one or more of his major life activities. Whether a person is "disabled" within the meaning of the Act is a highly fact-sensitive question. There is no question that Northwestern regards Knapp as having a permanent cardiovascular impairment constituting a physical impairment under the Act. However, Northwestern argues that intercollegiate basketball is not a "substantial life activity" and that Knapp has not been "substantially limited" in participating in the sport.
(a) The district courts, and these are the only courts that have addressed the issues, are split over whether participation in sports is a "major life activity." See Pahulu v. University of Kansas, 897 F. Supp. 1387 (D. Kan. 1995). The federal regulations define "major life activities" as "functions such as caring for one's sell, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." What constitutes a major life activity must be determined on an individual basis, so a plaintiff need only prove that a particular function is a major life activity as to him.
Intercollegiate sports play a major role in a student's education and learning process. This has been recognized by several courts that have found physical education and participation in athletic activities on college campuses to be an important part of the educational process. The regulations promulgated pursuant to the Rehabilitation Act support this viewpoint by prohibiting universities from discriminating against qualified disabled athletes who are to have an equal opportunity for participation in intercollegiate athletics. The regulations specifically state that "in providing... athletics...to any of its students, a recipient to which this subpart applies may not discriminate on the basis of handicap. A recipient that offers...intercollegiate...athletics shall provide to qualified handicapped students an equal opportunity for participation in these activities." 34 C.F.R. § 104.47.
While the issue is not free from doubt, I find that intercollegiate sports competition may constitute a major life activity. I find, without doubt, that it is for Nicholas Knapp. It is clear that competitive basketball has played a substantial role in Knapp's education and learning process as he has learned valuable life skills and character traits. As Knapp stated in his affidavit, "my participation in competitive basketball has provided me and could continue to provide me with a unique experience that I have not encountered in any other extracurricular activity in which I have been involved or in which I could possibly become involved. Among other things, competitive basketball has helped to instill in me the following character traits: confidence, dedication, leadership, teamwork, discipline, perseverance, patience, the ability to set priorities, the ability to compete, goal-setting and the ability to take coaching, direction and criticism.... Competitive basketball has also given me recognition in the community, and provided me with the opportunity to meet new people.... Competitive basketball has also supplied me with a meaningful outlet for intense physical exercise and an enjoyment and happiness that cannot be duplicated in an open gym or intramural setting." Because competitive basketball is an important and integral part of Knapp's education and learning experience, I find that intercollegiate basketball is a major life activity for him.
(b) Northwestern argues that exclusion from participation in a single extracurricular activity is not a substantial limitation because he can engage in other activities that would provide him with the same educational benefits such as playing an instrument in the school band or orchestra. I do not disagree that participation in the band or orchestra may give a student who has trained for years on a particular instrument an educational experience similar to that of intercollegiate athletics. However, the law is not satisfied by telling a student who has trained for years to play basketball that the student can now play in the school band or orchestra instead and receive the same educational experience. It also undermines the purpose of the Rehabilitation Act not to allow a disabled individual to pursue his chosen field perhaps (particularly so when that field is chosen without knowing of the disability). Furthermore, there are relatively few, if any, activities that demand the same level of teamwork, precision and discipline as an intercollegiate sport to which a person can transfer particular skills.
For this reason, it would probably not be enough for Northwestern to say that Knapp would be permitted to play baseball or golf.
Northwestern also argues that because Knapp continues to receive his scholarship, still has a role with the team, and is given access to all the benefits given other team members except the ability to play, he is not "substantially limited." Northwestern misses the mark. It is the activity of practice and competition that constitutes a large part of the learning experience for Knapp. Being able to attend games and travel with the team does not make up for not being able to practice with the team and have a reasonable chance to play in games. It is the playing of basketball that teaches discipline, teamwork, and perseverance. These traits are not developed by being a perpetual observer. The fact that Northwestern will not allow Knapp to play constitutes a substantial limitation on his ability to play intercollegiate basketball.
(2) Knapp must next prove that he is "otherwise qualified" to play intercollegiate basketball at Northwestern. In other words, Knapp must be able to meet all of the program's requirements in spite of his handicap. The parties agree that an individual is not qualified if there is a genuine substantial risk that he or she could be injured or could injure others. When making this determination, whether the risk of injury is substantial, a court must be careful not to undermine the policy of the Rehabilitation Act by letting remote concerns legitimize discrimination. "Any qualification based on risk of future injury must be examined with special care if the Rehabilitation Act is not to be circumvented easily, since almost all handicapped persons are at a greater risk [of injury]." Bentivegna v. U.S. Dept. of Labor, 694 F.2d 619, 622 (9th Cir. 1982). Thus, this case turns on whether the risk of injury, death, to Knapp of playing intercollegiate basketball is substantial.
I find the risk of injury to Knapp is not substantial based on the testimony of the four cardiologists who testified at the hearing. Dr. McAnulty testified that the risk of death for individuals that have experienced ventricular fibrillation and sudden death goes down after the first year. Doctors Zipes and Maron testified that the risk is not time dependent, but they conceded that most recurrences happen within the first year. It is now nearly two years to the day that Knapp's heart went into ventricular fibrillation. Knapp has not had a repeat episode or displayed any symptoms. In addition, Knapp's latest echo-cardiogram showed no problems as compared to his previous echo-cardiograms. This is all in light of the fact that Knapp has continued to play basketball on a competitive level for more than the past year in addition to lifting weights, jogging and sprinting. Had this hearing been conducted more than a year ago, I would have found at that time that the risk of injury to Knapp was substantial. However, the passage of time, as testified to by the cardiologists, is a factor. Knapp has been asymptomatic for two years. The cardiologists agree that the chance Knapp will experience a second event while playing intercollegiate basketball in the first place is low and two of them whom I credit agree that this risk has decreased with the passage of more than one year. In addition, the cardiologists agree that the chance the implantable cardioverter defibrillator will not work to restore a normal heart beat in the event Knapp does experience a second event is slight. While some people might find that a 1 in 1,000 or even a 1 in 1,000,000 chance of dying is too much, the Rehabilitation Act requires that remote or minimal risks not be used to legitimize discrimination. While the determinations of risk were admittedly made without a reasonable degree of medical certainty, since very little data exists regarding ventricular fibrillation and implantable cardioverter defibrillator and none exists regarding intercollegiate athletes in such situations, I find the risk to Knapp is not substantial after the passage of two years without any symptoms. In making this decision, I did not consider the testimony of Dr. Rink who testified to his reevaluation of the cause of Knapp's sudden death in September 1994.
I therefore find that Northwestern's reasons for excluding Nicholas Knapp from playing intercollegiate basketball violate the Rehabilitation Act.
This decision does not state an opinion on whether Northwestern can require Knapp or potential survivors to sign a waiver of liability. It may well have a right to insist on waiver, a right arising from other sources of law. Ordinarily, a plaintiff neither increases nor decreases rights under the Rehabilitation Act by signing or refusing a waiver although waivers may be relevant to reasonableness of accommodation. Nor does it decide whether Northwestern may require a current showing on Knapp's fitness to play on grounds other than the suitability of his cardiac condition. I have only concluded that Northwestern's basis for determining Knapp ineligible to play thus far is insufficient.
(3) To complete the analysis I must evaluate the balance of harms and public interest. The harm to Northwestern if Knapp is able to play basketball is substantial but quite contingent. It is the extremely slight risk that Knapp may harm another player if he receives a shock from his implantable defibrillator and the harm that Northwestern would suffer as an institution if a student wearing a Northwestern jersey were to collapse and die on the basketball court. The harm could include not only the general harm to its university reputation but also is its ability to recruit good student athletes. The harm to Knapp if he is unable to play is substantial and certain. Playing intercollegiate basketball is a major life activity for him and his inability to play would curtail his ability to live his life fully and end his chances, however speculative, of a professional basketball career. Knapp does not consider the risk of death to himself to constitute a harm as he is wining to assume that risk. I therefore find that the balance of harms weighs in favor of Nicholas Knapp as the injury to him would be irreparable. I find there are arguments for the public interest of equal weight on both sides. The public interest does not preclude inssuance of the injunction. Finally, Northwestern must provide Knapp with a reasonable accommodation when he plays. This means here there must be a defibrillator at courtside and a trained person who can operate it at all times when Knapp is practicing and competing in games.
The injunction is granted.
James B. Zagel
United States District Judge
Date: 9 Sep 96