules, Rule 143(3)(a) - (f) (defining precisely the types of shoes in which racers must race), http://www.usatf.org/about/rules/2007/2007USATFRules.pdf at 57.
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The USOC’s argument that the Olympics are open to all is the equivalent of the Kansas State Fair arguing that it did not discriminate because people who use wheelchairs could get onto the fairgrounds, or a recipient of federal funding arguing that a program held on the third floor of a walk-up building was open to all. Although it’s true in each case that there is no rule barring people with disabilities and that some people with certain disabilities will be able to access the programs -- those who do not need specialized restroom facilities or concert seats, or an elevator to get to the third floor, or whose disabilities permit them to run, jump, swim, skate or ski -- this does not constitute the meaningful access and equal opportunity required by Section 504.
Providing access to some individuals with disabilities does not constitute meaningful access. The Ninth Circuit addressed this question in the context of a state benefit program that categorically excluded individuals with disabilities. Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002). The state argued that it did not violate Section 504 because many individuals with disabilities received similar benefits from the state because they were poor enough to qualify for Medicaid. Id. at 1053. The Ninth Circuit rejected this argument, holding “[t]he . . . appropriate treatment of some disabled persons does not permit [the defendant] to discriminate against other disabled people . . ..” Id. at 1054; cf. Asbury v. Brougham, 866 F.2d
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1276, 1281-82 (10th Cir.1989) (holding that evidence of a high percentage of protected-class residents could not by itself defeat an intentional housing discrimination claim). Likewise, it is illegal under both Section 504 and the ADA to construct a new building so as to be physically inaccessible to individuals who use wheelchairs. 42 U.S.C. § 12183(a)(1); 28 C.F.R. § 41.58. That is, it is discriminatory to construct a building that is fully accessible to people who are blind or deaf but excludes people who use wheelchairs.
Ultimately, there is no need for this Court to refer to Title IX or cases interpreting that statute in order to conclude that the USOC is violating Section 504. Section 504, its regulations and the cases interpreting it all demonstrate that -- by offering Athlete Support Programs only to Olympic and Pan American athletes -- the USOC does not provide meaningful access and equal opportunity to elite disabled athletes.
C. Denying Athlete Support Programs to Paralympic Athletes is a Proxy for Disability Discrimination.
It is irrelevant that the USOC does not explicitly exclude disabled athletes from its Athlete Support Programs; excluding Paralympic athletes is a proxy for that protected class. A defendant commits discrimination by proxy when the “fit” between an excluded category and a protected class is sufficiently close that
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discrimination against the former constitutes facial discrimination against the latter. See, e.g., McWright v. Alexander, 982 F.2d 222, 228 (7th Cir. 1992). In this case, Paralympic athletes are the only category of athletes on International Teams that are denied eligibility for Athlete Support Programs. Because Paralympic athletes are, by definition, disabled, this is an excellent proxy for disability discrimination.
The USOC attempts to rebut this argument by asserting that it does not exclude Paralympic athletes, but rather only includes Olympic athletes, and excludes the rest of the world. (USOC Br. at 50.) First, this is simply incorrect: the USOC includes both Olympic and Pan American athletes in its Athlete Support Programs. In addition, this approach -- Olympics vs. the rest of the world -- contradicts the USOC’s own statement that it is obligated to organize, finance and control U.S. teams in the Olympics, Pan American Games, and Paralympics and not, it emphasizes, to organize, finance and control elite athletic competition or amateur athletics generally. (USOC Br. at 39.) Thus, the USOC defines the relevant universe and, within that universe, excludes Paralympic athletes.
The USOC also argues, oddly, that “the Olympic athlete classification is no proxy for disability” because some Olympic athletes are disabled. (USOC Br. at 50.) The Athlete Plaintiffs do not argue that “Olympic” is a proxy for disability
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but rather that “Paralympic” is a proxy for disability. Considering that Paralympic athletes are all disabled, this is a self-evident proposition. If the USOC meant to argue that the Paralympic classification cannot be a proxy for disability since some disabled athletes compete in the Olympics, this goes to the question of “fit.”
In one of the earliest proxy discrimination case, the Seventh Circuit held that a policy requiring women to provide advance notice of maternity leave could be a proxy for disability discrimination because it effectively discriminated against women who, due to infertility, had to adopt, a process that was not as predictable as pregnancy. McWright, 982 F.2d at 228. While this policy tended to exclude women disabled by infertility, the fit was not perfect in either direction: the policy would disadvantage nondisabled adoptive mothers, id.; and would not affect women with disabilities not affecting their fertility. The court provided other examples of “fit.” “[U]sing gray hair as a proxy for age: there are young people with gray hair (a few), but the ‘fit’ between age and gray hair is sufficiently close that they would form the same basis for invidious classification.” Id. at 228. Similarly, a policy excluding wheelchairs would “no doubt” be proxy discrimination. Id. This is so despite the fact that many people with disabilities do not need wheelchairs and would thus not be affected by such a policy.
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There are a number of cases holding that zoning classifications based on the need for on-site staff constitute proxies for disability. See, e.g., Sharpvisions, Inc. v. Borough of Plum, 475 F. Supp. 2d 514, 524-25 (W.D. Pa. 2007) (holding that definition of “group home” as up to ten persons “plus staff” was a proxy for persons with disabilities); Children’s Alliance v. City of Bellevue, 950 F.Supp. 1491, 1496 (W.D. Wash. 1997) (same with respect to the category “staffed living facilit[ies] for a group of persons, which may include both children and adults”). In each of these cases, the fact that the category singled out some people with disabilities for less favorable treatment was sufficient to conclude it constituted facial discrimination, notwithstanding that the category did not affect the many people with disabilities who do not require in-home staff.
The fact that the occasional disabled Olympic athlete may qualify for Athlete Support Programs under the current policy does not make the decision to categorically exclude Paralympic athletes anything other than a very tight fit with -- and therefore an excellent proxy for -- disability discrimination.
D. Patton and Choate Do Not Permit The USOC to Deny Athlete Support Programs to Paralympic Athletes.
This case is not one -- like Choate, 469 U.S. 287, or Patton v. TIC United Corp., 77 F.3d 1235 (10th Cir. 1996) -- in which a defendant provides benefits in
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the same quantity to everyone -- disabled and nondisabled -- but people with disabilities, because of their disabilities, tend to need more of the benefit. In Choate, the state limited the number of inpatient hospital days available to Medicaid recipients. The plaintiffs argued that because people with disabilities generally required more inpatient hospital days, this regulation affected them disproportionately. Id., 469 U.S. at 289. Similarly, in Patton, the state of Kansas capped tort damage awards for noneconomic loss at $250,000. The plaintiff in that case argued that this cap discriminated against him on the basis of disability. Id., 77 F.3d at 1246. In each case, however, there is no dispute that people with disabilities -- all of them -- got the mandated benefit. The disabled Medicaid recipients in Choate got their 14 inpatient hospital days; the disabled tort litigants in Patton were eligible for the full $250,000 in noneconomic damages. This is in stark contrast to the present case in which an entire category of elite athletes -defined by the fact that they are elite disabled athletes -- is ineligible for the Athlete Support Programs.
These cases would only apply here if the USOC allowed Paralympic athletes to be eligible for Athlete Support Programs such as Elite Athlete Health Insurance, and the Athlete Plaintiffs were arguing that, based on their disabilities, they required a more robust health insurance plan than the USOC offered. In such
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a case, Choate and Patton would mandate the result that offering the same Elite Athlete Health Insurance to Olympic, Pan American and Paralympic athletes would not violate Section 504. Those cases do not permit the USOC to deny all health insurance to Paralympic athletes while offering it to Olympic and Pan American athletes.
The USOC also makes much of a quote in Patton to the effect that Section 504 “requires only that Patton have the same access to a jury determination of damages as everyone else.” Id., 77 F.3d at 1246. The USOC repeatedly quotes the phrase “same access” in support of the concept that merely not barring disabled athletes from the Olympics constitutes the “same access” for everyone. (See, e.g., USOC Br. at 12, 23.) But, again, in Patton, all disabled litigants in fact had access to the same damages as other litigants. This Court’s understanding of the access required by Choate and Patton was explained in greater detail in Chaffin -- which the USOC does not cite -- in which it stressed that mere access was not enough. According to the USOC’s understanding of the term, the disabled plaintiffs in Chaffin had the “same access” to the restrooms and concert seats as did nondisabled attendees; that “same access” was not, however, meaningful access. Id., 348 F.3d at 857.
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The USOC also relies on the case of McFadden v. Grasmick, 485 F. Supp. 2d 642 (D. Md. 2007). In that case, a high school athletic league had a rule providing that the results of a new event would not count in state tournaments until high schools representing 40% of the jurisdictions participated in that event. Id. at 646. The plaintiff challenged the application of that rule to wheelchair racing. The court held that the rule was “neutral in intent and in effect,” and denied the racer’s request for an injunction. Id. at 650. The USOC argues that its rule limiting the Athlete Support Programs to Olympic and Pan American athletes is neutral in the same way that the 40% rule is neutral. But the McFadden opinion makes clear that this is not the case: the 40% rule in fact applied to exclude similarly situated teams of non-disabled students, for example, diving and pole vaulting. Id. at 646. That is, among the relevant universe -- high school athletes -the neutral rule excluded not only wheelchair racers but also nondisabled teams as well. In contrast, the allegedly neutral rule at issue here works to exclude -- within the relevant universe -- only disabled athletes. III. The USOC’s Separate Benefits Argument Fails.
The USOC’s catch-all argument is that Section 504 “does not require equal benefits across separate programs.” (USOC Br. at 12, 26-32.) This argument fails because is based on a false premise -- there are no separate benefits -- and
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incorrectly assumes that separate benefits would be permissible in this case. The application of this rationale to deny benefits to Paralympic athletes is a pretext for discrimination. Finally, even if the USOC were permitted to maintain separate benefits programs, it would not be permitted to discriminate among separate but equivalent -- that is, similarly situated -- athletic programs for disabled and nondisabled athletes.
A. The Separate Benefits Argument is Based on a False Premise. The USOC argues that it provides separate benefits for athletes on the Olympic and Paralympic teams. (See USOC Br. at 34.) This is incorrect. Although the teams are separate, there is no evidence in the record of any other benefit program besides the Athlete Support Programs. Specifically, there is no evidence of what the USOC refers to as “Paralympic Team benefits.” There are no separate benefits; there is one unified set of benefits -- provided to Olympic and Pan American athletes -- from which Paralympic athletes are excluded. This alone is sufficient to demonstrate a violation of Section 504.
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B. Separate Benefits Are Prohibited By Section 504 Because the USOC Has Not Demonstrated That They Are Necessary in Order to Provide Benefits That Are As Effective As Those Provided Others.
Even if the USOC did provide a separate benefits package for Paralympic athletes, this would violate Section 504 unless the USOC could demonstrate that it was necessary to do this in order to provide Paralympic athletes with benefits that were as effective as those provided others. 28 C.F.R. § 41.51(b)(1)(iv). The Athlete Plaintiffs made this argument in their opening brief, and explained that this was a defense as to which the USOC had the burden of proof. (See Athletes’ Br. at 45-46.) The USOC did not mention -- much less attempt to rebut -- this argument.
Because there is no evidence in the record that it would be necessary to provide a separate package of grants and health insurance in order to provide Paralympic athletes with equally effective grants and health insurance, separate benefits are not permitted, and Paralympic athletes must be eligible for the Athlete Support Programs.
C. The USOC’s Separate Benefits Argument is A Pretext. The USOC supports its argument for providing (theoretical though nonexistent) separate benefits to Paralympic athletes by stating that Olympic and
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Paralympic athletes “compete in separate athletic competitions that are organized by entirely separate entities: the International Olympic Committee, on the one hand, and the International Paralympic Committee, on the other.” (USOC Br. at 33-34.) The Olympic and Pan American teams differ in precisely the ways the Olympic and Paralympic teams differ: (1) they “compete in separate athletic competitions” -- the Pan American Games involve athletes only from the Americas, occur every four years the year before the Olympic games,12 and include sports that are not part of the Olympics (USOC Br. at 7 n.2); and (2) they are “organized by entirely separate entities” -- the International Olympic Committee and the Pan American Sports Organization.13
The fact that the reasons given by the USOC for denying benefits to Paralympic athletes are equally applicable to Pan American athletes, and yet those latter athletes are not denied benefits, demonstrates that these reasons are a pretext for discrimination.
12 “The Pan American Games: History,” ¶ 1, http://www.cob.org.br/pan2007/ingles/jogos_historico.asp (last visited July 11, 2007).
13 “The Pan American Games: PASO, ¶¶ 1-2, http://www.cob.org.br/pan2007/ingles/jogos_odepa.asp (last visited July 11, 2007).
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D. Even If Separate Benefits Programs Were, Theoretically, Permitted, the USOC Could Not Provide Systematically Inferior Benefits to Paralympic Athletes.
Even if, arguendo, separate benefits were permissible under 28 C.F.R. § 41.51(b)(1)(iv), and if, theoretically, the USOC in fact provided separate benefits to Olympic, Pan American and Paralympic athletes, because those programs are equivalent and together constitute the limited universe -- per the USOC -- of the athletes for which it is responsible, the USOC cannot provide systematically inferior benefits to the one of the three programs composed entirely of disabled athletes.
This is the lesson of Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004), and Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F. Supp. 986 (S.D. Fla. 1994). In both of those cases, the defendant offered a set of separate but equivalent programs. In Rodde, it was a series of county-run hospitals, only one of which offered services for individuals with disabilities. Id., 357 F.3d at 990. In Dreher Park, it was a series of recreational programs, only some of which were designed for individuals with disabilities. Id., 846 F. Supp. at 988-89. In each case, the decision to close or withdraw funding from the programs designed for individuals with disabilities violated Section 504. See Rodde, 357 F.3d at 998; Dreher Park, 846 F. Supp. at 991-92. And this was so
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despite the fact that the programs that the defendants continued to support -- the non-specialized hospitals and the general recreational programs -- were technically but not effectively open to people with disabilities.
Those cases are directly applicable here. The only “programs” for which the USOC provides benefits -- the Olympic and Pan American teams -- are not meaningfully accessible to Paralympic athletes. Participants in a third, designed for persons with disabilities, are not eligible. Indeed, on this issue, Dreher Park is directly on point. The programs at issue in that case were a general recreation program and a recreation program designed for individuals with disabilities. The former program would be just as available to disabled participants as the Olympics are: a blind runner or deaf swimmer (see USOC Br. at 7, 21, 50) or any other athlete with a non-mobility disability would be well-served by the general recreational programs of the City of West Palm Beach. That court made clear that this was not sufficient. While it was true that the general programs did not explicitly exclude people with disabilities, because of the nature of their disabilities and the activities involved, many people with disabilities could not benefit from them. Dreher Park, 846 F. Supp. at 991. Ultimately, without the specialized recreational programs, the disabled plaintiffs were “without a meaningful access to the benefits of the City’s recreational programs.” Id. at 992
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n.14. Similarly, while athletes with disabilities are not barred from Olympic competition, it is clear that the Olympics do not provide meaningful access to elite disabled athletes.
The results in Rodde and Dreher Park are consistent with the results in Klinger v. Department of Corrections, 107 F.3d 609, 615-16 (8th Cir. 1997), and Jeldness v. Pearce, 30 F.3d 1220, 1229 (9th Cir. 1994), both of which held that, under Title IX, a prison system could not discriminate between separate but equivalent programs for men and women. Klinger is especially relevant here, because it relied on the definition of “program or activity” in Title IX that is identical to that in Section 504 to hold that equivalent programs must be compared throughout an institution. Id. at 615. (See Athletes’ Br. at 23-24, 31.)
Neither John Does 1-5 v. Chandler, 83 F.3d 1150 (9th Cir. 1996), nor Castellano v. City of New York, 142 F.3d 58 (2d Cir. 1998), is relevant here: in neither case was the court addressing separate but equivalent programs; and in both cases the favored program was not only technically but effectively open to people with disabilities.
In Chandler, the Ninth Circuit held that a state did not violate the ADA when it provided benefits of unlimited duration to needy persons with dependent children and benefits of up to one year in duration to needy disabled persons. Id.,
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83 F.3d at 1151-52. For this case to be relevant, the Olympics would have to be as
open to disabled athletes as the category needy persons with dependent children is
to disabled persons. Not so. Approximately 30% of all disabled adults are parents,14 and approximately 30% of all families have one or more members who have a disability.15 So “families with dependent children” will include a
significant percentage of individuals with disabilities. In contrast, again, the
USOC can point to only four disabled Olympians in over 100 years.
Furthermore, in contrast to the Paralympics -- which are the “equivalent of
the Olympics” for disabled athletes -- needy disabled persons are not the disabled
equivalent of needy persons with dependent children. In Does 1-5, there was no
equivalent-but-disabled group to whom the state was permitted to provide no or
lesser benefits.
14 Linda Toms Barker and Vida Maralani, “Challenges and Strategies of Disabled Parents: Findings From a National Survey of Parents with Disabilities,” Berkeley Planning Associates (July 1997) at 2-5.
15 Mitchell P. LaPlante, et al., “Families with Disabilities in the United States,” 8 Disability Statistics Report, Nat’l Inst. on Disability and Rehabilitation Report No. ED-OSERS-96-12, Univ. of Cal. San Francisco (Sept. 1996) at 7. The USOC argues that the category “families with dependent children” will tend to screen out those whose disabilities affect their fertility. USOC Br. at 29. However, the category is not “families with dependent biological children,” but simply dependent children, including adoptive and foster children as well as those conceived naturally.
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In Castellano, the City of New York provided different benefits packages to “for-service” retirees -- those who had retired after twenty or more years of service -- than it did to those who had retired before that time. Id., 142 F.3d at 64. A number of individuals who had retired before 20 years due to disability filed suit alleging that they should be entitled to the for-service benefits. In contrast to the situation here -- involving participants in three equivalent sets of athletic programs -- the Second Circuit made clear that these two sets of retirees were not equivalent. Rather those disabled retirees who had retired before completing twenty years of service “are similarly situated not with twenty-year ‘for-service’ retirees, but with non-disabled retirees who retire after an equivalent period of service. Because the latter group is not entitled to [for-service] benefits, there is no unlawful discrimination. ” Id., at 70. Similarly, the for-service retirement benefits “are available equally to persons with and without disabilities who retire after twenty years of service.” Id.16 In other words, all pre-20-year retirees were treated the same and all post-20-year retirees were treated the same, disabled or not.
16 The other two cases on which the USOC relies concerned identical situations with identical results. See Bass v. City of Orlando, 57 F. Supp. 2d 1318, 1325 (M.D. Fla. 1999) (relying on the analysis in Castellano cited in text); Fobar v. City of Dearborn Heights, 994 F. Supp. 878, 887 (E.D. Mich. 1998) (“In the instant case, all employees, including disabled employees, may qualify for the regular pension so long as they meet the age and service requirements.”).
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Furthermore, the favored group -- post-20-year retirees -- was effectively, not just technically, open to all: it is common sense that the rate of disability among those who have served as peace officers for more than twenty years will be similar to or greater than what it is in the general population.17
E. The Prohibition on Discrimination among Equivalent Programs for Disabled and Nondisabled Participants Does Not Require Equal Funding Across All Programs.
It is premature to state the contours of an eventual injunction should the Athlete Plaintiffs ultimately prevail. As explained in the Athletes’ Brief, the Hollonbeck case was resolved on a motion to dismiss, before any discovery had been conducted, and the cross-motions for summary judgment that the district court resolved in Shepherd were filed in order to address the USOC’s refusal to provide discovery concerning the benefits it was providing to various Olympic athletes. (Athletes’ Br. at 4-5, 7.) With this discovery, the parties can propose, and the district court order, proper relief. The fact that complying with antidiscrimination statutes can be analytically complex does not obviate the need to comply.
17 This common sense is supported by census statistics. Approximately 18% of all individuals have disabilities; the figure is 32.8% for individuals 45 years and older. See “Prevalence of Disability by Age, Sex, Race, and Hispanic Origin: 2002,” http://www.census.gov/hhes/www/disability/sipp/disab02/ds02t1.pdf.
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One thing is clear, however: the USOC’s caricature of compliance is inaccurate and unhelpful. The USOC asserts that the ruling requested by the Athlete Plaintiffs would be “unworkable” because recipients of federal funding “would be required to halt, aggregate and then evenly redistribute across all of their programs, regardless of the programs’ need or objective, the funding, resources and benefits the institution provides.” (USOC Br. at 45; see also id. at 42 (“sprawling, open-ended, institution-wide parity requirement”).) Section 504 requires no such thing. Rather, where two programs are equivalent but one is designed specifically for individuals with disabilities while the other is effectively closed to individuals with disabilities, the two programs must be compared and subjected to an antidiscrimination analysis.
Indeed, even Title IX -- which the USOC is attempting to lampoon through the description above -- does not compare all programs, only equivalent programs. For example, Title IX would not require equal funding between men’s basketball and women’s chorus or -- in the prison context -- men’s educational programs and women’s nutritional programs. Only within the relevant universe -- for example, athletics or prison education programs -- is an antidiscrimination comparison required. This is the lesson of Klinger, 107 F.3d at 616, which held that a proper Title IX analysis would compare “educational opportunities for female and male
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prisoners within the entire system of institutions . . ..” See also Jeldness, 30 F.3d at 1229 (“The prohibited activity would be the offering of educational programs only in the men’s prisons, without offering equivalent programs in the women’s prison.”). It is also why the ruling requested by the Athlete Plaintiffs would not require the city in Castellano to provide identical retirement programs or the state in Chandler to provide identical support for needy families with children and needy disabled people: in neither case are the programs at issue equivalent to one another. See supra at 26-28.
The USOC implicitly recognizes the need for a “system-wide analysis” here when it states that the Title IX regulations “try to guarantee ‘equality’ by requiring that a college ‘provide equal opportunities for members of both sexes.’ . . . And to do that, courts must necessarily undertake a system-wide analysis.” (USOC Br. at 37-38 (quoting 34 C.F.R. § 106.41(c)).) As demonstrated in detail above, Section 504 also requires equal opportunities for individuals with disabilities. To do this, a system-wide analysis of equivalent programs is required; here, it requires a comparison of benefits provided to Olympic, Pan American and Paralympic athletes.
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CONCLUSION For the reasons set forth above and in the Athletes’ Brief, Appellants respectfully request that this Court reverse the District Court’s decision granting the USOC’s motion for summary judgment in the Shepherd case and its motion to dismiss in the Hollonbeck case and remand for further proceedings in both cases.
CERTIFICATE REGARDING LENGTH OF BRIEF As required by Fed. R. App. P. 32(a)(7)(C), undersigned counsel certifies that this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B)(i), and that this brief contains 6,969 words. Counsel relied on the word count of WordPerfect X3, which was used to prepare this brief.
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Respectfully submitted this 13th day of July, 2007.

/s/ Amy F. Robertson Amy F. Robertson Timothy P. Fox FOX & ROBERTSON, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Attorneys for Plaintiffs-Appellants Shepherd, Hollonbeck, Iniguez, and Heilveil

Kevin W. Williams Legal Program Director Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775
Attorney for Plaintiffs-Appellants Hollonbeck, Iniguez and Heilveil.

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Certificate of Service and Digital Submission
The undersigned hereby certifies that,
1. Appellants’ Reply Brief including the Addendum thereto were filed in writing and in Digital Form (as that term is defined in the Emergency General Order of October 20, 2004) and/or scanned PDF with the United States Court of Appeals for the Tenth Circuit on July 13, 2007.
2. No redactions being required, every document submitted in Digital Form (as that term is defined in the Emergency General Order of October 20, 2004) or scanned PDF format is an exact copy of the written document filed with the Court.
3. The digital submissions references in Paragraph 1 have been scanned for viruses with the most recent version of eTrust Antivirus and, according to the program, are free of viruses.
4. On July 13, 2007, copies of Appellants’ Reply Brief including the Addendum thereto were sent by electronic mail and in hard copy, by first-class mail, postage prepaid, to:
John W. Cook jwcook@hhlaw.com Jeffrey S. George jsgeorgh@hhlaw.com Anne H. Turner ahturner@hhalw.com Hogan & Hartson, LLP 2 N Cascade Ave., Suite 1300 Colorado Springs, CO 80903
Christopher Todd Handman cthandman@hhlaw.com Hogan & Hartson, LLP 555 Thirteenth Street, N.W. Washington, DC 20004-1109

Samuel R. Bagenstos One Brookings Dr., Box 1120 St. Louis, MO 63130 srbagenstos@wulaw.wustl.edu
/s/ Amy F. Robertson Signature
July 13, 2007 Dated signed
Amy F. Robertson Fox & Robertson, P.C. 910 - 16th Street Suite 610 Denver, CO 80202

 
 513 F.3d 1191 (2008)
Scot HOLLONBECK; Jose Antonio Iniguez; Jacob. Walter Jung Ho Heilveil; Vie Sports Marketing, Inc., a Georgia corporation, Plaintiffs-ppellants, v.
UNITED STATES OLYMPIC COMMITTEE, a federally-chartered corporation; U.S. Paralympics, Inc., f/k/a United States Paralympic Corporation, a Colorado non-profit
corporation, Defendants-Appellees, and Mark E. Shepherd, Sr., Plaintiff-Appellant,
v. United States Olympic Committee, a corporation, Defendant-Appellee. Disability Rights Education and Defense Fund; Disability Rights Advocates; National Federation of the Blind; Legal Center for People With Disabilities; Rafael Ibarra; Karin
Korb; Tatyana McFadden, Amici Curiae.
Nos. 07-1053, 07-1056.
United States Court of Appeals, Tenth Circuit.
January 16, 2008.
11923 *1192 Amy Robertson of Fox & Robertson, P.C., (and Timothy P. Fox of Fox & Robertson, *1193 P.C., Kevin W. Williams, Legal Program Director of Colorado Cross Disability Coalition, Denver, CO, with her on the briefs), for Plaintiffs-Appellants.
Christopher Handman of Hogan & Hartson, L.L.P., Washington, D.C., (Jeffrey S. George, John W. Cook, and Anne H. Turner of Hogan & Hartson, L.L.P., Colorado Springs, CO, with him on the brief), for DefendantsAppellees.
Samuel R. Bagenstos, St. Louis, MO, filed a brief, for Amici Curiae.
Before KELLY, HOLLOWAY, and HOLMES, Circuit Judges.
KELLY, Circuit Judge.
In these consolidated appeals, paralympic athletes appeal the district court's dismissal of their claims under § 504 of the Rehabilitation Act against the United States Olympic Committee ("USOC"). In 07-1053, PlaintiffsAppellants Scot Hollonbeck, Jose Antonio Iniguez, and Jacob Walter Jung Ho Heilveil appeal the district court's grant of a motion to dismiss in favor of the USOC on their § 504 claim. In 07-1056, Plaintiff Mark Shepherd appeals the district court's grant of summary judgment in favor of the USOC on his § 504 claim. As both cases raise identical legal issues, we consolidated the cases for briefing and submission. Prior to our disposition, Mr. Shepherd and the USOC stipulated to a dismissal of the appeal in 07-1056 under Fed. R.App. P. 42(b). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
Background
The USOC is a federally-chartered corporation that has exclusive jurisdiction over U.S. participation in three athletic competitions: the Olympic Games, the Paralympic Games, and the Pan American Games. 36 U.S.C. §§ 220502, 220503(3)(A). Under the Ted Stevens Olympic and Amateur Sports Act ("ASA") as amended, id. §§ 220501-220529, Congress has charged the USOC to "obtain for the United States, the most competent amateur representation possible in each event of the Olympic Games, the Paralympic Games, and the Pan-American Games." Id. § 220503(4).

The first Paralympic Games were held in 1960. Now the Paralympic Games immediately follow the Olympic Games in the same host city and involve between 1,100 and 4,000 athletes. Plaintiffs are all elite paralympic athletes who have competed in at least one Paralympic Games. Plaintiffs are wheelchair racing paralympians. U.S. Paralympians have been very successful compared to their Olympic counterparts with 42% of the Paralympians winning medals in 2000 and 75% winning medals in 2002 (compared to 16% of Olympians winning medals in both 2000 and 2002). Aplt. App. at 241.
To achieve its mission under the ASA, the USOC provides Athlete Support Programs which include various types of grants, tuition assistance, and health insurance benefits. The criterion that the USOC uses to distribute the benefits under its Resource Allocation Policy is that the applicant must be an athlete who is "eligible to represent the United States and who intend[s] to compete, if selected, in the next Olympic or Pan American Games." Id. at 110.
Plaintiffs challenge the USOC's policy of providing Athlete Support Programs only to Olympic team members, to the exclusion of Paralympic team members, as violating § 504 of the Rehabilitation Act. The district court consolidated two separate cases for oral argument which the parties and the court agreed raise identical legal issues under Title III of the Americans with Disabilities Act ("ADA"), and § 504 of the Rehabilitation Act: 1194 Hollonbeck v. USOC, No. 07-1053, on a motion to dismiss; and *1194 Shephard v. USOC, No. 07-1056, on cross-motions for summary judgment. The district court ruled for the USOC on the Title III and § 504 claims in both cases and entered final judgment pursuant to Fed. R.Civ.P. 54(b) on those claims. Prior to our disposition, Mr. Shepherd and the USOC stipulated to the dismissal of the appeal in 07-1056 pursuant to Fed. R.App. P. 42 (b). Plaintiffs Hollonbeck, Iniguez, and Heilveil only appeal the district court's dismissal of their § 504 claims.
On appeal, Plaintiffs argue that (1) the relevant universe for analysis should be all amateur athletes over which the USOC has responsibility; (2) they are "otherwise qualified" for the Athlete Support Programs; (3) the USOC's policy discriminates against them; and (4) the USOC's policy has the effect of screening out amateur athletes with disabilities.
Discussion
We review the grant of a motion for summary judgment de novo, applying the same standard as the district court. Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1112-13 (10th Cir.2007). Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). We review the grant of a Rule 12(b)(6) motion to dismiss de novo as well, considering whether the complaint contains "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). All facts alleged in the Hollonbeck complaint are assumed to be true in reviewing the motion to dismiss. The parties stipulated to a set of facts in Shepherd for the purpose of the cross-motions for summary judgment. Aplee. Br. at 5 n. 1. Because the facts are undisputed, we consider whether Plaintiffs state a claim or whether the USOC is entitled to judgment as a matter of law.
Section 504 of the Rehabilitation Act states; "No otherwise qualified, individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . ." 29 U.S.C. § 794(a). A prima facie case under § 504 consists of proof that (1) plaintiff is handicapped under the Act; (2) he is "otherwise qualified" to participate in the program; (3) the program receives federal financial assistance; and (4) the program discriminates against plaintiff. Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir.1999).
Plaintiffs first argue that the relevant universe for analysis is all amateur athletes over which the USOC has responsibility, and the district court erred in restricting its discrimination analysis to the Olympics. Plaintiffs argue that the ASA's use of the term "amateur athlete" and § 504's definition of "program or activity," in light of the history of the definition and precedent applying Title IX, compel an analysis of the USOC programs for Olympic, Pan American, and Paralympic athletes as a whole. Thus, Plaintiffs argue that we should compare the USOC's treatment of all amateur athletes, no matter the competition in which they compete.

The ASA defines "amateur athlete" to be "an athlete who meets the eligibility standards established by the national governing body or paralympic sports organization for the sport in which the athlete competes." 36 U.S.C. § 220501(b)(1). In 1998, the ASA was amended to give the USOC jurisdiction and responsibility over United States participation in the Paralympic Games in addition to the Olympic and Pan American Games. See 36 1195 U.S.C. § 220503; S.Rep. 105-325 (1998). However, the ASA as amended does not direct *1195 the USOC's activities in any detail with respect to Olympic or Paralympic athletes other than requiring it to "obtain . . . the most competent amateur representation possible in each event" of the three competitions. 36 U.S.C. § 220503 (4). The mere use of the term "amateur athlete" in the statute does not enlarge the relevant universe to include all athletes under the USOC's purview.
The cases that Plaintiffs rely upon also do not support analyzing the USOC's three programs as a whole. First, Plaintiffs rely on Klinger v. Department of Corrections, where women prisoners sued the Nebraska Department of Corrections under Title IX for failing to provide equal educational opportunities for male and female prisoners. 107 F.3d 609, 611 (8th Cir.1997). The prisoners compared the educational opportunities available at their facility with the opportunities available at one specific male facility. Id. at 612. The court rejected the comparison holding that Title IX requires comparison of opportunities for male and female prisoners within the entire prison system taking into account the objective differences between the two populations and other relevant penological and security considerations. Id. at 615-16.
Plaintiffs' reliance on Klinger to alter § 504's definition of "program or activity" is misplaced.[1] The case only holds that, under Title IX, the comparison between only the female facility and one specific male facility is not meaningful. See id. 615-16. A meaningful comparison requires viewing the jails in the context of the security, penological, and size differences among the various facilities. This holding does not support Plaintiffs' theory, and the reasoning in Klinger contradicts Plaintiffs' argument. The court noted that differences in programs between jails are permissible when considering the different circumstances in each jail. See id. at 616. Thus, the case's reasoning suggests that the USOC's three programs should only be compared considering the significant distinctions between each program in purpose, scope, success, and all other relevant differences.
Plaintiffs also rely on two ADA cases to suggest an analysis of the USOC as a whole: Rodde v. Bonta, 357 F.3d 988 (9th Cir.2004), and Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F.Supp. 986 (S.D.Fla.1994). Both cases are readily distinguishable because they involve the consolidation of services for the disabled at a single facility and then cancellation of `those services. See Rodde, 357 F.3d at 998 (noting these similarities in two cases). These cases did not involve separate programs with separate eligibility requirements0907they involved the provision of health and recreation services and the cancellation of those services for the disabled on a county-wide basis. Cf. Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir.1996) (concluding that a Hawaii general assistance program is functionally two programs0907one for needy families arid one for the 1196 needy disabled0907and holding that "[t]he ADA does not require equivalent benefits in different programs"). *1196 Nothing in the analysis of these two cases supports a conclusion that the USOC's programs should be analyzed as a whole.
The additional Title IX precedent cited by Plaintiffs is not applicable here because it is based on a regulatory framework unique to the Title IX context. Title IX regulations recognize that separation based on gender may be necessary thus requiring an institution-wide analysis to determine whether a Title IX violation has occurred. See e.g., 34 C.F.R. § 106.41(b), (c); Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 829-32 (10th Cir.1993). Therefore, the relevant universe for analysis under § 504 is the individual programs under the USOC's umbrella. Plaintiffs must show that they are otherwise qualified for the Athlete Support Programs and that the program discriminates against them.
Second, Plaintiffs argue that they are "otherwise qualified" for the Athlete Support Programs because they are amateur athletes under the ASA. A plaintiff is "otherwise qualified" under the Rehabilitation Act if he "is able to meet all of a program's requirements in spite of his [disability]." Se. Cmty. Coll. v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). Normally, if a plaintiff is unable to meet a program's requirements, a court must consider whether reasonable modifications or accommodations Tay be made that do not fundamentally alter the program. See Sch. Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 288 n. 17, 107 S.Ct. 1123, 94 L.Ed.2d

307 (1987); Alexander v. Choate, 469 U.S. 287, 300, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). Plaintiffs' argument requires us to accept a premise that we already rejected, namely, that the relevant universe for analysis is all amateur athletes. In the alternative, Plaintiffs contend that the requirement of being on the Olympic team is not an "essential eligibility requirement" to qualify for the Athlete Support Programs. 28 C.F.R. § 41.32(b). Plaintiffs argue that the USOC could open the benefits to Paralympic athletes and that doing so would further the USOC's program as a whole. However, § 504 is not the vehicle to compel discretionary acts of administrators absent discrimination.
Third, Plaintiffs argue that the USOC's policy of excluding Paralympic athletes from Athlete Support Programs is both facially discriminatory and discriminatory by proxy. Even if Plaintiffs were "otherwise qualified" for the benefits, the USOC's policy does not discriminate against Plaintiffs by reason of their disability. First, Plaintiffs err in contending that the eligibility requirements for the Athlete Support Programs are intentionally discriminatory. The criterion that the USOC uses to distribute the benefits under its Resource Allocation Policy is that the athlete must be "eligible to represent the United States and . . . intend to compete, if selected, in the next Olympic or Pan American Games." The policy, on its face, clearly does not contain an explicit requirement of not being disabled. Cf. Bangerter v. Orem City Corp., 46 F.3d 1491, 1500 (10th Cir.1995) (considering a city zoning ordinance for group homes for the disabled that "facially single[d] out the handicapped and appl[ied] different rules to them").
Plaintiffs also contend that the program discriminates against Paralympic athletes by proxy as the policy specifically excludes Paralympic athletes and the term "Paralympic athletes" is a proxy for amateur athletes with disabilities. The designation of "Olympic athlete" as a requirement for Athlete Support Programs is not a proxy for non-disabled athletes because there is no fit between being an Olympic athlete and not being disabled. The 1197 requirement of being an Olympic athlete is not "directed *1197 at an effect or manifestation of a handicap." McWright v. Alexander, 982 F.2d 222, 228 (7th Cir.1992). Thus, the requirement to be an Olympic athlete to be eligible for the Athlete Support Programs is not discriminatory to Paralympic athletes "by reason of [their] disability." See 29 U.S.C. § 794(a).[2]
Fourth, Plaintiffs argue that the USOC's policy has the effect of screening out amateur athletes with disabilities. Plaintiffs' argument appears to allege that the USOC's policy impermissibly creates a disparate impact on disabled athletes, thus violating § 504. The Supreme Court has held that disparate impact, by itself, does not state a prima facie case under § 504. Choate, 469 U.S. at 299, 105 S.Ct. 712. Rather, actionable disparate impact requires analysis of whether the individual is otherwise qualified and whether reasonable accommodations may provide meaningful access. See id. at 299-301, 105 S.Ct. 712. Plaintiffs raise no additional argument here that we do not address above.
The dissent concludes that Plaintiffs are "otherwise qualified" for the Athlete Support Program because § 504 defines "program or activity" to include "all of the operations or a covered entity. 29 U.S.C. § 794(b). However, Congress included the phrase "all of the operations of" a covered entity in § 504 to ensure that § 504 applies to an institution as a whole once any part of the institution receives federal funds. See supra note 2; see also DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1384-85 (10th Cir.1990). The phrase does not create a parity requirement across an institution's individual programs (unlike the requirements under the specialized Title IX regulations). Further, the dissent's reading of the statute would change the eligibility requirements set by the USOC0907being an Olympic team member0907altering the nature of the program. Courts are not free to rewrite eligibility requirements but must analyze whether a plaintiff is "otherwise qualified" against the requirements set by the covered entity. See Davis, 442 U.S. at 413-14, 99 S.Ct: 2361 (rejecting a challenge to a nursing program because the requested modifications would have fundamentally altered the purposes and eligibility requirements of the program set by the college). Courts must ask whether reasonable modifications or accommodations may be made that do not fundamentally alter the program, see Choate, 469 U.S. at 300, 105 S.Ct. 712, or whether the requirement is not an "essential eligibility requirement" to qualify for the benefits or program, 28 C.F.R. § 41.32(b).
The dissent also argues that only extending the benefits at issue to Olympic athletes "has a discriminatory effect" against Paralympic athletes. However, disparate impact, by itself, does not state a prima facie case under § 504. Choate, 469 U.S. at 299, 105 S.Ct. 712. Further, our holding clearly does not permit denying benefits on the basis of gender, as the dissent suggests, because such a classification would be facially discriminatory. Here, the

classification is facially neutral and is not "directed at an effect or manifestation of a handicap" as required for proxy discrimination. McWright, 982 F.2d at 228.
We sympathize with Plaintiffs' efforts to obtain benefits similar to those received by their Olympic counterparts. However, we cannot modify the Rehabilitation Act to reach a result in their favor absent statutory or regulatory 1198 authority to import, *1198 wholesale, Title IX regulations and precedent into § 504. See Choate, 469 U.S. at 293 n. 7, 105 S.Ct. 712. Plaintiffs should seek a remedy with the legislative or executive branches, not the courts.
AFFIRMED.
HOLLOWAY, Circuit Judge, dissenting:
I respectfully dissent. Section 504 of the Rehabilitation Act provides that a qualified individual with a disability may not, solely because of his disability, be "excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . ." 29 U.S.C. § 794(a). What the statute forbids is exactly what has occurred and is occurring here. This, defiance of plain legislative intent is crystalclear from the congressional statement that the Paralympics are "the Olympics for disabled amateur athletes." S.Rep. No. 105-325 at 2, 1998 WL 604018 (1998).
The issues presented.
A prima facie case under section 504 requires proof (1) that the plaintiff has a disability; (2) that plaintiff is otherwise qualified to participate in the program; (3) that the program receives federal money; and (4) that the program discriminated against the plaintiff. Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir.1999) . In these appeals it is not contested that Plaintiffs have disabilities and that the USOC receives federal money. Therefore, the questions before us are whether the Plaintiffs are "otherwise qualified" to participate in the program and whether the USOC discriminated against the Plaintiffs.
The plaintiffs are qualified to participate in the program.
Quite obviously, this court cannot answer the first question without determining what "the program" is in this case. Indeed, resolution of these appeals turns on whether the USOC is operating one "program" or separate programs, one for the disabled and one for the able-bodied. The clear answer to that question has been provided by Congress. Section 504 defines "program or activity" to include "all of the operations of" the covered entity. 29 U.S.C. § 794(b).[1] Plaintiffs are qualified to participate in the program; they are recognized as elite paralympic athletes whose competition in the Paralympic Games is, Congress has mandated, to be promoted by the USOC.
Thus, this case can and should be resolved by simple application of the plain language of the statute, and this court should reverse the judgment of the district court. The majority reaches the wrong result because its analysis goes off the track at the outset by failing to follow the statutory definition of "program." As noted by the majority, Congress specifically amended the Rehabilitation Act and other statutes to broaden the definition of "program or activity." Maj. op. at 1195, n. 1. But the majority inexplicably ignores the definition, insisting that the definition is of no moment because it is undisputed in this appeal that the Act "applies to all of the USOC's programs . . ." Id. (emphasis added).[2]
1199 *1199 This use of the plural reveals the circular nature of the majority's analysis. The underlying issue (easily resolved by the plain language of the statute) is whether, in examining the USOC's challenged activities, we should consider the USOC as operating a single program or several separate ones. The majority incorrectly assumes 0907there is certainly no explanation for the approach0907that we are dealing with separate programs. And it is only by ignoring the statutory definition and making this assumption of dealing with separate programs that the majority is able to assert that the unequal treatment afforded to the Plaintiffs is permissible.
Not only does the majority ignore the statutory definition of "program," but its assumption that separate programs are involved exonerates the USOC for doing just what the Supreme Court instructs must not be done0907defining the benefit "in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled. . . ." Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985).

The USOC's program discriminates against the plaintiffs.
Plaintiffs are subject to discrimination by being denied access to benefits that are provided to Olympic and Pan American Games athletes who are not disabled. The USOC's practice of providing health insurance and other benefits to Olympic and Pan American Games athletes, but not Paralympic athletes, clearly has a discriminatory effect. Section 504 prohibits not only intentional discrimination but, I am satisfied, also the use of criteria or methods of administration such as those involved here that have the effect of subjecting people with disabilities to discrimination. 28 C.F.R. § 41.5 1(b)(3)(1). See also Alexander v. Choate, 469 U.S. at 299, 105 S.Ct. 712.[3]
Denying benefits to Plaintiffs because they are athletes training for the Paralympic Games, and not the Olympic or Pan American Games, is a proxy for discriminating against them because of their disabilities. The majority's assertion that "there is no fit between being an Olympic athlete and not being disabled," maj. op. at 1196, demonstrates the faulty aim of its analysis. Presumably the majority would not countenance the denial of equal benefits based on gender. Yet, if such blatant discrimination existed, even then it could be said that there was "no fit" between being an Olympic athlete and being male. The USOC has shown four examples in one hundred years of disabled athletes who have competed in the Olympics or Pan American Games. The exceptions prove the rule: The policy of awarding benefits to athletes training for the Olympics or the Pan American Games while excluding those training for the Paralympic Games discriminates against the disabled. The reason that courts inquire about the "fit" between a practice and a class of protected individuals is because the fact that a practice does not discriminate against every member of a protected class is not sufficient to show that members of the protected class have the meaningful access to which they are entitled. See Lovell v. Chandler, 303 F.3d 1039, 1054 (9th Cir. 2002).
1200 *1200 For these reasons I am compelled to respectfully but emphatically dissent.
[1] In Grove City College v. Bell, the Supreme Court held that receipt of federal funds by a college's financial aid office did not trigger institution-wide Title IX coverage because the financial aid office was the "program or activity receiving Federal financial assistance." 465 U.S. 555, 570-72, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984) (quoting 20 U. S .C. § 1681(a)). The Civil Rights Restoration Act of 1987, Pub.L. No. 100-259, 102 Stat. 28, abrogated the. Supreme Court's holding in Bell and broadened the Court's narrow definition of "program or activity" to expand the application of Title IX, the Rehabilitation Act, Title VI, and the Age Discrimination Act to an entire institution if any part of the institution receives federal funds. There is no dispute that the Rehabilitation Act applies to all of the USOC's programs, so this analysis is inapposite here.
[2] Plaintiffs also refer in their briefs to a "separate benefit" regulation in 28 C.F.R. § 41.51(b)(1)(iv), and note that it is irrelevant to our analysis. We agree that it is irrelevant to our analysis for a different reason 0907Plaintiffs are not "qualified" as required by the regulation.
[1] The district court expressed substantial doubt about whether the USOC is a "covered entity." That question is not before this court, however, as the USOC has not argued that the judgment should be affirmed on the alternative ground that it is not subject to the Act.
[2] Indeed, the majority even accuses Plaintiffs of trying to "alter" section 504's definition of "program or activity" by discussing the reasoning of Klinger v. Dept. of Corrections, 107 F.3d 609 (8th Cir.1997), I fail to see how Plaintiffs are trying to "alter" the definition. Plaintiffs rely on the legislative definition of "program," while the majority ignores it.
[3] In Choate, the Court assumed without deciding that section 504 reaches conduct that has a disparate impact on the disabled, after having noted compelling reasons to conclude that Congress intended such an interpretation and that all the circuits that have reached the issue had reached that conclusion. 469 U.S. at 295-97 & n. 17, 105 S.Ct. 712. In the instant appeal, the defendants do not contend otherwise.
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 Scot Hollonbeck, et al., Petitioners v. United States Olympic Committee. No. 07-1504.
SUPREME COURT OF THE UNITED STATES

October 6, 2008, Decided

JUDGES: [*1] Roberts, Stevens, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer, Alito.
OPINION

Petition for writ of certiorari to the United States Court of Appeals for the Tenth Circuit denied. The Chief Justice took no part in the consideration or decision of this petition.