Melissa LUDTKE and Time, Inc., Plaintiffs, v. Bowie KUHN, Commissioner of Baseball


461 F. Supp. 86

September 25, 1978

MOTLEY, District Judge

This is a civil rights action for an injunction brought by plaintiff, Melissa Ludtke, a female reporter employed by Sports Illustrated, a magazine published by the other plaintiff, Time, Inc. Plaintiffs seek an order enjoining defendants, The New York Yankees, from enforcing a policy determination made by Baseball Commissioner Kuhn, and approved by American League President MacPhail, which requires that accredited female sports reporters be excluded from the locker room of the Yankee clubhouse in Yankee Stadium. Defendants admit that accredited male sports reporters may enter the locker room after a ball game for the purpose of interviewing ballplayers and that such fresh-off-the-field interviews are important to the work of sports reporters. The defendants are: Bowie Kuhn, Commissioner of Baseball; Leland MacPhail, President of the American League of Professional Baseball Clubs; The New York Yankees Partnership (the baseball defendants); The Mayor of the City of New York; The Commissioner of Parks and Recreation for the City of New York; and The Director of the Economic Development Administration of The City of New York (the City defendants)....

The court was therefore required to decide whether the Kuhn policy determination constitutes state action within the contemplation of the Fourteenth Amendment to the Federal Constitution and, if so, whether it violates 1) plaintiff Ludtke's right to the equal protection of the laws guaranteed by that Amendment, 2) the right of both plaintiffs to freedom of the press guaranteed by the First Amendment via the due process clause of the Fourteenth Amendment, or 3) plaintiffs' rights under the state's equal accommodations statute. (The court does not reach plaintiffs' free press and state law claims in this case, as it has been found possible,to afford the parties complete relief on the basis of their other claims.)

The court finds that there is no genuine issue as to any material fact and that plaintiffs are entitled to judgment as a matter of law. The undisputed facts, as set forth by the plaintiffs in their 9(g) Statement, and not seriously controverted by defendants, are as follows:

On April 2, 1975, defendant Bowie Kuhn wrote the general managers of all major league baseball teams indicating that baseball should maintain a "unified stand" against the admission of women sportswriters to major league clubhouses.

During the 1977 World Series that policy was applied to plaintiff Melissa Ludtke, a sportswriter for Sports Illustrated, a weekly sports magazine published by plaintiff Time Incorporated.

Kuhn's 1975 "unified stand" letter followed discussions within the Office of the Commissioner triggered by the decision of the National Hockey League All-Star teams to allow women reporters to conduct interviews in the locker rooms following the January 1975 National Hockey League All-Star Game.

In the course of those discussions, the Commissioner's office questioned no baseball players concerning their opinions. Public relations directors of the major league teams were questioned and their opinions were varied.
On July 22, 1976, Robert Wirz, Director of Information of the Office of the Commissioner of Baseball, wrote the Public Relations Directors of all Major League Baseball teams a reminder of baseball's stance in opposition to allowing women reporters access to clubhouses and asking whether any women had requested such access.

On August 4, 1976, by letter, and shortly thereafter orally, the public relations director of defendant New York Yankees told Mr. Wirz that the Yankee players had concluded by an "overwhelming majority" that women could be allowed access to the clubhouse if they conducted themselves professionally.

Mr. Wirz then told the Yankee public relations director that action by one team to allow women reporters in the clubhouse would be a "definite threat to breaking down the overall barrier".

Thereafter, Yankee management reversed the position of the players and said "no more" to women reporters in the Yankee clubhouse.

At the 1977 Baseball World Series games between the New York Yankees and the Los Angeles Dodgers, Melissa Ludtke, an accredited reporter assigned by Sports Illustrated to cover the Series, was informed by the Commissioner's office that she was not permitted, solely on the basis of her sex, to enter either team's clubhouse after the Series games.

The Commissioner's office assigned Larry Shenk, the public relations director for the Philadelphia Phillies, to try to bring players out of the clubhouse to speak with Ludtke in the tunnel where she was made to stand.

By definition, female reporters who are excluded from baseball clubhouses are not given the same access to the news and newsmakers as their male colleagues and competitors. This denial of equal access places female reporters at a severe competitive disadvantage because they miss stories witnessed or heard by male reporters inside the clubhouse, because they are unable to take advantage of the group questioning inside the clubhouse and because they are unable to talk to some players at all.

As of today, of the 22 teams in the National Basketball Association, all but two or three admit accredited female reporters, including both New York area teams.

As of today, approximately 14 of the 18 teams in the National Hockey League, including the New York Rangers, give female reporters access to their locker rooms. The Office of the Commissioner was informed by an official of the National Hockey League in January 1978 that "about half' of the NHL teams allowed women reporters into their locker rooms.

Accredited female reporters have also been given access to the locker rooms of, for example, the New York Cosmos professional soccer team, the Minnesota Vikings professional football team and the University of San Francisco basketball team.

Women reporters who have been given access to locker rooms in other sports have found that a substantial portion of their material comes from the locker room and thus that access to the locker room is an important part of their job. They are able to compete fully with the male reporters on their beat because they are given equal access to the news and the newsmakers.

The New York Yankees' clubhouse is divided into nine separate rooms, 1. e., the central locker room area which contains cubicles for each player; the manager's office; the players' lounge; the trainer's room; a doctor's office; a sauna; a washroom which contains several individual sinks; a room containing the toilets; and the shower room which includes adjoining drying areas.

The shower and toilet facilities are completely hidden from any view from the locker room. Swinging doors could easily be placed in the doorway which leads into the adjacent washroom.

The individual player cubicles in the central locker room area are approximately four feet wide and three feet deep and a player can comfortably dress in the cubicle. A curtain could be hung across the cubicle's one open side.
The City acquired title to Yankee Stadium and the land surrounding it by exercise of its power of eminent domain upon a factual showing, approved by the Supreme Court of the State of New York, Bronx County, that purchase of Yankee Stadium was required for a "public use".

The City was authorized to lease the Stadium to the Yankees, rather than to the highest bidder, by a New York State statute which found that: Yankee Stadium is important to the cultural, recreational and economic vitality of the state and city; . . . and that unless the stadium and its supporting facilities are substantially renovated and modernized it is likely that the New York Yankees, the New York Giants and other stadium users will transfer to a location outside the state and the city. . . . Chapter 986 of McKinney's 1971 Session Laws of New York.

Pursuant to the State authorization, on August 8, 1972, the City and the New York Yankees entered into a 30-year lease which gives the Yankees extensive control over the entire stadium and exclusive control year round over their clubhouse.

In both 1976 and 1977 the Yankees' obligation for rent due the City was approximately $ 1 million, as required under a percentage formula whereby the amount paid to the City increases as attendance increases. Accordingly, the City has a stake in increasing attendance at games at Yankee Stadium, and in its lease recognizes the connection between publicity and increased attendance.

New York City police are on duty at the sporting events held in Yankee Stadium.

The Yankees are required under the lease to comply with all present and future federal, state and local laws affecting their operations at Yankee Stadium, and the City retains the right to enforce and assure compliance not only with local but also federal and state laws.


Central to the resolution of this case is the undisputed fact that all accredited female sports reporters are excluded from the Yankee clubhouse at Yankee Stadium solely because they are women, whereas, all accredited male sports reporters (to the extent that space limitations permit) are permitted access to the clubhouse after games for the purpose of interviewing ballplayers.

Defendants say women reporters are excluded in order 1) to protect the privacy of those players who are undressed or who are in various stages of undressing and getting ready to shower; 2) to protect the image of baseball as a family sport; and 3) preservation of traditional notions of decency and propriety.

Another pivotal fact which is also not disputed is that fresh-off-the-field interviews are important to the work of sports reporters and will give a competitive advantage to those who have access to the ballplayers at that juncture, particularly during the World Series games.

Another critical consideration is the admission that there are several other less sweeping alternatives to the present policy of blanket exclusion of women reporters. Counsel for defendants admitted that those players who are desirous of undressing can retreat to their cubicles in the clubhouse. There the players can be shielded from the "roving eyes" of any female reporters by having each cubicle furnished with a curtain or swinging door. It is also conceded that the player who is undressed and wishes to move about in that state can use a towel to shield himself from view.

Since the Kuhn policy determination is based solely on sex, and since that policy results in denial of equal opportunity to plaintiff Ludtke to pursue her profession as a sports reporter, and since there are several less restrictive alternatives to the total exclusion of women, and since the material facts regarding New York City's involvement in Yankee Stadium and the lease of those premises to the Yankees are not disputed, the only questions remaining for decision are questions of law.

A. State Action

The first question is whether New York City's involvement with Yankee Stadium and the lease arrangement with the Yankees is such as to make the Kuhn policy determination state action within the contemplation of the Fourteenth Amendment.
It must by now be regarded as well settled that state action may be found where the direct perpetrator of allegedly discriminatory acts is, though a private entity, "so entwined" with an agency of the state that that agency must be deemed responsible for the private entity's acts. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961). There is, however, no rigid yardstick against which the relationship may be measured to determine the presence of state action. As the Supreme Court has explained: "Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance."

Burton, like the instant case, involved discrimination against the plaintiff on the ground of a class-based characteristic, in that case race. The discrimination there took place on ostensibly private premises (those of the defendant Eagle Coffee Shoppe), operated under lease from a public authority (the Wilmington Parking Authority). Here the discrimination also takes place on ostensibly private premises (the Yankee Clubhouse) located on premises (Yankee Stadium) operated under lease from a public authority (The City of New York). The Court in Burton found that the coffee shop, located in an otherwise public building owned by the Wilmington Parking Authority, enjoyed a "symbiotic relationship" with the publicly operated portions of the premises, consisting of parking facilities. The proximity of the coffee shop was found to be essential in establishing the fiscal viability of the parking garage. 365 U.S. at 718, 81 S. Ct. 856. The Yankee clubhouse in this case has been opened to the press immediately after games, particularly during the World Series, so that players fresh-off-the-field may be interviewed. Moreover, it is undisputed that television cameras were permitted in the clubhouse after the World Series games for the same purpose. Advertising and massive publicity about the Yankees and individual Yankee ballplayers is essential to the profitability of the Yankee Stadium.

The Burton Court drew particular attention to the fact that:

(T)he commercially leased areas were not surplus state property, but constituted a physically and financially integral and, indeed, indispensable part of the State's plan to operate its project as a self-sustaining unit. Upkeep and maintenance of the building, including necessary repairs, were responsibilities of the Authority and were payable out of public funds. It cannot be doubted that the peculiar relationship of the restaurant to the parking facility in which it is located confers on each an incidental variety of mutual benefits.
The facts of the case at hand so nearly resemble those of Burton that there can be little doubt that state action exists here, making 42 U.S.C. § 1983 an appropriate statute for plaintiffs to employ in seeking redress of the injuries flowing from the defendants' discriminatory conduct, and vesting this court with jurisdiction.

Here, as in Burton, the place where the discriminatory acts occurred is owned by the state (the City of New York) and leased pursuant to special legislative provisions to the Yankees. In this case, as in Burton, the facility involved is maintained and improved with the use of public funds. The Court noted in Burton that the relationship of the public and private entities in that case placed them in a relationship of interdependence. The same observation can be made on these facts, where the annual rentals to be paid to the City for use of the stadium depend directly on the drawing power of Yankee games, and the City has in turn invested substantial sums of public money to enhance that drawing power by modernizing and improving the stadium itself.

In defendants' memorandum in opposition to plaintiffs' motion for summary judgment and in support of their own cross-motion, they set forth the objectives underlying baseball's policy of excluding female reporters from the locker room. Among these conceded objectives were the aim "to protect and preserve the national image of baseball as a family game . . . and . . . to preserve baseball's audience and to maintain its popularity and standing."

It is an undisputed fact that the City's profit from its lease with the Yankees escalates when attendance at Yankee games increases. Thus the City has a clear interest in the preservation and maintenance of baseball's audience, image, popularity and standing.

Furthermore, the City has not stepped in, pursuant to the lease provision requiring the Yankees to comply with all local, state, and federal laws, to stop the Yankees' discriminatory conduct. This is so despite the City's indication of its conviction "that a less restrictive alternative to the policy of total exclusion of female reporters from the clubhouses at Yankee Stadium ought to be devised", in an affidavit by its counsel.

On the basis of Burton and other authorities reviewed above, this court holds that the Kuhn determination is state action within the contemplation of the Fourteenth Amendment.

B. Sex Discrimination

Having found that the Kuhn determination mandating total exclusion of women from the locker room of the Yankee clubhouse constitutes state action, the next question is whether that state action has infringed any right of plaintiff Ludtke which is guaranteed by the Constitution and/or laws of the United States. 42 U.S.C. § 1983. This court finds that the state action complained of here infringes both equal protection and due process rights of plaintiff Ludtke.

On the basis of the undisputed facts, plaintiff Ludtke, while in pursuit of her profession as a sports reporter, was treated differently from her male counterparts (other properly accredited sportswriters) solely because she is a woman. Defendants have "controverted", but have not adequately disputed for purposes of Fed.R.Civ.P. 56(e), plaintiffs' allegation that the result of this differentiation was to deny plaintiff Ludtke an equal opportunity to get a story or gather news on the same basis as her male counterparts, thus giving the latter a substantial competitive advantage.

Unless a sufficient justification can be advanced, on these facts and given the involvement of the state in the conduct complained of, the court must hold that plaintiff Ludtke was deprived of equal opportunity to interview ballplayers solely on account of her sex, contrary to the equal protection clause of the Fourteenth Amendment.

"To withstand constitutional challenge . . . classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Defendants have asserted, as justification for the complete exclusion of female reporters from the clubhouse at Yankee Stadium, their interest in protecting the privacy of the ballplayers while undressing in the locker room.

At least during World Series games, male members of the news media with television cameras have been allowed to enter the Yankee locker room immediately after the games and broadcast live from that location. In this connection, only a backdrop behind the player standing in front of the camera is provided to shield other players from the "roving eye" of the camera. These locker room encounters are viewed by mass audiences, which include many women and children. This practice, coupled with defendants' practice of refusing to allow accredited women sports reporters to enter the locker room, shows that the latter is "substantially related" only to maintaining the locker room as an all-male preserve.

This court need look no further than to the statements of defendants' counsel at the hearing on these cross-motions for summary judgment to find a number of alternative approaches which defendants might have implemented that would adequately protect the Yankee players' interests in privacy while at the same time enabling female sportswriters to enjoy precisely the same conditions of employment as their male colleagues.

THE COURT: With respect to the assertion of privacy, at least by some of these players, isn't it possible for them to use curtains in front of this cubicle . . . to undress and hide (themselves) from these women?

MR. CLIMENKO: It's possible, your Honor.

THE COURT: Or put swinging doors if he wants to get behind the door when a woman comes in, he can do that?

MR. CLIMENKO: It's possible. It's possible to do what the plaintiff in this case says, wear towels. It's not the way people who play baseball are accustomed to (sic) have the freedom of access after their own game.

If defendants' practice of total exclusion is derived, as counsel would appear to suggest, from a mere "custom", then it surely cannot stand against constitutional attack. The Supreme Court has held that mere administrative convenience cannot justify discrimination on account of sex.

The court holds that defendants' policy of total exclusion of women sports reporters from the locker room at Yankee Stadium is not substantially related to the privacy protection objective and thus deprives plaintiff Ludtke of that equal protection of the laws which is guaranteed her by the Fourteenth Amendment.

The other two interests asserted by defendants, maintaining the status of baseball as a family sport and conforming to traditional notions of decency and propriety, are clearly too insubstantial to merit serious consideration. Weighed against plaintiff's right to be free of discrimination based upon her sex, and her fundamental right to pursue her profession, such objectives cannot justify the defendants' policy under the equal protection or due process clauses of the Fourteenth Amendment.

An injunction will therefore issue enjoining defendants from enforcing the policy of total exclusion of accredited women sports reporters from the locker rooms of the clubhouses at Yankee Stadium and requiring them to adopt one of the above alternative means of preserving player privacy.

Communications Law Homepage