by C. Wayne Davis¹

Introduction

On May 29, 2001, the United States Supreme Court held, in a 7-2 ruling, that disabled professional golfer Casey Martin could use a golf cart in PGA tournaments, thus ending his four-year legal battle with the PGA.² The Court held that the use of a golf cart in tournament play "is not [itself] inconsistent with the fundamental character of the [game] of golf" and, therefore, this requirement can be set aside for a disabled person. The Court further held that a modification (or accommodation) that provides an exception to an established tournament rule without impairing its purpose cannot be said to fundamentally alter the tournament.³

It is not often that the Supreme Court addresses an issue or touches on a subject that concerns the professional and social lives of both legal practitioners and laypersons. Rarely does the Supreme Court issue an opinion that has such extensive mass appeal or popular interest as the opinion in PGA Tour, Inc. v. Martin. But when that case involved the "sport," "recreation," or "pastime" of golf, it encompassed a much broader than usual audience and a widespread fascination developed among an expansive range of participants, spectators and fans. It has certainly piqued the interest of attorneys and legal professionals in every area of practice. Perhaps it was because of the groundbreaking legal issues that presented themselves. Perhaps it was because of the impact of this decision on the future of Americans with disabilities. Or, perhaps it is because so many everyday people can relate to the circumstances of Casey Martin. Whatever the reason, a unique opportunity presents itself in this case to expound on the implications of this decision and its ability to shape the direction of the courts and practitioners in fostering the future direction and applicability of the Americans with Disabilities Act.

II. Procedural History and Factual Overview

There is no dispute that Casey Martin is an extremely talented golfer who, based on his outstanding performance in 1999, qualified for the PGA (Professional Golfers' Association of America) Tour in 2000.⁴ Martin is also an individual with a disability as defined within the confines of the Americans with Disabilities Act of 1990 (ADA).⁵ Martin is afflicted with Klippel-Trenaunay-Weber Syndrome, a degenerative circulatory disorder that prevents him from walking long distances due to the intense pain.⁶

The PGA sponsors professional golf tournaments conducted on three annual tours. Entry into these tours occurs through a variety of means, most commonly by successfully competing in a "qualifying tournament called the 'Q-School.'"⁷ The rules governing competition in these events incorporate the "Rules of Golf," which apply to all levels of amateur and professional golf. These rules do not prohibit the use of golf carts.⁸ The PGA, however, also incorporates the "Conditions of Competition and Local Rules," or "hard card," into its tournaments. These rules "require players to walk the golf course during tournaments, but not during open qualifying rounds."⁹

Immediately after achieving his professional status, Martin requested, with the support of extensive medial records, that he be permitted "to use a golf cart during the third [and final] stage" of Q-School.¹⁰ The PGA refused and Martin filed his lawsuit under Title III of the ADA. Title III "requires an entity operating 'public accommodations' to 'make reasonable modifications' in its policies 'when . . . necessary to afford such . . . accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such . . . accommodations.'"¹¹

The PGA filed for summary judgment, claiming that the play areas of its tours are not places of "public accommodation" within Title III's scope. A magistrate judge denied the PGA's motion, and at trial "the District Court entered a permanent injunction requiring" the PGA to allow Martin the use of a golf cart.¹² The PGA appealed. On March 6, 2000, the "Ninth Circuit affirmed [the ruling of the district court], concluding, inter alia, that golf courses . . . are places of public accommodation during professional tournaments and that permitting Martin to use a golf cart would not 'fundamentally alter' the nature of those tournaments."¹³ The next day, the Seventh Circuit Court of Appeals reached the opposite conclusion in the case of Olinger v. United States Golf Assn.¹⁴ The Seventh Circuit opinion thus created a conflict between the circuits, and the United States Supreme Court accepted certiorari on September 26, 2000.¹⁵

III. Statutory Framework and Overview

Congress enacted the ADA to remedy widespread discrimination against individuals with disabilities. In researching this pronouncement, Congress found that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem."¹⁶ The ADA thus became the specific tool created to remedy such pervasive discrimination.

Justice Anthony Kennedy characterized the creation of the ADA as "a milestone on the path to a more decent, tolerant, progressive society."¹⁷ In order to effectuate its sweeping purpose, the ADA forbids discrimination against individuals with disabilities in major areas of public life, among them employment (Title I),¹⁸ public services (Title II)¹⁹ and public accommodations (Title III).²⁰

IV. Supreme Court Case Analysis

A. Title III Prohibits the PGA From Denying Martin Access to the Tour "Because of" His Disability

The issue in PGA Tour, Inc. v. Martin is the applicability of Title III to the PGA's golf tours and events, specifically Martin's treatment as a qualified golfer participating in those events. Title III of the ADA sets forth that:

No 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 owns, leases (or leases to), or operates a place of public accommodation.²¹

Public accommodation is further defined within the statute to include 12 specific categories, including: "a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation."²²

The Supreme Court wasted no time in holding that Title III was applicable in this case:

It seems apparent, from both the general rule and the comprehensive definition of "public accommodation," that [PGA's] golf tours and their qualifying rounds fit comfortably within the coverage of Title III, and Martin within its protection. The events occur on "golf course[s]," a type of place specifically identified by the Act as a public accommodation. In addition, at all relevant times, [PGA] "leases" and "operates" golf courses to conduct its Q-School and tours.²³

The majority held that a broad reading of the ADA with respect to coverage was necessary here in order to remain consistent "with the literal text of the statute as well as its expansive purpose [of] Title III's coverage."²⁴ Therefore, it concluded that "as a public accommodation during its tours and qualifying rounds, [PGA] may not discriminate against either spectators or competitors on the basis of disability."²⁵

B. Permitting Martin to Use a Golf Cart Does Not "Fundamentally Alter" the Nature of the Game of Golf

The more difficult question, and the central issue, is: Does the use of a golf cart in tournament level play, by Martin, "fundamentally alter" the very nature of the game of golf?

This inquiry must focus on the construction of the term "discrimination" under Title III, where it is defined as:

[A] failure 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, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.²⁶

The majority opinion examines this "fundamental alteration" concept by delving into two questions: first, whether the "essence" or an "essential aspect" of . . . golf has been altered [or changed]; and second, whether the change, even if not [fundamental or] essential to the game, would give the disabled player an [unfair] advantage over other [players] and thereby fundamentally alter the character of the competition."²⁷

The Court ultimately determined that "a waiver of the walking rule for Martin would [not] work a fundamental alteration in either sense."²⁸ In so doing, the Court involved itself in an intricate web of the very nature of the game of golf. It ruled that "[f]rom early on, the essence of the game has been shot-making – using clubs to cause a ball to progress from the teeing ground to a hole some distance away with as few strokes as possible."²⁹ This led to the Court's pronouncement (subsequently debated among both participants and spectators) that the "walking rule that is contained in [PGA's] hard cards, based on an optional condition buried in an appendix to the Rules of Golf, is not an essential attribute of the game itself."³⁰

The PGA argued that the game of golf in general should be distinguished from the game as it is played in the PGA Tour, the Nike Tour and at the last stage of Q-School because this is golf at its "highest level."³¹ Therefore, the goal, according to the PGA,

of the highest-level competitive athletics is to assess and compare the performance of different competitors, a task that is meaningful only if the competitors are subject to identical substantive rules. . . . As a consequence, the reasonable modification Martin seeks would fundamentally alter the nature of [the PGA's] highest level tournaments even if he were the only person in the world who has both the talent to compete in those elite events and a disability sufficiently serious that he cannot do so without using a cart.³²

The majority criticized this position by stating that "golf is a game in which it is impossible to guarantee that all competitors will play under exactly the same conditions or that an individual's ability will be the sole determinant of the outcome," and went on to list a host of variables that may arise in the game, including luck, weather and the impact of fatigue on different competitors.³³ This litany of factors brought the Court to its fundamental point in addressing this argument: namely, that any analysis under the ADA must focus on an individualized inquiry.³⁴ Operating within this framework, the Court was once again forced to examine the very nature of the game of golf. Here, it determined that walking is "peripheral to the nature of [the PGA's] athletic events and thus," in certain cases, can be waived "without working a fundamental alteration" in the game.³⁵ For this reason, the Court decided that:

The purpose of the walking rule is therefore not compromised in the slightest by allowing Martin to use a cart. A modification that provides an exception to a peripheral tournament rule without impairing its purpose cannot be said to "fundamentally alter" the tournament. What it can be said to do, on the other hand, is to allow Martin the chance to qualify for and compete in the athletic events [the PGA] offers to those members of the public who have the skill and desire to enter. That is exactly what the ADA requires. As a result, Martin's request for a waiver of the walking rule should have been granted.³⁶

C. The Perspective From the Dissent

The dissent in this case, authored by Justice Scalia and joined by Justice Thomas, did not appreciate the majority's exercise of "benevolent compassion that the law does not place within our power to impose."³⁷ While sympathetic to Martin's plight, the dissent clearly was not happy with the result in this case,³⁸ nor was it convinced that such a result would culminate in increased benefits to, or removed obstacles for, sports competitors with disabilities.³⁹

Justice Scalia was similarly dismayed by the majority's lack of analysis in its application of Title III to this case, particularly with respect to the fact that Title III, by definition, applies only to customers.⁴⁰ He could not conceive of why the majority agreed to classify Martin as a "customer" under § 12182 and thereby entitled him to the protections of this statute.⁴¹ Justice Scalia conveyed his opinion as follows:

The professional golfers on the tour are no more "enjoying" (the statutory term) the entertainment that the tour provides, or the facilities of the golf courses on which it is held, than professional baseball players "enjoy" the baseball games in which they play or the facilities of Yankee Stadium. To be sure, professional ballplayers participate in the games, and use the ballfields, but no one in his right mind would think that they are customers of the American League or of Yankee Stadium. They are themselves the entertainment that the customers pay to watch. And professional golfers are no different.⁴²

Justice Scalia was equally amazed by the majority's categorization here of the "good, service, facility, privilege, advantage, or accommodation" identified by § 12181(7)(L) at issue as falling under the "exercise or recreation" provision of the statute.⁴³ "[Martin] did not seek to 'exercise' or 'recreate' at the PGA Tour events; he sought to make money (which is why he is called a professional golfer). He was not a customer buying recreation or entertainment; he was a professional athlete selling it."⁴⁴ Obviously, while the majority made relatively short shrift of the applicability of Title III to the case at hand, Justice Scalia was clearly convinced that it did not apply and thus should end any further inquiry.

Commenting that the majority had erroneously held that Title III was applicable in this case, Justice Scalia nevertheless went on to address the question of reasonable modification.⁴⁵ Justice Scalia summarized the statutory requirement under § 12182(b)(2)(A)(ii) as "disabled individuals must be given access to the same goods, services, and privileges that others enjoy."⁴⁶ Again, Justice Scalia's focus differed from that of the majority. Justice Scalia concentrated on access, not modifications.

It is as irrelevant to the PGA Tour's compliance with the statute whether walking is essential to the game of golf as it is to the shoe store's compliance whether "pairness" is essential to the nature of shoes. If a shoe store wishes to sell shoes only in pairs it may; and if a golf tour (or a golf course) wishes to provide only walk-around golf, it may. The PGA Tour cannot deny [Martin] access to that game because of his disability, but it need not provide him a game different (whether in its essentials or in its details) from that offered to everyone else.⁴⁷

After noting this critical distinction, Justice Scalia begins to openly criticize the majority's attempt to determine the "fundamental nature" of the game of golf as well as its leniency in applying the "rules" of the game to this case. With respect to the rules of the game and the majority's ease at abdicating their applicability to Martin, Justice Scalia noted "the rules are the rules. They are (as in all games) entirely arbitrary, and there is no basis on which anyone – not even the Supreme Court of the United States – can pronounce one or another of them to be 'nonessential' if the rulemaker (here the PGA Tour) deems it to be essential."⁴⁸

His characterization of the majority's analysis of the game of golf is equally derisive, but much more amusing and perhaps profound.

If one assumes, however, that the PGA Tour has some legal obligation to play classic, Platonic golf—and if one assumes the correctness of all the other wrong turns the Court has made to get to this point—then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government's power "[t]o regulate Commerce with foreign Nations, and among the several States," U.S. Const., Art. I, § 8, cl. 3, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a "fundamental" aspect of golf.⁴⁹

While this curt characterization may seem amusing, Justice Scalia uses it to once again turn the focus of his legal analysis in a different direction from that of the majority. He utilizes this description to return to his focal point that the ADA "seeks to assure that a disabled person's disability will not deny him equal access to (among other things) competitive sporting events – not that his disability will not deny him an equal chance to win competitive sporting events."⁵⁰ This particular focus (access, not equality) demonstrates the practical approach Justice Scalia has adopted in his analysis here. It also recognizes the very nature of competitive sport – that it measures unevenly distributed excellence within the established framework of uniform rules.⁵¹

V. Practical Application

What impact will this case have on our profession, other sports, academics, various practice areas or disabled athletes? This is yet to be seen. Very few cases have applied the holding of this opinion to other situations that potentially invoke the protections of the ADA.⁵² A more common application has been seen in the seemingly "new" notion adopted by the majority that "[w]hether a person is disabled under the ADA is an individualized inquiry based on the particular circumstances of each case."⁵³ This approach certainly raises the specter that the floodgates of litigation will open in this arena. We can now expect every potential plaintiff to argue that the facts of any given opinion cannot be analogous to her situation because an "individualized" inquiry is necessary.

What this opinion seems to do is empower lower courts (cloaked in the imperial robes of the United States Supreme Court) to become arbiters of what is or is not a fundamental aspect of a professional sport, or any game for that matter. But who can best determine what is or is not essential to the character of a game or sport? Especially if, as in this case, the court encounters differences of opinion among the field of participants — even experts — as to how important a particular concept or rule is to effectuating the desired result of that particular game. Where do we draw the line?

The Court has taken the first step down a very slippery slope here. A distinct danger of Martin is the court focusing on one particular aspect of a sport and trying to weigh the degree of difficulty for a specific individual. This is an exceptionally intricate question. The ADA can look at the individual but the reasonable accommodation aspect of that inquiry does not carry over neatly into the arena of sport or games.

What if a shot-putter has carpal tunnel syndrome or osteoporosis?⁵⁴ Should they be allowed to throw a lighter shot put than the other competitors and still be able to win (if they can demonstrate that the lighter shot put is equally heavy to them as the shot put of other competitors)? Could a track and field hurdler who has a hip condition get the hurdles lowered just by an inch because it is equally as difficult for him as the other hurdlers? One can think of countless examples. With each illustration, however, potential controversy looms.

Justice Scalia also offered some practice advice. He states that "[t]he lesson the PGA Tour and other sports organizations should take from this case is to make sure that the same written rules are set forth for all levels of play, and never voluntarily to grant any modifications. The second lesson is to end open tryouts. I doubt that, in the long run, even disabled athletes will be well served by these incentives that the Court has created."⁵⁵

VI. Conclusion

At first glance, Martin may seem reasonable and almost rational, especially when one remembers that, after all, golf is merely a game. There is no doubt that the opinion is certainly sympathetic to the plight of individuals with disabilities. But further reflection and the use of common sense and perspective reveals that, aside from taking us through the history of golf, an explanation of the rules and a survey of the "essence" of the game, the Court has potentially established a dangerous precedent – the rules can be changed by threatening legal action. The introduction of this notion — that all rules are arbitrary and if you feel you cannot (or will not) comply, see if you can force them to change — will undoubtedly set the stage for countless future litigation.

Perhaps more frightening is the idea that under the ADA, fairness ensures that everyone gets to play by personalized rules that assure no one's individualized inability to perform will be considered a handicap.⁵⁶ Or more simply put, dismantling the rules is acceptable if in the end everyone gets to play. This is not the framework or protection envisioned by the crafters of the ADA. To argue to the contrary is ludicrous. Certainly, to argue that this is the mandate of the ADA is laughable.

Additionally, and perhaps less dramatic, although arguably more interesting, the Court has succeeded in sending a message that even America's pastime (or if not yet America's, at least the legal profession's) is not safe from the scrutiny of the Court. The game of golf, once a sacrosanct harbor or solitary respite from the never-ending onslaught of required legal reading, jurisprudential exposition and constant barrage of doublespeak, has now too been obliterated.

Endnotes

¹ C. Wayne Davis is an attorney with the newly formed law firm of Williams, Venker & Sanders LLC in St. Louis, practicing primarily in the area of labor and employment litigation. He received his B.A. in psychology and political science from Webster University in 1993 and his J.D., with honors, from Saint Louis University School of Law in 1996. He is also a member of the Missouri, Illinois and District of Columbia bars, the American Bar Association and the Bar Association of Metropolitan St. Louis.

² PGA Tour v. Martin, 532 U.S. 661 (2001).

³ Id.

⁴ Martin won 17 Oregon Golf Association junior events before the age of 15. He won the state championship his senior year in high school. He was on the Stanford University golf team in 1994 when it won the 1994 National Collegiate Athletic Association (NCAA) championship. As a professional athlete, he qualified for the Nike Tour in both 1998 and 1999. During the 1999 golf season, he entered 24 events, qualified for 13, had six finishes in the top 10, finished third on one occasion and second on two occasions.

⁵ 42 U.S.C. § 12102 provides, in part: "The term 'disability' means, with respect to an individual – (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual. . . ."

⁶ Martin's disorder "obstructs the flow of blood from his right leg back to his heart." His condition "is progressive [and] causes him severe pain and has [actually] atrophied his right leg." Martin's condition had advanced such that during the later portion of his college career, he was no longer able to walk an 18-hole golf course. Walking causes Martin to experience pain and creates an increased risk of hemorrhaging and clotting. It also creates a significant likelihood of fracturing his tibia so badly that an amputation might be required. Due to these concerns, Martin requested and was granted a waiver from the NCAA rules "requiring players to walk and carry their own clubs." Martin, 532 U.S. 661 (2001).

⁷ Id.

⁸ "[T]he Rules of Golf, jointly written by the United States Golf Association (USGA) and the Royal and Ancient Golf Club of Scotland" list in "Appendix I to the Rules . . . a number of optional conditions . . .: If it is desired to require players to walk in a competition, the following condition is suggested: 'Players shall walk at all times during a stipulated round.' App. 125." Id.

⁹ Id.

¹⁰ Id.

¹¹ Id.

¹² Martin, 532 U.S. 661 (2001). See Martin v. PGA Tour, Inc., 994 F. Supp. 1242, 1251-52 (D. Oregon 1998). "Plaintiff [Martin] is in significant pain when he walks, and even when he is getting in and out of the cart. With each step, he is at a risk of fracturing his tibia and hemorrhaging. The other golfers have to endure the psychological stress of competition as part of their fatigue; Martin has the same stress plus the added stress of pain and risk of serious injury. As he put it, he would gladly trade the cart for a good leg. To perceive that the cart puts him – with his condition—at a competitive advantage is a gross distortion of reality." As a result, the judge concluded that it would not "fundamentally alter the nature of the PGA Tour's game to accommodate [Martin] with a cart." Id. at 1252.

¹³ PGA Tour v. Martin, 532 U.S. 661 (2001); Martin v. PGA Tour, Inc., 204 F.3d 994, 1001 (9th Cir. 2000).

¹⁴ 205 F.3d 1001 (7th Cir. 2000). In Olinger, the Seventh Circuit affirmed the district court's conclusion "that 'the nature of the competition would be fundamentally altered' if the walking rule were eliminated because it would 'remove stamina (at least a particular type of stamina) from the set of qualities designed to be tested in this competition.'" Id. at 1006. Alternatively, it held that the ADA does not require the USGA to bear "the administrative burdens of evaluating requests to waive the walking rule and permit the use of a golf cart." Id. at 1007.

¹⁵ Id.

¹⁶ 42 U.S.C. § 12101(a)(2).

¹⁷ Board of Trustees, Univ. of Ala. v. Garrett, 531 U.S. 356, 375 (2001) (Kennedy, J., concurring).

¹⁸ 42 U.S.C. §§ 12111-12117.

¹⁹ 42 U.S.C. §§ 12131-12165.

²⁰ 42 U.S.C. §§ 12181-12189.

²¹ 42 U.S.C. § 12182(a); PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001).

²² 42 U.S.C. § 12187(7).

²³ PGA Tour, Inc. v. Martin, 532 U.S. 551 (2001).

²⁴ Id.

²⁵ Id.

²⁶ 42 U.S.C. § 12182(b)(2)(A)(ii).

²⁷ 532 U.S. 661 (2001).

²⁸ Id.

²⁹ Id. The Court refers to K. Chapman, Rules of the Green 14-15 (1997), in its history and holdings concerning the game of golf.

³⁰ 532 U.S. 661 (2001) (citations omitted). The Court also noted that the walking rule was not an indispensable feature of tournament golf either. Id.

³¹ Id. citing Brief of Petitioner 13.

³² Id.

³³ Id.

³⁴ Id. "[T]he ADA was enacted to eliminate discrimination against 'individuals' with disabilities. 42 U.S.C. § 12101(b)(1)"; U.S. Code Cong. & Admin. News 1990, pt. 2, at pp. 303, 385 "(public accommodations 'are required to make decisions based on facts applicable to individuals'). Cf. Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999) ('[W]hether a person has a disability under the ADA is an individualized inquiry.')."

³⁵ 532 U.S. 661 (2001).

³⁶ Id.

³⁷ Id. (Scalia, J., dissenting).

³⁸ "My belief that today's judgment is clearly in error should not be mistaken for a belief that the PGA Tour clearly ought not allow [Martin] to use a golf cart. That is a close question, on which even those who compete in the PGA Tour are apparently divided; but it is a different question from the one before the Court. . . . But whether Congress has said they must do so depends upon the answers to the legal questions I have discussed above — not upon what this Court sententiously decrees to be 'decent, tolerant, and progressive.'" Id. (internal citations omitted) (emphasis in original).

³⁹ Id.

⁴⁰ ("The Court, for its part, assumes that conclusion for the sake of argument . . . "). Id.

⁴¹ Id.

⁴² Id. (emphasis in original).

⁴³ Id.

⁴⁴ Id.

⁴⁵ Id.

⁴⁶ Id. (emphasis in original).

⁴⁷ Id. (emphasis in original).

⁴⁸ Id.

⁴⁹ Id.

⁵⁰ Id.

⁵¹ Id. ("This unequal distribution is precisely what determines the winners and losers—and artificially to 'even out' that distribution, by giving one or another player exemption from a rule that emphasizes his particular weakness, is to destroy the game.").

⁵² See Cruz v. Pennsylvania Interscholastic Athletic Ass'n, Inc., 157 F.Supp.2d 482 (E.D. Pa. 2001) (applying Martin to determine whether minimum age rule is essential to PIAA sports program such that it would fundamentally alter the nature of competition).

⁵³ See Gelabert-Ladenheim v. American Airlines Inc., 252 F.3d 54, 59 (1st Cir. 2001) (applying individualized inquiry to determine whether a specific modification for a particular person's disability would be reasonable under the circumstances).

⁵⁴ Assuming, of course, such conditions constitute a "disability" under the ADA.

⁵⁵ 532 U.S. 661 (2001).

⁵⁶ "The year was 2001, and 'everybody was finally equal.' K. Vonnegut, Harrison Bergeron, in Animal Farm and Related Readings 129 (1997)". Id.