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September 25, 1978

Melissa LUDTKE and Time, Inc., Plaintiffs,
Bowie KUHN, Commissioner of Baseball, Leland MacPhail, President of the American League of Professional Baseball Clubs, the New York Yankees Partnership, The Mayor of the City of New York, The Commissioner of Parks and Recreation for the City of New York, and the Director of the Economic Development Administration of the City of New York, Defendants

The opinion of the court was delivered by: MOTLEY


Preliminary Statement

 This is a civil rights action for an injunction brought by plaintiff, Melissa Ludtke, a female reporter employed by Sports Illustrated, a magazine published by the other plaintiff, Time, Inc. *fn1" Plaintiffs seek an order enjoining defendants, The New York Yankees, from enforcing a policy determination made by Baseball Commissioner Kuhn, and approved by American League President MacPhail, which requires that accredited female sports reporters be excluded from the locker room of the Yankee clubhouse in Yankee Stadium. Defendants admit that accredited male sports reporters may enter the locker room after a ball game for the purpose of interviewing ballplayers and that such fresh-off-the-field interviews are important to the work of sports reporters. The defendants are: Bowie Kuhn, Commissioner of Baseball; Leland MacPhail, President of the American League of Professional Baseball Clubs; The New York Yankees Partnership (the baseball defendants); The Mayor of the City of New York; The Commissioner of Parks and Recreation for the City of New York; and The Director of the Economic Development Administration of The City of New York (the City defendants).

 The action was commenced on December 29, 1977. The baseball defendants answered on January 26, 1978, and the City defendants answered on March 10, 1978. Thereafter, on March 17, 1978, plaintiffs moved for summary judgment followed by a cross-motion for summary judgment by the baseball defendants on April 6, 1978. The summary judgment motions came on for hearing on April 14, 1978. At that time the City defendants filed an affidavit in opposition to plaintiffs' motion for summary judgment against the City defendants urging that the motion be denied and the complaint dismissed as to them on the ground that the City defendants are unnecessary parties, since complete relief can be afforded plaintiffs by an order directed solely to the baseball defendants. The City defendants denied any participation in the policy determination at issue and agreed with plaintiffs that a less restrictive alternative to the policy of total exclusion of female reporters ought to be devised and so advised the baseball defendants and their attorneys prior to the hearing. Plaintiffs do not charge the City defendants with responsibility for the policy determination. Plaintiffs charge, and the undisputed facts show, the policy was a result of a decision made by the Baseball Commissioner, approved by the American League President, and enforced by the New York Yankees. The City was charged in the complaint solely with failure to redress plaintiffs' grievance against the baseball defendants, although it has the power to do so under the terms of its lease whereby it has leased the City owned facility known as Yankee Stadium to the Yankees. The motion was granted on the ground that the City defendants were unnecessary parties at this time. *fn2"

 In addition to seeking an injunction, plaintiffs sought damages and attorneys fees. No monetary damages have been alleged or proved and the plaintiffs have advised the court that they have abandoned their request for damages. *fn3" Attorneys fees may be awarded upon submission of evidence of the time expended by plaintiffs' counsel and after a separate hearing with respect to the fee requested.

 In support of their motion for summary judgment, plaintiffs submitted the required Rule 9(g) Statement pursuant to the General Rules of this Court. In opposition defendants also submitted a Rule 9(g) Statement claiming that there are genuine issues as to certain facts contained in plaintiffs' Statement. However, other than simply claiming that an issue is controverted, or denying knowledge or information sufficient to admit or deny a statement, no facts actually controverting plaintiffs' statement of material facts were offered as required by Rule 56(e), Fed.R.Civ.P. *fn4"

 Defendants' attorney brought to the court's attention on the hearing of the motions for summary judgment that efforts had been made prior to the hearing to reach an accord with all parties. Defendants' counsel charged plaintiffs with bad faith in bringing this lawsuit and with respect to all reasonable settlement suggestions. Plaintiffs' counsel denied that plaintiffs were guilty of bad faith in bringing this action and expressed a willingness to reach an accord as to equal access by women reporters to ballplayers in the Stadium at the same time that such access is accorded male reporters.

 At the close of the hearing, and without deciding the issue of good faith, the parties were directed to attempt to reach agreement on some other arrangement which would result in equal access to ballplayers by both male and female sports reporters. Thereafter, on May 8, 1978, the court was advised by plaintiffs' counsel that no settlement could be reached.

 The court was therefore required to decide whether the Kuhn policy determination constitutes state action within the contemplation of the Fourteenth Amendment to the Federal Constitution and, if so, whether it violates 1) plaintiff Ludtke's right to the equal protection of the laws guaranteed by that Amendment, 2) the right of both plaintiffs to freedom of the press guaranteed by the First Amendment via the due process clause of the Fourteenth Amendment, or 3) plaintiffs' rights under the state's equal accommodations statute. *fn5"

 The Facts

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

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

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

 After the 1977 World Series and after the commencement of this action, baseball reconfirmed its policy of excluding women reporters from the clubhouse.

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

 In the course of those discussions, the Commissioner's office questioned no baseball players concerning their opinions. Public relations directors of the major league teams were questioned and their opinions were varied.

 On July 22, 1976, Robert Wirz, Director of Information of the Office of the Commissioner of Baseball, wrote the Public Relations Directors of all Major League Baseball teams a reminder of baseball's stance in opposition to allowing women reporters access to clubhouses and asking whether any women had requested such access.

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

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

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

 At the 1977 Baseball World Series games between the New York Yankees and the Los Angeles Dodgers, Melissa Ludtke, an accredited reporter assigned by Sports Illustrated to cover the Series, was informed by the Commissioner's office that she was not permitted, solely on the basis of her sex, to enter either team's clubhouse after the Series games. The Commissioner's office was aware that the Dodgers had already told Ludtke that she would have access to their clubhouse after the games. The Commissioner's office was also aware that Ludtke had been given access to the manager's office in the Yankees' clubhouse during the American League playoff games.

 The Commissioner's office assigned Larry Shenk, the public relations director for the Philadelphia Phillies, to try to bring players out of the clubhouse to speak with Ludtke in the tunnel where she was made to stand. Shenk subsequently stated at the 1977 annual major league public relations meeting, chaired by the Commissioner's Director of Information, that women reporters should be given postgame access to the clubhouse.

 During the World Series, the Commissioner was also told by Henry Hecht, a baseball writer for the New York Post, that he and other "regular writers on the beat" thought that women reporters should be given equal access to teams' clubhouses.

 The Commissioner's office spoke to no players concerning their views either during or after the World Series. After the commencement of this action, in January 1978 and again in March, the Commissioner reconfirmed his policy of excluding women reporters from baseball clubhouses.

 Leland MacPhail, the President of the American League, has stated that he supports the Commissioner's policy regarding women reporters.

 In March 1978, at the Yankees' spring training camp in Fort Lauderdale, Florida, the Yankees' manager gave one or more women journalists access to the Yankees' locker room. Shortly thereafter the Yankees were instructed that they were to comply with the Commissioner's policy, and the Yankees' manager stated that women reporters would be excluded from the clubhouse once the regular season began.

 The Annual Notice issued to all major league baseball teams by the Office of the Commissioner of Baseball has, since at least 1974, stated that access to clubhouses "should" be granted to accredited members of the media.

 The World Series Manual issued by the Commissioner's Office for the World Series provides that the clubhouses will be opened to the press within five minutes of the close of each game except after the final game when they will be opened immediately.

 Although the Notices and Manual on their face grant access to accredited reporters without regard to their sex, the Commissioner's Office takes the position that the Commissioner's letter of April 2, 1975, adds a prohibition based upon sex to those Notices and Manual.

 When confronted with situations in which individual players have refused to make themselves available to accredited reporters in clubhouses after major league baseball games, the Office of the Commissioner has urged the clubs of which those players are members to make such players available.

 A significant portion of the news written about baseball emanates from news gathered by male reporters in the clubhouses of professional baseball teams.

 The current president and a former president of the Baseball Writers Association of America indicated to Commissioner Kuhn and his Director of Information during the 1977 World Series that part of their "function" as professional baseball writers was to interview players in the clubhouse.

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

 Professional hockey teams began to admit accredited female reporters to their locker rooms at the National Hockey League All Star Game in the winter of 1975.

 Professional basketball teams began to admit accredited female reporters to their locker rooms in the spring of 1975.

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

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