News
Labor/Employment
Mar. 8, 2001
Sand Trap
By Michael Waterstone Recently, the U.S. Supreme Court heard arguments in PGA Tour v. Martin . In this case, the court likely will be forced to decide whether professional sports is to be treated in the same way as other industries, or whether they are to be placed on the same pedestal where many children and adults place their favorite sports heroes. Hopefully, the Supreme Court will do the right thing, and show that while professional sports are unique, they do not have a free pass to
Michael Waterstone
Fritz B. Burns Dean, Loyola Law School, Los Angeles
Email: michael.waterstone@lls.edu
Recently, the U.S. Supreme Court heard arguments in PGA Tour v. Martin. In this case, the court likely will be forced to decide whether professional sports is to be treated in the same way as other industries, or whether they are to be placed on the same pedestal where many children and adults place their favorite sports heroes. Hopefully, the Supreme Court will do the right thing, and show that while professional sports are unique, they do not have a free pass to ignore federal civil rights legislation.
Casey Martin is a professional golfer with Klippel-Trenaunay-Weber syndrome, a disease that prevents him from being able to walk a golf course. Martin originally sued the PGA under Titles I and III of the Americans With Disabilities Act. He asked to waive the rule that requires all golfers to walk the entire course. Martin prevailed under Title III in the district court and in the 9th U.S. Circuit Court of Appeals.
People have responded emotionally to this idea of a professional athlete requesting a rule modification. Critics feel that once federal judges get involved in interpreting the rules of professional sports, those sports will no longer be "pure." Competition will be compromised and before we know it, baskets will be lowered, starting lines altered and strike zones changed. Given the questioning of some of the justices at oral argument, it is possible that the Supreme Court will take this view. This would be unfortunate as a matter of public policy and an incorrect application of the act.
The first issue that the Supreme Court will have to address is whether golfers on the PGA Tour are covered under Title III of the act, which applies to owners and operators of places of public accommodation. Assuming the Supreme Court upholds the 9th Circuit on that issue, it will have to face the more difficult question of whether waiving the rule in Martin's case would "fundamentally alter" the nature of the PGA's competition.
The PGA takes the position that a "substantive rule" can never be modified without causing fundamental change. It defines a "substantive rule" as a rule that intends or has the potential to affect performance and the outcome of the competition. The PGA maintains that only it, as the governing body of the sport, should be able to say what is and is not a substantive rule. Since they know their sport best, this decision should be all but unreviewable. This appears on its face to be somewhat reasonable. The governing body is the expert on the key characteristics of a sport and is most vested in protecting and defining that sport.
The problem with this approach is that it gives the PGA a license to ignore the requirements of the act, and it is inconsistent with how the act has been applied to other public accommodations and industries. When courts abdicate their role as judges to those involved in the sport, any rule can be branded "substantive" and be insulated from the American With Disabilities Act.
The idea that civil rights protection requires a court to second-guess what an industry or public accommodation declares to be "fundamental" should not be particularly controversial. Courts have decided whether airlines are about flying or selling sex appeal, or whether a fundamental part of the Boy Scout's message is against homosexuality. Congress decided that there will be times when a court must substitute its judgment for a sport's governing body when it passed the act without an exemption for professional sports.
More important, allowing the league or association to unilaterally define what is fundamental is not necessary to protect professional sports. Even if we agree that competition is at the heart of professional sports, the act properly applied will preserve that value. Here is how.
The first step is to decide what rules are fundamental and what rules are not. The PGA argued that the walking rule is fundamental because of tradition and the element of As discussed above, the first argument cannot be dispositive. If it was, the PGA might still have the provision in its charter that it had until 1961, requiring that all its members be Caucasian.
Still, tradition is not irrelevant. Why else is the basket 10 feet high in basketball? With regard to tradition, Martin argued that by its own rules, golf defines itself as a game of shot-making, not walking. Further, the qualifying rounds for entrance into the PGA do not require walking. A golfer could therefore gain admission into golf's highest ranks, among the most elite in the sport, without ever having walked a hole of golf in his or her life. This is powerful evidence that the walking rule in professional golf is not the type of bedrock rule that can never be changed without transforming the game. It is not the same as lowering baskets or changing starting lines. Of course, under the PGA's proposed rule, a court would never even hear this evidence.
The second argument the PGA made is that walking generates fatigue, and fatigue influences score. Any modification of the walking rule gives a golfer a better chance of winning, and therefore the golfer has a competitive advantage. Because a competitive balance is so important to golfing, this would fundamentally change the sport, so the argument goes.
Is the PGA correct that walking influences score? The district court, after a full trial, determined that under normal circumstances walking does not generate sufficient fatigue to affect score. Regardless of whether one accepts that determination, the medical evidence in Martin's case establishes that Martin always will be more fatigued after riding a round of golf than an able-bodied golfer would be after walking. The PGA argues that these conclusions will be difficult and at times impossible to reach. This may be true, but it does not excuse a court from trying. Courts are required to decide difficult factual issues all the time. It is their job.
Looking, however, only at competitive balance issues is unfair to professional sports because there is more that is fundamental to professional sports than competitive balance. For example, a one-legged baseball player asks that first base be moved closer to home plate. He shows that given his disability, he still runs to his altered first base slower than even the slowest hitter in the league runs to first base. Therefore, he is not enhancing his team's chances of winning with this rule modification. Like Martin, waiving the rule in his case does not violate the competition-balancing purpose of the rule. Nevertheless, the rule should not be changed, because 90 feet between bases is traditional to baseball in a way that walking is not to golf. Unlike a nonwalker in golf's professional ranks, a position cannot get to the major leagues without running all the way to first base. Logistically, this modification would alter the way the game is played for everyone. In contrast, assuming no competitive advantage, Martin's modification does not influence the manner in which Tiger Woods or David Duvall play their rounds of golf.
mTherefore, the proper inquiry should focus on tradition and competitive balance. In Martin's case, considering both that the walking rule is not so fundamental that it can never be changed, and that the stated purposes behind the rule would not be implicated in Martin's case, the Americans With Disabilities Act should require the accommodation.
mThe question presented in Martin is larger than whether one believes that walking leads to fatigue, or riding violates the sanctity of golf, however. The issue is one of ensuring that the act is applied equally to professional sports, and in a way that protects the important civil rights of the disabled. Any approach that gives a free pass to professional sports sends a harmful message to the disabled that they cannot compete equally at the highest levels of individual accomplishment. This is wrong.
mAnother parallel case demonstrates the dangers of putting sports on too high of a pedestal. In Ford Olinger v. USGA, the 7th Circuit, in holding that the USGA is best suited to determine what rules are fundamental, implicitly adopted the approach urged by the PGA in Martin. This case was unforgivably short on legal analysis but long on glorifying professional golf. No less than 22 professional golfers are mentioned gratuitously by name, and the opinion includes nine completely irrelevant stories drawn from golfing history. One can understand how Ford Olinger, who woefully lamented, "I got golfers for judges," must have felt a lot like Curt Flood challenging baseball's antitrust exemption. Surely he wondered how he could ever get a fair shake in the face of a court so clearly enamored with his sport.
A more hopeful example is offered by Jim Abbott. Abbott is a disabled former Major League Baseball player who pitched for the California Angels. Major League Baseball accommodated Abbott's disability and modified its "motionless rule" that a pitcher must be still before delivery. No one claimed that this ruined Major League Baseball. It is important to remember that under the PGA's approach, no athlete could force a result like this if his or her sport did not want to make the change.
Reflecting on the Martin case, Abbott said, "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."
Hopefully, the Supreme Court is listening.
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