October 23, 2012

Featured Cases

PGA Tour, Inc. v. Martin, Continued

Case Analysis
The PGA claims the Ninth Circuit made two critical errors that compel reversal. First, "the language, legislative history, and structure of the Act" demonstrate that "Title III is intended to confer enforceable rights on clients or customers of places of public accommodation, not on persons working to provide those clients or customers with the relevant goods and services. ..." Workers are protected by Title I, which deals directly with employment. Therefore, Petitioner asserts, once the district court determined Martin did not qualify as an employee under Title I, but instead was an independent contractor for whom the Act does not afford relief, the case should have ended.

Martin counters that the Act's broad, inclusive language illustrates congressional intent that this remedial statute provide comprehensive protection to people with disabilities. Further, the phrase "customers or clients" was not designed to restrict persons who could sue under Title III. In fact, in 1998 the U.S. Court of Appeals for the Third Circuit actually applied Title III to a physician who, like Martin, was an independent contractor. Menkowitz v. Pottstown Memorial Medical Center, 154 F.3d 113 (3d Cir. 1998).

The PGA attempts to distinguish Menkowitz in a footnote by asserting the result may have turned more on "the nature of hospital privileges than on a general principle to be derived from Title III."

The Petitioner's second objection is that, even in Title III cases, a covered entity is not required to "fundamentally alter" the nature of its goods and services. Ignoring previous judicial disinclination to distinguish between sports organizations and other entities, the PGA asserts the Ninth Circuit "utterly failed" to perceive the "most fundamental attribute of elite sports competitions" which is that everyone must "play by the same substantive rules."

Seeking to define the nature of the service under Title III, the PGA states high-level competition sports are tests of physical ability. Thus "it is inevitable" that competition rules "burden different competitors differently." The alleged "'inequality' simply reflects the varying challenges faced, to one extent or another, by all athletes in the highest-level events." The PGA insists, therefore, that the court's analysis was flawed because modifications of substantive rules that attempt to "level the playing field" actually fundamentally alter the nature of the competitions.

Martin has consistently answered this argument by referring to the Rules of Golf, which define the game as "playing a ball from the teeing ground into the hole by a stroke or successive strokes." The Rules not only do not require walking, the PGA allows golfers to use carts in some of its own competitions.

Responding to the PGA's "fatigue" justification, Martin introduced testimony illustrating that being tired has minimal impact on players. Further, the exhaustion he experiences because of his disability is "undeniably greater" than any fatigue walking during a tournament causes most athletes. And, even using a cart, Martin must walk 25 percent as much as other golfers. Therefore, given his individual situation and the sport involved, granting his request would not be a fundamental alteration and would provide Martin the opportunity to compete.

Martin also contends, and the lower courts agreed, the determination of whether a requested modification represents a fundamental alteration should be an individualized athlete-by-athlete evaluation. This means, after discrimination is alleged and the reasonableness of the modification is established, the PGA must focus on a competitor's specific circumstances to satisfy its burden to prove that granting the request would represent a fundamental alteration.

Focusing on this individualized inquiry, the PGA argued the Ninth Circuit decision was "inherently standardless and subjective." Petitioner objected to the court's reliance on a finding that fatigue caused by walking "cannot be deemed significant under normal circumstances" because it did not, and could not, explain how to distinguish fundamental from non-fundamental substantive rules. Additionally, "the nearly infinite variety of physical attributes of different athletes" precludes the individual comparison necessary to determine whether a particular person will have a "'competitive advantage'" without the requested modification. The PGA wants courts to consider the issue in broader general terms, as it is easier to demonstrate that modifying such rules would fundamentally alter the nature of the game; modifying a rule for one player is more likely to simply affect that player.

The PGA relies on a case decided, ironically, the day after the Ninth Circuit decided Casey, where—in a similar suit against the United States Golf Association (USGA)—the U.S. Court of Appeals for the Seventh Circuit decided that waiving the no-cart rule would be a fundamental alteration. Olinger v. United States Golf Association, 205 F.3d 1001 (7th Cir. 2000), petition for certiorari filed No. 00-434 (Sept. 20, 2000).

Like Martin, Ford Olinger suffers from "a degenerative condition that significantly impairs his ability to walk." When the USGA denied his request to use a cart in the 1998 Open, he sued and was granted a temporary restraining order. Olinger played but failed to advance. Following a trial, he experienced another loss: the U.S. District Court for the Northern District of Indiana decided that, though the ADA did apply, it did not mandate waiver of the rule. Compelling the USGA to permit Olinger to ride was a fundamental alteration, "either by eliminating the uniformity of rules common to athletic events, or by changing the importance of a competitor's response to fatigue." Olinger v. United States Golf Association, 55 F. Supp. 2d 926 (N.D. Ind. 1999). The Seventh Circuit affirmed, explaining the Rules of Golf do not explicitly require walking, but they do "empower tournament competition committees to set conditions for an event, including whether to prohibit the use of carts."

Obviously, despite the similar facts in Martin and Olinger, the holdings are contradictory. Two pivotal differences help explain the conflicting results.

First, the Seventh Circuit clearly deferred to the USGA to establish the rules of the game. The opinion, which starts with a detailed, flattering discussion of the U.S. Open and many of its famous winners, accepts the association's argument that eliminating the walking rule would "'remove stamina (at least, a particular type of stamina) from the set of qualities designed to be tested in this competition.'" Agreeing with the district court that "'[t]he set of tasks assigned to the competitor in the U.S. Open includes not merely striking a golf ball with precision, but doing so under greater than usual mental and physical stress,'" the three-judge panel concluded that the decision whether to modify the rules "is best left to those who hold the future of golf in trust."

In contrast, the Ninth Circuit explained "the mere fact that PGA has defined walking to be part of the competition cannot preclude inquiry, or PGA will have been able to define itself out of reach of the ADA." Pointing out that, although the PGA refused to consider Martin's disability, Judge Coffin "appeared to have little difficulty" deciding he would not have gained an "unfair advantage" if allowed to use a cart, the Ninth Circuit concluded "under the ADA, that determination was a proper one for the court to make."

The second difference in the cases is the evidence introduced in the trials. The court in Olinger found the testimony of former golfer and sports announcer Ken Venturi "particularly persuasive." Referring to his 1964 U.S. Open win, where high temperatures and humidity caused him to finish "on the verge of collapse," Venturi claimed a competitor in a cart would have enjoyed a "tremendous advantage."

But in Martin, Dr. Gary Klug, an expert on the physiological basis for fatigue, indicated Venturi's near breakdown "was induced by heat exhaustion and fluid loss—not walking." In fact, Klug explained, during "lower intensity exercise," fatigue is primarily a "psychological phenomenon" and, although individuals differ, walking has little to do with these psychological components. Evidence that, when given the choice, most golfers opt to walk, also helped convince the judges that riding would not provide Martin an "unfair advantage."

This case is likely to have both legal and practical consequences beyond deciding whether Casey Martin is allowed to use a golf cart during PGA tournaments.

In the decade since Congress passed the ADA, the Supreme Court has decided a mere handful of cases under this very complex legislation. Only one decision involved Title III, a provision that itself supplies much less guidance than other parts of this sometimes ambiguous Act. Bragdon v. Abbott, 524 U.S. 624 (1998).

While Bragdon seemed to expand the definition of disability, three subsequent employment cases clearly restricted its scope. Even though they were Title I cases, this narrowing suggests an apparent reluctance to open the floodgates to additional ADA litigation.

Against this backdrop of limited jurisprudence, in a case in which both parties agree Casey Martin has an impairment that "substantially limits one or more of the major life activities," this appeal is the first time the Court squarely confronts the problem under Title III of drawing the line between reasonable modifications and fundamental alterations.

The decision on the applicability of Title III will affect other professional sports associations, some of which filed amicus briefs. If the Court affirms the Ninth Circuit on this contested issue, it is likely these organizations will also be approached by athletes with disabilities seeking individual assessments as to whether they are entitled to modifications during competitions.

Additionally, although this case arose in the sports arena, the Court's holding on the fundamental alterations question could have repercussions far beyond athletic competitions. Because the Court takes so few ADA cases, judges in lower courts who encounter these questions will be carefully scrutinizing the opinion for guidance. If Casey Martin wins, it could be a signal to these jurists to get more involved in determining just what constitutes a fundamental alteration.

It is also important to recognize that even if the PGA wins, state laws may provide people with disabilities greater protections than the ADA does. Of course, this may do no more than force the PGA and other sports associations to pick their sites carefully to avoid such jurisdictions.

The practical, or day-to-day, effect of the decision may also be significant. From the beginning, this case ignited surprisingly strong feelings on both sides. For example, prominent people—including Senators Bob Dole and Tom Harkin, and golfer Greg Norman—lined up as ardent Casey Martin supporters. But others—such as golf legends Arnold Palmer, Jack Nicklaus and Ken Venturi—just as zealously defended the PGA, going so far as to testify in court. With feelings so high, no matter what the outcome, golf enthusiasts and others are likely to debate the issue in living rooms and sports bars across the country. Thus, the primary impact of this case may be to propel the ADA into the public's consciousness at the same time it thrusts the Act into professional sports.

Attorneys for the Parties
For the PGA
(H. Bartow Farr, III (202) 775-0184)

For Casey Martin
(Roy L. Reardon (212) 455-2000)

Amicus Briefs (as of December 11)
In Support of PGA Tour, Inc
ATP Tour, Inc. and the Ladies Professional Golf Association (Bradley I. Ruskin (212) 969-3465)
The Equal Employment Advisory Council (Ann Elizabeth Reesman (202) 789-8600)
Kenneth R. Green, II (Gregory D. Smith (931) 647-1299)

The United States Golf Association
(Roy T. Englert, Jr. (202) 263-3000)

In Support of Casey Martin
The Honorable Robert J. Dole, et al.
(Robert L. Burgdorf Jr. (202) 274-7334)

K-T Support Group
Brian D. Shannon (806) 742-1355)

National Association of Protection and Advocacy Systems et al.
(Samuel R. Bagenstos(617)495-9299)

The United States
(Seth P. Waxman (202) 514-2217)

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