In the preceding article, Paul Anderson provided direct insight into the ultimate effects of the complex issues and contentious arguments raised by the
Casey Martin dispute.
As part of his analysis, Mr. Anderson referred to and discussed a number of the briefs submitted to the court in Casey Martin v. PGA
Tour, Inc. These briefs, by virtue of their purpose as expressions of advocacy, provide unique insight into the views and arguments of the party which files the document. Therefore, in order to provide additional resources to our readers in order that you may further evaluate and understand the views of both sides in this dispute, two amicus curiae briefs, one submitted on each side of the Casey
Martin dispute to the Ninth Circuit Court of Appeals, are reprinted following this introduction. The first brief was submitted by the United States Golf Association in support of the appellant, the PGA Tour, Inc., while the second was offered by the Klippel-Trenaunay Syndrome Support Group in support the appellee, Casey
Martin. The briefs are reprinted largely as submitted to the Ninth Circuit, with only minor editorial changes made by our Journal staff in order to make the briefs consistent with the conventions used on our other articles.
As the Ninth Circuit considers this complex case, we hope that these briefs will help those concerned with the academic and intellectual aspects of this dispute to focus more clearly on the issues and implications involved while giving those practitioners confronted with similar cases an opportunity to read some of the argumentative tactics that interested parties have attempted.
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TABLE OF CONTENTS
INTERESTS OF THE AMICUS CURIAE
SUMMARY OF ARGUMENT
ARGUMENT
I.
THE DISTRICT COURT CORRECTLY HELD THAT
TITLE III OF THE ADA APPLIES TO THE PGA
BECAUSE IT OWNS, LEASES, AND OPERATES PLACES
OF PUBLIC ACCOMMODATION
A.
Title III Plainly Applies to the PGA
96
96
94
95
96
B.
The District Court Correctly Rejected the PGA's Attempt to Bifurcate the Golf Course into Areas Covered by Title
III and Areas That are Not Covered
II.
THE DISTRICT COURT CORRECTLY FOUND THAT
PERMITTING CASEY MARTIN TO USE A GOLF CART
IN PGA EVENTS IS A REASONABLE
ACCOMMODATION THAT DOES NOT
FUNDAMENTALLY ALTER THE GAME OF GOLF
98
103
CONCLUSION 108
• This brief was authored by Brian D. Shannon, Professor of Law at Texas Tech University, Counsel for Amicus Curiae Klippel-Trenaunay Syndrome Support Group. Counsel is a member of the Support
Group and has a seven year-old daughter who has Klippel-Trenaunay Syndrome. Counsel also serves as Chair of the State Bar of Texas Disability Issues Committee.
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The Klippel-Trenaunay Syndrome Support Group ("Support Group") is a private, unincorporated, not-for-profit membership association that was founded in 1986, with a principal office in Edina, Minnesota.
The Support Group's mission is to provide support for Klippel-Trenaunay ("K-T") Syndrome patients and their families.2 The Support Group is an associate member of the National
Organization of Rare Disorders. Among its activities, the Support Group provides the following: a clearinghouse for correspondence between members; maintains and makes available a list of current medical literature pertaining to K-
T Syndrome; conducts biannual meetings of patients and families in Rochester,
Minnesota, in conjunction with optional medical appointments at the Mayo
Clinic; distributes a periodic newsletter of shared experiences; maintains an internet web page;3 and generally acts as a support group for sharing experiences and information about this rare disorder.
The Support Group is the most knowledgeable entity in the country with respect to the extremely rare disability that affects the Appellee, Casey Martin.
Although no two cases of K-T Syndrome are exactly alike, Support Group families know well the physical, emotional, and spiritual endurance and stamina required to live every day with this rare, complex, disfiguring, and often disabling condition of birth.
An inability to walk distances is frequently associated with K-T Syndrome when the condition affects the person's legs or feet.
Due to a host of complicating factors such as bone anomalies, bleeding and clotting disorders, blood pooling, poor circulation, lymphedema, and pain many persons with K-
T Syndrome, like Casey Martin, must often limit extensive walking, running, jumping, and other strenuous physical activities. Because of the availability of
I.
The parties have consented to the filing of this brief.
Their stipulations are included in the addendum to this brief.
2.
As discussed in Appellee Casey Martin's brief, Martin has been diagnosed with Klippel-
Trenaunay-Weber Syndrome.
The medical community has frequently used the terms Klippel-
Trenaunay Syndrome and Klippel-Trenaunay-Weber Syndrome interchangeably. See Description of
Klippel-Trenaunay Syndrome <http://www.k-t.org/description.html> (including a detailed description of the symptoms and etiology of K-T Syndrome).
K-T Syndrome has been defined as "a rare congenital malformation characterized by the triad of arteriovenous or capillary vascular malformations, atypical varicosities, and bony or soft tissue hypertrophy usually affecting one extremity." Anila G. Jacob et aI., Klippel-Trenaunay Syndrome: Its Spectrum and Management
<http://www.k-t.orgiproceed.html> (discussing a Mayo Clinic study of 252 K-T Syndrome patients seen from 1956-1995).
3.
See Klippel-Trenaunay Syndrome Support Group Home Page <http://www.k-t.org>.
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SPRING 1999 BRIEF OF THE KLIPPELTRENAUNA Y SYNDROME SUPPORT GROUP VOL.I:I golf carts, however, golf is one competitive sport in which such persons can fully participate.
Put simply, this case is about discrimination.
Plaintiff/Appellee Casey
Martin overwhelmingly proved to the district court that he has a disability that affects his ability to walk, that he is capable of excellence in the sport of golf, that a modest modification the use of a golf cart will permit him to compete in competitions and on golf courses operated by Defendant/Appellant
PGA Tour, Inc. ("PGA"), and that this modification is not a fundamental alteration of the game. Nonetheless, the PGA would like this Court to allow it to be able to discriminate against Casey Martin on the basis of his disability.
Title III of the ADA applies to the PGA in its operation of golf courses for purposes of its competitive events. This conclusion is compelled by the plain meaning of Title III which precludes discrimination "on the basis of disability" by any person who "operates a place of public accommodation" with respect to the "full and equal enjoyment of... the services, facilities, privileges, advantages, or accommodations" of the "place of public accommodation." 42
V.S.c.
§12182(a) (1994). The statute specifically lists a "golf course" as a place of public accommodation; thus, owners and operators of golf courses are covered by Title 111.
Despite this explicit coverage in the statute, the PGA has urged this Court to find that a golf course is not really a golf course during PGA events because the general public is not invited to engage in exercise or recreation on the course during the PGA events and must remain behind gallery ropes. These arguments lack support in both the legislative history and subsequent interpretations. By including "golf courses" in a listing of pl.;1blic accommodations alongside gymnasiums, health spas, bowling alleys, and "other place[s] of exercise or recreation," Congress intended only to delineate certain examples within a larger category not to create artificial limits within each identified place of accommodation. Similarly, by attempting to bifurcate the golf course into zones covered by Title III and playing areas somehow exempt from the ADA, the PGA has misconstrued the law. The ADA was not intended solely to increase access for persons with disabilities to attend places of public accommodation as spectators; it also speaks to participation in public accommodations by persons with disabilities. A decision that Title III does not reach the playing areas during
PGA events would give the PGA carte blanche to discriminate not only against
Casey Martin, but against any and all persons with disabilities who otherwise
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The district court also correctly found that, in light of Casey Martin's disability, the use of a golf cart is a reasonable modification that does not fundamentally alter the game of golf. The PGA has conceded that Martin has a disability that is covered by the ADA. Once Martin introduced evidence that a golf cart would be a reasonable modification to accommodate his disability in the general sense, the PGA then had the burden of proving that cart use by
Martin would fundamentally alter the nature of the public accommodation. The
PGA did not meet that burden. Indeed, the PGA adamantly refused to make any type of individualized inquiry about Martin's specific condition or how his request for a cart related to his disability.
The game of golf, even at its most prestigious levels, is all about shotmaking and getting the ball from the tee to the green, and then into the hole in the fewest strokes.
It is not about walking, and it is not about how one gets from one shot to the next. Even the PGA allows cart use for all golfers in its Senior
Tour and in portions of its Qualifying Tournament. Martin's use of a cart for moving about the course does not alter the competition at all much less in some fundamental way. Martin did not request to get a "head start" on each hole by teeing his ball from a different spot from other competitors, and he did not ask to throw the ball instead of striking it with a club. He wants to compete in a sport in which he has mastered the primary and fundamental skills: striking and putting the golf ball with a minimum number of strokes.
Because of his disability, however, he simply cannot walk the full course. Allowinghim to ride a cart is a simple accommodation for his disability, and it allows him a chance to compete on a level playing field.
It provides no advantage; it just gives him the type of opportunity that the ADA is all about.
I.
THE DISTRICT COURT CORRECTLY HELD THAT TITLE III OF
THE ADA APPLIES TO THE PGA BECAUSE IT OWNS, LEASES, AND
OPERATES PLACES OF PUBLIC ACCOMMODATION
A. Title III Plainly Applies to the PGA
A statute must be accorded its plain meaning.
In the ADA context, a unanimous Supreme Court recently determined that notwithstanding contentions that Congress did not "envisio[n] that the ADA would be applied to [the
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SPRING 1999 BRJEF OF THE KLIPPEL-TRENAUNAY SYNDROME SUPPORT GROUP VOL.!:I matter under review]," in the context of an unambiguous statutory text that is irrelevant. As we have said before, the fact that a statute can be
"applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth."
Pennsylvania Dep't of Corrections v. Yeskey, 118 S.Ct. 1952, 1955-56 (1998)
(citations omitted) (emphasis added) (applying Title. II of the ADA to state prisoners).
Title III of the ADA provides that "[n]o individual shall 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 by any person who... operates a place of public accommodation." 42 U.S.C. §12182(a).
In tum, the statute defines
"discrimination" to include the failure by a private entity that owns, leases, or operates pla~es of public accommodation "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" absent a showing by the private entity that
"making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations." Id.
§12182(b)(2)(A)(ii).
Moreover, Title III expansively defines "public accommodation" to include twelve categories of private entities and specifically identifies "a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation."
Id. §12181(7)(L) (emphasis added).4 As an owner or operator of golf courses,
4.
The term "public accommodation" is defined in § 12181 (7) to include:
(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
(8) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of public display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or
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the PGA is plainly covered by Title III.
The PGA has attempted to give the definition in 42 U.S.C.
§ 12181(7)(L) a narrow reading by suggesting that the act only reaches golf courses when they are being used as places of exercise or recreation. This construction is in conflict with the statute. There was no intent for the language, "other place of exercise or recreation," to be limiting. Instead, for each of the twelve categories of public accommodation, "the legislation only lists a few examples and then, in most cases, adds the phrase 'other similar' entities." Staff of House Comm. on Educ.
& Labor, 101 st
Cong., Legis. History ofP.L. 101-336, at 157 (Comm. Print 102-
A) (from Senate Report).
Congress intended "that the 'other similar' terminology should be construed liberally." Id.
With regard to this specific subsection, the legislative history reveals:
[T]he legislation lists "golf course" as an example under the category of
"place of exercise or recreation." This does not mean that only driving ranges constitute "other similar establishments." Tennis courts, basketball courts, dance halls, playgrounds, and aerobics facilities, to name a few other entities are also included in this category.
Other entities covered under this category include video arcades, swimming pools, beaches, camping areas, fishing and boating facilities, and amusement parks.
Id.
This reveals a clear intention to address a wide variety of places and has nothing to do with particular uses within those places. Indeed, the drafters ofthe
ADA intended to expand significantly from the public accommodations covered under the Civil Rights Act of 1964 (limited to lodging, eating, and entertainment).
See National Council on Disability, Equality of Opportunity:
The Making of the Americans with Disabilities Act 101-02 (1997).
B. The District Court Correctly Rejected the PGA's Attempt to Bifurcate the Golf Course into Areas Covered by Title III and Areas That Are Not
Covered.
The PGA also attempts to create an artificial distinction between those parts of the golf course that are set up for spectators during its tournaments ("outside the gallery ropes"), and the playing areas of the course ("inside the ropes"). In other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establ ishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
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this regard, the PGA likens the area outside the ropes to the seating area in a stadium or auditorium and suggests that Title III applies only to spectator areas, not places "inside the ropes" that are for the competitors. This is a mistaken interpretation of the ADA. Title III was not intended solely to increase access for persons with disabilities to attend places of public accommodation; it also addresses participation in public accommodations.
Title III identifies as discriminatory "a denial of the opportunity" for a person with a disability "to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations" of the covered entity.
42 U.S.c.
§12182(b)(I)(A)(i). During the legislative process, Congress took note of then-
Attorney General Thornburgh's testimony ''that we must bring Americans with disabilities into the mainstream of society 'in other words, full participation in and access to all aspects of society. '" Staff of House Comm. on Educ.
& Labor,
101'1 Cong., Legis. History ofP.L. 101-336, at 308 (Comm. Print 102-A) (from
House Report) (emphasis added), reprinted in 1990 U.S.C.C.A.N. 267,317. In the ADA, Congress also responded to testimony that identified discrimination as
"the failure to make reasonable modifications in policies to allow participation" by people with disabilities, and observed that "it can constitute a violation [of
Title III] to impose criteria that limit the participation of people with disabilities." Id. at 309, 378 (emphasis added), reprinted in 1990 U.S.C.C.A.N.
at319,388.
There is nothing in the legislative history to suggest that Congress intended to exempt the sports world from the general application of Title 111. Indeed, one ofthe original bill sponsors offered the following testimony:
Society has neglected to challenge itself and its misconceptions about people with disabilities. When people don't see the disabled among our co-workers, or on the bus, or at the sports field, or in a movie theater, most Americans think it's because they can't.
It's time to break this myth.
The real reason people don't see the disabled among their coworkers, or on the bus, or at the sports field, or in a movie theater is because of barriers and discrimination. Nothing more.
Staff of House Comm. on Educ.
& Labor, IOI't Cong., Legis. History OF P.L.
101-336, at 943 (Comm. Print 102-8) (emphasis added) (statement of former
House Majority Whip Tony Coehlo, who also revealed his battle with epilepsy).
The PGA's argument that the only area of the golf course that is covered by
Title III is that "outside the ropes" cannot withstand close scrutiny. For example, in Anderson v. Little League Baseball, Inc., 794 F. Supp. 342, 345 (D. Ariz.
1992), the court made no distinction between the playing field and the seating area in finding that the Little League's policy limiting coaches in wheelchairs to
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1999 the dugout and not on the field in the coaches' box was in violation of
Title III.
Similarly, the PGA has insisted that Title III applies only to the seating areas of sports arenas, not to any of the areas "between the bleachers" or "inside the ropes." The trial court rejected this contention by observing that a disabled manager of a professional baseball team would have to be accommodated in accessing the dugout.
Martin v.
PGA Tour, Inc., 984 F. Supp. 1320, 1327 (D.
Or. 1998). This interpretation has other support in the law. In 1996, the United
States reached a settlement agreement with the Atlanta Committee for the
Olympic Games regarding an ADA dispute concerning construction of the
Olympic Stadium for the 1996 Atlanta Olympics.
In addition to provisions relating to accessible seating for fans, that agreement addressed accessibility for the dugouts, locker rooms, dressing rooms, and accessible routes to each dugout from the playing field.
See Settlement AgreeIUent Concerning the Olympic
Stadium (May 15, 1996) <http://www.usdoj.gov/crtiada/stadiumo.htm>.
Similarly, the Disability Rights Section of the Civil Rights Division of the
Justice Department has issued a policy statement regarding the ADA requirements for the construction of new sports stadiums. That guide not only addresses accessible seating, but also requires accessible routes that "connect the wheelchair seating locations with the stage(s), performing areas, arena or stadium floor, dressing or locker rooms, and other spaces used by performers."
U.S. Dep't of Justice, Accessible Stadiums 2, <http://www.usdoj.gov/crti ada/stadium.pdt>.
Another section of this policy statement specifically addresses access to playing fields, lockers, and spaces used by players and performers. Id. at 3.5 Also, the Recreation Access Advisory Committee of the
U.S. Architectural and Transportation Barriers Compliance Board has issued advisory guidelines for sports facilities that include recommendations for access to such places as dugouts and the field-of-play. See Recreation Access Advisory
Committee, Recommendations for Accessibility Guidelines: Recreational
Facilities and Outdoor Developed Areas, at 2,6 (July 1994) (developed for U.S.
Arch. and Transp. Barriers Compliance Board).
Many other people participate "inside the ropes" of sporting events in addition to the players. For example, in professional football it is not unusual, and even expected, for one to see coaches, managers, referees, trainers, and even
5.
In 1996 the Justice Department communicated these guidelines to Acting Commissioner Selig of
Major League Baseball with respect to stadium construction for both major league and minor league stadiums. Lener from Deval L.
Patrick, Assistant Anorney Gen., Civil Rights Div., Dep't of Justice, to Allan L.
Selig, Acting Commissioner of Baseball (Oct. 22, 1996) <hnp:l/www.usdoj.gov/crt/ foialcltrI96.txt>.
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team owners in the area not open to the general public. And this list does not begin to include the array of band members, cheerleaders,6 photographers, and other members of the press who are a regular part of every game. Given the
PGA's analysis, Title III would not be applicable to any such persons with disabilities.
Other examples point out the fallacy of the PGA's attempt to exempt from the ADA all non-public portions of otherwise covered places of public accommodations.
Private auditoriums, concert halls, convention centers, and lecture halls are all covered places of public accommodation.
42 U.S.C.
§§12181(7)(C)-(D). Under the PGA's strained line ofreasoning, only the areas of public seating in such facilities would be subject to Title III given that the general public is ordinarily not invited to be at the lectern or on stage for speeches or performances. But suppose that a featured speaker at a continuing legal education course has a disability and is in a wheelchair,? or an accomplished pianist must make use of a wheelchair. Surely, Title III requires the facilities to make the speaking areas or performing areas accessible. Indeed, the implementing regulations require access to "performing areas" in assembly facilities. See 28 C.F.R. Part 36, Appendix A, §4.1.3(5)(a) (1997). Similarly, there are many private schools, colleges, law schools, and graduate schools in this country that are very selective and limited in their enrollment, yet they are clearly covered by Title 111. See 42 U.S.c. §12181(7)(J); Martin, 984 F. Supp. at
1327 (discussing application of ADA to private schools even though their
"corridors, classrooms, and restrooms" are off-limits to the general public).
The PGA has taken the position that persons with disabilities can have no place in professional or "elite" sports competitions. However, other professional sports leagues have had a more accommodating attitude.
For example, Jim
Abbott, who was born without a right hand, was able to pitch for many years for the New York Yankees and Anaheim Angels.
Indeed, the American League adjusted its rules for Jim Abbott. As Mr. Abbott stated,
It allowed me to spin the ball even though the strictest interpretation of the rules state that a pitcher must remain completely still before his delivery.
But since I couldn't keep the ball in my glove I had to switch the glove to my left hand immediately after I finished my release
6.
Cf. Sue Anne Pressley, A "Safety Blitz; Texas Cheerleader Loses Status After Others' Parents
Complain," Washington Post, Nov. 12, 1996, at Al (discussing issues regarding removal from cheerleading squad of a Texas high school cheerleader born with cerebral palsy who uses a wheelchair).
7.
For example, Texas Supreme Court Justice Greg Abbott must use a wheelchair for his disability; he is a frequent speaker throughout Texas.
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Jim Abbott, It's Easy to Accommodate, Golf World, Feb. 20, 1998, at 92.
Jim Abbott is not the only person with a disability to play in the Major
League.
Curtis Pride is currently an outfielder for the Atlanta Braves he happens to be deaf. Similarly, Kenny Walker, who is deaf, enjoyed success with the Denver Broncos in the National Football League "often while using a sign language interpreter on the sidelines." Ted Curtis, "Cart" Blanche, ABA
Journal, April 1998, at 34. Tom Dempsey, a former kicker for the New Orleans
Saints who still shares the record for the longest field goal in the National
Football League, was allowed to wear a special shoe to accommodate his disabled foot. See Murray Chass, Pro Football: 63-Yard Field Goal, N.Y. Times,
Nov. 9, 1970, reprinted in N.Y. Times Encyclopedia of Sports Vol. I, at 149-50
(Gene Brown ed., Arno Press 1979) (describing record kick and special kicking shoe for Dempsey, who "was born with half a right foot").
Additionally, the
National Basketball Association welcomed Magic Johnson back to the sport after he revealed his HIV status.
At the collegiate level, the courts have recognized Title Ill's applicability to the governing body, the NCAA, as an operator of places of public accommodation.
See Tatum v. NCAA, 992 F. Supp. 1114, 1121 (E.D. Mo.
1998); Ganden v. NCAA, 1996 WL 680000, at *9-11 (N.D. III. 1996); Bowers v.
NCAA, 9 F. Supp. 2d 460, 487-489 (D. N.J. 1998) (denying NCAA motion for summary judgment).
The NCAA, of course, operates "elite" national championships, including men's and women's golf championships.
As described in detail in Appellee Casey Martin's brief, the NCAA permitted him the use of a golf cart in its events that determined the collegiate national championship.8
Even within the ambit of "elite" professional golf tournaments, one past champion with a disability stands out. Tommy Armour, a member of the PGA
Hall of Fame and World Golf Hall of Fame, won the 1927 U.S. Open, the 1930
PGA Championship, and the 1931 British Open.
Armour played his "entire career with one eye and metal plates in his head and left arm the results of injuries sustained in the British tank corps in World War I." George Peper et aI.,
Golf in America: The First One Hundred Years, at 236-37 (Abrams 1994).
Given the PGA's argument, the PGA could, if they so chose, discriminate
8.
It is interesting to note that the 1999 NCAA Men's Golf Championship will be held at Hazeltine
National Golf Club in Chaska, Minnesota.
That same course hosted the United States Open
(conducted by Amicus Curiae USGA) in both 1991 and 1970. Surely the same golf course cannot be fully covered by Title 111 when operated by the NCAA for its collegiate national championship, yet not covered when operated by the USGA for its national championship.
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At its most basic level, this case is about discrimination.
The PGA has chosen to discriminate against Casey Martin because of his disability. If the PGNs approach to Title III and its "inside the ropes" argument is sustained, the PGA could adopt rules that would preclude persons with visual disabilities from playing the game.
The PGA could bar golfers with epilepsy. The PGA could bar deaf golfers. In fact, at the summary judgment hearing below, counsel for the PGA "categorically" asserted that a
"handicapped caddie would not have to be accommodated" because the tournament playing area "is not a place of public accommodation where the handicapped caddie is.
It is not an area that is open to the general public." SER
4 [hearing tr. 76]. The trial court properly rejected this contention. Title III applies to the PGA as. it operates its golf tournaments, and discrimination because of disability is unwarranted and unlawful.
II. THE DISTRICT COURT CORRECTLY FOUND THAT
PERMITTING CASEY MARTIN TO USE A GOLF CART IN PGA
EVENTS IS A REASONABLE ACCOMMODATION THAT DOES NOT
FUNDAMENTALLY ALTER THE GAME OF GOLF
Title III prohibits the "failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford ...
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... services, facilities, privileges, advantages, or accommodations." 42 U.S.C:
§12182(b)(2)(A)(ii) (1994). With respect to the burdens of proof required by this section, the trial court relied on Johnson v. Gambrinus Co.lSpoetzel
Brewery, 116 F.3d 1052, 1059 (5 th
Cir. 1997) (holding that a brewery's refusal to allow a blind individual to take his guide dog on a tour of the brewery violated
Title III notwithstanding the brewery's blanket "no animals" policy).
Under
Johnson, the Title III plaintiff, once having established a disability, must prove 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." Id. On this element the trial court found that "the use of a golf cart is certainly not unreasonable in the game of golf' and that "a cart is a reasonable modification to accommodate his disability in the game of golf in the general sense, that is in the general run of cases." Martin v. PGA Tour, Inc., 994
F. Supp. 1242, 1248 (D. Or. 1998).
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Once an initial showing has been made that a requested modification is reasonable in a general sense, then Johnson instructs that "the defendant must make the requested modification unless the defendant pleads and meets its burden of proving that the requested modification would fundamentally alter the nature of the public accommodation." Johnson, 116 F.3d at 1059. Moreover,
Johnson stresses that the defendant's burden regarding an alleged fundamental alteration must "focusD on the specifics of the plaintiff's or defendant's
circumstances and not on the general nature of the accommodation." Id. at 1060
(emphasis added).
Although the PGA has now conceded that Casey Martin's K-T Syndrome constitutes a disability for purposes of the ADA, it has never made an individualized inquiry about his specific condition or need for the requested modification. There is ample support for the requirement that an individualized assessment must be undertaken. See, e.g., Crowder v. Kitagawa, 81 F.3d 1480,
1486 (9 th
Cir. 1995) (stating ''the determination of what constitutes reasonable modification is highly fact specific, requiring case-by-case inquiry"); Anderson,
794 F. Supp. at 345 (invalidating application of Little League's blanket rule banning coaches in wheelchairs from the coach's box where no individualized assessment was conducted). The legislative history is also instructive on this point.
During the legislative process, Congress observed that "public accommodations are required to make decisions based on facts applicable to
individuals and not on the basis of presumptions as to what a class of individuals with disabilities can or cannot do." Staff of House Comm. on Educ.
& Labor,
10l,t Cong., Legis. History ofP.L. 101-336, at 375 (Comm. Print 102-A) (from
House Report) (emphasis added), reprinted in 1990 U.S.C.C.A.N. 267, 385.
That sentiment is emphasized repeatedly in the Congressional findings set forth in the ADA. 42 U.S.C. §12101(a) (1994).9
It is also worth noting that the U.S.
Justice Department and the NCAA recently entered into a Consent Decree in the
U.S. District Court for the District of Columbia in which the NCAA has agreed to conduct individualized waiver determinations with respect to students with learning disabilities who do not meet the NCAA's initial-eligibility standards.
See NCAA Consent Decree (May 26, 1998) <http://www.usdoj.gov/ crt/ada/ncaa.htm>.
Allowing Casey Martin to use a cart as an accommodation for his disability
9.
For example, Congress found that "forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem," 42 U.S.C. §121 01 (a)(2) (emphasis added); that
"discrimination against individuals with disabilities persists in such critical areas as ... public accommodations," Id. §12101(a)(3) (emphasis added); and that "individuals with disabilities continually encounter various forms of discrimination, including ... failure to make modifications to existing facilities and practices." Id. §12101(a)(5) (emphasis added).
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SPRING 1999 BRIEF OF THE KLIPPELTRENAUNA Y SYNDROME SUPPORT GROUP VOL.I:I does not fundamentally alter the game of golf as it is played in PGA events. The game is defined as "playing a ball from the teeing ground into the hole by a stroke or successive strokes in accordance with the Rules." Rules of Golf, Rule
1-1 <http://www.usga.org/rules/rule/index.html>. Nothing in the rules of the game requires walking. The "walking rule" was added by the PGA, but not even for all of its events. As found by the district court, there are exceptions for the
Senior PGA Tour as well as the first two stages of the PGA's Qualifying School
Tournament. Martin, 994 F. Supp. at 1248 n.9. The PGA imposes no penalty strokes on those who opt to use carts in such events. Id. at 1248. Indeed, the golfers who advance to the third and final stage of the Qualifying School become eligible for competing in either PGA Tour or Nike Tour events, depending on their performance in the third stage. Thus, golfers who use carts in the early rounds of the Qualifying School can become eligible to play in PGA-sponsored events. A player can also earn the right to play in a single PGA tournament by playing well in that week's qualifying event for the tournament, and carts are permitted for such qualifying rounds.
Moreover, the PGA routinely permits players to ride in carts during PGA competitions for administrative convenience such as after a player retrieves a ball hit out of bounds and returns to the tee box or when a lengthy distance separates a green and the next tee. See Id. at 1249
(noting carts used ''to shuttle players from the 9 th green to the lOth tee where considerable distance is involved"). Cart use is simply not unknown in PGA events.
IO
The game of golf is about shot-making. Golf, even PGA-Ievel competition, is not a contest in which speed, mobility, or quickness are essential (in contrast to sports such as tennis, soccer, basketball, football, and running). The lowest score wins in PGA events. There is no bonus reduction in strokes for fast play; there are no style points for speed or walking form; the golfers are not required to run between shots; and there is no addition of penalty strokes for moving up the fairway too slowly (although time limits apply once a ball has been reached and before it is struck). The game is about skilled shot-making, not walking.
Casey Martin is extremely skilled at shot-making in the game of golf; he has proven that he can meet the general qualifications of the PGA; he just has a disability that limits his ability to walk. A simple accommodation of the use of a cart allows him to play the game at the highest level, and does not alter the nature of the competition. There are many golfers, including the undersigned counsel, who are excellent walkers, but can only dream of playing golf with the
10.
In addition, and apparently without any impainnent to the integrity of the competition, both the
NCAA and the PAC 10 athletic conference allowed carts to accommodate Martin at the collegiate level. See id. at 1248.
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VoLl:1 VIRGINIA JOURNAL OF SPORTS AND THE LAW SPRING 1999 skills of Jack Nicklaus, Tiger Woods, or Casey Martin. Unlike the POA's stars, these fine walkers, but lousy golfers, lack the shot-making skills that are the fundamental aspects of the game. In the words of one commentator:
Of course Martin should get a cart.... Golf fans want to see golfers play golf. I've never heard anybody yet say, "Hey, let's go over to [hole] 9 and watch Seve walk!" Fans don't care if a pro walks, rides or pogosticks to the next shot they just want to see him hit it. ... Martin isn't asking for any help playing the game. He's only asking for a lift to his ball. Golf isn't an obstacle course.
Rick Reilly, Give Casey Martin a Lift, Sports Illustrated, Feb. 9, 1998, at 140.
The PGA has advanced a "slippery slope" argument that mandating the provision of a golf cart to Casey Martin would result in cases that would, for example, require the sport of basketball to move the three-point line forward for a disabled player, or direct that sponsors of swimming events give disabled swimmers a head start. Such hypotheticals are misplaced; they would alter the nature of the underlying competition. In fact, some accommodations in the game of golf might fundamentally alter the competition. For example, some persons with K-T Syndrome have the condition in their arm(s) or trunk. Their disability could keep them from being able to hit the ball very far.
It might preclude their being able to swing the golf club at all.
In those situations, accommodation requests to tee the ball much closer to the hole (like the PGA's suggestion of a head-start for the swimmer) or to throw or roll the ball instead of stroking it with a club could constitute fundamental alterations of the PGA's competitions.
Additionally, although the trial court found that the PGA's walking rule has a "cognizable purpose" of injecting "the element of fatigue into the skill of shotmaking," the court further found that the fatigue factor involved in walking the golf course during PGA events "cannot be deemed significant under normal circumstances." Martin, 994 F. Supp. at 1250. As highlighted in Casey Martin's principal brief, the record is replete with evidence that the physical fatigue factor stemming from walking the course is minimal. Significantly, however, the POA has glossed over and largely ignored the individual aspects of Casey Martin's disability: he endures substantial additional fatigue and significant pain associated with his disability even when accommodated with a cart. See Id. at
1251-52 ("fatigue plaintiff endures just from coping with his disability is undeniably greater" than ordinary walking of the course; "plaintiff is in significant pain when he walks and even when he is getting in and out of the cart").
In light of Casey Martin's substantial fatigue and pain caused by his disability, he might have asked to be allowed to play only 9 of the requisite 18 holes, then multiply his score by 2. But that would be a fundamental alteration
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SPRING 1999 BRIEF OF THE KLIPPEL-TRENAUNAY SYNDROME SUPPORT GROUP VOL.I:I of the game of golf his score would not be based on shot-making over the full course.
Instead, he has merely asked for the use of a cart to transport him betwe~n shots.
I I
The PGA and USGA have also argued that cart use will give Casey Martin an advantage over other golfers. In making this assertion, the PGA apparently presumes that an able-bodied golfer, if permitted to use a cart, would have an advantage over other able-bodied golfers during a PGA toumament.
12 Even if a cart were to provide an advantage to another able-bodied golfer, the proper focus should be on whether the accommodation is a reasonable modification for the affected individual with the disability.
The point of the ADA is to level the playing field for otherwise qualified individuals with disabilities. Cf. Schmidt v.
Methodist Hospital, 89 FJd 342, 344 (7 th
Cir. 1996) ("ADA is designed to level the playing field for the more than 43,000,000 Americans who have one or more physical or mental disabilities.").
A cart does not give Casey Martin an advantage; it levels the playing field with able-bodied golfers by giving him the opportunity to compete.
An analogy to the education field is useful on this point.
A common accommodation for a student with a learning disability is to provide additional time for examinations.
See Laura F. Rothstein, Higher Education and
Disabilities: Trends and Developments, 27 Stetson L.
Rev. 119, 123 n.l9 (1997); cf. McGregor v. Louisiana State Univ. Bd. of Supervisors, 3 FJd 850, 856-58
(5 th
Cir. 1993), cert. denied, 114 S.Ct. 1103 (finding accommodations such as extra examination time to be adequate, while rejecting additional requests for a part-time schedule and home-based exams).
So, if a law school were to accommodate a student with dyslexia by providing time and a half for exams, that would be a typical accommodation to level the playing field for that student.
Although the granting of extra time to a non-disabled student could well be an advantage, the same cannot be said with regard to the otherwise qualified student
II.
It is worth noting that the Recreation Access Advisory Committee of the U.S. Architectural and
Transportation Barriers Compliance Board has issued advisory guidelines for new golf course construction that "have as an underlying premise that the game of golf played by persons with disabilities will be via the use ofa golfcar or similar means ofmobility" and state that "it is unrealistic to believe that persons with severe mobility impairments will be able to playa round of golf via manual ambulation." See Recreation Access Advisory Committee, Recommendations for
Accessibility Guidelines: Recreational Facilities and Outdoor Developed Areas 106 (July 1994)
(developed for U.S. Arch. and Transp. Barriers Compliance Board) (emphasis added).
12.
Even this surmise is without foundation.
At trial it was revealed that once the preliminary injunction was issued in this cause to permit Casey Martin to use a cart during the 1997 Qualifying
Tournament, the PGA made cart use optional for all 168 competitors; however, only a handful of the golfers chose to use one. If there were an advantage, surely many more of the golfers would have availed themselves of the opportunity.
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Just like the cart for Casey Martin, the extra time for the hypothetical student's reading disability simply gives him an opportunity to compete.
Another argument against cart use that has surfaced in this case is that of tradition, although it was specifically rejected by the trial court.
Martin, 994 F.
Supp. at 1250 n.1
I.
Relying on tradition as a means of upholding a discriminatory practice rings hollow. Rules and policies based on long-standing tradition have certainly not negated laws prohibiting discrimination based on race or gender and cannot do so with respect to the ADA. Indeed, cart use is perhaps not steeped in long-standing tradition because it involves a relatively recent technological advance. Moreover, tradition has not kept the game of golf from evolving in other aspects. Clubs no longer have hickory shafts; those gave way first to steel, and later to graphite. Most players' woods now have metal or titanium heads rather than persimmon.
Tradition simply has not halted alterations in either club or ball developments even though changing club and ball designs can have an impact on distance and scores true fundamental aspects of the game.
Casey Martin's use of a golf cart in PGA events simply does not cause any fundamental alteration of the game. Golf, even professional golf, is not a speed sport; it is not an endurance sport. The method by which the players get to the ball is irrelevant.
Winning is based on the total number of strokes, not the method of moving about the course. The trial court's findings should be upheld.
The ADA affects millions of people. At the time of its enactment, Congress found that some 43 million Americans have one or more disabilities. 42 U.S.C.
§12101(a)(l) (1994). By the end of 1994, that number had risen to 54 million.
John M. McNeil, Current Population Reports; Americans with Disabilities:
1994-95, at I (U.S. Dep't of Comm., Economics & Stat. Admin., Census
Bureau) (Aug. 1997).
With regard to the ages common for players in PGA events, the Census Bureau reported: "Among the 95 million people 22 to 44 years old, 14.9 percent had a disability, and 6.4 percent had a severe disability."
Id. at 2. As Congress recognized in enacting the ADA, "the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous ...." 42 U.S.c.
§12101(a)(9).
The overarching purpose of the ADA is to grant persons with disabilities the
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BRIEF OF THE KLIPPELTRENAUNA Y SYNDROME SUPPORT GROUP VOL.l:l opportunity to participate fully in life, and not to be forced to the back rows or excluded entirely. Most PGA stars and celebrities started out as ordinary people who developed their shot-making skills to an extraordinary level. Casey Martin has similarly developed his golf skills to an exceptional level; however, he simply cannot walk the whole golf course.
He should not be forced to the sidelines outside the ropes.
The ADA clearly allows Casey Martin the opportunity to compete on an equal basis with other professional golfers particularly given that the simple accommodation of providing him a cart does not fundamentally alter the game.
Two of the ADA's sponsors, Senator Tom Harkin and former Senator
Robert Dole, have been outspoken in their support for Casey Martin's legal position in this case.
See Athelia Knight, Politicians Tee Off for Martin,
Washington Post, Jan. 29, 1998, at C9. As Senator Dole observed about Martin,
"PGA does not mean Please Go Away. He's here to play."
The ADA is all about inclusion and opportunity. As stated by Jim Abbott, the Major League pitcher who competed and succeeded although he lacked a right hand, "As a society, we are so much better off with people like Casey
Martin, who show us that heart is just as important as talent, who only want an opportunity to compete against the best in their profession. That is what this case is about." Jim Abbott, It's Easy to Accommodate, Golf World, Feb. 20,
1998, at 92.
The district court's decisions in this matter should be affirmed.
Dated: August 17,1998
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INTERESTS OF THE
TABLE OF CONTENTS
SUMMARY OF ARGUMENT..
III
112
ARGUMENT 113
I.
THE PGA TOUR AND THE PROFESSIONAL GOLF
TOURNAMENTS THAT IT CONDUCTS DO NOT
CONSTITUTE PLACES OF PUBLIC ACCOMODATION ....... 113
II.
WALKING IS AN ESSENTIAL ELEMENT OF ELITE
GOLF CHAMPIONSHIPS, AND WAIVER OF THE
WALKING REQUIREMENT IS NOT REQUIRED UNDER
THE ADA 120
A.
Walking the Course Is an Essential Aspect of
Championship Golf.
120
B.
Changing the Rules of Elite Athletic Competitions Is Not
Required as a Reasonable Modification or Accomodation
Under the ADA 121
C.
The Organizer of an Elite Athletic Competition Has the
Legal Right to Defme the Rules for That Competition
III. REQURING ASSESSMENTS OF DISABILITY ON AN
INDIVIDUAL-BY-INDIVIDUAL BASIS IS AN
UNWORKABLE LEGAL STANDARD FOR THE
CONDUCT OF ELITE ATHLETIC COMPETITIONS
CONCLUSION
123
125
128
• This brief is reprinted with the permission of Barry A. White of Mayer, Brown & Platt in Chicago,
Illinois. In addition to Mr. White, the brief was submitted under the names of Lee N. Abrams and Guy
G. Ward, both of Mayer, Brown & Platt, and by Walter Driver, Jr., of King & Spalding in Atlanta,
Georgia.
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VOU:I
The United States Golf Association ("USGA") is a private, not-for-profit membership association of golf clubs, golf courses, and training facilities that is chartered "for the purpose of promoting and conserving throughout the United
States the best interests and the true spirit of the game of golf as embodied in its ancient and honorable traditions." Through its Members program, the USGA also is broadly supported by some 738,000 individual golfing enthusiasts.
The USGA neither has nor claims any legal power or right with respect to the game of golf beyond the conduct of its own Championships. Nevertheless, by the common and voluntary consent of the golfing community, the USGA is regarded as the governing body of golf within the United States. The USGA is concerned with virtually every aspect of the game of golf, especially preserving the integrity of the game and the conditions under which it is played.
In addition to its role within the game of golf, each year the USGA conducts thirteen national Championships, as follows:
U.S. Open
U.S. Senior Open
U.S. Women's Open
U.S. Amateur
U.S. Women's Amateur
U.S. Mid-Amateur
U.S. Women's Mid-Amateur
U.S. Senior Amateur
U.S. Women's Senior Amateur
U.S. Amateur Public Links
U.S. Women's Amateur Public Links
U.S. Junior Amateur
U.S. Girls' Junior Amateur
The U.S. Open is the national golf Championship of the United States. The other USGA Championships are conducted for the purpose of identifying the national champion in each of the designated categories.
The major
Championships conducted by the USGA require walking the course as a condition of the competition.
• The parties have consented to the filing of this brief.
Their stipulations are included in the addendum to this brief.
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As the governing body of American golf and the organizer of national
Championships that require competitors to walk the course, the USGA has the authority to address the issues raised by the instant appeal and the interest in doing so.
In separate OpinIOnS, the district court held that the professional golf tournaments conducted by the PGA Tour are, with respect to the elite professionals who qualify to play in those tournaments, a "place of public accommodation" within the meaning of Title III of the Americans With
Disabilities Act, 42 U.S.c. §§ 12181-12189 (1994) ("ADA"), and that Casey
Martin is entitled to use a golf cart in such tournaments because, as applied to
Mr. Martin individually, the use of a golf cart does not result in any competitive advantage.
According to the district court, (1) competitors in professional athletic competitions are subject to the ADA to the same extent as participants in any other activity, and (2) allowing Mr. Martin to use a golf cart constitutes a
"reasonable modification" of the rules that require a competitor to walk the course and does not fundamentally alter the nature of the competition.
In this case of first impression, the district court's opinions raise a number of fundamental and potentially far-reaching questions of statutory interpretation, including the following:
I.
The literal language of Title III of the ADA, as well as its legislative history and sheer common sense, makes clear that a "place of public accommodation" is intended to cover only those places that are generally open to the public. By definition, the general public does not participate in elite athletic competitions, and therefore those competitions represent the very antithesis of a public event. The PGA Tour is first and foremost a membership organization, which lacks a sufficiently close nexus to a physical situs to be deemed a "place of public accommodation." By extending the meaning of "public" to embrace events which are designed to exclude the public, and by treating a membership organization as a "place of public accommodation," the district court's decision represents an unsound and unwarranted expansion of Title III of the ADA.
II.
The organizer of an elite athletic competition must have the right to establish the rules for its own competition.
Even if the rules of elite athletic competitions are covered by Title III of the ADA, which we dispute, the application of established legal principles under the ADA does not require changing the rules of such competitions in order to accommodate a single competitor.
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Unifonn rules are basic to all athletic competitions. If the rules are changed for a single competitor, that competitor will have a real or perceived advantage over all other competitors. This potentially allows that competitor to achieve more than equality, and does so at the expense of all other contestants.
Consequently, it is not a "reasonable modification" within the meaning of Title
III.
If the rules of the competition are changed for all competitors in order to restore unifonnity, the competition would, by definition, be fundamentally altered. The competition would no longer be the same and would no longer be what its organizers defined it to be.
Interjecting the judiciary into the rules of elite sporting competitions would present the proverbial "slippery slope" and would do so in ways that Congress never contemplated.
III. The district court held that allowing Mr. Martin to use a golf cart would not give him a competitive advantage over his more able-bodied competitors.
However, in the case of elite athletic competitions, such individualized assessments are not merely impractical, they are impossible. The organizer of an elite athletic competition has· the right to make reasonable, general detenninations regarding the effect of a particular rule on the competition as a whole and to make judgments accordingly. Notwithstanding the district court's assessment of Mr. Martin individually, the detennination that, in general, a golfer riding in a golf cart has a clear competitive advantage over a walking golfer is reasonable. Consequently, the PGA Tour rule requiring walking the course should be upheld.
I.
THE PGA TOUR AND THE PROFESSIONAL GOLF
TOURNAMENTS THAT IT CONDUCTS DO NOT CONSTITUTE·
PLACES OF PUBLIC ACCOMMODATION
The district court detennined that the portion of a golf course used exclusively by the competitors in a professional golf tournament is a "place of public accommodation." According to the court, a "golf course is specifically included on the list" of public accommodations set forth in the ADA. Martin v.
PGA Tour, Inc., 984 F. Supp. 1320, 1326 (D. Or. 1998) (order denying PGA
Tour's motion for summary judgment and granting in part Martin's cross-motion for partial summary judgment) (hereinafter Martin 1).
This was, in essence, both
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According to the district court, if an entity is on the list, it is a "place of public accommodation."
The PGA Tour argued that the gallery ropes used during its tournaments marked the boundary between public places and non-public places. According to the PGA Tour, a professional golf tournament is a place of public accommodation as to the spectators outside the ropes, but it is non-public as to the competitors inside the ropes.
The district court rejected this argument, holding that although private facilities could establish limited public enclaves, the concept could not be applied in reverse-Le., the operator of a public accommodation could not carve out a private enclave that is exempt from the
ADA. Id. at 1326-27.
Where to draw the line between public and non-public, and what qualifies as a "place" under Title III of the ADA, are profoundly important threshold issues.
We believe that the district court's ruling in Martin I is flawed and represents a potentially far-reaching and unwarranted expansion of the concept of a "place of public accommodation," particularly with respect to elite athletic competitions.
The ADA defines the following entities as public accommodations:
(A) an inn, hotel, motel or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
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(H) a museum, library, gallery, or other place of public display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(1) a nursery, elementary, secondary, undergraduat~, or postgraduate private school, or other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
42 U.S.c. § 12181(7).
It is clear from the above list of covered entities that under the ADA places of public accommodation are only those places where non-disabled people go generally.
In other words, Congress intended the ADA to open to disabled persons those places that are available to the public at large, with no restrictions on access other than payment of a specified fee for admission or services. This is reinforced by the legislative history of the ADA, which, for example, refers repeatedly to access to "community activities." See, e.g., 136 Congo Rec. H2627
(daily ed. May 22,1990) (remarks of Representative Gejdenson) (stating that the
ADA "eases disabled persons' access into the work force and other central community activities"); Welsh v. Boy Scouts of America, 993 F.2d 1267, 1274
(7th Cir.) ("[A] public accommodation as Congress defined in the statute must
'serve the public."'), cert. denied, 510 U.S. 1012 (1993).
Participation in a professional golf tournament or a national golf championship, like all elite sports competitions, is by definition the very antithesis of public. Rather, it is limited to those few who are the very best at what they do. The top 125 golfers on the prior year's money list are exempt on the PGA Tour, meaning that they are eligible to play in all PGA Tour events without further qualifying. The field of the U.S. Open, which is conducted by the USGA, is limited to 156 golfers.
Competing in the PGA Tour and the
Championships conducted by the USGA cannot be considered "public" under any conceivable definition of the word.
In declaring that an entire golf course is a "place of public accommodation," including even that portion of the golf course which is used as the field of play for a professional golf tournament, the district court misapplied the statute. The specific statutory provision relied upon by the district court refers to "a gymnasium, health spa, bowling alley, golf course, or other place of exercise or
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1999 recreation." 42 U.S.C. § 12181(7)(L) (emphasis supplied). Clearly, Congress intended a golf course to be covered only when it is being used for exercise or recreation. A professional golf tournament is a competition conducted for the purpose of winning prize money, not for exercise or recreation.
More analogous is subsection (C) of the statutory list of covered entities: "a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment." 42 U.S.c.
§ 12181(7)(C).
A professional golf tournament, like a theater or stadium, has clear demarcations which separate the spectators or gallery (outside the ropes) from the stage or the playing field (inside the ropes).
It is abundantly clear that the stage and the playing field are off-limits to the public. If a fan runs onto the field during an NFL game or onto the stage during the performance of a play, he or she would be subject to arrest for trespass or disorderly conduct.
The same would be true with respect to a fan who went inside the ropes during a professional golf tournament. Ifan individual would be committing a criminal act by entering a particular area, that area cannot be a
"place of public accommodation."
The district court's holding that a public accommodation cannot also have a non-public enclave has no apparent analytical support, as shown by the foregoing example.
A stadium is a place of public accommodation, but the playing field is a non-public enclave within the place of public accommodation.
The Department of Justice Rules interpreting Title III of the ADA and the legislative history likewise are at odds with the district court's decision.
The Department of Justice has recognized explicitly that "[m]any facilities. " are mixed use facilities," and it has not made any distinction between a public enclave within a non-public facility and a non-public enclave within a public facility. 28 C.F.R. pt. 36, app. B at 614 (1997). Thus, "in a large hotel [a place of public accommodation] that has a separate residential apartment wing, the residential wing would not be covered by the ADA because of the nature of the occupancy of that part of the facility." Id. To the same effect, the
Department of Justice also has acknowledged that employee areas within a public facility can be restricted. Id. at 615 (declaring employee work stations not covered). In an example from the legislative history, Congress made clear that a construction site may remain off-limits to the public even when it is located on the premises of a place of public accommodation. H.R. Rep. No. 10 1-485(1), at
36 (1990), reprinted in 1990 U.S.C.C.A.N. 267,280.
Throughout the legislative history, Congress made a common-sense distinction between audience and performers.
Thus, in another example,
Congress drew a line between the seating area in a movie theater and what appears on screen. Even though the theater is a place of public accommodation and the seating area accordingly is covered by the ADA, the movie need not be
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U.S.C.C.A.N. 445, 482. With respect to places of exhibition or entertainment,
Congress referenced the rights of the disabled only as members of the audience, never as performers. See, e.g., H.R. Rep. No. 101-485(11), at 34, 102-03 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 316, 385-86. See also 28 C.F.R. pt. 36, app. B at 615 (stating that if the general public is given tours ofa movie studio production set, the tour route is a public accommodation, but the areas viewed are not; if the tour is not open to the general public, but is open only to selected business colleagues, partners, customers or consultants, neither the tour route nor the areas viewed are public accommodations).
If a law firm obtained exclusive use of a golf course for a day and invited only its clients to play on that day, would the golf course be a place of public accommodation so that carts had to be offered? Or would the character of the venue as public or non-public depend on its use for that particular day? Under the district court's analysis, the character of a situs is fixed and immutable; once it becomes a place of public accommodation, it remains so regardless of its actual use on a specific occasion.
We believe that Congress did not intend to regulate participation in a private, by-invitation-only event at a venue that is sometimes used by the public, and the exemption for such a non-public event does not depend on the character of the situs before or after the event.1
Under Title III of the ADA, a distinction must be drawn between (1) the fixed or otherwise tangible aspects of a place of public accommodation that allow the space to be accessible to the disabled and (2) the specific use of the space for a non-public purpose by a transitory occupant. A public golf course must be made accessible to the disabled and, during its usual public operation, must permit the use of carts by disabled players.
If the course is rented for a private event, its physical characteristics obviously remain in place. However, this does not mean-and cannot mean-that the host of the private event must allow his or her guests to use carts. The owner of the course must ensure that carts are made available to the private event, because the owner operates a place of public accommodation, but the use of carts by guests at the private event is at
1.
The foregoing is a far more pointed hypothetical than the hypotheticals used by the district court.
For example, the district court correctly noted that the area inside the ropes is not strictly confmed to players, and opined, "[w)hat if a member-golfer opted to hire a disabled caddy?" Martin I, 984 F.
Supp. at 1327. The USGA and, we believe, the PGA Tour, have not had occasion to consider a disabled caddy, so the court was posing a hypothetical that may, in fact, not be at issue. The rules of the USGA and the PGA Tour are directed to the competitors and the competition, not to the caddies, rules officials, and scorers who are allowed inside the ropes in order to facilitate the conduct of the competition.
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State and federal civil rights laws addressing race discrimination in public accommodations have been in force far longer than the ADA. Under these laws, it is clear that an otherwise covered facility, such as a hotel or restaurant, may lease its space for a private event, and that private event may discriminate in ways that the public accommodation could not.
Thus, a hotel may rent a baIlroom to any organization it chooses, including an organization that is premised on discrimination or some other unpopular philosophy, with the fuIl knowledge by the hotel that the organization's invitees will specificaIly exclude certain groups. In other words, a sharp, and readily understandable, distinction is drawn between what the owner of the public accommodation mayor may not do directly, and what a temporary occupant of the same space may do.
2
In defining "reasonable modification," the Department of Justice "would not require a book store [which is a place of public accommodation] to stock
Brailled books or order Brailled books, if it does not do so in the normal course of its business." 28 C.F.R. pt. 36, app. B at 632 (1997). We believe that the rules of competition for the organizer of an elite sporting event are part of the
"normal course of its business." In fact, determining eligibility and establishing the rules of play represent virtuaIly the entire business of the organizer of an athletic competition. If a bookstore owner must make his or her store accessible to the disabled, but need not stock the Brailled books which the visuaIlyimpaired would wish to purchase, the PGA Tour complies with Title III of the
ADA by making the area outside the field of play accessible for disabled spectators, while remaining free to establish the rules of the competition for the competitors inside the field of play.
The categories of places of public accommodation set forth in Title III of the
ADA are intended to be exclusive, although the examples used within each category are not. 28 C.F .R. pt. 36, app. B at 614 (1997). Thus, in order to hold that a professional golf tournament is a place of public accommodation, a court
2.
This is consistent with Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698,
758-60 (D. Or. 1997), on which the district court relied. This case held that the skyboxes at the public arena used by the Portland Trail Blazers of the National Basketball Association were "places of public accommodation" that had to be built in accordance with the accessibility guidelines of Title III of the
ADA. Id. A skybox is, of course, part of the seating at a public stadium, and therefore is explicitly covered by Title III. Moreover, the sale of the skyboxes was open to any member of the public willing to pay the required fee. Id. at 759 ("The suites were offered to the general public on a first-come, firstserved basis, as with all other season tickets at the Rose Garden. "). The suit was brought against the owner of the stadium for an injunction requiring certain physical modifications to the facility. The case did not address the use of a designated space by its private licensee, which is one of the principal substantive issues presented here.
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SPRING 1999 BRIEF OF THE UNITED STATES GoLF ASSOCIATION VOL.!: 1 would need to identifY the specific statutory provision that covers it. Congress, however, did not address professional. sports in Title III of the ADA or in its legislative history. As discussed above, the only category that even arguably might be applicable here is an exhibition venue (not a "place of recreation"), but this is a considerable stretch and, in any event, the playing field at an exhibition venue unquestionably is off-limits to the public.
Given the prominence of professional sports in our society, we do not believe that Congress' failure to address the subject specifically was inadvertent.
Rather, we believe that Congress never contemplated application of the ADA to competitors in elite sports competitions.
In Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994), this Court held that a national organization formed for the express purpose of educating the
"general public" on matters of interest to the organization and its members was not a place of public accommodation under Title II of the 1964 Civil,Rights Act,
42 U.S.C.
§ 2000(a), a law that is substantially identical in purpose and language to Title III of the ADA.
According to the Court, even though the Cult
Awareness Network conducted its meetings and activities at "places," it lacked a sufficient "connection to a place of public accommodation" to be covered by
Title II. Id. at 756.
To the same effect is Welsh v. Boy Scouts of America, 993 F.2d 1267 (7th
Cir.), cert. denied, 510 U.S. 1012 (1993), cited approvingly in Clegg. The
Seventh Circuit there held that even though the Boy Scouts organization has more than 5,000,000 members, it does not "serve the public" and lacks a sufficiently close. connection to a "structural facility" to· qualifY as' a place of public accommodation under Title II.
As the court stated: "To conclude that
Title II includes membership organizations like the Boy Scouts, one would have to assume that Congress' use of the term 'place' was mere surplusage in the statute, and. that the fifteen specific examples of places fail to illuminate the meaning of the term 'place.'" Id. at 1272.
Like the Cult Awareness Network and the Boy Scouts, the PGA Tour is a membership organization. Because it holds its golf tournaments at a different site each week, it lacks any close connection to a "particular facility or location," and it is not affiliated "with a place open to the public [where] membership in the organization i~ a necessary predicate to use of the facility." Clegg, 18 F.3d' at
756.
Clegg is soundly reasoned, is the law in the Ninth Circuit, and is dispositive of the instant case.
The PGA Tour is not a "place of public accommodation" within the meaning of Title III of the ADA.
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II. WALKING IS AN ESSENTIAL ELEMENT OF ELITE GOLF
CHAMPIONSHIPS, AND WAIVER OF THE WALKING
REQUIREMENT IS NOT REQUIRED UNDER THE ADA.
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A. Walking the Course Is an Essential Aspect of Championship Golf
Many people ride in a cart when playing social, non-tournament golf. Cart usage has increased among many golfers because caddies are less available and because golf courses derive revenue from carts.
The Rules of Golf do not prohibit golf carts. The rules of golf for a competition, however, including the option of using carts, are left to the judgment of any entity that is conducting the competition.
The USGA requires walking in its major Championships.
The
PGA Tour requires walking on its regular tours but allows competitors to use a cart in Senior PGA Tour events. The use of carts in a variety of settings fonns the central premise of Mr. Martin's argument, that getting from Point A to Point
B on a golf course is merely incidental to the game of golf.
The USGA, as the governing body of golf in the United States, finnly believes that walking the entire competition is as much a part of the game of golf at the championship level as running or jumping is in other sports. A professional golf tournament or national golf championship tests skill, stamina, endurance and perseverance under unfavorable conditions. To be sure, some of these qualities may be tested more rigorously in other sports, but they remain an essential part of the game of golf during elite competitions.
Tournament golf typically consists of four rounds, usually played on consecutive days, but at times requiring two rounds in a day. Even under ideal conditions, walking the entire competition, especially when combined with the pressure of tournament play, is tiring. If the course is hilly and/or there is high heat or humidity, walking 18 or 36 holes daily can be very demanding physically. The legs play a vital role in the proper execution of a golf swing.
The best conditioned competitor has a clear advantage, which is fundamental to all sports. If the element of walking the course is removed, stamina and physical conditioning would become virtually irrelevant.
Coping with varying and difficult conditions has been an essential element of golf through the centuries.
Removing these key factors would create a game that is different from the game that is now played in the major USGA Championships.
The governing body of golf outside of the United States is the Royal &
Ancient Golf Club of St. Andrews, Scotland ("R&A"). Among other things, the
R&A annually conducts the British Open Championship. Professional golf in the United States is overseen by the PGA Tour, the Ladies Professional Golf
Association, and the PGA of America. Outside the United States, the PGA Tour
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:1 has counterparts in Europe; Japan, Australia, South Africa, and elsewhere. All of these organizations, including the USGA,' require walking· the course in tournament play.
'
Golf began more than 400 years ago. The basic elements of the game have remained essentially unchanged. One of those elements is walking the course.
As an organization that is chartered to preserve golfs "ancient and honorable traditions," the USGA believes very strongly that walking the course is one of the game's most ancient and cherished traditions because the competitor is exposed to the varying challenges inherent in walking.
The game of golf and the rules of competition involve more than the isolated execution of shots. To the USGA, the game of golf encompasses, and the rules of competition apply to, everything that occurs,between the opening tee shot and the final stroke. The Rules of Golf restrict the. properties of clubs and balls, the number of clubs, the design of golf shoes, and behavior.. The rules do not permit any form of outside assistance in executing a shot, which includes such things as holding an umbrella to shield a golfer while playing a stroke, heating balls artificially in cold weather, positioning of a golfer's caddie during the shot, and asking advice from fellow competitors which could influence a stroke.
The
Rules of Golf and the conditions of the competition also regulate what takes place between shots. To the USGA, how a golfer gets to and from his or her ball is not an incidental activity; rather, it is part of the game of golf at the championship level.
B.
Changing the Rules of Elite Athletic Competitions Is Not Required as a
Reasonable Modification or Accommodation Under the ADA.
The aim of the ADA is to allow the disabled to function equally with the non-disabled by removing artificial barriers. Basic to the statutory scheme is that equality can be achieved by making "reasonable accommodations" (Title I) or
"reasonable modifications" (Title III) that assist the disabled, without adversely
, affecting the rights or interests of the non-disabled. In those rare instances where an accommodation or modification does infringe on the rights of others, it is no longer "reasonable" and is not required by the ADA.
See, e.g., Eckles v.
Consolidated Rail Corp., 94 F.3d 1041, 1051 (7th Cir. 1996) (stating a reasonable accommodation does not require other employees to lose their jobs),
cert. denied, 117 S.Ct. 1318 (1997); Milton v. Scrivner, Inc., 53 F.3d 1118, 1125
(10th Cir. 1995) ("An accommodation that would result in other employees having to workO harder or longer h~urs is not required.... Slowing the production schedule or assigning plaintiffs lighter loads would fundamentally
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(concluding that an employer need not adjust the thermostat in an office to accommodate a disabled employee if it makes the temperature uncomfortable for others; the dim lighting in a nightclub need not be brightened to accommodate a visually impaired server if that would adversely affect the ambiance of the club).
These concepts have direct relevance to elite athletic competitions. The key word here is competition. Unlike the workplace or general access to public accommodations, in athletics each competitor is competing directly against every other competitor under a uniform set of rules. Uniformity of rules and, to the maximum extent possible, identical playing conditions, are fundamental to athletic competitions. In the broadest sense, the goal is exact fairness and the perception of exact fairness that can only be achieved by having all competitors meet and overcome the same test. The champion is the individual who prevails against all others while competing on a level playing field.
By definition, a change in the rules to accommodate a disabled competitor necessarily affects the interests of all other competitors. If a rule is changed for only one competitor, an essential aspect of the competition-Le., uniform rules for all-has been lost. The competition would not be indisputably fair; if the disabled competitor won while playing by special rules, the entire competition would be irreparably tainted. In common sporting parlance, the victory would require an asterisk, denoting that it was achieved under special conditions.
It is, in fact, difficult to conjure up an accommodation in athletics that would not inevitably produce some advantage for a competitor. Certainly, the ability to ride in a golf cart rather than walk the course would produce a distinct competitive advantage in tournament golf by eliminating fatigue and its effects from the competition. On the other hand, if all competitors were allowed to ride in order to restore a level playing field, it would fundamentally alter the nature of the event and change the nature of the competition for all other competitors.
Allowing golfers to ride obviously would have an adverse effect on those competitors who have worked hard on their physical fitness and who have learned through perseverance and effort to prevail under adverse conditions.
Under the ADA, an accommodation or modification is not "reasonable" if it adversely affects the interests of others. In elite athletic competitions, a change in the rules for one competitor or for all competitors would by definition adversely affect the interests of all the competitors.
Accordingly, allowing a disabled golfer to ride in a cart is not required by the ADA.3
J.
In its regulations under Title III of the ADA, the Department of Justice provided numerous examples of specific "reasonable modifications" to a place of public accommodation. The examples
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C.
The Organizer of an Elite Athletic Competition Has the Legal Right to
Define the Rules for That Competition
In New York Roadrunners Club v. State Div. of Human Rights, 432 N.E.2d
780 (N.Y. 1982), a suit was filed on behalf of a disabled person who wished to participate in the New York City Marathon, challenging the event's prohibition against the use of wheelchairs. The suit was brought by the State Division of
Human Rights pursuant to the state human rights law, which required reasonable accommodation to a disability.
The highest court in New York rejected the claim, holding
~hat the organizers had estabiished the competition as a foot race and therefore had no obligation to allow other means oflocomotion.
We believethat this decision represents the only sound result. The organizer of an elite athletic competition must have the right to define its event and the rules of its competition. This would be true even if a particular rule might not be adopted by an outsider. A marathon is a test of endurance. A wheelchair-bound competitor could expend more energy th.an a runner, but the event as defined by the rules of competition of the New York Roadrunners Club was a test of endurance accomplished in only one way-by means of a foot race.
The U.S. Open is the national golf championship of the United States. As the organizer of this and other major national Championships, the USGA has defined walking the entire competition as a required element under its rules. The champion is the individual who achieves the lowest score while walking the course and playing strictly in accordance with the Rules of Golf.
The USGA's Rules of Golf occupy 144 pages and consist of 34 separate rules and appendices.
The USGA has published hundreds of interpretations, applying the rules to myriad specific facts and circumstances. Supplementing this are still more rules, called "conditions of the competition," which the USGA applies in its various Championships. Many of these rules arguably could have an impact on a disabled competitor.
The potential application of the decision in this case to other sports is limited only by one's imagination. Can the American League be required to retain the designated hitter rule to assist professional baseball players who can no longer field due to a disability?
Can the National League be required to adopt the require changes to only a portion of a place of public accommodation. Thus, a theater must provide only some seating for the disabled; a supermarket need not make all of its check-out lines wheelchair accessible, and so on. 28 C.F.R. pI. 36, app. Bat 632, 641, 661.
It is not possible to apply such halfway measures to the rules of elite athletic competitions. Because uniform rules are the essence of sport, a rule cannot be changed for a single competitor. Either the rule must be changed for all, or it must remain unchanged. Unlike the measured accommodations contemplated by the Department of
Justice, the rules of elite athletic competitions present an all or nothing proposition.
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designated hitter rule?
Baseball already allows a pinch runner, although the player he runs for must leave the game. Is it a "reasonable accommodation" to allow a pinch runner without substitution, or a designated runner for batters who cannot run at all because of a disability? These examples are not far-fetched hypotheticals. Because professional baseball already allows a designated hitter and a pinch runner, these presumably are not "essential" aspects of the game, and therefore may be subject to "reasonable accommodation."
Should steroids be permitted for medically certified therapeutic purposes despite their performance enhancing properties?
Should a wheelchair bound weightlifter receive assistance in lifting the bar to chest height prior to a press?
Should a disabled archer be allowed to sit even though the event calls for the competitor to stand?
The USGA restricts the properties of balls and equipment in order to ensure, in part, that the skill of the player, rather than the player's equipment, determines the result. Should a disabled golfer be allowed to use equipment that is denied to able-bodied competitors if the only effect is to allow the disabled individual to achieve the same distance and flight as his non-disabled competitors? Under the flawed reasoning employed by the district court, the answer would have to be
"yes."
The foregoing examples represent the kinds of issues that courts may well be called upon to resolve if the rules of elite sports competitions are subject to revision under the ADA. Indeed, many cases arguably might have to be resolved in favor of the disabled competitors.
Professional athletes in team sports are employees, and therefore they are subject to the "reasonable accommodation" standard under Title I of the ADA, which is substantially the same as the
"reasonable modification" test under Title III. Under Title I, an accommodation must be made unless the employer can demonstrate that it would cause "undue hardship," which involves somewhat the same analysis as Title Ill's
"fundamentally alter" limitation. As noted, it is unlikely that the retention or expansion of the designated hitter rule would cause an undue hardship to professional baseball under the district court's analysis.
We do not believe that the ADA contemplated such potential judicial micromanagement of the conduct of elite athletic competitions. As set forth in its ample Congressional history, the purpose of the ADA is to assist the disabled in the conduct of everyday life in a society that was geared entirely to the nondisabled. The ADA simply was not intended to govern the rules applicable to elite sports competitions.
It is not possible to adjust the rules of elite competitions without either bestowing a competitive advantage on the disabled competitor or making a fundamental change in the nature of the event.
As a matter of statutory
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interpretation, we do not believe that Congressional enactment of the ADA was intended to authorize the courts even to attempt to do so.
III. REQUIRING ASSESSMENTS OF DISABILITY ON AN
INDIVIDUAL-BY-INDIVIDUAL BASIS IS AN UNWORKABLE LEGAL
STANDARD FOR THE CONDUCT OF ELITE ATHLETIC
COMPETITIONS.
In deciding that Mr. Martin's use of a golf cart was a "reasonable modification" of the PGA Tour rule requiring walking, the district court first determined that an individualized inquiry into Mr. Martin's physical condition was required.
Following a full evidentiary hearing, which included the presentation of expert testimony, the court concluded as follows: "As plaintiff easily endures greater fatigue even with a cart than his able-bodied competitors do by walking, it does not fundamentally alter the nature of the PGA Tour's game to accommodate him with a cart." Martin v. PGA Tour, Inc., 994 F. Supp.
1242, 1252 (D. Or. 1998) (findings of fact and conclusions of law after bench trial) [hereinafter Martin II].
We suggest that an individualized inquiry for each golfer claiming a disability would create a standard which is not merely unworkable, but is impossible to apply. The USGA, for example, does not have the expertise to make these kinds ofjudgments, nor does it have the bureaucracy or medical staff in place to even begin to deal with the issue.
It took the district court a fullblown trial and expert testimony to purport to decide Mr. Martin's specific case.
How could the USGA, the PGA Tour, or any other athletic governing body be expected to discharge the same responsibilities, perhaps at the behest of numerous competitors who claim to be disabled?
In Sandison v. Michigan High School Athletic Ass 'n, Inc., 64 F3d 1026,
1035 (6th Cir. 1995), the Sixth Circuit upheld, under the ADA and the federal
Rehabilitation Act, a rule imposing a 19 year-old age restriction on interscholastic sports programs. The court held, in pertinent part, as follows:
[W]aiver of the age restriction fundamentally alters the sports program.
Due to the usual ages of first-year high school students, high school sports programs generally involve competitors between fourteen and eighteen years of age.
Removing the age restriction injects into competition students older than the vast majority of other students, and the record shows that the older students are generally more physically mature than younger students. Expanding the sports program to include
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older students works a fundamental alteration.
Second, although the plaintiffs assert that introducing their average athletic skills ... would not fundamentally alter the program, the record does not reveal how the MHSAA, or anyone, can make that competitive unfairness determination without an undue burden.
The MHSAA's expert explained that five factors weigh in deciding whether an athlete possessed an unfair competitive advantage due to age: chronological age, physical maturity, athletic experience, athletic skill level, and mental ability to process sports strategy.
It is plainly an undue burden to require high school coaches and hired physicians to determine whether these factors render a student's age an unfair competitive advantage.
The determination would have to be made relative to the skill level of each participating member of opposing teams and the team as a unit. And of course each team member and the team as a unit would present a different skill level. Indeed, the determination would also have to be made relative to the skill level of the would-be athlete whom the older student displaced from the team. It is unreasonable to call upon coaches and physicians to make these near-impossible determinations.
Id. at 1035.
What emerges from Sandison is that a general rule is valid under the ADA if it is substantially reasonable and if individualized inquiry is impracticable.
These considerations apply with full force to the requirement of walking the course in the most elite golf competitions.
The fact that riding is easier than walking is self-evident. In fact, anyone who has ever played golf understands very well that walking and riding are profoundly different.
The extent of the difference is magnified by ambient factors, such as hilly terrain, altitude, and high heat or humidity.
The difference between walking and riding is not merely the effect of traversing the four-plus miles of a golf course. During a round, a competitor must stand between shots; seats are available only in the teeing areas. The effect of standing versus sitting in a cart during the four to five hours of a typical round is comparable to the effect of standing or sitting during a regular workday at a retail store or on a factory floor.
There is a profound difference in fatigue throughout a typical work shift. While riding in a cart, the golfer also receives the benefit of the breeze created by a moving vehicle. Especially in high heat and humidity, the benefits to the rider are truly material.
While the walker experiences a continuous build-up of heat and its effects as the round progresses, and particularly under the added stress of competition, the rider is cooled by a breeze after each shot. The district court opinion did not mention any of these
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The Sectional Qualifying for the U.S. Open is 36 holes in a single day. At the time of the district court hearing, Mr. Martin had become eligible for
Sectional Qualifying by virtue of his victory in a Nike Tour event. On the PGA
Tour, a competitor is required to play more than 18 holes a day when rainouts or darkness prevent completion ofa scheduled round. Walking 36 holes in a single day obviously is far more fatiguing than riding, yet the district court made no mention of walking versus riding for more than 18 holes.
The district court's evidentiary hearing provided a detailed analysis of M~.
Martin's disability and the manner in which riding during a round of golf affects him. Much less clear is the effect on individuals that the district court used as comparatives.
The district court apparently compared the. 25-year-old Mr.
Martin to extremely fit and able-bodied competitors-players sufficiently wellconditioned that walking the course during competition was "of little more difficulty than breathing." Martin 11, 994 F.. Supp. at 1251. However, not all golfersare in p~ak physical shape. Would Mr. Martin have an advantage over a
49-year-old cO,mpetitor who smokes, is overweight, and does not exercise?
Would Mr. Martin have an advantage over a competitor who had difficulty walking, but was not disabled within the meaning of the ADA? Finally, if Mr.
Martin gains an advantage over even a single competitor by being allowed to ride, is riding still a "reasonable modification" under the ADA? Of course, it probably would not seem reasonable to the individual competitor who believes, or could prove, that Mr. Martin gained an advantage over him by riding in a cart.
Once again, the district court did not mention any of these issues in its opinion.
We do not believe that the ADA should be made to depend upon complex inquiries that no golf association or other organizer of athletic competitions is equipped to make. The USGA is not aware of scientific or medical tests that are sufficiently precise to measure the effect of walking versus riding among all of the various competitors, which is exactly the inquiry that would need to be made before providing an accommodation in a professional or national championship golf tournament. As the court declared in Sandison, these are "near-impossible determinations."
While purporting to conduct an individualized inquiry, in reality the district court merely cqmpared Mr. Martin to a fictional able-bodied and wellconditioned competitor, not to each of the actual competitors that Mr. Martin would face on the Nike Tour. Thus, the district court decision was in the nature of a general rule-all disabled competitors should be allowed to ride.
The USGA believes that the matter should be dealt with by means of a general rule, rather than through an individualized inquiry that as a practical matter cannot be conducted. The difference is that we believe that the organizer
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VOU:1 VIRGINIA JOURNAL OF SPORTS AND THE LAW SPRING 1999 of the competition is the entity that is best equipped to create the rule. A rule which requires walking the course during the most elite competitions is every bit as reasonable as the age rule that was upheld in Sandison, and it likewise should be sustained.
The USGA is strongly committed to the ADA and the goals that the ADA is designed to achieve.
It fully subscribes to the ADA guidelines for spectator access to its competitions.
It supports programs that encourage and provide assistance to disabled people who wish to enjoy the game of golf.
It has even written special rules to allow disabled golfers to navigate a course without unnecessarily violating other rules. The conduct of an elite golf competition, however, presents a very different situation.
The issues presented by Mr. Martin, although significant as a matter of statutory interpretation, are of limited application. What is involved here is only the use of a golf cart while playing professional golf on the Nike Tour. What is not involved is the use of a cart under any other circumstances, or the application of the ADA to spectators at a professional golf tournament.
Professional sports occupy a unique role in American society. One reason for this is tradition and the continuity of the rules of competition. While most aspects of life are dynamic-some would say too dynamic-the rules of sports have changed very little.
As a result, Babe Ruth is still a frequent topic of conversation seventy years after he hit sixty home runs, and people actively debate the merits of players from vastly different eras.
Two of the most memorable events in golf history involve players who overcame physical adversity to triumph. In 1950, Ben Hogan won the U.S. Open following a dramatic recovery from a disabling and nearly fatal car wreck, when doctors had told him that he would never walk again. Mr. Hogan tied for the
Championship during a 36 hole final round, and won it in an 18 hole playoff the following day. In 1964, Ken Venturi won the U.S. Open in searing heat and humidity over a 36 hole final round. After the first 18 holes, Mr. Venturi was advised by doctors that he literally risked death if he completed the final round.
Walking the course was fundamental to making these events memorable.
The tradition of walking the course and the requirement of doing so when specified by the rules of elite competition have been fundamental to golf for more than 400 years.
It is part of the test that is appreciated by the most accomplished players. We do not believe that Congress intended the enactment
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of the ADA to open up the rules of elite athletic events to judicial second guessing on behalf of the disabled. The organizer of each competitive sports event should be permitted to define its own event.
The organizers of elite athletic competitions are in the best position to balance the interests of tradition, fair competition, and continuity of rules which are the essence of sport.
The district court's ruling in favor of Mr. Martin, if affirmed, could change the landscape of elite sports competitions. The rules of competition would be subject to scrutiny and revision by a judiciary that is ill-equipped to define the true nature of each sport and what is or is not vital to that sport. There may be very few rules that, if changed, would constitute an "undue hardship" on a particular sport. There are, however, many rules which define the essence of each sport, and what it means to those who play it and follow it.
Walking is a fundamental part of the game of golf and the rules of competition at the championship level worldwide. The USGA did not invent this definition. Rather, it has perpetuated what has been a basic part of the game of golf for centuries. The USGA, which is responsible for overseeing American golf and ensuring that the best interests and values of the game are preserved, believes that there is no legal basis under the ADA for changing the essential rules under which elite athletic competitions are played.
The decision of the district court should be reversed.
Dated: July 2,1998
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