                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-1021


SHANE FELDMAN; BRIAN KELLY; PAUL SINGLETON,

                Plaintiffs - Appellees,

           v.

PRO FOOTBALL, INCORPORATED; WFI STADIUM, INCORPORATED,

                Defendants - Appellants.



                            No. 09-1023


SHANE FELDMAN; BRIAN KELLY; PAUL SINGLETON,

                Plaintiffs - Appellants,

           v.

PRO FOOTBALL, INCORPORATED; WFI STADIUM, INCORPORATED,

                Defendants - Appellees.



Appeals from the United States District Court for the District
of Maryland, at Greenbelt.   Alexander Williams, Jr., District
Judge. (8:06-cv-02266-AW)


Argued:   March 25, 2010                   Decided:   March 25, 2011


Before MICHAEL and DAVIS, Circuit Judges, and James A. BEATY,
Jr., Chief United States District Judge for the Middle District
of North Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.   Judge Beaty wrote a
separate opinion dissenting in part.


ARGUED:   Roger   William  Yoerges,  STEPTOE  &   JOHNSON,   LLP,
Washington, D.C., for Appellants/Cross-Appellees.      Joseph B.
Espo, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for
Appellees/Cross-Appellants.     ON BRIEF: Kathryn J. Gainey,
STEPTOE & JOHNSON, LLP, Washington, D.C., for Appellants/Cross-
Appellees.     Marc P. Charmatz, Rosaline Crawford, NATIONAL
ASSOCIATION OF THE DEAF, Law And Advocacy Center, Silver Spring,
Maryland, for Appellees/Cross-Appellants.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

               Defendants Pro Football, Inc. and WFI Stadium, Inc.

operate, respectively, the Washington Redskins football team and

FedEx Field, where the Redskins play home games.                         Plaintiffs are

three    individuals     who     are   deaf     or    hard    of    hearing    and    who

regularly      attend   Redskins       games    at    FedEx    Field.        Plaintiffs

argue that the Americans with Disabilities Act (ADA) obligates

defendants      to   provide     auxiliary       access       to     the    content   of

broadcasts from FedEx Field’s public address system.                         Soon after

plaintiffs filed their complaint, defendants captioned most of

the aural content to which plaintiffs seek access.                         The district

court nevertheless held that the case was not moot and granted

summary judgment to plaintiffs.

               The district court’s holding rested in part on the

fact that defendants were not providing plaintiffs with access

to the lyrics to music played over the stadium’s public address

system.     Defendants appeal the district court’s summary judgment

ruling that the ADA requires them to provide plaintiffs with

auxiliary access to the aural content broadcast over the public

address system, including music lyrics.                  They ask this court to

decide whether deaf and hearing-impaired game spectators require

access    to    music   lyrics    in    order    to    fully       and    equally   enjoy

defendants’       goods,    services,          privileges,          and     facilities.

Whatever the poetic merit of the lyrics and their relevance to

                                          3
the sport of football, 1 we agree with the district court that the

music played over the public address system during Redskins home

games is part of the football game experience that defendants

provide as a good or service, and that the ADA requires full and

equal access to the music lyrics.              Accordingly, we affirm the

district   court’s   declaratory       judgment   requiring   defendants      to

provide auxiliary access to the aural content broadcast over

FedEx    Field’s   public    address    system.      We   also     affirm   the

district court’s holding that plaintiffs’ complaint cannot be

construed as requesting auxiliary access to aural content that

is not broadcast over the public address system, including the

content of a separate radio program.



                                       I.

                                       A.

            Plaintiffs      Shane   Feldman,      Brian   Kelly,    and     Paul

Singleton are Maryland residents who regularly attend Washington

Redskins football games at FedEx Field in Landover, Maryland.

They are deaf or hard of hearing to a degree that renders them

unable to benefit from assistive listening devices.                 Defendant

     1
       Defendants’ “Half-Time Mix” includes lyrics like “Y’all
don’t really want it but the young got time / With a flow so
spec like . . . technologic / Shawty get loose, baby do what you
do, let me see you let down your hair.” Lil’ Mama, “Shawty Get
Loose” (Jive Records 2008). J.A. 586.



                                        4
Pro    Football,       Inc.    is    a     Maryland    corporation         that    owns       and

operates     the       Redskins.           Defendant     WFI    Stadium,        Inc.     is    a

Delaware corporation that owns and operates FedEx Field, where

the    Redskins       play    home    games.         FedEx    Field     seats     more    than

91,000     fans.          Defendants          have     always     provided         assistive

listening devices to spectators who are hard of hearing, but the

2006    football       season       marked    the     first     time    that      defendants

captioned announcements made over the stadium’s public address

system.         This    change      was    prompted     by     communications          between

defendants       and     plaintiff         Feldman.           Feldman      first     emailed

defendants       in    2003,     introducing         himself     as    a    season     ticket

holder    who     was     deaf      and     unable     to    benefit       from    assistive

listening devices.             Feldman explained that during the games he

was “often at a loss” when the referees called penalties and

that he was unable to catch the number of the player who just

made a play.           J.A. 94.          His email also mentioned an incident

involving pepper spray during a 2002 night game when he was

unable     to    understand          the     stadium’s       emergency       announcement.

Feldman asked defendants to consider captioning the Jumbotron at

FedEx Field.

            Feldman maintained correspondence with defendants in

2004 regarding possible auxiliary aids.                       Defendants did not want

to caption the Jumbotron because doing so would take up one-

third of the screen, significantly reducing the remaining video

                                               5
portion.      As    an     alternative,           defendants      proposed      hand-held

captioning devices.            Feldman responded that spectators who are

deaf or hard of hearing would not be pleased with these devices,

in part because of reported time delays between announcements

and the appearance of the captions and the nuisance of having to

glance repeatedly from the device to the field.                              In February

2006 the National Association of the Deaf (NAD), on behalf of

Feldman, wrote to defendants and explained that as a place of

public    accommodation         under   the       ADA,    FedEx   Field   had    a      legal

obligation    to    afford      full    and       equal    enjoyment    of   its     goods,

services, facilities, and privileges to spectators who are deaf

or hard of hearing.             The NAD demanded that defendants caption

the     stadium’s     public      address         system     announcements         on    the

“scoreboards/Jumbotrons.”               J.A.       101.      Specifically,       the     NAD

demanded captioning of “anything that is said by the referee,

the public address announcer, or anyone else using the public

address system.”         Id.

            Plaintiffs sued defendants on August 31, 2006.                                The

complaint alleged that defendants were violating Title III of

the ADA by refusing to caption the Jumbotrons and video monitors

at FedEx Field.           Plaintiffs requested a declaratory judgment

that     defendants      were     violating         the    ADA    and   an    injunction

requiring defendants to “provide individuals with disabilities

equal     access    to    the     benefits         of     [defendants’]      facilities,

                                              6
programs, services, and activities.”                    J.A. 16.         Specifically,

plaintiffs asked the court to order defendants to “provide and

display captioning on the Jumbotrons and video monitors at FedEx

Field for all announcements made over the public address system,

including    all    of    the    plays    that       just    occurred,    all    of    the

penalties    called,      safety    and    emergency         information,       and    any

other announcements made over the public address system.”                        Id.

            The first Redskins home game of the 2006 season was on

September 11, 2006.             During the first game the only content

broadcast    over    the        public    address       system     that     defendants

captioned    was     an     emergency          evacuation       video.          However,

defendants     started          captioning           game     information       shortly

thereafter at the third Redskins home game on October 15, 2006,

just over a month after being served with the complaint. After

receiving    Feldman’s      criticisms          of     the    hand-held     captioning

devices in 2004, defendants had explored other options.                               They

decided to provide most of the captioning on FedEx Field’s two

light-emitting diode ribbon boards (LED boards) rather than on

the Jumbotrons.      The LED boards are located on each side of the

stadium at the fifty-yard line and are visible from almost every

seat.   Defendants hired a stenographer, Stephen Clark, as an

independent contractor to provide the captioning.

            During the October 15 home game defendants captioned a

considerable amount of game information and other announcements.

                                           7
On   the    LED    boards     defendants     captioned:   (1)     a     pre-game

announcement encouraging the fans to cheer; (2) after each play

an announcement stating the type of play, the names of the key

players involved, the number of yards gained or lost, the yard

line location of the ball, the down, and the number of yards

remaining until first down; (3) two-minute warning announcements

and announcements that the quarter had ended; (4) the referee’s

penalty explanations; (5) announcements that cheerleaders were

entering     the     field;     (6)     announcements     regarding        check

presentations and other non-musical entertainment during breaks

and halftime; (7) public service announcements and advertising;

and (8) the announcement of the game’s end, along with the final

score and information regarding the next home game.                      On the

Jumbotrons located in the stadium bowl, defendants captioned an

emergency     evacuation        video       played   before       the      game.

Additionally,      defendants   provided     captioning   in    the   concourse

areas of the stadium so that spectators who are deaf or hard of

hearing would not lose track of what was occurring on the field

when using the restroom or buying refreshments.                 The concourse

areas contain around 150 televisions, half of which caption the

network broadcast from the field while the other half display

the Jumbotron video feed.          Defendants continue to provide this

captioning, and they represent to this court, just as they did

to the district court, that they will do so indefinitely.

                                        8
            Three months after filing their complaint, plaintiffs

retained    expert       Lawrence    Goldberg.          Goldberg        founded       the

National     Center      for    Accessible      Media,      a    research       center

dedicated to making new media technologies accessible to persons

with disabilities.          Goldberg attended a Redskins home game in

December 2006 and wrote a report that analyzed the captioning

that    defendants     were    providing      and   recommended     captioning           of

additional aural programming, including lyrics to songs played

for entertainment and a radio program (the Red Zebra program)

that is broadcast in the concourse areas and is separate from

the     public    address      system     broadcast.       Goldberg         based     his

recommendation      on   the   principle      that   “if   there       is    spoken      or

performed speech, or essential non-speech information provided

via audio systems, a usable text-equivalent should be provided

for people who cannot fully perceive such audio.”                      J.A. 399.         As

he    explained   in     his   deposition:      “[I]f    audio    is    heard       by    a

hearing person, then it has some reason for being projected;

and, therefore, a deaf person should have equal access to that.”

J.A. 337.

                                         B.

            Defendants moved for summary judgment in January 2008,

and    plaintiffs      cross-moved      for   summary    judgment       in    February

2008.    Defendants contended that the case was moot because they

were captioning game and emergency information as requested in

                                          9
the   complaint       and     would    do     so     indefinitely.           Plaintiffs

responded     that     there       remained      a    live      controversy        because

defendants    could,        with    the     “flip    of     a    switch,”    return     to

violating the ADA.          J.A. 109.        Further, plaintiffs alleged that

defendants continued to violate the ADA by failing to caption

music lyrics and the Red Zebra radio program.                         Plaintiffs also

maintained     that     defendants        were       not     providing      full     aural

accessibility because the LED board captions were not in the

same line of sight as the Jumbotrons, but they abandoned this

claim after the summary judgment hearing.                       Defendants urged that

the court could not grant relief on the captioning of music

lyrics and the radio program because these claims were outside

the scope of the complaint and were raised for the first time in

plaintiffs’ summary judgment motion.

            The district court concluded that plaintiffs’ case was

not moot because defendants’ voluntary provision of captioning

did   not   satisfy     the    heavy      burden      of    showing    no    reasonable

expectation that the alleged ADA violations would recur.                           On the

issue of which alleged ongoing violations were within the scope

of the complaint, the district court concluded that plaintiffs’

request for captioning music lyrics, but not their request for

captioning the radio program, was encompassed in the complaint.

The   court   relied        upon    the     ongoing        disputes    regarding      the



                                            10
captioning music lyrics and the line-of-sight positioning of the

LED captions to bolster its holding that the case remained live.

             On the substance of the ADA claim, the district court

awarded summary judgment to plaintiffs and held that the ADA

requires   defendants      to    provide      auxiliary       aids       for   the    aural

content    broadcast     over    FedEx       Field’s    public       address      system,

including music lyrics.           The court found it undisputed that the

Redskins   could      provide    auxiliary      access       to    the    music      lyrics

without    undue   burden.        Because      the     ADA   does     not      dictate    a

particular     auxiliary     aid,      the     court    declined          to    issue    an

injunction requiring captioning as the means of access for the

music lyrics.         Plaintiffs do not appeal this portion of the

district court’s ruling.          Pursuant to the district court’s order

defendants     make     available      typed     copies       of     the       lyrics    to

plaintiffs by email before each game.



                                         II.

            On appeal defendants maintain that the district court

erroneously held (1) that plaintiffs’ claims were not moot and

(2) that the ADA requires defendants to provide auxiliary aids

for aural content broadcast over FedEx Field’s public address

system.       Defendants        take   particular       issue      with    the    court’s

conclusion that the ADA requires them to furnish plaintiffs with

access to the lyrics to music that is played over the public

                                         11
address   system.          Plaintiffs      cross      appeal,    arguing      that    the

district court wrongly construed their request for captioning

the   radio      program    as    outside       the    scope    of     the   complaint.

Alternatively,       plaintiffs       contend         that     their     request      for

captioning the Red Zebra radio program was tried by consent of

the   parties.       We    affirm    the    district         court’s    order    in   its

entirety.

                                           A.

            We      first        address        defendants’          assertion        that

plaintiffs’ claims are moot.                We review the district court’s

ruling on constitutional mootness de novo. 2                      Green v. City of

Raleigh, 523 F.3d 293, 298 (4th Cir. 2008).                          A “case is moot

when the issues presented are no longer ‘live’ or the parties

lack a legally cognizable interest in the outcome.”                          Powell v.

McCormack, 395 U.S. 486, 496 (1969).                      “Litigation may become

moot during the pendency of an appeal.”                   Incumaa v. Ozmint, 507

F.3d 281, 286 (4th Cir. 2007).              “The requisite personal interest

that must exist at the commencement of the litigation . . . must

continue throughout its existence.”                   United States Parole Comm’n

v.    Geraghty,     445    U.S.     388,    397       (1980)    (quoting     Henry     P.



      2
       The district court also held that plaintiffs’ claims were
not prudentially moot.      Defendants do not challenge this
holding.



                                           12
Monaghan, Constitutional Adjudication: The Who and When, 82 Yale

L.J. 1363, 1384 (1973)).

             A case may remain live even if the events giving rise

to   the    lawsuit      cease.     The       “voluntary     discontinuance     of

challenged activities by a defendant does not necessarily moot a

lawsuit.”     United States v. Jones, 136 F.3d 342, 348 (4th Cir.

1998).     The exception to this general rule is when there is “no

reasonable expectation that the wrong will be repeated.”                     Lyons

P’Ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 800 (4th

Cir. 2001) (quoting United States v. W.T. Grant Co., 345 U.S.

629, 633 (1953) (emphasis added)).              “But this exception is just

that – an exception – and defendants ‘face a heavy burden to

establish mootness in such cases because otherwise they would

simply be free to return to [their] old ways’ after the threat

of a lawsuit has passed.”          Id. (quoting W.T. Grant, 345 U.S. at

632).

             While we commend defendants for providing most of the

relief     that    plaintiffs      requested        and    for    engaging    with

plaintiffs on the benefits and burdens of particular auxiliary

aids, we agree with the district court that defendants have not

discharged     their      heavy    burden      of    showing      no   reasonable

expectation       that    they    will    repeat     their       alleged   wrongs.

Although defendants were investigating possible auxiliary aids

years before plaintiffs’ lawsuit, they did not actually provide

                                         13
captioning until after plaintiffs filed their complaint.                        See

Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th

Cir. 2007)         (noting that “whether the defendant’s cessation of

the offending conduct was motivated by a genuine change of heart

or    timed   to    anticipate   suit”   is   relevant       to   the    voluntary

cessation     analysis).     Further,     this   is    not   a    case   in   which

plaintiffs “control[] [their] own fate.”               Incumaa, 507 F.3d at

289.    Defendants maintain complete control over the captioning.

They hired one stenographer, Stephen Clark, as an independent

contractor to provide the captioning.            If Clark for some reason

cannot provide his services at a Redskins home game, he arranges

for another certified stenographer to take his place.                    Given the

ease with which defendants could stop providing captioning, we

simply cannot say that they have made an affirmative showing

that the continuation of their alleged ADA violations is “nearly

impossible.”        Lyons, 243 F.3d at 800; see also Tandy v. City of

Wichita, 380 F.3d 1277, 1291 (10th Cir. 2004) (observing in an

ADA    case   that    defendants’   heavy     burden    under     the    voluntary

cessation doctrine is “typically . . . met only by changes that

are permanent in nature and that foreclose a reasonable chance

of recurrence”).

              Equally important is the continued existence of a live

dispute over captioning music lyrics at Redskins games.                        The

district court construed plaintiffs’ complaint to encompass a

                                     14
request for captioning of music lyrics.                     Because defendants had

not provided auxiliary aids for the lyrics, the court concluded

that this issue also remained live.                    As explained below, we

agree with the district court’s construction of the complaint

and therefore hold that plaintiffs’ case was not moot when the

court ruled on the parties’ summary judgment motions, nor is the

case moot before this court.              Ramer v. Saxbe, 522 F.2d 695, 704

(D.C. Cir. 1975) (“A case is not moot so long as any single

claim   for    relief    remains    viable,     whether       that   claim    was   the

primary or secondary relief originally sought.”) (citing Powell,

395 U.S. at 496-97).

              Defendants argue that even if plaintiffs’ request for

captioning music lyrics is a live claim, this request must be

separated for mootness purposes from captioning emergency and

game-related         information     that       defendants       are    voluntarily

providing.          Because   we   agree    with      the    district   court       that

defendants have not shown that a continuation of their alleged

ADA violations is nearly impossible, we likewise treat all of

plaintiffs’ requested relief as presenting a live claim.

                                          B.

              We now turn to the district court’s interpretation of

plaintiffs’ complaint.             Federal Rule of Civil Procedure 8(a)

requires a “pleading that states a claim for relief” to include

“a   short    and    plain    statement    of   the    claim    showing      that   the

                                          15
pleader is entitled to relief” and “a demand for the relief

sought, which may include relief in the alternative or different

types of relief.”             The statement of the claim must give the

defendant “fair notice” of the claim and the “grounds upon which

it   rests.”      Bell    Atl.    Corp.       v.     Twombly,     550   U.S.    544,       555

(2007).    A “formulaic recitation of the elements of a cause of

action will not do.”           Id.     “Factual allegations must be enough

to raise a right to relief above the speculative level.”                             Id.

           Plaintiffs did not explicitly request that defendants

caption the music lyrics accompanying the football game; this

specificity appeared for the first time in plaintiffs’ summary

judgment   motion.            Although        the     complaint      never     explicitly

mentions       music     lyrics,         it         does     refer      repeatedly          to

“announcements         made    over     the         public    address        system”       and

“captioning on the Jumbotrons and video monitors.”                            J.A. 8, 10,

11, 12, 15, 16.          Besides requesting captioning of “plays that

just occurred,” “penalties called,” and “safety and emergency

information,”     plaintiffs          requested        captioning       of    “any     other

announcements made over the public address system.”                              J.A. 16.

The complaint also referred to “equal access to the information

. . . made over the public address system.”                       J.A. 15.       Music is

part of the aural content that defendants broadcast on FedEx

Field’s public address system.                     By repeatedly referring to the

“public address system,” plaintiffs gave defendants fair notice

                                              16
that they were seeking as much auxiliary access as possible to

the    football        game    as    experienced       from     the      stadium    bowl,     an

experience which includes music.

                                                C.

             Before turning to defendants’ argument on the merits

of plaintiffs’ ADA claim, we dispose of plaintiffs’ cross-appeal

challenging the district court’s holding that the complaint did

not    encompass        a    request      for    captioning        the    Red   Zebra      radio

program.          As        with    the   music       lyrics,       plaintiffs       did     not

specifically        mention         captioning       the    radio    program     until       they

moved for summary judgment.                     Unlike the music lyrics, however,

the Red Zebra program is not part of the aural content broadcast

over FedEx Field’s public address system, which plaintiffs did

repeatedly reference in their complaint.                           The Red Zebra program

is a separate broadcast heard only in FedEx Field’s concourse

areas, and it includes different commentary than what is heard

in    the   stadium         bowl.      Although       the    complaint      refers      to   the

“video monitors located in the concession areas,” J.A. 10, it

describes the content on the monitors to which plaintiffs sought

access      as    the       “announcements        made      over    the    public     address

system.”         J.A. 16.          The complaint describes the purpose of the

concourse monitors as “enabl[ing] attendees to keep track of

events on-field when they are not in their seats.”                                  J.A. 10.

Because the requested relief focuses on what is broadcast from

                                                17
the field, the district court properly held that plaintiffs’

request for captioning the Red Zebra program was outside the

scope of the complaint and could not be sought at the summary

judgment stage.

              Plaintiffs argue that even if their complaint cannot

be construed to encompass captioning the radio program, this

issue was tried by implied consent of the parties under Federal

Rule of Civil Procedure 15(b)(2).                      Rule 15(b)(2) provides that

“[w]hen an issue not raised by the pleadings is tried by the

parties’ express or implied consent, it must be treated in all

respects as if raised in the pleadings.”                         “Because notice to the

defendant      of    the    allegations         to    be     proven      is   essential      to

sustaining a cause of action, Rule 15(b) applies only when the

defendant has consented to trial of the non-pled factual issues

and will not be prejudiced by amendment of the pleadings to

include    them.”          Gilbane      Bldg.    Co.       v.    Fed.    Reserve   Bank      of

Richmond, 80 F.3d 895, 901 (4th Cir. 1996).                             The plain language

of Rule 15(b)(2) suggests that the non-pled issue must have gone

to   trial.         The    rule   “is    designed          to   allow     amendment     of   a

pleading      when    the      facts    proven       at    trial    differ      from    those

alleged in the complaint, and thus support a cause of action

that the claimant did not plead.”                    Id. (emphasis added).

              Courts      of   appeals    are        split      regarding     whether    Rule

15(b)(2) applies at the summary judgment stage.                               See Ahmad v.

                                            18
Furlong,      435    F.3d    1196,     1203       n.1    (10th      Cir.     2006)     (noting

circuit split).         In People for Ethical Treatment of Animals v.

Doughney,     263     F.3d     359,    367    (4th      Cir.   2001),       we    affirmed    a

district court’s grant of summary judgment on an issue raised

for     the   first     time    in     the       plaintiffs’        motion       for   summary

judgment.       We found that although the district court did not

allow     formal      amendment        of    the        complaint      to        include    the

plaintiffs’         subsequently       raised       claim,     the     court       recognized

constructive        amendment     of       the    complaint      by    granting        summary

judgment in the plaintiffs’ favor on the non-pled issue.                               Id. at

367-68.

              Here,    in    contrast,        the    district        court       declined    to

grant     summary      judgment       on     plaintiffs’         radio      station        claim

because it found that defendants did not consent to trial of

that claim.         The court in Doughney found that the defendant had

fair notice of the non-pled claim because although the defendant

objected      to     plaintiffs’       belated       claim,      the     defendant         “also

vigorously defended against the claim.”                      Id. at 367.

              Because defendants here merely objected to plaintiffs’

raising the radio program at the summary judgment stage, and did

not vigorously defend against it, they did not essentially try

or litigate the issue.            In their response to plaintiffs’ summary

judgment motion, defendants focused primarily on their argument

that    the   radio     program       was    not    raised     in     the    complaint      and

                                              19
therefore could not be used to avoid mootness.                        Moreover, the

bulk of that mootness argument focused on the undisputed fact

that defendants were already captioning play-by-play information

from   the     field    in   the    concourse    areas.         Defendants’        only

response to the Red Zebra program specifically, other than their

general assertion that the ADA does not require captioning the

program,     was   a    footnote     observing       that    none    of   plaintiffs

claimed to read the captioned coverage from the field while in

the concourse areas.         Thus, defendants maintained that there was

no factual basis for plaintiffs’ argument that “the content of

the    radio    broadcast     is     superior    to    that     provided      by    the

television       network     broadcasters.”           J.A.     21     (emphasis      in

original).       This does not amount to a vigorous defense against

providing auxiliary access to the Red Zebra program.

             Plaintiffs      also    argue    that    implied       consent   may    be

found in defendants’ failure to object to the introduction of

evidence relevant to the request for captioning the Red Zebra

program,       namely   Goldberg’s      expert       report     that      recommended

captioning the program.            However, as the Ninth Circuit has said,

although “a party’s failure to object to evidence regarding an

unpleaded issue may be evidence of implied consent to trial of

an issue, it must appear that the party understood the evidence

was introduced to prove the unpleaded issue.”                       Campbell v. Bd.

of Trs. of Leland Stanford Junior Univ., 817 F.2d 499, 506 (9th

                                         20
Cir. 1987).     There is no indication of such an understanding on

this record.

                                           D.

            Defendants         challenge      the    district       court’s     holding

requiring     them   to    provide      auxiliary     aids     that    enable    “equal

access to the aural information broadcast over the stadium bowl

public address system at FedEx Field.”                     J.A. 578.       The court

defined the aural information as the “music with lyrics, play

information,     advertisements,           referee       calls,     safety/emergency

information, and other announcements.”                   Id.      Defendants contend

this sweeps far broader than what the ADA requires, particularly

with regard to the lyrics to music broadcast over the stadium’s

public address system.

            Title III of the ADA mandates that individuals who

visit places of public accommodation like FedEx Field may not

“be discriminated against on the basis of disability in the full

and   equal     enjoyment        of     the     goods,    services,      facilities,

privileges, advantages, or accommodations of any place of public

accommodation.”           42   U.S.C.    §    12182(a).        Title    III     defines

discrimination in part as the

      failure to take such steps as may be necessary to
      ensure that no individual with a disability is
      excluded, denied services, segregated or otherwise
      treated   differently  because  of   the  absence   of
      auxiliary aids and services, unless the entity can
      demonstrate that taking such steps would fundamentally


                                           21
      alter the nature of the good, service, facility,
      privilege . . . or would result in an undue burden.

Id.   §   12182(b)(2)(A)(iii).              A     Department        of    Justice     (DOJ)

regulation      implementing       Title        III   further       provides       that    “a

public    accommodation      shall     furnish        appropriate         auxiliary       aids

and services where necessary to ensure effective communication

with individuals with disabilities.”                  28 C.F.R. § 36.303(c).

            Defendants do not contend that captioning the aural

information      described      in    the        district     court’s       order     would

constitute a fundamental alteration or an undue burden.                                    Our

inquiry    is    therefore      limited         to    whether       the    ADA     requires

defendants      to   provide      auxiliary       aids    for    the       aural    content

broadcast over the stadium bowl’s public address system in order

to    provide    plaintiffs       with      “full      and    equal       enjoyment”       of

defendants’ goods, services, facilities, and privileges.                                   Id.

§ 36.201(a).         Neither the ADA nor the regulations implementing

the ADA impart guidance on the specific content that places of

public    accommodation      must     communicate        to     individuals        who     are

deaf or hard of hearing.             The DOJ’s Technical Assistance Manual

for Title III indicates that the type of auxiliary aid that

ensures “effective communication” varies by context.                          U.S. Dep’t

of    Justice,       Civil     Rights       Division,         The        Americans        with

Disabilities       Act:   Title    III   Technical        Assistance         Manual       III-

4.3200.      The     regulation      contemplates        that,      like    the    type     of


                                            22
auxiliary     aid,        the     content     that     must    be     communicated     by

auxiliary     aids    is        also   context-sensitive.            What     constitutes

“full and equal enjoyment” of a place of public accommodation’s

goods, services, facilities, and privileges necessarily varies

based on what the place provides to visitors and consumers.

             We agree with the district court that in the context

of a professional football game at a large stadium like FedEx

Field,    effective       communication        requires       defendants      to   provide

auxiliary     aids    beyond       assistive       listening       devices,    which   are

useless      to     plaintiffs,          to   convey        the:    (1)     game-related

information broadcast over the public address system, including

play information and referee calls; (2) emergency and public

address announcements broadcast over the public address system;

and (3) the words to music and other entertainment broadcast

over the public address system.                    Plaintiffs need access to this

aural content to have full and equal access to the goods and

services that defendants provide at FedEx Field.

             To resolve the issue, we must determine the goods and

services     defendants         provide.       First    and    foremost,       defendants

provide a live football game at FedEx Field.                         For plaintiffs to

enjoy    a   game    on    a     level   as   equal    as     possible      with   hearing

spectators, they must be able to access, in both the stadium

bowl and concourse areas, the game-related information broadcast

over the public address system.                      Title III of the ADA also

                                              23
requires defendants to provide auxiliary aids for the content of

emergency     information,        advertisements,           and    public    service

announcements broadcast over the stadium bowl’s public address

system.         Without     auxiliary       aids      that       provide    emergency

information, spectators with disabilities are almost certain to

experience more stress in an emergency than hearing spectators.

Knowing     that    understandable         instructions         will   accompany    an

emergency, then, is necessary to the full and equal enjoyment of

the game.       Advertisements and public service announcements are

also part of the services and privileges that defendants provide

because   they      communicate      to   spectators        a   message    about   the

Redskins’    stature      and   recognition        among    businesses     and   other

organizations.            Advertisements          communicate      which    entities

support   the      Redskins.      Public        service    announcements     indicate

which   causes      the   Redskins    support       and    how    spectators     might

become involved in those causes.

            We also agree with the district court that defendants

“provide more than a football game.”                 J.A. 577-78.       They provide

an entertainment experience.              This experience includes aural and

visual components that, although not part of the game action,

play an important role in generating support for the game and

promoting spectator attendance.                  Full and equal enjoyment of

defendants’ goods, services, privileges, and facilities includes

aural access to the lyrics to music broadcast over the stadium

                                           24
bowl’s public address system.               Without this access plaintiffs

are “otherwise treated differently” because of the “absence of

auxiliary aids.” 42 U.S.C. § 12182(b)(2)(A)(iii).                    Music played

during a football game arouses enthusiasm and fosters a sense of

shared     participation.           The   lyrics    may    be    nonsensical,     as

defendants point out, but even nonsensical lyrics may enhance

the environment of collective excitement that defendants provide

as part of their goods and services.                    By having access to the

lyrics, plaintiffs have the opportunity to participate in the

communal    entertainment          experience.      Without     access   to    lyrics

played, for example, during cheerleader dance routines and the

halftime show, plaintiffs would not fully and equally experience

the    planned    and      synchronized    promotional        entertainment     that

large stadiums like FedEx Field provide.

               In holding that defendants must provide access to the

lyrics, we emphasize that, like the district court, we do not

require the auxiliary aids and services to take a particular

form.      When an auxiliary aid of some kind is required, the

regulations acknowledge (1) that the type of aid necessary for

effective communication inevitably will vary with context and

(2) that “[t]he auxiliary aid requirement is a flexible one.”

28    C.F.R.    pt.   36    App.    B.    What     is   more,   “full    and   equal

enjoyment” is not so capacious as to “mean that an individual



                                          25
with a disability must achieve an identical result or level of

achievement as persons without a disability.”                      Id.

             The     DOJ’s       rulemaking       activity    does    not   alter     this

result.      The DOJ issued a Notice of Proposed Rulemaking in June

2008 regarding the issue of captioning at sports stadiums.                                The

notice announced the DOJ’s awareness “that individuals who are

deaf or hard of hearing have expressed concern that they are

unaware of information that is provided over the public address

systems” at sports stadiums with a capacity of 25,000 or more.

Nondiscrimination           on     the     Basis     of      Disability      by    Public

Accommodations and in Commercial Facilities, 73 Fed. Reg. 34508,

34531-32 (proposed June 17, 2008).                    The DOJ therefore proposed

that large stadiums “provide captioning for patrons who are deaf

or    hard      of   hearing       for     safety    and      emergency     information

announcements        made    over    the    public    address      system.”        Id.     at

34532.       The     notice      also    announced     the    DOJ’s      awareness    that

several      major     stadiums,         including        FedEx   Field,      “currently

provide open captioning of all public address announcements, and

do not limit captioning to safety and emergency information.”

Id.       The    notice       solicited      comments        on   “the    effect     of     a

requirement to provide captioning for patrons who are deaf or

hard of hearing for game-related information (e.g., play-by-play

information), safety, and emergency announcements, and any other

relevant announcements.”             Id.

                                             26
              On July 23, 2010, after oral argument in this case, the

DOJ issued final rules enforcing the accessibility standards of

Title    III    of     the    ADA.         Nondiscrimination            on   the        Basis   of

Disability by Public Accommodations and in Commercial Facilities,

28             C.F.R.                §               36,              available                  at

http://www.ada.gov/regs2010/titleIII_2010/titleIII_combined.html.

With respect to the issue of captioning of “all public address

announcements,”            rather        than    simply         “safety      and        emergency

information,” the DOJ elected to “postpone rulemaking on this

complex issue.”         Id.    The DOJ based this decision on “a number of

factors, including the multiple layers of existing regulations by

various state agencies and levels of government, and the wide

array of information, requests, and recommendations related to

developing      technology          by    the    public.”         Id.        Thus,       the    DOJ

“concluded      that       further       consideration          and   review       is    prudent

before it issues specific regulatory requirements.”                            Id.

              Defendants       maintain         that   the      DOJ’s     solicitation          of

input and postponement of rulemaking on this issue indicates

that    the    DOJ    does    not        interpret     the      ADA   to     require       large

stadiums       to      provide           auxiliary         access       to     game-related

information, let alone music lyrics.                       We disagree.        This action

demonstrates         the     DOJ’s       alertness         to    problems      like        those

experienced by plaintiffs.                 It does not preclude the conclusion

that the ADA requires defendants to provide auxiliary access to

                                                27
more than just safety and emergency information.                     The earlier

notice of proposed rulemaking explicitly contemplated that the

ADA may require captioning of game-related information and “any

other relevant announcements.”               Nondiscrimination on the Basis

of   Disability     by     Public   Accommodations      and    in     Commercial

Facilities, 73 Fed. Reg. at 34531-32.              The DOJ is continuing to

evaluate the      effect    of   such   a    requirement.     This    evaluation

raises the possibility that the requirement could pose an undue

burden for some stadiums, or that it could fundamentally alter a

stadium’s goods and services, thus providing defenses to what

the ADA otherwise requires.         The DOJ’s action does not, however,

indicate that large stadiums like FedEx Field need only furnish,

at most, auxiliary access to play-by-play game information.                  The

notice cited play-by-play information as one example of game-

related information and mentions “other relevant announcements,”

leaving open the possibility that spectators who are deaf or

hard of hearing must have auxiliary access to the promotional

and entertainment content of a stadium bowl’s public address

system in order to fully and equally enjoy the goods, services,

facilities, and privileges of the stadium.




                                        28
                                  III.

          For   the   foregoing    reasons,   the   judgment    of   the

district court is

                                                               AFFIRMED.




                                   29
BEATY, Chief District Judge, dissenting in part:

       I respectfully dissent from the majority opinion to the

extent that it affirms the scope of the declaratory judgment

entered by the district court in this case.                          In my view, the

district    court    in      this   case        erred   by    announcing    a     broad

declaratory judgment that required “equal access” to all “aural

content” at FedEx Field, rather than focusing on whether the

auxiliary aids provided by Defendants were sufficient to ensure

“effective communication.”             By setting out an “equal access to

aural content” standard, the district court set out a rule that

would potentially require that all content broadcast over the

public address system at an athletic event at a public stadium

be captured and provided to deaf or hearing impaired individuals

in order to comply with the ADA, even though the ADA itself does

not    include    such    a    requirement,         instead     of    following     the

“auxiliary aid” analysis set out in the applicable statutory and

regulatory provisions.

       The Americans with Disabilities Act prevents discrimination

on the basis of disability “in the full and equal enjoyment of

the    goods,    services,     facilities,         privileges,        advantages,    or

accommodations of any place of public accommodation.”                      42 U.S.C.

§ 12182(a).        Under the statute, a place of public accommodation

must    take     necessary     steps    to       ensure      that    hearing-impaired

individuals are not “excluded, denied services, segregated or

                                           30
otherwise treated differently than other individuals because of

the absence of auxiliary aids and services,” unless such steps

would result in an undue burden or fundamental alteration in the

nature of the good, service, facility or privilege.                          42 U.S.C.

§ 12182(b)(2)(A)(iii)          (emphasis       added).          The    Department      of

Justice regulations that implement these provisions state that

“[a]   public   accommodation        shall     furnish     appropriate         auxiliary

aids     and    services       where     necessary         to     ensure       effective

communication with individuals with disabilities.”                           28 C.F.R.

§ 36.303(c).      “The term ‘auxiliary aids and services’ includes

. . . [q]ualified        interpreters,           notetakers,           computer-aided

transcription     services,      written       materials,         telephone     handset

amplifiers,     assistive      listening       devices,         assistive      listening

systems, telephones compatible with hearing aids, closed caption

decoders, open and closed captioning, telecommunications devices

for deaf persons (TDD’s), videotext displays, or other effective

methods    of   making     aurally      delivered     materials         available      to

individuals with hearing impairments.” 26 C.F.R. § 36.303(b).

The Department of Justice has noted that “[t]he auxiliary aid

requirement is a flexible one. . . . [T]he Department believes

that Congress did not intend under title III to impose upon a

public    accommodation        the     requirement       that     it    give     primary

consideration      to    the     request       of    the        individual      with    a

disability.”      28 C.F.R. part 36, App. B, Sec. 36.303.                          Thus,

                                          31
“[a] public accommodation can choose among various alternatives

as long as the result is effective communication.” Id.

        Under these statutory and regulatory provisions as they

relate      to   hearing-impaired            individuals,       public     accommodations

should follow a three-step process: (1) a public accommodation

must provide auxiliary aids where necessary to ensure effective

communication;        and   (2)       if     this    requirement      is   triggered       and

auxiliary aids are needed to ensure effective communication, the

public accommodation can choose what auxiliary aids are provided

as long as the result is effective communication; but (3) the

public      accommodation        need      not      provide    an     auxiliary     aid    or

service if it would result in an undue burden or fundamental

alteration.         Thus, the relevant focus is on whether auxiliary

aids are needed for, and result in, “effective communication.”

       In     the   present       case,       under     this    analysis,     the      first

question is whether an auxiliary aid or service of some type

must     be      provided        to    ensure         effective       communication         at

FedExField.         If so, the analysis then moves to the second step:

whether       the   auxiliary         aids    chosen     by    Defendants     result       in

effective communication.                In this regard, there were two types

of   auxiliary      aids    or    services          offered    by    Defendants   in      this

case.       First, there is no dispute that Defendants have been

providing        assisted-listening           devices     as    an    auxiliary     aid    or

service since 1997.               However, there is also no dispute that

                                               32
those devices did not benefit Plaintiffs due to the nature of

Plaintiffs’ hearing impairments.               Second, after this suit was

filed, Defendants attempted to address Plaintiffs’ concerns by

providing auxiliary aids that included captioning on the LED

boards at the 50-yard line of all public service announcements,

play       calls,   game   announcements,     emergency    announcements,       and

other announcements and information broadcast over the public

address system, in addition to captioning of the video feeds in

the        concession       areas. 1          However,     the      professional

stenographer/captioner providing the captioning did not caption

the lyrics to songs, because he testified that he followed the

“industry       standard”     of   not   captioning      song    lyrics   due   to

difficulty in understanding and correctly captioning the lyrics,

and because the software that he used did not allow him to

“prescript” the lyrics in advance. (Stephen Clark Dep., J.A.-

0433 to JA-0434).

       Before the district court, Defendants disputed whether the

ADA required them to provide deaf and hard of hearing fans with

any type of auxiliary aids and services beyond the assistive-

listening devices in order to ensure effective communication.

The district judge properly rejected this contention, finding

       1
       Defendants also offered the possibility of a hand-held
captioning system.    However, Plaintiff Feldman rejected this
option and the district court did not consider whether this type
of auxiliary aid would result in effective communication.


                                         33
that the assistive-listening system provided by Defendants did

not    result    in    effective        communication        for       Plaintiffs,       and

further    finding      that    simply      watching       the       game    without    any

auxiliary       aid     or      service          did   not       provide         effective

communication.        These    findings     rightly     would         have    supported    a

declaratory judgment that an auxiliary aid of some type must be

provided by Defendants beyond the assistive-listening devices,

unless    undue       burden     or     fundamental          alteration         could     be

established.

       However, the district court went beyond this analysis, and

rather than declaring that an auxiliary aid of some type was

necessary       for   effective       communication,            the     district       court

instead declared that “the ADA requires Defendants to provide

deaf    and    hard    of     hearing    fans      equal     access      to    the    aural

information      broadcast      over     the      stadium       bowl    public      address

system at FedExField.”               The district court then specifically

concluded that the ADA requires Defendants to provide auxiliary

aids with respect to the lyrics to the songs played during the

cheerleader’s dance routines.               On this point, the district court

did not consider whether the captioning system being provided by

Defendants resulted in effective communication as a whole, and

instead created a separate analysis focusing on “equal access”

to a particular communication.               While the ADA provides for “full

and    equal    enjoyment”      of    the   services       at    a     place   of    public

                                            34
accommodation, the primary obligation is to furnish auxiliary

aids       and     services    that     provide     an     “effective    method”   of

communication.            Thus, the district court’s focus on providing

“equal access” to the “aural content” but failure to evaluate

whether          the   auxiliary      aids    actually      provided    resulted   in

“effective communication” goes beyond the regulatory framework. 2

       In    addition,        the   district      court’s    failure    to   consider

whether      the       auxiliary    aids     that   were    provided    resulted   in

effective communication left the second step in the analysis

unanswered. The Complaint in this case specifically requested

that all public announcements be captioned on the JumboTrons,

not the LED boards, but the district court did not consider

whether the auxiliary aid of captioning on the Jumbotrons, as

requested, was necessary for effective communication, nor did


       2
       The Department of Justice Technical Assistance Manual
includes a reference to “equal access.” However, the Technical
Assistance Manual explains that “[i]n order to provide equal
access, a public accommodation is required to make available
appropriate auxiliary aids and services where necessary to
ensure effective communication.” Thus, even under the Technical
Assistance Manual, the obligation is framed in terms of
“effective communication.”     The Technical Assistance Manual
further notes that “[t]he type of auxiliary aid or service
necessary to ensure effective communication will vary in
accordance with the length and complexity of the communication
involved” and “the ultimate decision as to what measures to take
to ensure effective communication rests in the hands of the
public accommodation, provided that the method chosen results in
effective communication.”   U.S. Dep’t of Justice, Civil Rights
Division, The Americans with Disabilities Act: Title III
Technical Assistance Manual III-4.3200.


                                             35
the district court consider whether the auxiliary aid provided

by   Defendants     of     captioning   on    the      LED   boards    resulted    in

effective communication.           The district court did conclude that a

trial was necessary on one issue related to the LED captioning,

specifically, the “line of sight” issue regarding the location

of the LED boards, but that issue was subsequently dropped by

the Plaintiffs.          Thus, the only issue remaining related to the

song lyrics, for which the district court concluded that “equal

access” was required, apart from any analysis of the auxiliary

aids that were being provided.           Thus, the ultimate issues raised

in   this    case   were     not   addressed,     leaving     ongoing      questions

regarding the impact of the district court’s Judgment. 3

         In my view, the auxiliary aids provided here, i.e., the

captioning     that    was   provided    on     the    LED   boards    and   in   the

concourse      area,      were     sufficient     to     result       in   effective

communication, even if Defendants did not provide word-for-word

captioning of the songs in the cheerleader’s dance routines.                      Of

     3
      The difficulty in this conclusion is exemplified by the
ultimate result here: the district court ruled that “equal
access” to the lyrics of the dance routines must be provided,
and Defendants have therefore been providing the lyrics by e-
mailing song lyrics to Plaintiffs prior to the games. However,
if, as the district court concluded, equal access to the lyrics
of the dance routines is required, the auxiliary aid provided by
Defendants must still be evaluated in terms of whether it
results in “effective communication,” and the district court’s
decision leaves open the question of whether prior e-mailing of
the full lyrics of songs that may be played during the dance
routines results in “effective communication.”


                                        36
course, even this conclusion does not mean that captioning is

required for all stadiums, since other auxiliary aids could also

be    sufficient       to     result        in        effective     communication.           In

addition, other stadiums may be able to raise defenses of undue

burden    or    fundamental         alteration,           which     were   not     raised    by

Defendants in this case.               In this regard, I would note that the

Department of Justice has undertaken the process of rulemaking

to    consider     these       various       issues,          but   has    concluded      that

“further       consideration         and         review       is    prudent”      given     the

complexity of the issues involved.                       Thus, the issues potentially

raised in this case and the requirements of the ADA in this

context    would       be    matters    of       public       importance    and     potential

future    rulemaking,         but    many        of    these    issues     were    not    fully

litigated      below     or    on   appeal,           given    Defendants’     decision      to

voluntarily provide auxiliary aids, including captioning on the

LED   boards     and    on    the    video        screens      in   the    concourse      area.

Indeed, this appeal came before us driven not by the substantive

issues, but instead by Plaintiffs’ claim for attorney’s fees, as

was candidly discussed during oral argument. Therefore, in my

view, this case is not an appropriate forum or proceeding to

determine these potential issues, and particularly to announce

the   broad     rule    set    out     in    the        district     court’s      declaratory

judgment.



                                                 37
         Therefore, given all of the issues outlined above, I would

reverse the declaratory judgment in this case, as it was entered

by   the    district   court,   and   I    respectfully   dissent   from   the

majority opinion to the extent that it affirms that declaratory

judgment. 4




     4
     However, as in the majority opinion, I would affirm the
district court on Plaintiffs’ cross-appeal with respect to the
determination that issues related to the FM radio broadcast were
not raised in the Complaint and therefore are not properly
before the court. I therefore join that portion of the majority
opinion related to the FM radio broadcast issue.



                                      38
