Sport Facilities VII

ADA and Professional Sports—Golfer's Drive May Land in Supreme Court

By Mary-Kathryn Zachary

Mary-Kathryn Zachary is a Profes- sor of Business Administration at the Richards College of Business of State University of West Geor- gia, Carroilton, Georgia, where she teaches law and managennent courses. As a consultant in em- ployment law matters she has pre- sented seminars for businesses on a variety of employment topics, and written numerous articles on employment law issues, Ms, Zachary received aJ,D, cum laude from the University of Georgia, and has been a special master in employment discrimination cases under the Georgia Fair Employ- ment Practices Statute,

Introduction Few of us earn our livelihood as athletes in the rar- efied atmosphere of professional sports. Big-time sports are, however, big-time business, and many people have an interest in legal developments in them, whether as individuals who are employed by sports-affiliated com- panies or as individuals who are simply avid sports enthusiasts.

It is rare that professional athletes invoke the protec- tions of federal discrimination laws or that such an invocation has the potential to drastically alter profes- sional sports and carry over into less-celebrated work- places. However, that is the situation with two cases currently working their way through the court sys- tem, one of which is poised to reach the Supreme Court. The lawsuits involve different plaintiffs, differ- ent defendants, and, most importantly, different fed- eral circuits. The questions involved, however, are the same and range from the very fact-specific to the very abstract-general.

The cases are Martin v, PGA Tour, IMC,,' and Olinger V. United States Golf Association,- decided by the re- spective appellate courts on back-to-back days this March. The specific issue in the cases is the same: whether or not a particular disabled golfer should be allowed to ride in a golf cart while playing in a tournament sponsored hy the defendant as a rea- sonable modification to sporting rules under the Americans with Disabilities Act.̂ More generally, the questions are the following. Who has the right to determine the fundamental nature ofa professional

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sport, the governing sports association or the courts? To what extent does the ADA apply to professional sports? And, what effect might court rulings in this area have on more com- mon work-based cases?

Already, other professional athletes have re- quested accommodations based on arguments made by the plaintiffs in the golfing cases. And, a prospective teacher in an ADA work-based suit has cited one of these cases in her quest for a modification in teacher certification procedures. The cases have split sports commentators and sports fans and are being closely watched by those involved in every area of professional sports.

Background of the Cases The Martin case is the one that has drawn the most attentioti and the one currently positioned to reach the Supretne Court. Casey Martin is a professional golfer afflicted with a congenital degenerative circulatory disorder, Klippel- Trenaunay-Weber Syndrome, that affects his right leg. The disorder subjects Martin to a significant risk of fracture or hemorrhage any time he walks, and he is unable to walk for lengthy periods of time. As a college athlete, he asked for, and re- ceived, a waiver of the NCAA and Pac-10 rules that required golfers to walk and carry their own clubs during competition. He was not as fortu- nate in his request ofthe PGA.

The Professional Golfers' Association of America (PGA) is a non-profit association of professional golfers. At the time the Martin case was being decided, it sponsored three competitive tours: the PGA Tour, its tnost competitive; the Nike Tour (since renamed as the Buy.com Tour), a step below; and the Senior PGA Tour, composed of golfers overage 50. When a PGA tournament is taking place, the association serves as the op- erator of the course. The principal way of par- ticipating in the PGA Tour and the Nike Tour is through a three-stage competitive qualifying school, with the best scorers entitled to play on the PGA Tour and the next tier of scorers eli- gible for the Nike Tour, In some instances, Nike Tour players as a result of their performance may later play on the PGA Tour. In the first two stages

of the quahfying school, players may use golf carts; in the third, and in the actual tournaments, they may not, absent permission frotii the PGA. The only times the PGA has granted such per- mission have been in situations applicable to all participating golfers, such as shuttling every player from one hole to another sotne distance away or bringing a golfer who has lost his ball back to the tee. On the Senior PGA Tour, all participants arc allowed to use carts, and about 75 percent of thetn do.

Martin, after successfully completing the first two stages of the 1997 qualifying school, asked the PGA for permission to use a golf cart in the third stage. When the PGA refused to grant the request, Martin sued under the ADA.

Analogous circumstances led to the Olinger case. That suit also involves a professional golfer with a degenerative condition, in this case a hip con- dition—bilateral avascular necrosis—that signifi- cantly aOects his ability to walk and who has requested permission to use a cart in association competition, Tbe defendant in this case is the United States Golf Association (USGA), which is unrelated to the PGA. The USGA is a private, non- profit association of golf clubs and golf courses, chartered Tor the stated purpose of "promoting and conserving the best interests and the true spirit of the game of golf.""' It conducts champi- onships each year in 13 categories, such as the U. S. Women's Open, the U.S. Senior Open, the U.S. Amateur, and, most notably, the U.S. Open. Beyond its conduct of these tournaments, the USGA claims no legal power. However, by con- sent ofthe golfing community, the USGA is com- monly regarded as the governing body of golf in the United States. The USGA, along with the Royal and Ancient Golf Club of St. Andrews, Scot- land, promulgates the official Rules of Golf.

To play in the U.S. Open, the most prestigious event sponsored by the USGA, non-exempt professional golfers, and specified amateurs, tnust compete in local, and then sectional, com- petitive qualifying rounds. The Rules of Golf do not specifically exclude the use of golf carts; however, they empower tournament competi- tion committees to establish procedures for

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events, including whether or not to allow golf carts to be used. Since 1955, the entry forms for the U.S. Open have stated that players will walk at all times during the competition. The USGA has no procedures established for waiv- ing the walking requirement. It has received 12 requests from 11 people since 1986 to use carts. However, only one individual since 1895 has ever played while riding in a cart. The only USGA championships in which golf carts are allowed are the Senior Atnateur and the Senior Women's Atnateur, in which about 75 percent ofthe participants use them.

In the Martin case againsl ihe PGA, the district court granted the golfer a preliminary injunction, and he was able to qualify for the Nike Tour with the use of the cart. The court then granted Mar- tin partial summary judgment. It held thai the PGA was subject to Title 111 of the ADA because it owned, operated, and leased golf courses, and golf courses arc listed as places of public accom- modation under the ADA. It also held that the PGA was not exetnpt from the mandates of the ADA as a private club, because, among other things, the PGA was a comtnercial enterprise of- fering sporting events to the public. After a bench trial, the district court determined that modify- ing the walking rule for Martin was a reasonable accommodation that did not fundamentally al- ter the nature of PGA golf tournaments. It then issued a permanent injunction ordering the PGA to allow Marlin to use a golf cart in qualifying rounds for the PGA and Nike Tours and in any of those competitions for which he qualified.^ The PGA appealed to ihe Ninth Circuit.

While the Marlin case was on appeal, Martin applied to play in the 1998 U.S. Open. Al- though the trial court decision against the PGA was not binding on the USGA, that organiza- tion voluntarily agreed to honor the ruling and allowed Martin lo ride his cart in the Open. However, when the USGA refused lo allow Olinger lo ride a cart in local qualifying for the same U.S. Open, Olinger sued under the ADA. The district court gave him a temporary re- straining order, and he played, but not well enough to advance to the sectional qualifying stage. After a full trial, the district court ulti-

malely ruled in favor of the USGA,''and Olinger appealed lo ihe Seventh Circuit,

Applicable ADA Provisions The ADA covers three areas: Title 1—employ- ment; Title II— public services; and Title 111— places of public accommodation. Generally, cases of disability-based discrimination arising out of earning a living are brought under Title 1, How- ever, sotne have been brought under Title II, and occasionally Title 111. As an example ofa Title 111 work-related case, a disabled physician was al- lowed lo use that title to bring suit against a hos- pital for being denied staff privileges.' It is common for courts in cases arising under one title to cite from cases brought under other titles because of similar purpose and language found in the three titles. To illustrate, the Title I require- ment that employers offer "reasonable accommo- dations" in dealing with disabled employees is not unlike the Title III requirement that places of public accommodation allow "reasonable modifications" for disabled individuals. Although the plaintiff in the Martin case included an argu- ment that he was an employee, the district court concluded that he was an independent contrac- tor. On appeal, both the Ninth and the Seventh Circuits analyzed the case solely under Title III.

Title 111 prohibits disability-based discrimination against an individual "in ihe full enjoyment of the goods, services, facilities, privileges, advan- tages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of accommoda- tion."** The act defines a place of public accom- modation as a facility, operated by a private entity, whose operations affect commerce and fall within at least one of a number of categories. Atnong the categories considered to be public accommo- dations are: a motion picture house, theater, con- cert hall, stadium, or other place oj exhibition or entertainment; and a gymnasium, health spa, bowling alley golf course, or olher place oJ exer- cise or recreation (emphasis added).'' Discrimina- tion under Title HI includes "a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are neces- sa}y to alford such goods, services, facilities, privi-

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leges, advantages, or accommodations to indi- viduals with disabilities, unless the entity can demonstrate that making such tnodifications w o u l d [undamculally alter ihc nature o f s u c h goods, services, facilities, privileges, advantages, or accomtnodations" (emphasis added)."'

The Appellate Courts Both the PGA and the USGA argued in their re- spective cases that Title 111 was inapplicable. They conceded thai during a tournament a golfcoursc is a public accommodation with respect to the spectators, or "ouiside the ropes," However, they argued that the players' area "inside the ropes" was not a public accommodation because the public could not enter that space. They also both contended that the restricted area was nol being used as a "place of exercise or recreation." The USGA emphasized the purpose is to select a na- tional golf champion; the PGA noted the moti- vation ofthe players is not exercise or recreation, but money.

The Seventh Circuit stated that there might be some logic to those arguments but hesitated to validate them because the court could resolve the case on a more narrow ground. The Ninth Circuit, however, found the arguments to be too limited an interpretation of "public accom- modation," Even if the court were to agree thai the course was not being used lor exercise or recreation, the course would fall under the ADA provision addressing a theater, stadium, or olher place of exhibition or entertainment. The statute did not limit applicability to parts of an exhibition open to the public. Denial of ac- cess to pan ofa public accommodation did not mean the facility was not a public accommo- dation. The court also rejected the PGA's analo- gies to examples under Justice Department regulations implementing the ADA, One ex- ample was a "mixed use faeiHty" such as a ho- tel wilh a residential wing—the hotel is a pubhc accommodation, the residential wing is tiot. The other was a comtnercial facility such as a factory that allows public tours over specific routes at particular times—the lour route is a public accominodalion, the commercial facil- ity is not.

The greatest difficulty the court found wilh the PGA's argument was its contention that the com- petition was not public in nature because par- ticipation in the t o u r n a m e n t s was highly selective. In the court's \'iew, the fact that ihe par- ticipants were a chosen few did not mean the fa- cility could not be a public accommodation. Furthermore, Title III refers lo protection of "in- dividuals,"' nol jusl ihe "public." The selection process starts with at Icasl iheorelically a large group. The winnowing process should not change the nature of a facility from public to private. Additionally, the court found no justification for drawing a line between the use of a public ac- commodation for pleasure and for pursuit of a living, Therelore, goll courses are places of pub- lic accommodation while a PGA tournamenl is taking place on them.

Both the Ninth and ihe Seventh circuit courts agreed that walking was not essential to a gen- eralized game of golf. The Rules of Coif do nol require players to walk, and both the USGA and the PGA allow the use of carls in sotne situations. The appellate courts agreed that the purpose ofthe walking requirement was to in- troduce fatigue (the PGA'S term), or stamina (the USGA's term). Where the two circuits clearly disagreed was on whether or not allow- ing the plaintiff to ride in a cart would funda- mcnlally alter ihc nature of the competition. The Ninth Circuit found that the use ofa golf cart was reasonable. After all, goll carts were used in some olher lournamenls and were a feasible way to allow Martin access to play. Further, the use oi a goli cart was necessary for Martin, because he could not compete with- out such assistance. Finally, the couri upheld the district court's conclusion that allowing him the use of the carl would nol fundamentally alter the nature ol the events. In doing so, the appellate court found ample evidence to support the following lower court findings: the purpose of requiring the players to walk was lo introduce a fatigue factor into the shol- making; the fatigue factor occasioned by walk- ing is not significant under normal circum- stances; fatigue is primary psychological, consisting of stress and molivalion elements more than walking; given a choice, many

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players choose to walk; and, no handicap is as- signed to those who choose lo ride, when that option is available.

The district court had found that use of a cart would not give Martin a competitive advantage because even with a cart he suffered more fa- tigue than his competitors as a result of his dis- ability. Martin, who suffers great pain while walking, would still have to walk about 25 per- cent of the course because a cart cannot be brought near the ball in many instances. And, he experiences significant pain gelling in and out o\ the cart. Therefore, the central competi- tion in shol-making would not be affected by Martin's use of a cart. The appellate court reached the same conclusion, Martin would simply be permitted access lo a type of compe- tition otherwise closed to him because of his disability—which was the purpose of the ADA. The court acknowledged the contrary district court ruling in Olingev, pointed out differenl findings at the trial court level, and respect- fully disagreed with the court on olhcr points.

The PGA had contended ihat a rule intended lo affect competition could not be subjected to an exception by the courts. The Ninth Circuit dis- agreed. In its view, to escape exception, a rule had to do more than affect competition—it had to fundamentally alter the nature of the compe- tition by the particular (uot general) exception requested. In other words, the essential ques- tion before the court was whelher the use of a cart by Martin would fundamentally alter the nature ofthe eveni, not whether the use of carts in general would fundamentally alter the nature of the event. To allow the PGA to define walk- ing to be a part of the competition without ques- tion would allow the PGA to define itself beyond the reach of ihe ADA.

Because the inquiry was of necessity highly fact- based, the Ninth Circuit discounted the PGA's more draconian, "slippery slope" professional sporls hypolheticals. Nor did the Ninlh Circuit find persuasive the PGA's argument that indi- vidualized inquiry would constitute an admin- istrative burden. If the district court could do it, the PGA could, also.

The Seventh Circuit came lo a decidedly dif- ferent conclusion about whether or not use of a cart by the plaintiff would fundamentally al- ter the nature of the event. The court did not address the reasonableness or ihe necessity of such a modification, although it had acknowl- edged the value and use of carts in general, the severity of Olinger's disability, and the reason- ableness of Olinger's requested accotnmodation in general. Rather, relying mainly on Rehabili- tation Act case law, it focused on its belief that the ADA does not require entities to change their basic n a t u r e , character, or purpose, if rational and not a pretext for discrimi- nation. The district c o u r i had decided that the nature of the competition would be tundatnenlally altered if the walking rule were eliminated be- cause it w o u l d re- move a p a r t i c u l a r type of stamina Irom the competition, and that was its purpose in being introduced. In a footnote, the dis- trict court explained the apparent conflict with the Martin dis- trict couri ruling by noting it came from a different court in a different circuit, in- volved a series of mulli-level weekly tournaments as opposed to a single event, and relied on expert testimony thai had been excluded in the case before it.

Already, other profes- sional athletes have re- quested accommoda- tions hased on argu- ments made by the plaintiffs in the golfing cases. And, a prospective teacher in an ADA work-hased suit has Cited one of these cases in her quest for a modi- fication in teacher certi- fication procedures. A major underlying is- sue in the golf cases is who ultimately decides the rules ofthe sport.

Specifically, the district court in Olinger had found: the point of an athletic competition is to determine who can perform a task better than anyone else under essentially the same set of conditions; the tasks in golf include not only shooting with precision, hut doing so under greater than normal mental and physical stress; and the requested accommodation would,

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therefore, alter tbe fundamenlal nature of the competition. Citing events frotn golf history, the Seventh Circuit emphasized the importance and tradition of walking in high-level tourna- ments. Additionally, the district court had found that requiring the USCA to evaluate waiver requests would constitute an unneces- sary administrative burden through requiring development ofa system and fund of expertise to make decisions about such requests. The appellate court agreed.

Currently, ihe PGA has requested, and received, an extension of time to appeal the Ninlh Circuit decision to the Supreme Court. Olitiger, in the Seventh Circuit, has requested a rehearing of the appellate court en bane and may appeal to the Supreme Court, Because of the split in the cir- cuits, the issue might be appealing to the Supreme Court to review.

Since the Seventh Circuit's decision in March, the USGA has granted Olinger permission to use a non-tnotorized device called a roUator for a late-May qualifying round of the U. S. Open. The device has four tires and a pair of hand brakes and resembles a walker. A representa- tive of the USGA distinguished between the rollator and a golf cart on the basis that the former is not powered; therefore, the golfer is using the same amount of energy as olher golf- ers. Olinger's attorney characterized the t ollator accommodation as "forced upon" Olinger and is a "partial response" that is not an adequate substitute for a cart."

Implications for Sports One of the concerns expressed by the PGA and the USGA relates to the prospect of opening the floodgates to a number of requests for modifi- cations of all types, with such evaluations be- ing difficult, burdensome, and potentially harmful to the essence of professional golf, and other sports. This concern appears to be shared by the Seventh Circuit but not by the Ninth. The latter circuit expressed little hesitation in being able to distinguish between what it per- ceived to be Martin's legitimate request fora cart accommodation as opposed to an illegitimate

request for a special golf ball that traveled far- ther or a shorter course requirement.

Since the Martin and Olingev decisions, another golfer, JaRo Jones, has filed suit against the USGA under the ADA requesting use of a cart in the U.S. Senior Open because ofa medical condition affecting his ability to walk—post polio syndrome wilh progressive neuromuscular atrophy'' His attorney maintains that using a golf cart would not give Jones a competitive advantage, and, if denied use of one, he would be in effect denied the ability to cotnpete. The USGA has responded that only Martin will be allowed use ofa cart, in deference lo the Ninlh Circuit's opinion.'^

The issues go beyond professional golf to em- brace other sports. These implications were touched upon by both courts through examples in ihc opinions. To illustrate, the Seventh Cir- cuit observed that the USG.A,'s "mixed use" ar- gument would be equally applicable to Green Bay's Lambeau Field and Chicago's Wrigley Field. Although the ADA would be applicable in general, their "actual fields of strife—where Packers bailie Bears and Cubs play Cardinals"'"* would not be ADA-covered places of public accommodation. The Ninth Circuit noted the PCA's "slippery slope" illustrations about swimmers or runners being given a head start in a race, or a growth-impaired basketball player being allowed lo shoot 3-pointcrs from inside the line, although it did not consider them persuasive.

Although not specifically addressed in the golf cases, other levels of sports than professional may be affected by the decisions. Institutions of higher education often have programs that include ath- letic competition, and courts arc currently split on such issues as whelher or not the NCAA is covered by the

A major underlying issue in the golf cases is who ultimately decides the rules of the sport. The approach ofthe Ninth Circuit seetns to be, lo some extent, the courts, or else the sports associations will place themselves beyond the reach of law. The approach of the Seventh Cir- cuit seetns to be the sports associations. In its

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words, "the decision on whether the rules of the game should be adjusted to accommodate tOlinger] is best left to those who hold the fu- ture of golf in trust."""

These larger issues are the oties emphasized by the professional associations in part hecause of the sensitive nature of the particular cases they are dealing with. The disabled golfers are excep- tional athletes who have garnered the admiration and sympathy of the public. With the exception of one highly-publicized incident in which a spec- tator audibly referred to Martin as a "chealer,"'" commentators, professional athletes, and fans alike have been respectful of both sides, even if staunch advocates of different positions.

Implications for the Common Workplace As observed earher, courts in ADA cases fre- quently cite opinions addressing similar issues under other titles of the act. Already, the Mar- tin case has been argued as precedent in a work- related case arising under Title II of the ADA, Jacobsen v, Tilhnan, et fli,"* The plaintiff in that case, diagnosed with two types of learning dis- abilities, wanted to be certified as a teacher but failed the math competency section of the state teacher qualification lest 14 times, despite a variety of recognized forms of reasonable ac- commodation, such as extra time. She ulti- mately sued the executive director of the state board of teaching, as well as the state board of teaching itself, on several grounds. Her ADA claims alleged that the defendants engaged in disability-based discrimination against her when they refused to substitute ati altertiative math qualification mechanism.

During oral arguments on a motion for sum- mary judgtnenl, the plaintiff sought to analo- gize her situation to that of Casey Martin. The court, however, rejected the analogy. It stated thai Martin, when given his requested accom- modation, was able to perform his chosen work. The Martin trial court had found that the ability to plan and execute golf shots, not the ability to walk distances, was a fundamen- tal part of the game. Martin did not request

relief from the requirement that he demonstrate ability to "execute his middle iron prowess"''' or putt. The plaintiff in jacobsen was not able to perform her chosen work. A teacher's duties require the ability to perform and demonstrate math ability Despite being given all ihe recog- nized accommodations that were available, unlike Martin, she was still unable to perform. The court concluded that the plaintiff was nol really asking for an accommodation, but relief from the necessity of demonstrating an essen- tial and inherent aspect of competence in her desired profession. The waiver of the math portion of the exam in her case was an unrea- sonable modification that would fundamentally alter the nature of state teacher certification.

The Jacobsen case is likely only the first in a se- ries oT work-based cases in which the golf prece- dents will appear. The media is giving extensive attention to the golf eases. Supreme Court review, ifsought and granted, would generate even more attention. And, as observed earlier, courts often cite cases arising under the other titles of the ADA, so it would not be unusual for the golf cases to surface in traditional employment discrimi- nation cases involving the more customary work- place situations.

Conclusion At the time of this writing, the PGA had not committed itself to petitioning the Supreme Court for review, although it had been granted an extension of titne lo do so. It is also unclear what the Seventh Circuit will do with respect to a rehearing. Even though that appellate court ruled in favor of the USGA, it emphasized ex- actly what il was, and was not, doing. In its words: "The focus of our opinion has been on one question: Must the USGA allow Ford Olinger to compete while riding in a golf carl instead of walking? The answer is 'no'. The question we have not addressed is whether the USGA should give seriously disabled, but otherwise well-qualified, golfers a chance to compete" (emphasis added).-^^ The ultimate an- swer to the first question remains to be decided. The ultimate answer to the second question may never be. •

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204 E3d 994 ( 9 t h a r . 2000). 205 E3d 1001 (7thCir, 2000). 42 U.S.C, sec. 12101 et seq. 205 R3d 1001, 994 F-; Supp, 1242 (D. Ore. 1998) 55 i; Supp. 2ti 926 (N,D. Ind. 1999). Menkowitz v, Pottstown Memoiial Medical Center, 154 1:3d 113 (3d Cir, 1998). 42U,S.C.set:. 12182(a). 42U.S,C sec. 1218U7)(L), 42 U.S,C. sec, 12182(b)(2)(A)(ii), "USGA permits golfer lo use

Endnotes

assislive device, bul case is not over," Disability Compliance Bul- letin, LRP Publications. Vo!, 17. No, 8 (June 2, 2000), Id. Id.; "Otber Cases Go Boili Ways," Disability Compliance Bulletin, LRP Publications, Vol. 17, No, 7 {May 19, 2000), 205 E3dat 1005. "Couris take swing at sporis is- sue: Is nature of tbe game al- tered?". Disability Compliance for

Higber Education, LRP Publica- tions, Vol. 5, No. 10 (May 2, 2000), Id. ai 1007. See Tbe Delroit News, Sporis, Page 3 (June 5, 2000); -'Disabled golfer's good ride eould be spoiled in court," CNN,com law eenter (June 6. 2000): 17 E Supp, 2d 1018 (D, Minn, 1998), iti, at 1025. 205 E3d at 1007,

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