ADAM HOLLOWAY, Complainant

WISCONSIN YOUTH SOCCER ASSN, Respondent A

WISCONSIN YOUTH SOCCER ASSN APPEALS COMMITTEE, Respondent B

WISCONSIN YOUTH SOCCER ASSN BOARD OF DIRECTORS, Respondent C

WISCONSIN YOUTH SOCCER ASSN OFFICERS AGENTS & ASSIGNS IN THE OFFICE FOREVER, Respondent D

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed July 16, 2002
holload . rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

In his petition for commission review the complainant argues that the respondents receive membership fees from youth participants from a variety of organizations, some with membership in excess of ten thousand people, that the respondents have owned and operated a facility subsidized by Wisconsin taxpayer dollars, and that the general public has purchased goods from the respondents. The complainant further points out that, in Schmid v. Shape Up Shoppe (LIRC, Jan. 11, 1993), the commission found that membership to the general public based on the payment of fees was the kind of membership that would not fit within the statutory exception in Wis. Stat. § 106.52(1)(e)2. The commission has considered the complainant's arguments, but finds them unpersuasive. The commission does not have before it any information indicating how many people belong to the various organizations affiliated with the respondents, and the complainant has not explained why he believes this factor would have any bearing on his case. The complainant has not previously argued that the respondent is a taxpayer subsidized organization, and all of the competent information before the commission indicates otherwise. The respondents have consistently maintained that the Wisconsin Youth Soccer Association (WYSA) is a private, non-profit organization, an assertion with which the complainant has not previously disagreed, and the commission sees no reason to question the respondents' characterization of the structure of their own organization. With regard to the complainant's assertion that the general public has purchased goods from the respondents, the complainant has failed to explain what "goods" he is referring to, and the information before the commission does not indicate that the respondents offer any type of goods for sale.

Finally, regarding his citation to Schmid v. Shape Up Shoppe, the commission agrees with the administrative law judge that the instant case is factually distinguishable. In Schmid, any member of the public could utilize the respondent's facility by virtue of having paid a fee, after which the respondent regarded him or her as a "member." The health club in Schmid is similar in nature to a video rental establishment or a retail buying club that requires a "membership" before its services can be used, but which any member of the public can join in order to purchase or rent videos or other goods. The WYSA, by contrast, requires that players try out and be accepted onto a team and that they adhere to certain rules of conduct adopted by the organization. Thus, membership in the WYSA requires more than the mere payment of a fee. Moreover, the respondent in Schmid appears to have been a standard, for-profit business venture, whereas the WYSA is a private, non-profit organization. Independent of any analysis of the nature of the "membership" at issue in the Schmid case, the respondent's for-profit status prevented the application of the statutory exception set forth in Wis. Stat. § 106.52(1)(e)2. Because the respondents in this case do meet the statutory requirements set forth in the exception at issue, they are not subject to the Wisconsin Public Accommodations & Amusements Law.

In his petition the complainant contends that the investigator and administrative law judge did not understand the ramifications of the penalty imposed on him by the respondents and maintains that he was discriminated against based on his race in an "organized and blatant act." However, neither the investigator nor the administrative law judge reached the question of whether the penalty imposed upon the complainant was discriminatory, since both found that the department lacked jurisdiction over the respondents. Because the commission agrees with that finding, it too is unable to reach the question of whether the complainant was discriminated against in the manner alleged.

cc: Attorney Neifor B. Acosta

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uploaded 2002/07/17