Justin_Gatlin_Florida_Case_Documents

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JUSTIN GATLIN
Plaintiff

v.

UNITED STATES ANTI-DOPING
AGENCY INC.;UNITED STATES
TRACK AND FIELD
ASSOCIATION, INC.;
UNTIED STATES OLYMPIC
COMMITTEE, INC.; INTERNATIONAL
ASSOCIATION OF ATHLETICS
FEDERATIONS;

Defendants

CASE NO. 3:08cv241/LAC/EMT

MEMORANDUM OF LAW AND FACTS IN SUPPORT OF PLAINTIFF'S

MOTION FOR TEMPORARY RESTRAINING ORDER

AND /OR PRELIMINARY INTUNCTION

Comes now Plaintiff Justin Gatlin who, pursuant to Federal Rule of Civil Procedure
64(b) and N.D. Fla. Loc. R.7.1 (A), hereby submits this Memorandum of Law and Facts in
Support of Plaintiffs Motion for Temporary Restraining Order and/or Preliminary
Injunction. In furtherance of said Motion, Plaintiff says as follows:

T. INTRODUCTION

This is a case brought under Title III of the Americans with Disabilities Act
("ADA") and Section 794 of the Rehabilitation Act of 1973 ("RA"). The Plaintiff claims
that the Defendants' failure to grant him a retro-active exemption for a 2001 doping
violation relating to prescription medication used to treat his disability is a violation of the
ADA and the RA. The current sanction makes the Plaintiff, an Olympic athlete, ineligible
for competition until 2010. If, however, this Court ordered a retro-active exemption to the
alleged discriminatory policies, the Plaintiff would be eligible for competition immediately,
given the credit for the time already forfeited. This would permit his participation in the
Olympic Track and Field Qualifications set for June 27, 2008 in Eugene, Oregon.

II. STATEMENT OF FACTS
USADA. USATF. IAAF and USOC

The athletic world is governed and organized by 4 general categories of entities:
international federations, Olympic committees, national governing bodies and anti-doping
agencies. The International Association of Athletics Federations ("IAAF") is a
conglomerate federation made up of the worlds Olympic committees and national governing
bodies for each discipline. The United States Olympic Committee ("USOC") is a federally
chartered corporation. The USOC is charged with the responsibility of approving Olympic
and Para-Olympic athletes for competition. The Untied States Track and Field, Inc.
("USATF") is the national governing body for the United States track and field athletes.
The United States Anti-Doping Agency ("USADA") was formed in 2000 and is a private
corporation based in Colorado. USADA is the anti-doping arm for the USATF, USOC and
IAAF. For American athletes, USADA represents the USATF, USOC and the IAAF in all

doping situations. IAAF rules are required to be implemented by the USOC and the

USATF.

Anti-Doping Agency

In 1999, the World Anti-Doping Agency ("WADA") was formed. The matter at issue

involves events happenings between 2001-2006. The IAAF Code sets forth the following

for sanctions as of 2001 in relation to doping offenses:

If any person commits an anti-doping rule violation under these Anti-Doping
Rules, he shall be subject to the following sanctions:
(a) for a violation under Rules 32.2(a), (b) or (f) (prohibited substances and
prohibited methods), except where the prohibited substance is a specified
substance in a case under Rule 40.5 below, or Rule 32.2(i) (competing whilst
suspended or ineligible):

(i) first violation: for a minimum period of two years ' ineligibility

(ii) second violation: ineligibility for life. "

IAAF Rule 40.1(a) (ii) (2006-2007)
In 2003, the WADA authored and adopted its own model anti-doping code. It has become
the suggested code for all international federations. The WADA code provides for a
consideration of fault in the determining liability. More importantly, the WADA code
expressly prohibits the use of a first "no fault" violation as an enhancement for later
offenses:

10.5.1 No Fault or Negligence

. . . In the event this Article is applied and the period of
Ineligibility otherwise applicable is eliminated, the anti-doping
rule violation shall not be considered a violation for the Limited
purpose of determining the period of Ineligibility for multiple
violations under Article 10.2, 10.3 and 10.6.

WADA RULE 10.5.1

The IAAF has not yet adopted the WADA code.

Anti-Doping Policy

These Defendants publish a list of "prohibited substances" that changes from year to
year. This list includes not only substances but processes like gene and blood doping. The
underlying purpose of all these policies is to insure an equal "playing field".

The "prohibited list" is currendy eleven pages in length and lists the chemical name,
including common brand names, of each and every substance that is considered
performance enhancing. Many times substances that are legal and medically necessary may
also be on this list. For instance, insulin has just recendy been added to the list of prohibited
substances and asthma medications have been on this list for several years. Until recendy,
"brand names" were not included on the list. In 2001, no brand names were referenced for
ADD medications.

In order to balance the athletes need to treat themselves with these medically
necessary substances and the goal of making certain that play is fair, the Defendants have
provided a Therapeutic Use Exemption or "TUE". A TUE is an exemption that must be
applied for in writing and typically requires 21 days advance filing. It requires that medical
records and consultations be performed to insure that only legitimate medically necessary
substances are permitted.
JUSTIN GATLIN

Plaintiff was diagnosed with ADD at the age of 9. He continues to be under the care
of a physician for this condition. (See Affidavit of Robin E. Barnett, M.D. attached as
Exhibit A). Plaintiff struggled academically in elementary school and later at Woodham
High School. He did graduate from high school with several track scholarship offers from
several schools. (See Affidavit of Justin Gatlin attached as Exhibit B). Justin accepted an
athletic scholarship from the University of Tennessee.

Prior to his freshman year at the University of Tennessee, Dr. Barnett warned Justin
that balancing his academics and intercollegiate athletics at Tennessee was going to be a
challenge especially with his disability. (See Exhibit B). Justin enrolled in Tennessee's Special
Education Program that provided specific accommodations for his ADD. These
accommodations included more time with tutors than typically allowed by the NCAA
policies and more time to take his exams. (See Exhibit B) Despite these accommodations,
Justin's academics suffered. He had particular trouble with his afternoon classes. These
were more difficult because Justin would always skip his afternoon dose of Adderall®. He
skipped this dose since he did not like the lethargic side effect it gave him by the time of
track practice. (See Exhibit B)

Outside of the classroom, Justin was a huge success. On the track his that first year
at Tennessee, he helped them win both the SEC and National Championships. (See Exhibit
B). The academic struggles though continued and Justin received a grade of "no credit" in
two courses. This required him to attend two summer classes between his freshman and
sophomore years. (See Exhibit B). These classes were required core classes. Failing either
meant that he would loose his NCAA eligibility and scholarship. (See Exhibit B) Justin was
determined to pass these classes and to accomplish this he was fully compliant with his
Adderall® dosages. (See Exhibit B). While Justin was studying very hard in the summer
classes there was one track meet that he was asked to compete, The USATF Junior
Nationals. This meet was commonly referred to as the "Junior Nationals" and it is an IAAF
sanction meet. The meet was scheduled for June 16 and 17, 2001. This was a weekend that
coincidental^ fell just 3 days following an exam in one of his summer classes. To make
certain that he did well on the exam he took his Adderall® as prescribed. Following the
test, he stopped his medicine so that he could insure that it was out of his system by the

weekend. (See Exhibit B). This had been the way that Justin had managed all of his
freshman NCAA events and he had no indication from the NCAA that any of his, in season,
drug tests were positive for any substance. In fact, the 2001 USATF manual endorsed this
practice specifically directing ADD athletes to stop the medication days before competition.
The USADA, the NCAA and the University of Tennessee also expressly endorsed this same
method of compliance with ADD medications. (See Exhibits B and Affidavit of Coach Vince
Anderson attached as Exhibit C)

On June 16 and 17, 2001, Mr. Gatlin was drug tested by USADA at the USATF
Junior Nationals. About two months later, his urine samples were declared positive by the
IOC-accredited laboratory at the University of California at Los Angeles for the stimulant
amphetamine. Amphetamine is a substance prohibited during competition under the IAAF
rules which were applicable to the USATF competition. The test results showed 20
nanograms of the drug per milliliter of urine on the first day of testing and less the second
day. These amounts were consistent with Justin stopping his medication days before the
competition as he had indicated. (See 2002 American Arbitration Association Decision
attached as Exhibit D).

At that time USADA, NCAA, USATF and the University of Tennessee had no
specific exemption requirement for Adderall and all of these entities recommended that the
medicine be stopped before the competition. (See Exhibits B & C)

At the time of Justin's 2001 violation for taking his Attention Deficit Disorder
("ADD") medicine, the "prohibited list" did not contain any reference to ADD, Adderall®
or Ritalin®. The list mentioned only amphetamine. USADA, who had just been formed in
October of 2000, also did not identify any need for an athlete taking medicines for ADD to
apply for a "TUE".

In May 2005, USADA started using a form that specifically alerted ADD athletes to
the need for them to apply for a "TUE" so that their medically necessary stimulant would
not render them in violation of anti-doping policies. (See 2005 United States Anti-Doping
Agency Therapeutic Use Exemption Form for use with ADD and AD/HD Medications
attached as Exhibit E) At the time of Justin's 2001 Adderall® violation his track coach at
the University of Tennessee was not aware of a requirement that a "TUE" be completed for
Adderall®. (See Exhibit C) Justin's treating physician, Dr. Barnett, even tried to write
USADA to ask whether Adderall could cause a result in a drug test and he never received
any response. (See Exhibit A).

A properly filed and accepted TUE relieved the athlete from any and all adverse
consequences of a positive drug test. However, the failure to file a TUE even with the
proper medical evidence, if submitted after the positive test, resulted in an automatic
violation and a 2 year suspension. Most relevant for this matter, this type of violation was
also considered an athletes first violation for purposes of an enhancement of sanctions with
future violations.
USADA's OPPORTUNITY TO ACCOMMODATE

The USADA Protocol for Olympic Movement Testing ("Protocol") was the
applicable guideline for this doping offense as are the IAAF definitions of doping,
prohibited substances and applicable sanctions. This protocol required that the USADA
Review Board ("Board") evaluate this offense and recommend, or not recommend, further
prosecution (See United States Anti- Doping Agency's Protocol for Olympic Movement
Testing attached as Exhibit F). The Board collected all of the relevant medical records and
other medical evidence. This Board confirmed that Justin had been a long time sufferer of
ADD and was taking Adderall® under physician supervision and direction. The Board

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chose, however, to continue with the prosecution of Mr. Gatlin despite this knowledge and
despite Mr. Gatlin's request to accommodation.

Mr. Gatlin was instructed that the only way that he could receive consideration for
his innocent mistake was to admit to a doping offense and then request "early
reinstatement." (See Exhibit B) So, relying on this instruction, Justin requested early
reinstatement from the IAAF. The IAAF refused to consider this request until Justin had
actually received a sanction. So, Justin was brought before an AAA panel and USADA
made its case against him for violating their doping policy. (See Exhibit B)

Under the IAAF regulations, a doping violation takes place when a prohibited
substance (in this case amphetamine) is found within an athlete's bodily fluids, unless a prior
medical exemption was given by the IAAF for the use of the substance.

This AAA panel explicidy made no finding of fault but retained jurisdiction to hear
the merits of the case if Justin was not reinstated by the IAAF. (See Exhibit D). The Panel
concluded, in part, the following:

This Panel would characterise Mr. Gatlin 's inadvertent violation of
the IAAF's rules based on uncontested facts as, at most, a
'technical' or 'paperwork 1 violation.
(Emphasis Added) (Exhibit D)

The IAAF granted early reinstatement after Justin had served a year of suspension.
(See Exhibit B). It is undisputed that based upon the medical experts' opinion in this case, it
is not unreasonable to assume that if requested the exemption likely would have been
granted. (See Exhibit D)

At that time, USADA, consistent with the IAAF rules in effect in 2001, imposed a
two year penalty for this Adderall® offense without regard to any mitigating circumstances.
In 2001, there was no provision in the IAAF rules that allowed consideration given to "fault
or "no fault". (See Exhibit D). However, a new set of WAD A rules were passed in 2006

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that does now allow the consideration of fault in determining liability. Perhaps most
importantly, the current sets of rules provide that a finding of "no fault" prevents that
violation from being used against the athlete for purposes of enhancing a future
sanction. (See Exhibit D and "IAAF Rule 10.5.1" contained within 2007 American
Arbitration Decision attached as Exhibit G)

Between 2001 and 2006, Justin won three Olympic medals and won the 2005 World
Championships. He was drug tested over ten separate times and none of these tests revealed
the presence of any prohibited substance. In 2006, while attending a tune up, pre-season
race, USADA tested Justin and later reported finding traces of synthetic steroids. (See
Exhibit B) USADA has prosecuted and sanctioned Justin taking the position that this is his
second doping offense. The 2007 AAA panel considered these issues and all mitigating
factors and imposed a 4 year ban. (See 2007 American Arbitration Association Award
attached as Exhibit G). This reduction from 8 years was based upon 2001 issues and the
IAAF provision allowed for a reduction for "exceptional circumstances" and Justin's
cooperation with USADA on unrelated issues. (See Exhibit F).

At the 2001 USADA Review Board, the 2007 AAA hearing and again at the 2008
CAS hearing Justin requested accommodation and modification for his 2001 Adderall®
violation. These requests have all been denied. (See 2008 Court for the Arbitration for Sport
Decision attached as Exhibit H)

The Olympic trials are being operated, at least in part, by Defendants USOC and
USATF. (See Affidavit of Renaldo Nehemiah attached as Exhibit I). It is clear that the
USOC and USATF are sponsoring this event and the USATF is controlling the schedule of
events. The USOC has conducted many of its Olympic Trials in other stadiums across the

country. . The USOC, USADA and USATF operate events at public stadiums on a regular
basis. (See Exhibit I).

III. REQUIREMENTS FOR ISSUANCE OF A TEMPORARY RESTRAINING
ORDER and/or PRELIMINARY INJUNCTION

Before injunctive relief may be granted the moving party must show that: "(1) it has
a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless
the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the
proposed injunction may cause the opposing party; and (4) if issued, the injunction would
not be adverse to the public interest." Siegelv. LePore, 234 F.3d 1163, 1176 (11 th Cir. 2000).

(1) Substantial Likelihood of Success on the Merits

The level of proof required to meet this burden has been described as the type of

proof that would withstand scrutiny under Fed. R. Civ. P. 12(b) 6. Klay v. United Heatlhgroup,

Inc., 376 F. 3d 1092, 1097 (1 1 th Cir. 2000). In order for Justin to prevail on his ADA and

RA claims he has the burden of establishing the following elements: (a) that he has a

disability within the meaning of the ADA and the RA; (b) that Defendants are subject to the

provisions of the ADA and the RA and (c) that allowing an exemption/waiver from any

adverse consequence suffered as a result of the Defendants policies is a reasonable

accommodation and does not fundamentally alter the sport of track and field.

(a) Justin's A.D.D. is a disability recognized by both the ADA and the RA.

The ADA provides the following definition of "disability":

-a physical or mental impairment that substantially limits one or more of the

major life activities of such individual,

-a record of such an impairment; or

-being regarded as having such an impairment.

42 U.S.C. § 12102(2) (1994).

Once the plaintiff presents sufficient evidence to establish a physical or mental

impairment, courts evaluate the degree to which the disability limits a major life activity.

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"The phrase major life activities means functions such as caring for one's self, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 28 C.F.R.
§ 36.104 (2000). The Supreme Court has pointed out that ADA's fundamental requirement
that only impairments causing substantial limitations in an individuals' ability to perform
major life activities constitute disabilities. Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 565,
119 S. Ct. 2162, 144 L.Ed.2d 518 (1999). Determining whether a person is disabled under
the ADA requires an "individualized inquiry" made on a case by case basis. Thornton v.
McClatchy Newspapers, Inc., 261 F.3d 789, 794 (9 th Cir. 2001). The Ninth Circuit has
recognized that a learning disability can constitute a disability under the ADA. Zukle v.
Regents of Univ. of California, 166 F. 3d 1041, 1046 (9 th Cir. 1999). Other courts, after
conducting their own individualized inquiry, have also held that certain levels of mental
deficiencies affects the ability of a person to learn or work. See, e.g., Whitney v. Greenburg,
Rosenblatt, Kull & Bitsoli, P.C., 258 F. 3d 30 (1 st Cir. 2001) (dementia that did not substantially
limit plaintiffs ability to learn or work did not constitute "disability" within the meaning of
the ADA); Bowen v. Income Producing Mgmt. of Oklahoma, Inc., 202 F.3d 1282, 1287
(10 th Cir. 2000) (Brain injured plaintiff who, in spite of injury, had greater skills and abilities
than average person, not considered "disabled" under ADA); Bercopitch v. Baldwin Sch., Inc.,
133 F.3d 141, 155 (1 st Cir.1998) (attention deficit hyperactivity disorder that substantially
affected learning did constitute disability under ADA).

In 1998, the Federal District Court in Oregon in Bingham v. Oregon School Activities
Association was confronted with an athlete suffering from ADD who was requesting a
preliminary injunction based upon a Title III ADA claim. Mr. Bingham was a high school
football player who, due to his disability, was forced to repeat the tenth grade. In his senior
year, he tried out for the football team only to be informed that the school district had an

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eight semester rule that prohibited any student from being eligible to play any more than
eight semesters. Mr. Bingham filed this suit after his waiver of this rule was denied by the
school board. The District Court granted the motion for temporary restraining order and
preliminary injunction holding that ADD was a disability in light of the facts of that case and
the ADA. That court also found that the plaintiff satisfied all of the elements of a
preliminary injunction.

In the case at bar, Justin has, since the age of 9, been diagnosed as and treated for
Attention Deficit Disorder. Plaintiff had been under the continuous care of a physician for
this disability. Justin has been prescribed both Ritalin and, more recently, Adderall® to
combat the harmful effects of ADD. Despite these medications, Justin's ability to learn was
significantly affected. While at the University of Tennessee, the school placed him in a
special education program. This program provided accommodations and modifications for
person's suffering from ADD. These accommodations included more time with tutors than
usually allowed by NCAA athletic policies and more time to complete exams.

Despite these accommodations, Justin was not able to pass the minimum required
course load for either his freshman or sophomore years at Tennessee. For example, Justin
was forced to withdraw from a Health and Wellness class and also received an "NC" in
English Composition in his first semester. His second semester freshman year was worse.
Justin received another "NC" for writing workshop and a "D" in drawing class which
happened to be his favorite class. Following his positive drug test in 2001, Justin's grades
sharply fell since he stopped his medicines altogether fearing that any trace would show up
in his drug tests.

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Dr. Barnett has testified that throughout Justin's academic life there was a noticeable
difference in academic performance while medicated. (See Exhibit A). Dr. Barnett has the
opinion that Justin has a severe case of ADD that affects his ability to learn.

A review of Justin's medical records from Dr. Barnett's treatment illustrates the
effect this disability had on Justin's learning. There are many instances in these records
where there is a discussion about ADD and its effect on Justin's academics. These items
include mental status testing performed by Dr. Barnett in 1996. This test resulted with
Justin meeting the text book definition of ADD and having "marked academic difficulties."
(See Medical Records Attached to Exhibit A specifically a March 27, 1996 Psychiatric
Evaluation). These records provide perhaps the most reliable indicia of the effects ADD has
had on Justin's ability to learn. An effect that can best be characterized as substantial.
Hence, Justin's ADD is a disability that affects a "major life activity". Justin clearly has
records documenting this disability and he has been regarded as suffering from ADD since
the age of 9. Hence, Justin's ADD is a disability under the ADA.

(b) Defendants are subject to the provisions of the ADA

Title III of the ADA lists the entities regulated under the statute as "places of
accommodation", explaining that a private entity is covered if its operations "affect
commerce" and it falls within one or the twelve enumerated categories. 42 U.S.C. §
12181(7)A-L. These categories of covered entities include, inter alia,

(c) ... Stadium or other place of exhibition or entertainment.

(i) a park, zoo, amusement park, or other place of recreation;

(1) a gymnasium, health spa, bowling alley, golf course, or other place

of exercise or recreation.

ADA 42 USC 12182(7) (Emphasis Added)

"A reading of the plain and unambiguous statutory language reveals that the
definition of discrimination provided in Title III covers both tangible barriers, that is

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physical and architectural barriers and intangible barriers, such as eligibility requirements and
screening rules or discriminatory policies and procedures that restrict a disabled person's
ability to enjoy the defendant entity's goods, services and privileges." Rendon p. Valeycrest
inductions, Inc., 294 F.3d 1279 (11 th Or. 2002).

In Rendon, the plaintiffs brought a Tide III ADA claim against a production company
and ABC. The plaintiffs argued the telephone screening process for ABC's "Who Wants to
be a Millionaire?" was discriminatory. The process required would be contestants to answer
various questions by pressing their number buttons on their phone. Some of the plaintiffs
were hearing impaired and others had a disability that prevented them from completing the
phone procedures. ABC argued that the ADA did not apply to it since the phone selection
process did not involve a "place of accommodation." The Eleventh Circuit rejected this
argument pointing out that the telephone interview was a screening process that could
eventually end in a contestant visiting the "studio". The Court reasoned that a studio is akin
to one of the twelve designations contained in § 12181 (7)C (covering theatres and other
places of entertainment). The crux of the case to the Eleventh Circuit was the nexus
between the alleged discrimination and the physical concrete structure, the studio.
Although studios are not explicitly referenced in the ADA text the Eleventh Circuit found
that a t.v. studio was included in the phrase "... theatres and other places of
entertainment."

In Access Now, Inc. v. Southwest Airlines, Inc, 227 F. Supp2d 1312 (S.D. Fla. 2002), Judge
Seitz granted Southwest Airlines' Motion to Dismiss plaintiffs Title III ADA claim. The
basis of this dismissal was the lack of a nexus between the claims of discrimination and a
physical structure. The Plaintiffs here were arguing that Southwest Airlines' website
(Soufhwest.com) was violative of Title III in that it was not equipped to handle "screen

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reader" software and other computer assist software available to the visually impaired. In
holding that this website did not meet the definition of "place of public accommodation",
The Court first noted that "websites" were not explicidy enumerated in § 12181(7) A-L of
the ADA. Further, the Court pointed out that the plaintiffs interaction with the website did
not lead to a physical interaction with a structure like a travel agent office or airport. In other
words, the intangible barrier would remain intangible for these plaintiffs.

For purposes of the matter at hand, the USOC and USATF are sponsoring the 2008
United States Track and Field Olympic Trials at Hayward Field on the campus of the
University of Oregon. Hayward field is a 17,500 seat track and field stadium. It has been
referred to as the "centerpiece" of track and field competition in the United States. This
Olympic event is one of many instances where the Defendants either "lease" or "operate" a
stadium. USADA acts as the anti-doping agent for both the USOC and USATF at these
events and will do the same at the Olympic Trials. USADA will also be utilizing this place of
public accommodation to carry out its anti-doping duties on behalf of the USOC and
USATF. The fact that these entities are only controlling these premises for a limited amount
of time still makes them subject to the ADA. Disabled Rights Action Committee v. Las Vegas
Events, Inc., 375 F. 3d 861 (9 th Or. 2004). Clearly, Hayward Field is a stadium. These venues
are expressly included in the twelve enumerated "places of public accommodation." 42 USC
§ 12181(7) (c)

The issue of a "place of public accommodation" was discussed, at some length, by
the Supreme Court in PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879 (2001). In
Martin, a golfer who was afflicted with a disability known as Klippel-Trenaunay- Weber
Syndrome, was denied a waiver to use a golf cart in the last stage of the PGA's qualifying
school ("Q-School"). The Martin Court found that the PGA's failure to make this

15

accommodation amounted to a violation of the ADA. The PGA argued, in part, that the
ADA should not apply to the PGA since "... the play areas of its tour competitions do not
constitute places of 'public accommodation' within the scope of that Title." Martin, 532 U.S.
661, 121 S. Ct. 1879 (2001). The Court noted that "golf courses" were expressly contained
as places of public accommodation. 42 USC 12181(7) (L) The PGA argued, however, that
even though "golf courses" were explicitly mentioned in the ADA statute they should not be
considered places of public accommodation since their events were not open to the public
but rather only PGA certified and qualified professionals who played "beyond the ropes".
The District Court in Martin rejected this position as attempting to "create private enclaves
within the facility. . .and thus relegate the ADA to hop-scotch areas." Martin v. PGA, Inc.,
984 F. Supp. 1320, 1326-1327 (D.Or.1998). The PGA made this same argument to the 9 th
Circuit. That Court also rejected that position noting that "... as with a private university
the fact that users of a facility are highly selected does not mean that the facility cannot be a
public accommodation." Martin, 204 F. 3d 994, 998.

Here, as in Martin, we have a venue that is expressly designated by the ADA as a
place of public accommodation. Specifically, in 42 USC § 12181(7) C, "stadiums" are
included in the definition of places of public accommodation. In addition to this precise
designation the ADA text also refers indirecdy to track and field venues. For instance, the
ADA includes "other places of exhibition or entertainment and other places of exercise or
recreation." 42 USC § 12181(C) and (L) respectively.

The "nexus" test set out in Rendon and Access Now is also met by Mr. Gatlin. Here,
the Title III claim arises from a screening process that excludes ADD athletes. This
discrimination is directly related to their participation in track meets. These meets occur in
stadiums and are sponsored and/ or sanctioned by Defendants USATF and IAAF and in the

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case of Olympic trials are also sponsored by Defendants USOC. These "stadiums" are the

concrete structures mentioned in both Rendon and Access Now so as to confirm these places

as "public accommodations" as intended by the ADA.

Defendants USOC, USATF, IAAF and USADA (who plaintiffs contend are always

acting as the anti-doping agents for USOC, IAAF and USATF) are clearly entities that

operate "places of accommodation" and therefore meet the operative definition for ADA

purposes.

(c) A retro-active therapeutic use exemption or "TUE" is a reasonable

modification /accommodation under the facts of this case and does
not fundamentally alter the nature of track and field

The ADA definition of discrimination includes: a failure to make reasonable

modifications in policies, practices, or procedures, when such modifications are necessary to

afford such goods, services, facilities, privileges, advantages, or accommodations to

individuals with disabilities, unless the entity can demonstrate that making such

modifications would fundamentally alter the nature of such goods, services, facilities,

privileges, advantages, or accommodations. 42 USC 12182(b) (2) (A) (ii) (Emphasis Added).

The Plaintiff has the burden of proving that a modification was requested and that

the requested modification is reasonable. The Plaintiff meets this burden by introducing

evidence that the requested modification is reasonable in the general sense, that is,

reasonable in the run of cases. If the Plaintiff meets this burden the Defendant must make

the modification unless Defendant pleads and meets its burden of proving that the requested

modification would fundamentally alter the nature of the public accommodation. Staron v.

McDonald's, 51 F.3d 353 (2 nd Cir 1995).

In Matthews v. NCAA, 179 F. Supp.2d 1209 (E.D. Wash. 2001), the District Court

for the Eastern District of Washington considered Plaintiffs Motion for Temporary

17

Restraining Order and a later filed Motion Preliminary Injunction pursuant to a Title III
claim. Plaintiff in Matthews was a college football player with a learning disability. He argued
that the NCAA was screening him, in violation of the ADA, by refusing to permit a waiver
of its 75/25 academic rule. This rule required that NCAA athletes complete 75% of their
course work during the regular school term as opposed to special winter or summer sessions.
Matthews argued that a blanket waiver should be granted and the failure to do so would
amount to discrimination against him based on his learning disability. The Court in Matthews
spent a good portion of its opinion analyzing the reasonableness of the requested
modification. Matthews, 179 F. Supp 2d 1209 at 1214. On this issue the Court noted that this
waiver had been granted once before to the Plaintiff and once to another athlete, that the
75/25 rule was relatively new and that the goal of fostering good academic performance did
not seem frustrated by this waiver . The Court found that the Plaintiffs academic success
on the courses he did complete seem to reassure the NCAA that their overall goal of
academic success was being met by this athlete. The District Court in Matthews did grant the
Motion for Temporary Restraining Order. Matthews, 179 F. Supp2d 1209, at 1226.

The Bingham decision also spoke directly to the issue of reasonableness of the
modification or waiver. Bingham, 24 F. Supp 2d 1 1 10 at 1 1 16. Again, in Bingham, an ADD
student athlete was seeking a waiver from a county sports association rule. The rule
prohibited high school players playing more than 8 semesters. Mr. Bingham had been held
back in the 10 th grade for his ADD and wanted to play on the football team his senior year.
This would have been his 9 th semester. In analyzing the reasonableness of the modification,
that Court noted that waivers allowing older students to play football had been granted on
previous occasions and allowing this 5 th year senior with ADD would not frustrate the
purposes of the rule. The Court pointed out that the purpose of the rule was to prevent

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unfair advantage by allowing older, bigger and more experienced players on the team for a
5 th year. Bingham was the same age as most of his teammates and was not more athletically
experienced than the average player since his actual playing time had been low. The Bingham
Court also pointed out that ADD is a condition that is beyond the athlete's control and this
fact should favor accommodation. The Court found that Mr. Bingham being allowed a
waiver would not frustrate the basis of the rule.

Justin's request for a waiver was submitted to the 2001 USADA Review Board
immediately following the positive Adderall® test. This is when he submitted his medical
records and other evidence confirming his disability and medical necessity. The Review
Board summarily denied the request and recommended that Justin be prosecuted. Justin's
request for a waiver then and is now, reasonable. like the Bingham and Matthews requests,
Justin's request for a retroactive waiver immediately following his 2001 positive drug test
should have been permitted. The Defendants all recognized the waiver process and had
explicit procedures for granting "TUE'"s. These TUE's were routinely granted prior to
competition. Further, their policy of deterring cheating is not frustrated so long as they only
punish those persons who cheat. It is clear that even the AAA Panel did not feel that Justin
was a cheater.

In fact the AAA held that if the purpose of anti-doping policies is to stop athletes
from cheating, then a determination that an athlete is not should be significant. On top of
this finding, if an entity learns that the same athlete was suffering from and treating his
disability and that this gave rise to the positive test and the entity still refused to
accommodate, the ADA is violated. In a case like this one, the ADA is meant to force such
an accommodation.

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Perhaps, the most convincing evidence that a modification is reasonable and does
not frustrate the Defendants policies, is the 22 page dissenting opinion from an arbitrator
sitting in judgment of this Athlete and these Defendants. (See 2007 American Arbitration
Association for the Dissenting Opinion authored by Chris Campbell attached as Exhibit J)

Another factor in accessing the reasonableness of the modification in this particular
case is the disability. Here, we have an athlete that suffers from ADD. No party contests
this fact. Further, it is also undisputed that at the time of the 2001 Adderall® violation none
of the Defendants had any "prohibition list" that included a reference to Adderall® or any
other ADD medications. None of the Defendants, at that time, had a process that alerted
these particular ADD athletes to the requirement that their medication (most of whom had
taken since elementary school and to whom this medicine had become part of their daily
routine) could ban them for 2 years and later serve to ban them for life.
Then consider what the Defendants did following Justin's Adderall® sanction. They
changed their rules making them more explicit now pointing out that ADD medications
were on the prohibited list and required a "TUE". The only guidance given prior to this was
to stop your medicines before competition. Is it reasonable to expect an athlete suffering
from ADD to know more about the anti-doping policies than the entities promulgating
them? This again is the point that a reasonable agency modifies its procedures to
accommodate a disability. Here, the ADA is forced to pick up where the Defendants have
fallen short.

Following a positive finding, the USADA Review Board was vested with the
authority to consider Justin's medical condition and then to decide whether or not to
prosecute Justin for this offense. The Review Board met after examining all of Justin's
medical records and after receiving professional opinions that confirmed Justin's diagnosis,

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they decided to move forward with the doping offense. The discrimination occurred at this
point in the process but the impact of this discrimination would not have full effect until

2007.

If the Review Board had decided to modify or accommodate Justin by allowing for a
retro-active TUE then no violation of the ADA would have occurred. The fact that an
exemption would have been granted had the same information been provided before the
testing seems only to unfair punish a class of persons for exhibiting symptoms of their
disability, inattentiveness.

If, however, Justin had been taking most any other medicine then this same analysis
would not apply. For instance, asthma medication requires a TUE since one of its
ingredients is on the prohibited list. Assuming that an asthma stricken athlete failed to file a
TUE (assuming no authority is requiring it) and then, following a positive drug test, he
claims a retro active exemption, the asthmatic athlete's argument is much less compelling
since the nature of their illness, respiratory insufficiency, does not cause inattentiveness.

Plaintiff submits that these specific references to ADD are not accidental. USADA's
decision to expressly reference "ADD MEDICATIONS" was an implicit admission that
those suffering from this disease should be accommodated. (See Exhibit E) This recognition
also serves to justify a retroactive exemption and makes such an accommodation reasonable
under the specific facts of this case.

A reasonable accommodation for an athlete who was sanctioned for failing to
comply with a policy that would have been physically challenging for him to even notice
until the 2005 changes is a retroactive exemption.

The United States Supreme Court in Martin v. PGA closes its opinion affirming a
modification for an ADA plaintiff with the following:

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"Congress intended that an entity like the PGA not only give individualized attention to a
handful of requests for a modification or waiver of a rule to allow them access to the
competition, but also carefully weigh the purpose, as weU as the letter, of the rule before
determining that no accommodation would be tolerable. 532 U.S. 661 at 691, 121 S.Ct. 1879

at 1898.

Plaintiff would submit that the Defendants here have not carefully weighed the

purpose, letter or spirit of its policies in light of Justin's disability. The Defendants have

simply blindly enforced their policies as they were written in 2001.

The reasonableness of this accommodation must be viewed considering the effects

of the disability on Justin. Eugene R. Hershorin, M.D. ("Dr. Hershorin") is the current

Chief of General Pediatric Division at the University of Miami Medical Center. Dr.

Hershorin is Board Certified in Pediatrics with a boarded subspecialty in Developmental and

Behavioral Pediatrics as well as a mini-fellowship graduate in psychotropic pharmacology

from the Neuroscience Education Institute.

As part of his work with this matter, Dr. Hershorin has reviewed the USADA
"TUE" policies in place in 2001 compared to the form used since 2005. Dr. Hershorin has
testified that, without an explicit directive, the "TUE" procedures existing in 2001, would
most likely not have provided Justin notice any need to have an exemption. (See Affidavit of
Eugene Hershorin, M.D. attached as Exhibit K)

Dr. Hershorin has also reviewed the 2005 USADA document titled "TUE
REQUIREMENTS FOR ADD AND ADHD MEDICATIONS." (See Exhibit E) After
evaluating this 2005 TUE form, Dr. Hershorin testified that a form of this type would most
likely assist a person with ADD in appreciating the severity and necessity of complying with
the TUE procedures. (See Exhibit K)

Dr. Hershorin, at the Plaintiffs request, conducted an exhaustive search and was not
able to find any medical support for the proposition that Adderall® can in some manner
enhance the performance of any athletes much less one competing in a foot race.

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The argument that Adderall® will provide an unfair advantage to any runner is not
supported by the medical literature. (See Exhibit K) Hence, any suggestion that a waiver
would fundamentally alter the nature of track and field is unsupportable in the medical and
scientific communities.

(2) Irreparable injury will be suffered in the absence of the requested relief
and there is no adequate legal remedy.

Preliminary injunctive relief derives from the necessity to restrain or compel conduct

in those extraordinary situations where irreparable injury might result from delay or inaction.

United Bonding Ins. Co. v. Stein, 410 F. 2d 483, 486-487 (3 rd Or. 1969). If this injunction is

not granted the Plaintiff will not be eligible to participate in the 2008 Olympic Games in

Beijing, China. These Games are scheduled to begin on August 8, 2008.

Under the most recent arbitration decision that was rendered Friday June 6, 2008, Justin will

not be eligible to compete until July 25, 2010. If however, this Court were to act and order a

retro-active therapeutic use exemption it would nullify the 2001 sanction and in turn make

the 2007 sanction punishable by a maximum of two years. Justin has served 2 years and 10

months (one year prior to reinstatement from the Adderall® violation and nearly two years

since 2006 positive test result). After accounting credit to Justin for the amount of time

already spent ineligible, the two year sanction would have been served and Justin should be

immediately reinstated to an eligible status. (See Exhibit B)

Clearly, in the absence of immediate Court action, Justin will not be allowed to

qualify for the 2008 Summer Olympic Games.

(3) Threatening Injury to Movant Outweighs Whatever Damage The
Proposed Injunction May Cause the Opposing Party.

Not being able to defend your Gold Medal at the Olympic Games is injury without
an adequate remedy at law. On the other hand, if granted, this injunction would arguably

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cause the Defendants to revisit all such cases where retro-active TUE's under these facts
should be provided. These Defendants could assert that their hard line policy on doping
offenses may be undermined by such an injunction. This interest, however, is outweighed
by the more important purpose served by the ADA, ending discrimination based upon
disability. Additionally, this decision will only have a very limited application since the facts
of this case are unusual the applicable rules governing TUE's and ADD have been modified.
(See Arbitration Reference to Unusual Facts). Clearly, the threatened life altering injury to
Mr. Gatlin outweighs any potential harm to Defendants.

(4) If Issued the Injunction Would Not Be Adverse to Public Interest
As Congress noted in its comments following the passage of the ADA, it enacted the
ADA to remedy widespread discrimination against disabled individuals. In studying the
need for such legislation, Congress found that ". . . historically, society had tended to isolate
and segregate individuals with disabilities and despite some improvements such forms of
discrimination against individuals continue to be a serious and pervasive social problem." 42
USC § 12101(a) (2). Congress also noted that many forms of discrimination include
"outright intentional exclusion" as well as the "failure to make modifications to existing
facilities and practices." § 12105(a) 5. Frankly, the Defendants have been slow to evolve in
the post ADA era and have, so far, resisted such progression by claiming exclusive
jurisdiction over the matter, without any legal support for such a claim. The public will most
always be served greater by an order prohibiting discrimination based upon disability.

IV. REHABILITATION ACT OF 1973
To establish a violation of the Rehabilitation Act, Plaintiff is required to prove the
following: "(1) that he has a disability; (2) that he is otherwise qualified for the employment
or benefit in question; and (3) that he was excluded from the employment or benefit due to

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discrimination solely on the basis of the disability." Doe v. Univ. ofMd. Med. Sys. Corp., 50 F.
3d 1261, 1264-65 (4 th Ck. 1995).

An individual is considered disabled under the Rehabilitation Act if he "(i) has a physical or
mental impairment which substantially limits one or more of such person's major life
activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an

impairment."

It is also generally held that due to the similarities in the language of the ADA and the RA,

the two are generally construed to impose the same requirements. Baird p. Rose, 192 F. 3d

462, 468 (4 th Or. 1999).

Plaintiffs would assert his arguments set out above for the ADA claim be adopted and

incorporated for arguments under the Rehabilitation Act.

Wherefore Plaintiff respectfully requests that this court enter an order requiring
USADA to issue a retro-active therapeutic use exemption for Mr. Gatlin's 2001 Adderall®
offense. Further, Plaintiff respectfully requests that this Court consider this matter on an
expedited basis considering that the Olympic Track and Field Trials are to be conducted on
June 27, 2008.

Joseph A. Zarzaur, Jr.
Attorney for Justin Gatlin
Zarzaur Law, P.A.
Post Office Box 12305
Pensacola, Florida 32591
Florida Bar #96-806
850-444-9299 p
866-588-1493 f

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