The Americans with Disabilities Act has been law for 17 years, but is it working in sports? In the first of a two-part series, SportsBusiness Journal examines why the law still remains a work in progress.

He went barreling down the incline from street level to Fenway Park’s main concourse, sticking out his right arm to hook a concrete post and turn 90 degrees. From there, Kevin McGuire began the climb up a steep hill that led to his destination: an elevator to the club level, and a wheelchair space overlooking third base.

McGuire, 46 and still fit from years of basketball and tennis, navigated the rugged terrain with aplomb. He has been without the use of his legs since age 7, when a drunk driver veered into a neighbor’s front yard, where McGuire was playing ball.

As a child, his parents pushed him to be independent, demanding that he be placed in mainstream classes. When he went off to Boston University, they insisted that he make the drive, belongings in tow, alone. He was elected student body president and went on to law school at Georgetown.

Since 1991, he has owned and operated a Boston-based consultancy that specializes in compliance with disability laws, working mostly on the side of teams, facilities and concert promoters.

A few steep slopes will not keep McGuire from getting anywhere, and certainly won’t keep him from a difficult to come by, birds-eye perch with Disabilities Act into law during a White at Fenway on this night, with Barry Bonds and the San Francisco Giants in town.

He will pop over a curb when others block his way. He will churn uphill, jaw clenched and arms pumping, stopping to chatand joke with strangers as they clear space for him in an elevator. He will get to his wheelchair space in time to spy Bonds stretching along the left field line before the game. And when those in the rows in front of him rise, first for the national anthem and then to cheer the return of World Series hero Dave Roberts, he will point out the unobstructed view.

“We’re lucky up here,” McGuire said, scanning the crowd. “Now that everybody is standing, a lot of people in wheelchair seats can’t see a thing.”

Signed into law on July 26, 1990, by the previous President Bush, the Americans with Disabilities Act was meant to guarantee people with disabilities equal opportunities for employment, transportation, government services, telecommunications, commercial facilities and public accommodations.

Inherent in the latter two is the right to enjoy a sporting event or concert as others do.

Fifteen years after the ADA went into effect, those who design, build and run the stadiums and arenas that house those events say they still are sorting out precisely what that means, wary that a mistake or misinterpretation might get them sued.

Some of the more tangible requirements are spelled out numerically, in feet, inches and percentages in a comprehensive document known as the ADAAG (ADA Accessibility Guidelines), which reads similarly to a building code.

A wheelchair space must be at least 33 inches wide and four to five feet deep, depending on whether you arrive at it from the side or rear, and it must include three more feet behind it to allow for movement. Service counters and cash registers must include a section that is no higher than 36 inches. Stadiums and arenas that opened after 1990 must offer wheelchair locations equal to 1 percent of their seating capacity: 650 for a 65,000-seat football stadium, with room for another 650 “companion seats” positioned next to them.

But other matters are left to interpretation.

The one-to-one ratio of companion seats to wheelchair spaces seems to be at odds with the purchasing habits of ticket buyers, who typically attend games in groups of three or four. Is it fair to break up a family of four because one member is in a wheelchair, when an able-bodied family of four can land tickets together? It would seem not. But the ADA never addresses the matter directly.

Teams and the consultants who help craft their ADA policies say that phrases like “reasonable accommodation,” “readily achievable” and “equally distributed” cry out for clearer definition.

The standards applied to buildings that were constructed before the ADA are even murkier. There is no grandfather clause within the ADA but older buildings are given significantly more latitude. While there are only a handful of those left in pro sports — Fenway, Wrigley Field and Madison Square Garden, for example — most college stadiums fit that designation. Every time a university upgrades its hallowed football stadium, it must reconsider where those renovations place it in light of ADA standards, and how much it will cost to fix any shortcomings.

Complicating matters further are split decisions that have been rendered in federal courts across the country. A court in Washington, D.C., ruled 10 years ago that wheelchair users are entitled to lines of sight over standing spectators, a standard that the U.S. Department of Justice, which enforces the ADA, has since endorsed. A year later, a federal court in Oregon disagreed. And, in October, a federal court in California ruled that California Speedway need not provide sight lines over standing spectators because the government still has not properly enacted the rule. That case is under appeal.

All of this frustrates many architects, who are used to dealing with the certainties of building codes. Ed Roether, the ADA specialist at architecture firm HOK Sport, points to building code changes that already have been enacted in response to a nightclub fire that killed 100 in Rhode Island in 2003.

“In ADA, we’re still struggling with what the hell it meant 15 or 16 years ago,” Roether said.

If the ADA dealt only with measurables, architects and operators would have fewer questions. But the ADA is not a building code, written to protect people from a fire or a collapse. It is civil rights law, meant to protect them from discrimination.

That’s a far more interpretive matter, particularly in stadiums and arenas, which spread thousands of people across large spaces at varied heights.

“We have spent a lot of our time dealing with sports stadium issues,” said John Wodatch, a civil rights attorney who oversees the Justice Department’s disability rights section, “because we’ve gotten a lot of complaints about them.”

An ADA complaint can be costly. The Justice Department can seek fines of up to $55,000 for a first violation and $110,000 for a second violation. Federal Disabled people, like many fans, enjoy attending disability law does not allow plaintiffs to sue for sporting events in small groups yet often face limits damages. They can only of just one companion seat in wheelchair sections demand repairs, plus attorneys fees. But seven set aside by stadiums and arenas. states, including California, allow for damages. In large facilities, a “repair” might constitute ripping out rows of seats or resurfacing concourses.

With the stakes so high, many teams and architects hire consultants such as McGuire to point out problems before they lead to lawsuits.

“You have the law itself, with pages and pages of guidelines and regulations, and yet you still have these hazy terms and you have to have court decisions to determine what they should mean,” McGuire said. “But this has been the law for a long time now. We’ve had court decisions. In most cases, people really should understand what they’re supposed to do.”

For their part, the Red Sox point to tens of millions they have spent to make most of the ballpark’s concourses and rest rooms wheelchair accessible. They have put in four elevators, added wheelchair spaces in the front row, and blown out three rows of seats at the top of the right-field grandstand to create clear lines of sight for 17 wheelchair spaces. Late last month, they were working on gaining city approval to install an elevator that would lead to seats atop the Green Monster.

Janet Marie Smith, the noted architect who has redesigned Fenway, estimates that about one-third of the approximately $100 million that John Henry’s ownership group has spent on renovations in the last five years has gone toward ADA compliance.

“We feel that ADA is not a burden or something to be pushed aside, but rather something to embrace,” Smith said. “It’s the right thing to do. It’s also the law.

“I realize that a building that is 95 years old still has a long way to go, but I hope the ownership gets credit for something that has been an annual effort to make Fenway better.”

Making Fenway’s concourses accessible has been particularly cumbersome. Three had to be torn out and redone. Smith said the concourse McGuire traveled, which stretches from home plate down the first base line, is the only one the Red Sox have not made accessible, in part because they haven’t done any other work in that area and in part because the slope and angles will make it even more difficult to fix than the rest.

That concourse also happened to be included on the shortest path between the only will-call window at which you can pick up wheelchair accessible tickets on game day, and the elevator up to McGuire’s seats that night.

McGuire said he was skeptical about the Sox spending anything close to $30 million on ADA compliance, based on what he’s seen. He pointed out that the wheelchair spaces atop the Green Monster had to be redesigned twice before they met ADA standards, and that new construction in right field also ran afoul when it opened and had to be fixed. He said he reported both to the Boston-based Disability Law Center, an advocacy group that last year honored the team for improving quality of life for the disabled.

“If they really cared they wouldn’t have screwed up on right field and they wouldn’t have screwed up on the monster seats,” McGuire said. “And people with disabilities wouldn’t have to go to . . . advocacy groups to get them to do it right.”

Three years ago, the government agency that crafts the aforementioned ADAAG — the guidelines that serve as an architect’s road map on ADA issues — wrote a sweeping revision that included mostly minor tweaks and clarifications with regard to stadiums and arenas.

With one exception.

Hearing for years from architects and operators who complained that wheelchair users were buying fewer than half of the spaces that the law mandated that they provide, the Access Board reduced the required number from 1 percent of capacity to 0.5 percent.

It may not sound like much. But for an NBA or NHL team that sells out most of its games in an arena that seats18,000, cutting the number of required wheelchair spaces by 90 can set off a mighty revenue multiplier. Because a wheelchair space is deeper than a standard row and wider than a standard seat, one row with eight wheelchair spaces can easily convert to 20 or 30 additional seats.

Stretch that out across 41 games and you’ve got about survey that said they hold 10,000 more tickets that a team can sell. At an average wheelchair locations open of $40 each, that’s $410,000 in unlocked revenue.

“We got huge numbers of calls from the industry saying, ‘Can we use the new guidelines now? Can we use them now?’,” said Marsha Mazz, an accessibility specialist with until the Access Board. “We’ve had to fend off those calls, saying ‘No, no.’ At this point, I think they’re all out there, waiting for the other shoe to drop.”

The “other shoe” would be adoption of the new ADAAG by the Justice Department, a process that has taken so long that many in the business are skeptical of whether it will ever happen. You see, while the ADAAG and the ADA are joined at the hip, the ADAAG, by itself, is not law. Its revisions won’t be enforceable until the Justice Department adopts them.

That hasn’t happened, leaving them in bureaucratic limbo.

“They’ve written a whole new document, which is a lot better, and it’s sitting there,” said Craig Stockwell, an associate principal and project manager at sports architect HKS, which designed the NFL stadiums now under construction for the Indianapolis Colts and Dallas Cowboys. “We have to notify the owners that it’s out there. We’re bound to tell our clients about that. As soon as they look at it, they want to use it.”

To do so at this point, Mazz said, would be “foolhardy.”

It does appear that there soon will be movement, though. Wodatch said late last month that the revisions should move into their next stage by February, when they’ll be published along with an accompanying document laying out more specific rules on matters such as ticket policies.

The latter part of that will be of interest to many who call and e-mail his office, pleading for clarifications.

After at least 60 days of public comment, the rules go back to the Justice Department for revision, and then get sent on for an impact analysis. They would be implemented in 2009. The reduction of wheelchair space requirements may make it all the way through that bureaucratic pingpong process. Or it may not.

Disability rights advocates point out that the law already allows teams to sell wheelchair spaces to able-bodied fans as season tickets once the rest of the seats on a level have been sold, and to convert unsold spaces into temporary seating for individual games and concerts. They can’t see why the government should cut the requirement in half when teams already can sell unused spaces.

They also argue that wheelchair usage is increasing as people live longer and yet remain active. About 2.7 million of 32 million severly disabled Americans use wheelchairs. Children with disabilities grow up doing many of the same things as their classmates, so it’s likely they’ll do many of the same things as their neighbors as adults. Plus, sports venues have decades worth of perception to overcome.

One disabled fan who was at Fenway on the same night as McGuire, John Kelly, was visiting for the first time in 10 years. He hadn’t been back because on his last trip, he sat along the first base line and couldn’t see over the people in front of him.

“People with disabilities do not have a history of feeling like they can go to sporting events,” Wodatch said. “Because they were never welcome, these were never places to go. As people understand those opportunities are available to them, there will be an increase [in use].”

For all the work that architects have done to create spaces that offered clear views and integrate them throughout the seating bowls, most teams report that wheelchair users buy fewer than half of what the law requires they provide.

As a result, designers have made a priority of creating spaces that can flex between wheelchairs and rows of seats.

“When it comes down to it, there’s a revenue issue here,” said Chris Lamberth, director of business development for 360 Architecture, which designed American Airlines Arena in Dallas and Nationwide Arena in Columbus. “The facility operator needs to be able to adapt when they don’t need that wheelchair seat.”

The ADA allows for the practice. Teams and promoters are not expected to forgo revenue in order to provide an accommodation that no one will use. But the Justice Department has warned operators to tread carefully when filling in wheelchair spaces. It has heard complaints that once teams put “temporary” seating in atop wheelchair spaces, they tend not to take it out.

“Too many times, those wheelchair seats disappear forever,” said McGuire, the ADA consultant. “The wheelchair users have a right to that seat before someone else does, but they’ve got no idea that it’s even supposed to be there, and no one tells them. So how can they buy it?”

That was one of the complaints in a lawsuit that a group filed in November 2002, against Kroenke Sports, owners and operators of the Denver Nuggets and Colorado Avalanche and their arena, the Pepsi Center.

The design of the building included aluminum platforms that were to be placed over seats, creating wheelchair spaces at the center of the lower bowl. But when several disabled people tried to buy those spaces for various events, they were told the spaces didn’t exist.

“As we began to talk to them, it became clear that there really were no platforms, or that they were up in somebody’s attic,” said Amy Robertson, the Denver attorney whose firm represented the group, and also recently negotiated a record $13 million ADA settlement with Kmart. “We asked that it be built OK. It wasn’t. But they were friendly and quick to fix it after they got sued.”

Unfortunately, Kroenke could not remedy the problem immediately, because the locations were sold as season tickets. The settlement requires that they be converted as people give them up. It also calls for occasional monitoring of the arena’s ticket sales practices.

“I think we’re better prepared now than we were prior to that to assist and serve the needs of the accessible needs patron,” said Paul Andrews, executive vice president of Kroenke Sports. “But I don’t think there was anyone to blame. I think if we’d actually gone to court who knows what the interpretation would have been. The law is written pretty ambiguously.”

Another point that isn’t clear deals with the way teams deal with unused wheelchair spaces.

“There is a real question as to, OK, at what point in time can you actually sell that wheelchair space to someone else,” said Roether, of HOK. “That’s really tough to get your arms around.”

While that’s not laid out in the ADA, Deval Patrick, now governor of Massachusetts, spelled out the federal government’s position on it in a letter he sent to the commissioners of baseball, the NFL, NBA and NHL in October 1996, when he was assistant attorney general in charge of civil rights.

“Before wheelchair locations can be replaced with other seating,” he wrote, “all other seats in the stadium must first be sold.”

Straightforward as that may sound, it does not address a more complicated question: What the policy should be when a team sells almost all its seats to season subscribers, as many NFL teams do.

The New England Patriots’ home, Gillette Stadium, opened in 2002 with a mix of concrete wheelchair areas that could be filled in with temporary seating, and aluminum platforms that can be removed to reveal three rows of seats. It is a model of flexibility.

Dan Murphy, vice president of business development and external affairs for the stadium, estimates that removing a platform that fits for better options for attending sporting events. 20 wheelchairs would reveal about 90 seats. Soon after the stadium opened, the team received state approval to remove some platforms and sell the seats under them as season tickets, so long as they held open at least 250 more wheelchair spots than they had sold, on average, the previous year. Able-bodied fans who buy those season seats agree to be relocated the following season if a wheelchair user requests them.

Last season, the team sold 208 wheelchair and companion spots as season tickets, spread across 81 accounts. It held open an additional 380 for single-game sales, and relocation of fans who bought or were given standard seats, but needed wheelchair spots. Murphy said they could have met those demands and removed more platforms, but chose not to. Instead, they’ve donated wheelchair spots to local advocacy groups.

“Although they’re temporary in nature, they’re permanent in our eyes at this point,” Murphy said. “I don’t want to sound corny here. But it’s really just doing the right thing.”

Neither the ADA, nor the guidelines, bridges the gap between what is right and what is required when it comes to release of wheelchair seats for games that are sold out.

“There are sometimes some immeasurables,” Mazz said. “We try as hard as we can to make all of this quantifiable and measurable. Some of the hard questions are in the immeasurable and unquantifiable area.”

A minimum distance between rows is measurable. More difficult is a policy that ensures that a fan in a wheelchair can buy two, three or four seats together at the same range of prices offered to other fans, when only one out of 100 seats — or even fewer in the case of older buildings — are fit for wheelchairs.

Four days before the Red Sox game against the Giants, which had been sold out for months, the team put a handful of additional seats on sale in two sections — $23 bleacher seats and $45 right-field box seats. The only wheelchair seat available with an adjacent companion seat was in the pavilion club, priced at $158 each.

After a second call to the box office and a measure of prodding, the Red Sox also offered up a wheelchair spot in the grandstands, but could only provide a companion seat one row down and three seats over.

While the guidelines clearly require that companion seats be shoulder-to-shoulder with wheelchair spaces, a Red Sox ticketing executive said they sometimes end up with a stand-alone wheelchair space in a row because they’ve accommodated someone who wanted to bring more than one companion.

“That happens a lot,” said Ron Bumgarner, vice president of ticketing for the Red Sox. “We’re always trying to say yes to every request we get.”

Red Sox fans are less likely than others to be bothered by a separation, Bumgarner said, because they know that demand at Fenway is so high, even for single seats. “In a nonaccessible seating category, if I can get Row 6 and Row 12, gosh, that’s almost a pair,” Bumgarner said. “But, having said that, we try to stick to a hard-line policy of one-to-one that keeps them together.”

Twenty-one of 34 stadiums and arenas that responded to a question about companion seating in a SportsBusiness Journal syrvery said their policy was to provide one companion seat per wheelchair user. Further interviews revealed that some of those are flexible when asked for more. But Wodatch said his office has found that many aren’t.

In this case, the wording of the ADA regulation, which requires one companion seat for each wheelchair spot, departs from the intent of a law meant to give disabled people the same options as others.

“They should be able to sit together,” Wodatch said. “I have disabled people in my office who don’t go [to a game] because a father can’t go with his two kids and watch them. He can’t sit with them both.”

Bumgarner said the Sox don’t often sell out of wheelchair tickets, and that their policy is to hold unsold wheelchair and companion seats open until 72 hours before game time, at which point they begin to release them in phases, holding back some for exchange all the way up until game time.

“It’s very difficult,” Mazz said. “All we know how to do on our end is to write a technical standard that tells you how to provide that sight line, how big the wheelchair space is, what an accessible route is, and all of that. And to tell you to associate one companion seat with it and line it up shoulder to shoulder.

“And we think all of that is a pretty big job.”

Sight lines have been the most contentious of any ADA issue touching stadiums and arenas.

The Justice Department says it began looking into the work of sports architecture firm Ellerbe Becket in August 1994 after receiving complaints that the Rose Garden, home to the Portland Trail Blazers, did not meet ADA standards because, among a litany of other things, its wheelchair locations did not provide sight lines over standing spectators.

Soon after, a similar complaint came from disabled patrons at the Fleet Center in Boston, another building that Ellerbe designed. When the investigators began checking the rest of Ellerbe’s work, they diagnosed similar problems in arenas it designed in Cleveland, Philadelphia and Buffalo. Disabled rights groups filed civil lawsuits involving Ellerbe-designed arenas in Washington, D.C., and Fort Lauderdale, Fla.

In October 1996, the government went after the firm with a case it filed in federal court in Minneapolis, where Ellerbe is headquartered. In it, the Justice Department bundled all the arenas, charging Ellerbe Becket with engaging in “a pattern or practice of illegal discrimination.”

Ellerbe eventually settled the overarching case by agreeing to design with standing spectators in mind in the future. The Rose Garden and MCI Center cases each yielded decisions that went largely against the architect and building operators. From those have come many of the clarifications that underpin what today is considered accessible design.

“I’ll go to my grave knowing that what we were doing in our buildings was without precedent in terms of the extent of accommodation,” said Bill Crockett, national director of sports for Ellerbe Becket, who joined the firm  in 1990, the same year Congress passed the ADA. “They were without peer. We really thought we were giving our clients options … not representing ourselves as experts in the ADA, because it was untested, but as experts in arena design trying to come up with ways to approach it.

“We do think that now we’re experts, with the benefit of 10 years of learning and exploration.”

The Justice Department points to the Olympic Stadium Ellerbe designed for use in 1996 in Atlanta (now Turner Field) as a model of accessibility

To be fair, many besides Ellerbe went into the ADA era thinking that the old way of looking at sight lines was basketball games fine. McGuire argued as much on behalf of the Fleet Center when he consulted on the project during its construction.

Then he went to an event there.

“All you saw was the Levi patch of the person standing in front of you,” McGuire said. “Once the building opened up,I realized there was a problem. I understand that. I get it. I was wrong.”

While most agree that the courts have resolved the issue of blocked views, architects say some complex seating issues remain. The ADAAG requires that wheelchairs be distributed at various angles around the seating bowl and at various prices. Those are easily understood. But it also requires that they be distributed from bottom to top.

“What is the correct number of rows?” asked Stockwell, the HKS architect. “I wish somebody [at the Justice Department] could tell me, because it’s going to kick back to me when it goes to the courts.”

Roether, the ADA expert at HOK, said vertical distribution is among the more daunting aspects of accessible design, in part because doing more of it can put wheelchairs in places that put them at risk in an emergency, such as a fire.

But attorneys say that argument hasn’t always prevailed.

Years ago, the New Jersey Sports and Exposition Authority would not sell wheelchair spots on the floor for boxing, wrestling or concerts held at its arena, saying it could not safely get wheelchairs out of the building if there were a fire.

Jim Weisman, a noted ADA attorney who won a landmark case against the transit authority in New York, challenged them on it, and other issues. When they argued the case in front of a judge, Weisman facetiously asked whether they should move the hearing from the fifth-floor courtroom, where those in wheelchairs might be in danger.

“This is the risk assumed by people with a disability every day,” Weisman said. “You have to show the probability of harm, not possibility of harm, in order to make that kind of discrimination lawful.”

The fact that the discussion has moved from whether wheelchairs could be segregated into ghettos behind the basket, a hockey goal, a baseball corner or a football end zone, as they were for decades, into the finer points debated by architects today speaks to a noteworthy evolution.

“We’re all trying to do the right thing,” Lamberth said. “Nobody is trying to get around or get by it.”

When San Diego Padres owner John Moores took a visitor on a tour of Petco Park as it was set to open three years ago, he pointed out an elevator that architects had to install next to a few steps that led to the home bullpen, because the ADA requires an accessible path of travel to all team areas.

“I hope we don’t sign anybody who needs that,” Moores joked.

They haven’t. But the ADA requires that the disabled be able to move freely throughout a venue, including onto the field and into dugouts. All locker rooms and clubhouses also must be accessible, with showers designed to accommodate disabilities. The Padres knew when they asked HOK for a small dugout next to the bullpen that they’d have to add an elevator.

“There are many things in ADA law that are very clear,” said Erik Judson, who oversaw the development of Petco for the Padres and now is a principal with Moores’ recently launched sports development firm, JMI Sports. “And that is one that is very clear. It was a no-brainer.”

Because the ADA also guarantees equal access to employment, buildings must be designed so that almost everyone can get almost everywhere, including locker rooms and dugouts. While a wheelchair or other mobility limitation would preclude someone from playing in the NBA, it wouldn’t necessarily keep them from working in a front office, on a medical staff, or as a newspaper reporter or an electrician or at any number of jobs that might take them beyond the seating bowl.

“It used to be there was the public, and then there were people who can’t walk,” Weisman said. “Now, the public includes people who can’t walk, or who have low vision, or who are hearing impaired. Designers of stadiums are getting it. They have a much more inclusive view of who the audience is.”

From behind the haze of a complex law that is taking decades to sort out, every so often someone says something that clarifies and cleanses.

Mazz, the accessibility specialist with the government operators struggle with board that writes the guidelines, boils the contradictions out of the debate by focusing on the law’s intent.

“It’s all about equity,” Mazz said. “It’s about giving folks with disabilities essentially the same wonderful — or lousy— opportunities that you give everybody else.”

When considering colleges as a high school student in a small town north of West Point, McGuire chose Boston University. It had a reputation as an accessible place. Even there, McGuire found hurdles.

When he visited friends in an older dorm, McGuire entered through the back door and rode a freight elevator that carried fruits and vegetables to the cafeteria. He dreaded the days when he would arrive after the onions.

“Still, that was access to me, and that was OK,” McGuire said. “Pre-ADA, you didn’t have very high expectations. But it’s different now. These kids growing up now are going to have a whole different set of expectations. All you have to do is go to their schools and see them being treated like all the other kids to realize that, when they grow up, they’re not going to be like I was.

“They’re not going to ride the freight elevator any more.”

Source: SportsBusiness Journal research