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ARTICLE

The Government's Assault on Golf

Should the Courts Set the Rules of Professional Sports?

NOVEMBER 01, 2000 by RAYMOND J. KEATING

Tour professional Casey Martin cheats at golf. And he does so with the government’s help through a particularly bad federal law and judicial overreach.

Since late 1997 Martin has been riding in a golf cart, which is against both the rules of the Professional Golfers Association Tour (PGA Tour) and the 500-year tradition of golf played at the highest levels.

However, Martin suffers from a disability. The former college teammate of Tiger Woods at Stanford University has a rare and painful circulatory disease called Klippel-Trenaunay Syndrome afflicting his right leg, which prevents him from walking for long periods. In late 1997 Martin sued the PGA Tour, which operates the PGA Tour, the Buy.com Tour, and the Senior PGA Tour, for a “right to ride” under the 1990 Americans With Disabilities Act (ADA).

The ADA says: “No individual shall be discriminated against on the basis of disability in the full 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.” The act goes on to state that “discrimination” includes “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.”

The ADA, of course, is one of those feel-good laws that turn out to be vague and overly broad, thereby placing enormous discretionary power in the hands of regulators, lawyers, and the courts. Formidable legal and compliance costs have been imposed not only on the private sector, but also on state and local governments—that is, taxpayers. And a long line of absurd lawsuits and actions has been undertaken in the name of the ADA. In recent years, reports about ADA inanities have ranged from the Air Line Pilots Association’s arguing that the ADA protects pilots who are alcoholics, to a deaf woman’s suing Burger King a few years ago claiming that drive-through windows discriminate against deaf people.

If Martin ultimately wins his case, the courts would empower themselves under the ADA to actually set many of the rules of sporting contests.

A preliminary court injunction was issued in November 1997 to allow Martin to ride in a cart during the PGA Tour Qualifying School (Q-school) that December. Normally, the Tour does not allow carts in the final rounds of Q-school. In his lawsuit, Martin claimed that without a cart he “would be unable to pursue his profession at this high level.” Martin missed the PGA Tour, but played well enough over the Q-school’s 108 holes to make it onto the Buy.com Tour (formerly the Nike Tour), which basically is professional golf’s minor leagues.

Before his case went to trial, Martin shot a 69 on January 11, 1998, in the final round and rode to victory in the Buy.com Tour’s Lakeland Classic. For someone with Martin’s disability, this was a noteworthy accomplishment—although it should also be noted that Martin beat by one stroke Steve Lamontagne, who during the tournament had foot surgery for an ingrown toenail and finished the tournament with the tip of his shoe cut open. Martin has continued riding ever since on both the Buy.com and PGA Tours while his case has worked its way through the courts.

The trial phase of Casey Martin v. PGA Tour Inc. began on February 2, 1998, and by February 12, U.S. Magistrate Thomas Coffin had ruled in Martin’s favor. Coffin decreed that walking in golf is “not significantly taxing.” He concluded, “Mr. Martin is entitled to his modification because he is disabled. It will not alter what’s taking place out there on the course.”

In May 1999, the Ninth U.S. Circuit Court of Appeals in San Francisco heard the PGA Tour’s appeal. Almost a year later, on March 6, 2000, the Ninth Circuit found in favor of Martin in a 3-0 ruling. Judge William Canby wrote: “The central competition in shot-making would be unaffected by Martin’s accommodation. All that the cart does is permit Martin access to a type of competition in which he otherwise could not engage because of his disability. That is precisely the purpose of the ADA.”

The court decided that a “place of public accommodation” pertained to the PGA Tour because ADA language includes golf courses, along with bowling alleys, theaters, stadiums, and other places of exercise, recreation, exhibition, or entertainment. The court wrote: “If a golf course during a tournament is not a place of exercise or recreation, then it is a place of exhibition or entertainment. The statute does not restrict this definition to thoseportions of the place of exhibition that are open to the general public.” The Ninth Circuit concluded that “a golf course is a place of public accommodation while PGA is conducting a tournament there.” It agreed with the lower court that letting Martin use the cart “was a reasonable accommodation to his disability . . . and . . . did not fundamentally alter the nature of the PGA and Nike Tour tournaments.”

Injudicious Leaps

In reality, Judge Coffin and the Ninth Circuit are both guilty of astounding, injudicious leaps. The use of a little bit of common sense would reveal that while the spectator areas at sporting events—such as grandstands—could be defined as places of “public accommodation,” the actual fields of play most certainly are not. If “inside the ropes” during a PGA Tour event falls under the ADA, then so would diamonds during Major League Baseball games, gridirons in National Football League contests, rinks for the National Hockey League, the hardwood for the National Basketball Association, and so on. The courts would be free to decide what rules are fundamental to the nature of each sport whenever someone with a disability decided to challenge a sport’s particular rule.

Such an interpretation is an arrogant abuse of government’s power, which both Coffin and the Ninth Circuit felt compelled to exercise. They presumed to overrule hundreds of years of golf history, some of the greats that have played the game, and the people that write the rules of golf in order to dictate that walking was not fundamental to the sport.

The counterarguments to the court’s conclusions are not only obvious to those of us who have played golf for many years, but, considering the sources, should not be questioned by the courts. Let’s start with the PGA Tour and its commissioner, who effectively are hired by the players on the PGA Tours to run their sport.

In the Los Angeles Times (January 10, 1998), PGA Tour commissioner Tim Finchem explained: “It’s really not an issue whether one player who has a particular disability should be allowed to ride a golf cart. This is an issue, first and foremost, about whether or not the courts should make the rules for the game or the governing bodies in the game get to make those rules.” He added: “It is also, to some degree, about the question, I would admit, of walking and the extent to which walking is a part of the tradition of the game. We feel very strongly that it is. For over 500 years, it has been part of the game at the highest level. We think that endurance is a part of our sport.”

In a summary of its argument, the PGA Tour said: “The ability to walk five miles each day for four consecutive competitive rounds, week after week, often under adverse conditions and over challenging terrain, is part of the endurance and stamina required to play professional golf at its highest level.” It should also be noted that weather can dictate that as many as 36 holes be played in one day; that contests like the Ryder Cup regularly require more than 18 holes be played in one day; and that a playoff in the U.S. Open means at least another 18 holes be played on a fifth day.

The Tradition of the Game

While some touring pros (including Tom Lehman, Mark Calcavecchia, and the late Payne Stewart) have supported Martin’s case, the majority, though exhibiting great sympathy and respect for Martin, opposes the use of carts. When the case first became hot in the media, Curtis Strange told USA Today (January 7, 1998), “If you think with your heart, you’ll feel for the young man. But you have to think with your brain. You have to go with the tradition of playing the game, and a large part of that is walking.”

In a January 1998 interview with the Associated Press, CBS golf commentator Ken Venturi declared: “I think fatigue and being in shape is really part of the game. It’s been that way since the beginning of the game. My feeling is no carts.” He continued: “This is not a black and white issue, a heads or tails issue that is just about Casey Martin . . . . Where do you draw the line? How disabled do you have to be? What about guys like Billy Glasson and Scott Verplank who have had so many injuries and would be helped by a cart?”

Venturi himself, of course, offers a striking example of how important the walking rule is in professional golf. In 1964, Venturi not only overcame a multi-year slump, but also 100-plus-degree heat, 97 percent humidity, and severe dehydration to walk 36 holes at Congressional Country Club outside Washington, D.C., to win the U.S. Open. During testimony in the Martin trial, Venturi declared: “The doctor recommended I drop out because this could be fatal . . . but this was something I had prepared for all my life.”

In videotaped testimony, two of the game’s greats weighed in on how important walking is to golf. Arnold Palmer declared, “I feel if we change this rule, we will change the nature of golf on the face of the earth.” He continued: “A golf cart is a pretty relaxing way to get around the golf course, and you would probably keep a lot more of the stamina . . . . Part of the game is the physical fitness built into your body so you can compete.” Even though golf carts are available on the Senior Tour, Palmer does not think they should be, and has often declared that once he can no longer walk the course, he’ll quit the game.

Jack Nicklaus also argued against Martin’s assertion of a right to ride. Two months later, Nicklaus at age 58 made a run at a seventh green jacket at the Master’s, but fell just short. A few months later, he was forced to withdraw from the British Open, breaking his streak of 154 straight majors, because of a bad hip. In both instances, a cart easily could have made a difference.

Martin’s former teammate Tiger Woods has walked a delicate line, being supportive of Martin but saying he understands what the PGA Tour is doing. He was quoted in the New York Times (January 12, 1998): “As a friend, I’d love to see him have a cart. But from a playing standpoint, is it an advantage? It could be. If it’s 100 degrees in Memphis, does it help to ride?”

But it was 1992 U.S. Open winner Tom Kite who made the clearest case as to how walking impacts the game of golf in a February 2, 1998, New York Times op-ed. Kite explained: “The mental, physical and emotional aspects of the sport are closely linked. Fatigue can cause loss of concentration, which can cause poor shot selection, which can cause poor shotmaking, which can cause stress, which can cause more loss of concentration. I have seen a lot of tournaments over the years that were won or lost on the last few holes, when you have to be sharp mentally, physically and emotionally.”

Thankfully, some federal judges seem to grasp that it might be better to leave the rules of golf to those who actually operate and play the sport. The day after the Ninth Circuit announced its decision in the Martin case, the Seventh U.S. Circuit Court of Appeals in Chicago issued a unanimous opinion directly contradicting the Martin decision. In Olinger v. USGA, Indiana club pro Ford Olinger had sued the United States Golf Association (USGA) under the ADA in order to ride a cart while trying to qualify for the U.S. Open. Olinger has a degenerative hip disorder. District Court Judge Robert J. Miller, Jr. had ruled against Olinger, noting that the “point of an athletic competition . . . is to decide who, under conditions that are about the same for everyone, can perform an assigned set of tasks better than (not as well as) any other competitor. The 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 accommodation Mr. Olinger seeks, while reasonable in a general sense, would alter the fundamental nature of that competition.”

In upholding the lower court, the Seventh Circuit wisely concluded: “The decision on whether the rules of the game should be adjusted to accommodate him is best left to those who hold the future of golf in trust.”

Golfers for Judges

According to Sports Illustrated, Olinger complained that “Casey had three judges who attacked the legal issues, whereas I got golfers for judges.” Actually, he got judges who happened to respect the sport of golf, but more importantly, they seemed to respect the law and the proper role of the courts. These judges restrained themselves from dictating the rules of a sport, whereby Judge Coffin and the Ninth Circuit did just the opposite, much to their disgrace.

On July 5, 2000, the PGA Tour filed a request with the U.S. Supreme Court to review the Ninth Circuit’s decision. At the time, it was expected that Olinger’s lawyer would appeal the Seventh Circuit’s decision as well. The Supreme Court in fact did decide in late September to resolve the conflict by taking up the Martin case.

The ADA is bad news for all golf course owners and operators, and golf traditionalists as well. In effect, this law would preclude a golf lover from building and running a golf course meant just for walking. In addition, existing golf courses where the terrain does not lend itself to carts apparently would have to make costly alterations to comply with the ADA.

Unfortunately, bad laws like ADA pass whether a Democrat or a Republican happens to be president. It was signed into law by Republican President George Bush in 1990, who also happened to be the biggest golfer in the White House since Dwight Eisenhower.

In the end, when I see Casey Martin on television riding a cart at the latest PGA Tour stop, I often think about my late grandfather, Bernard Mitchell. While amateurs like me usually prefer walking, most of us have hopped in a golf cart. And then there are people like Bernard Mitchell, a fine golfer who taught me the game. We played a few rounds together as he climbed into his mid-seventies. As he got a bit older, he could still hit the ball straight and putt beautifully, but his legs wouldn’t let him walk the course any more. He so believed that golf meant walking that he never went out onto the course again (though he still putted on his living room carpet and was more than willing to offer some tips). While I reflect on this today, I would love to have the memories of a few more rounds with my grandfather, but I also deeply respect his love for the traditional game of golf.

In my view, Bernard Mitchell had a far greater love for golf than do the Casey Martins and Ford Olingers of the world. After all, he played by the rules.

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November 2000

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