Opposition Brief — PGA Tour, Inc. v. Martin

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Supreme Court, U.S.

FILED |

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No. 00-24 = |

IN THE ’ CLERK

Supreme Court of the United States

PGA TOUR, INC.,

Petitioner,

Vv.

CASEY MARTIN,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

Roy L. REARDON

Counsel of Record

JosePpH M. MCLAUGHLIN

MARTHA L. WALTERS MICHAEL P. PANAGROSSI

WALTERS ROMM CHANTI CHRISTINA E. PAGLIA

& DICKENS SIMPSON THACHER & BARTLETT

975 Oak Street, Suite 220 425 Lexington Avenue

Eugene, OR 97401-3114 New York, NY 10017-3954

(541) 683-2506 (212) 455-2000

WILLIAM WISWALL Attorneys for Respondent

WISWALL & WaALsuH, P.C. Casey Martin

P.O. Box 11736

Eugene, OR 97440-3936

(541) 484-6630

Of Counsel

161298 @) Counsel Press LLC

(800) 274-3321 + (800) 359-6859

TABLE OF CONTENTS

Table of Cited Authorities

Table of Appendices

Statement of the Case

Reasons for Denying the Writ

Petitioner Presents No Issue Warranting Review

By This Court

A.

The Ninth Circuit’s Holding That Petitioner

Is Subject To Title III Of The ADA Is

Consistent With Precedent From This Court

And Decisions From Other Circuit Courts Of

The Ninth Circuit Held Only That Based On

The Full Record Developed At Trial, The

District Court Properly Found That Mr.

Martin Was Entitled To Relief Under Title

Ill Of The ADA

1. The Ninth Circuit’s Holding Was

Expressly Based On Specific Factual

Findings Supporting The Conclusion

That Golf Is A Game Of Shot Making,

Not Walking

The Ninth Circuit’s Decision Does Not

Conflict With Olinger

Contents

C. This Case Does Not Have Far-Reaching

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0 OSS ttt itis

Page

TABLE OF CITED AUTHORITIES

Page

Cases:

Agranoff v. Law School Admission Council, Inc.,

97 F. Supp. 2d 86 (D. Mass. 1999) ........... 23

Amir v. St. Louis Univ., 184 F.3d 1017 (8" Cir. 1999)

DPPC SESSSGEEESESSedeedaccccceccess 6

Anderson v. Gus Mayer Boston Store of Del.,

924 F. Supp. 763 (E.D. Tex. 1996) ........... 15

Bragdon vy. Abbott, 524 U.S. 624 (1998) ......... 3, 15

CarParts Distrib. Ctr., Inc. v. Automotive

Wholesaler's Ass'n of New England, 37 F.3d 12

EEE LES ELSIE SS FOP OOTP TT ET 9,11

Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996)

EN LESSIE OPT TET ETTETT TET TTT 14, 23

D'Amico v. New York State Bd. of Law Examiners,

813 F. Supp. 217 (W.D.N.Y. 1993) ........ 14, 22, 23

Daniel v. Paul, 395 U.S. 298 (1969) ............ 6, 7,8

Darian v. University of Massachusetts Boston,

980 F. Supp. 77 (D. Mass. 1997) ............. 29

Davis v. Lockheed Martin Operaiions Support,

84 F. Supp. 2d 707 (D. Md. 2000) ............ . 28

iv

Cited Authorities -

Page

Davis v. United States, 417 U.S. 333 (1974)...... 27

Grupo Mexicano de Desarrollo, S.A. v. Alliance

Bond Fund, Inc., 527 U.S. 308 (1999) ........ 9

Johnson v. Gambrinus Co./Spoetzel Brewery,

116 F.3d 1052 (S® Cir. 1997) ................ 6,14

Jones v. United States Golf Ass'n, Civ. No.

A-00-CA-278 JN (W.D. Tex. June 15,2000)... 27

Matthews v. NCAA, 79 F. Supp. 2d 1199 (E.D. Wash.

SED -0060000060decnseccwacesedeadsencses 15

McCray v. New York, 461 U.S. 961 (1983) ....... 30

Menkowitz v. Pottstown Memorial Med. Crtr.,

154 F.3d 113 (3d Cir. 1998) ............ 6, 10, 11, 23

Olinger v. United States Golf Ass'n, 55 F. Supp. 2d

926 (N.D. Ind. 1999), aff'd, 205 F.3d 1001

(7" Cir. 2000), reh'g denied en banc (June 22,

BEE scvccececacoscks 3, 4, 5, 21, 24, 25, 26, 27, 28

Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (1999),

opinion amended on denial of reh'g, 204 F.3d 392

GPG GE Kncecencéedceoccceseededeces 6

Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206

GNU eccccccecesteaceesesésenancsousess 5,6, 7,9

Vv

Cited Authorities

Pottgen v. MSHSAA, 40 F.3d 926 (8th Cir. 1994)

Rascon v. U.S. West Comm., Inc., 143 F.3d 1324

Pt Pi... ceecschdeudutkewenecettees

Rice v. Sioux City Memorial Park Cemetery,

Pe es ED. vawoceectusencedeceoceds

Sandison v. MHSAA, 64 F.3d 1026 (6th Cir. 1995)

GUOUED 6 ovccnccenccescceccesceecessceceses

SEG Seececedveccesecucnnccsoccseseoeces

Stevens v. Premier Cruises, Inc., 215 F.3d 1237

ee eel bes cea eee es

Stillwell v. Kansas City, Mo. Bd. of Police Comm'rs,

872 F. Supp. 682 (W.D. Mo. 1995) ...........

Thomas v. Davidson Academy, 846 F. Supp. 611

Se SE EEE ecdecoedcaveccnicesueces

United States v. Baird, 85 F.3d 450 (9th Cir. 1996),

cert. denied, 519 U.S. 995 (1996) ............

Page

15

14

vi

Cited Authorities

Page

United States v. Lansdowne Swim Club, 713 F. Supp.

785 (E.D. Pa. 1989), aff'd, 894 F.2d 83 (3d Cir.

SE Unnessckccecbbduchdeentaeseiasnudes 8

Washington v. Indiana High Sch. Athletic Ass'n,

181 F.3d 840 (7 Cir.), cert. denied, 120 S. Ct.

SEE adhnebesennudlbhebiddcoususeoss 16, 27

Statutes:

Sp es © CIGD sc cccccecccesceccces 23

ls or ED baccoudascocsnsessaeds 22

E+ caneccnusdecductduasens 7,8

A ee 1]

Ss OP ED: sect rnwnescccucciceres 11

es OF ED Se tcnsescousececaacess 6

ee le OF EE 6. ccv0seneduséscensesss 6

I I ee 11

es OF EE coudicecavccescenneces 6, 11

42 USL. § ISIGHT) ....cccccccecs répeende 5

vil

Cited Authorities

Page

ee ED ceccoccccscsstccsceesens 5,10

42 U.S.C. § 12182(bM2MAMii) .............. 9, 14, 21

Rule:

PLL Ue -cuudeceddesenseseendeeuesueces l

Other Authorities:

28 C.F.R. gt. 36, app. BG 36.201 2... cece ences 7

Be ee aes OE DG GG cece ccccsccccsccess 7

29 C.F.R. pt. 1630, app. § 1630.9 .............. 14, 15

29 C.F.R. pt. 1630, app. § 1630.24) ..... ewewe 29

PE EEE: cosncsedvttéuneseevcées< 29

H.R. Rep. No. 101-485 pt. 2, at 80-81 (1990),

reprinted in | Staff of House Comm. on Educ.

and Labor, 101st Cong., Legislative History of

P.L. 101-336, The Americans with Disabilities

SPIO Sedeteewsdcekccencades 22

Sullivan, The Americans with Disabilities Act of

1990: An Analysis of Title III and Applicable Law,

29 Suffolk U.L. Rev. 1117, 1135-36(1995).... 22

vill

Cited Authorities

Page

U.S. Dep’t of Justice, Civil Rights Division, The

Americans with Disabilities Act: Title III

Technical Assistance Manual 4 4.1100, illus. 4

pe SEE 60940006000nsieiesesedanecess 23

ix

TABLE OF APPENDICES

Appendix A — Excerpts From Trial Transcript ...

Appendix B — Excerpts From All-Exempt Tour

PO ED ce vecdécscetceseseccsdonss

Appendix C — Excerpts From 1997 PGA Tour

Qualifying Tournament ..............ee0ee.

Appendix D — Consolidated Statements Of Activity

Of The PGA Tour, Inc. And Subsidiaries ......

Appendix E — Excerpts From Application To Enter

1997 PGA Tour Qualifying Tournament (For

PS ED onocecceenceseseeheces

Appendix F — Excerpts From The Rules Of Golf

1998-1999 And The Rules Of Amateur Status

EE enw tncng0nbbaeeseeseekseees

Appendix G — Notice To Competitors 1997 Quad

ED i ccvesavccenevaseceesoucsusses

Appendix H — Excerpts From Conditions Of

Competition And Local Rules ...............

Appendix I — Order Of The United States District

Court For The Western District Of Texas, Austin

Division In Jones v. United States Golf

Association, Inc. Dated, Entered And Filed June

PEL £6 hS00 656 beee hae eves veswenesuee

Page

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29a

34a

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Respondent Casey Martin respectfully submits this brief

in Opposition to the petition for a writ of certiorari which

seeks review of a March 6, 2000 decision of the United Siates

Court of Appeals for the Ninth Circuit. That decision is

reported at 204 F.3d 994 (9 Cir. 2000) and set forth in

petitioner's appendix at App. la-15a.

STATEMENT OF THE CASE

Petitioner has failed to meet its burden of demonstrating

that a “compelling reason” exists for this Court to review

the Ninth Circuit's straightforward application of settled legal

principles to the unique factual record before it. Sup. Ct. R.

10. The petition presents fact-intensive contentions that do

not warrant review by this Court because they involve highly

unusual circumstances that are unlikely to recur and in any

event have little or no application beyond the small group of

professional golfers eligible to compete in PGA-sponsored

events. See App. 12a (Ninth Circuit observation that decision

was “intensively fact-based” and is unlikely to have broader

consequences); Rice v. Sioux City Memorial Park Cemetery,

349 U.S. 70, 74 (1955) (certiorari ordinarily will be denied

if the case involves circumstances or issues which are

unlikely to be repeated).

The Ninth Circuit’s decision simply enforced on an

undisputed record unambiguous language in Title III of the

Americans with Disabilities Act (“ADA”) establishing that

golf courses owned and operated by petitioner are places of

public accommodation. Consistent with the individualized

inquiry endorsed by this Court and circuit courts addressing

the issue, the Ninth Circuit also held that the ADA requires

petitioner to accommodate Mr. Martin’s disability unless it

proves that use of a cart would fundamentally alter the nature

2

of its competitions by giving Mr. Martin (as opposed to a

hypothetical able-bodied golfer) a competitive advantage. '

The Ninth Circuit’s “intensively fact-based” holding

(App. 12a) was expressly based on detailed factual findings

made in the district court following a six-day bench trial

supporting the conclusion that permitting Mr. Martin to use a

golf cart would not fundamentally alter the nature of PGA and

Nike Tour (now known as the Buy.com Tour) golf. As the Ninth

Circuit stated, the issue of “whether the accommodation of

permitting Martin to use a golf cart fundamentally alters the

PGA and Nike Tour competitions ... we .ully tried in the

district court,” and the district court’s findings were affirmed

under the appropriate clearly erroneous standard. App. 10a.

Those findings demonstrated that “[aJll that the cart does is

permit Martin access to a type of competition in which he

otherwise could not engage because of his disability.” Jd. at

lla In addition, the Ninth Circuit correctly concluded that

petitioner could not meet its burden because the evidence

showed that petitioner’s own walking requirement is riddled

1. Petitioner minimizes Mr. Martin’s permanent disability,

Suggesting that it only “causes him pain.” Pet. at 5. The Ninth Circuit

noted “[t}here is no dispute that Martin is profoundly disabled”

(App. 2a) and petitioner concedes that Mr. Martin has a disability under

the ADA. Mr. Martin suffers from a congenital, degenerative circulatory

condition called Klippel-Trenaunay-Weber Syndrome. The condition,

first diagnosed when Mr. Martin was three years old, is manifested in a

massive, permanent malformation of his right leg that dramatically limits

his ability to walk. Although blood can circulate into his lower right

leg, blockage at knee level prevents recirculation, resulting in severe

pain and atrophy of the lower leg. He is placed at “significant risk” of

fracturing his tibia, hemorrhaging and developing deep blood clots “by

the simple act of walking,” and other routine life activities. The condition

has progressively deteriorated and Mr. Martin's right leg is at risk of

amputation above the knee. Resp’t App. 3a-4a. As the Martin district

court observed, “{t]o perceive that the cart puts him — with his condition

— al a competitive advantage is a gross distortion of reality.” App. 36a.

3 a

with exceptions which permit the use of carts, and there is no

Rule of Golf which prohibits accommodations for people with

permanent disabilities who cannot walk the course.

The Ninth Circuit’s decision is consistent with relevant

precedent from this Court and other circuits, and presents no

important federal question that needs to be resolved by this

Court.? The Seventh Circuit’s decision in Olinger v. United States

Golf Ass'n, 205 F.3d 1001 (7® Cir. 2000), reh’g denied en banc

(June 22, 2000) does not create a conflict on the law. Petitioner

concedes that the Seventh Circuit never even addressed whether

Title ill applies to an entity offering professional golf

tournaments, and fails to mention that the Olinger district court

decision affirmed by the Seventh Circuit expressly followed

Martin's holding on the applicability of Title III.

Petitioner’s secondary contention that on “essentially the

same facts” (Pet. at 9) Olinger reached a different conclusion

than Martin on whether Title III requires reasonable

modification of a walking requirement is rebutted by reference

to both Olinger and Martin. The Ninth Circuit expressly stated

that the detailed factual findings made by the Martin district

court distinguished the equally fact-specific holding in Olinger.

The district court in Olinger stated that “this case is different

from the Martin case,’ and emphasized important differences

in both the factual records of the cases and the nature of the

competitions to which the respective individuals sought access.

The Seventh Circuit acknowledged the district court decision

2. The United States Department of Justice filed a brief and

appeared at oral argument in the Ninth Circuit in support of Mr. Martin's

position that petitioner is subject to Title III of the ADA and that allowing

Mr. Martin to use a cart in PGA events is a reasonable modification

that would not fundamentally alter the nature of PGA events. As the

agency charged by Congress to issue implementing regulations “and to

enforce Title III in court, the Department’s views are entitled to

deference.” Bragdon v. Abbott, 524 U.S. 624, 646 (1998) (citation

omitted).

4

in Martin, but never suggested that its holding was inconsistent

with Martin. Thus, any differences in the decisions arise from

differing factual records, not from conflicts on the law.

The Ninth Circuit properly rejected petitioner’s attempt to

evade the plain import of the ADA. Petitioner’s proposed

narrowing of the ADA finds no support in existing law, is utterly

inconsistent with the broad remedial purpose of the ADA and,

if recognized, would permit petitioner to exclude individuals

not only on the basis of disability, but on the basis of race and

religion. In sum, petitioner has not shown that the Ninth Circuit’s

decision involves recurring issues of national importance,

conflicts vith precedent from this Court or from other circuit

courts, or otherwise warrants this Court’s review.

REASONS FOR DENYING THE WRIT

PETITIONER PRESENTS NO ISSUE WARRANTING

REVIEW BY THIS COURT

A. The Ninth Circuit’s Holding That Petitioner Is Subject

To Title If] Of The ADA Is Consistent With Precedent

From This Court And Decisions From Other Circuit

Courts Of Appeal

The Ninth Circuit’s interpretation of Title ITI is consistent

with every federal court decision construing that provision,

including the Olinger decision which petitioner inaccurately

suggests somehow conflicts with the Ninth Circuit’s decision.

The conflict suggested by petitioner simply does not exist.

Holding that the USGA is subject to Title III of the ADA, the

Olinger district court expressly stated that it was joining the

Martin decision (later affirmed by the Ninth Circuit). The district

court in Olinger rejected the same argument advanced here by

petitioner: the “USGA’s contention that it alone may set the

rules is simply another version of its argument that the USGA

is exempt from the provisions of the ADA, ‘[a]nd it is not.’ ”

Olinger v. United States Golf Ass'n, 55 F. Supp. 2d 926, 933

5

(N.D. Ind. 1999) (quoting Martin v. PGA Tour, Inc., 994 F. Supp.

1242, 1246 (D. Or. 1998), aff’d, 204 F.3d 994 (9 Cir. 2000)),

aff'd, 205 F.3d 1001 (7" Cir. 2000). No contrary decision exists.

Petitioner relegates to a footnote the critical fact that the Seventh

Circuit in Olinger “did not resolve” the applicability of Title III

(Pet. at 13 n.16), and fails to acknowledge that the Seventh

Circuit affirmed the district court’s decision. Olinger, 205 F.3d

at 1007; see also id. at 1005 (Seventh Circuit statement that it

“can resolve this appeal on a more narrow ground”).

Accordingly, there is no conflict between Olinger and Martin.

The Ninth Circuit's decision reflects a proper application

of the plain language of the ADA and accords with uniform

federal court authority addressing the scope of Title III of the

ADA. Title III broadly provides 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.

42 U.S.C. § 12182(a).

Petitioner concedes that Congress expressly defined “public

accommodation” to include, inter alia, “a golf course.”

Pet. at 13; 42 U.S.C. § 12181(7)(L). Nor does it dispute that the

PGA “owns or operates certain golf courses” on which its golf

tournaments are played. App. 2a. These dispositive concessions

conclusively establish that Title III applies to the PGA. As the

Ninth Circuit stated, “[t]here is nothing ambiguous about

this provision [42 U.S.C. § 12181(7)(L)]; golf courses are

public accommodations.” App. 4a. As this Court recently

stated, “unambiguous statutory text” in the ADA must be

enforced as written. Pennsylvania Dep’t of Corr. v. Yeskey, 524

6

U.S. 206, 212 (1998). When interpreting the term “public

accommodation” under civil rights legislation, “it does not

follow that the scope of [civil rights legislation] should be

restricted to the primary objects of Congress’ concern when a

natural reading of its language would call for broader

coverage.” Daniel v. Paul, 395 U.S. 298, 307 (1969) (emphasis

added). In accordance with this mandate, the Ninth Circuit

properly affirmed the District Court’s grant of summary

judgment on an undisputed record that golf courses owned and

operated by the PGA are places of public accommodation and

therefore the PGA must allow a reasonable modification of its

walking requirement in order to permit Mr. Martin to participate

in its events. App. 15a.

Petitioner fails to mention that the Ninth Circuit's decision

also accords with the decisions of other Courts of Appeals that

have addressed the applicability of Title III of the ADA.

See, e.g., Menkowitz v. Pottstown Memorial Med. Ctr., 154 F.3d

113, 121-23 (3d Cir. 1998) (because Congress defined “public

accommodation” to include, inter alia, a “hospital,” 42 U.S.C.

§ 12181(7)(F), Title II] requires hospital to make reasonable

modifications to permit disabled doctor to practice at hospital);

see also Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 33

(1999) (court noted that because 42 U.S.C. § 12181(7)(E) lists

a “bakery” as a place of public accommodation, a bakery’s

refusal to sell bread to a blind person for use outside the premises

would fall under the statute), opinion amended on denial of

reh'g, 204 F.3d 392 (2d Cir. 2000); Amir v. St. Louis Univ.,

184 F.3d 1017, 1027 (8® Cir. 1999) (noting that 42 U.S.C.

§ 12181(7)(J) lists “undergraduate, or postgraduate private

school” as a place of public accommodation so that St. Louis

University was a place of public accommodation); Johnson v.

Gambrinus Co./Spoetzel Brewery, 116 F.3d 1052, 1065 (5® Cir.

1997) (Title II] applied and required brewery to make reasonable

modification of its no animals policy to accommodate blind

plaintiff).

7

The petition is an extended detour around the unambiguous

language of Title III and the Ninth Circuit's straightforward

application of the statute. First, petitioner attempts to artificially

“bifurcate” the golf courses it operates into public zones

(“outside the ropes”) and private zones (“inside the ropes’’) by

engrafting onto unambiguous statutory language an additional

provision that the places listed in 42 U.S.C. § 12181(7) (which

include “golf courses”) are not subject to the ADA unless open

to every member of the public. Pet. at 14. Petitioner concedes

that the ADA applies to spectators at its golf courses, but argues

that Congress intended the ADA to extend only up to the ropes

separating competitors from spectators. /d.’ The Ninth Circuit

correctly rejected this contrivance, noting that “Title III does

not restrict its coverage to members of the public; it provides

that “ ‘[njo individual shall be discriminated against’ in the

enyoyment of public accommodations by reason of disability.”

App. 7a n.7 (emphasis added).

The game of golf is the activity normally engaged in at a

golf course. Daniel, 395 U.S. at 308 (“statutory language”

defining public accommodation under Civil Rights Act .. .

“should be given full effect according to its generally accepted

meaning”). Golf courses do not cease to be covered by the ADA

when PGA competitors are playing on them. 28 C.F.R. pt. 36,

app. B § 36.201 (scope of the term “place of public

accommodation” under Title II] “is quite extensive and ...

[applies] even if the operation is only for a short time’)

(emphasis added). The clarity of the statutory language compels

rejection of the PGA’s attempt to rewrite the statute. Yeskey,

524 U.S. at 212; 28 C.FR. pt. 36, app. B § C (“A facility . . . is

a place of accommodation for purposes of the ADA to the extent

3. It is undisputed that the area “inside the ropes” is not even

limited to competitors. As the Ninth Circuit noted, scores of individuals

who are not PGA members, including caddies, tour personnel and

reporters, are permitted “inside the ropes” during PGA competition.

App. Sa.

that its operations include those type of activities engaged in

.. . by the facilities” listed in 42 U.S.C. § 12181(7)).

Courts interpreting Title II of the Civil Rights Act (which

Title II] of the ADA was modeled on) have consistently held

that once a portion of a location is deemed a “public

accommodation,” the entire location is covered, and have

rejected arguments that an operator of a public accommodation

may divide its facilities into covered and non-covered zones.

As one federal court stated:

This bifurcation [of public accommodation into

covered and non-covered areas} has no support in

the plain language of the Act or the case law

interpreting it. Once an establishment is determined

to be a place of entertainment [also defined as a

public accommodation under the ADA], the entire

facility is identified as such.

United States v. Lansdowne Swim Club, 713 F. Supp. 785,

791 (E.D. Pa. 1989) (emphasis added), aff'd, 894 F.2d 83

(3d Cir. 1990); see Daniel, 395 U.S. at 306-08 (snack bar's

status as covered establishment brings entire entertainment

facility within Title II).

Petitioner also suggests that despite Congress’ inclusion

of golf courses as places of public accommodation in Title III,

golfers competing on such courses should be excluded from

Statutory coverage because Congress did not specifically provide

for their coverage. See Pet. at i1, 14 & n.18. This Court recently

rejected the same argument under the ADA:

[A]ssuming . . . that Congress did not “envision that

the ADA would be applied [in suggested manner],”

... in the context of an unambiguous statutory text

that is irrelevant. ... [T}hat a statute can be

“ ‘applied in situations not expressly anticipated

9

by Congress does not demonstrate ambiguity.

It demonstrates breadth.’ ”

Yeskey, 524 U.S. at 212 (citations omitted) (emphasis added);

accord CarParts Distrib. Ctr., Inc. v. Automotive Wholesaler’s

Ass'n of New England, 37 F.3d 12, 19-20 (ist Cir. 1994); ef.

United States v. Baird, 85 F.3d 450, 454 (9th Cir. 1996)

(convenience store with two video games is “place of

entertainment” and thus a public accommodation under Civil

Rights Act, even though games are not substantial part of store’s

business), cert. denied, 519 U.S. 995 (1996).

Petitioner next attempts to manufacture an important federal

issue for review by formulating a new argument that was not

presented to and therefore not addressed by the Ninth Circuit.

Petitioner artfully deletes from the petition all references to the

Statutory terms “facilities, privileges, advantages, or

accommodations” from the broad statutory list of benefits

Congress sought to ensure were equally available to persons

with disabilities (42 U.S.C. § 12182(b)(2)(A)(ii)). Pet. at 14.

Having unilaterally pared the statutory protections down to

“goods and services,” petitioner argues that granting relief to

Mr. Martin under Title ITI somehow encroaches on Title I's

prohibition against “discrimination in the private workplace.”

Id. at 10.

As an initial matter, petitioner’s failure to raise this argument

in the district court or the Ninth Circuit precludes its assertion

here. Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond

Fund, Inc., 527 U.S. 308, 319 n.32 (1999) (Supreme Court-will

not consider argument that was not raised or considered below).

In addition, petitioner does not contend that this purported aspect

of the Ninth Circuit’s decision conflicts with any decision of

this Court or any circuit court. Petitioner merely asserts the

Ninth Circuit’s decision reflects “ah awkward reading of Title

Ii.” Pet. at 14. The argument is also meritless.

10

Title III grants equal access and enjoyment of different and

often broader areas than Title I’s employment-related provisions:

Title IT] grants to “individuals” full and equal access to the

“goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation.”

42 U.S.C. § 12182(a). Petitioner would introduce an

unprecedented exception into the unambiguous language of Title

III (which provides protection to all “individuals”) and limit

protection to spectators at a public event but permit

discrimination against individuals seeking to earn money while

using the “goods, services, facilities, privileges, advantages, or

accommodations” of a public accommodation. Pet. at 14.

The Third Circuit recently rejected this same “blanket

interpretation that Congress intended Title III to apply only to

members of the public.” Menkowitz, 154 F.3d at 121. Employing

reasoning equally responsive to petitioner’s contention that Title

If] applies only to spectators at PGA events, the Third Circuit held:

Equally unavailing is the hospital's argument that

illustrations cited by the ADA’s legislative history

all describe instances of members of the public as

clients or customers. That a statute can be “applied

in situations not expressly anticipated by Congress

does not demonstrate ambiguity. It demonstrates

breadth.” . .. Nor can we agree with the hospital's

argument that Title III offers no protection against

disability discrimination by virtue of the appellant’s

“unique business relationship” with the hospital.

This contention runs contrary to the plain language

and legislative history of Title ITI which in no way

mentions any sort of “business relationship” that

would preclude an “individual” from asserting a

cause of action if denied the “full and equal

enjoyment of the goods, services, facilities,

11

privileges, advantages, or accommodations of any

place of public accommodation.”

Id. (citations omitted).

Petitioner’s view would forfeit the protections of anti-

discrimination laws for a host of individuals who currently enjoy

full and equal access to public accommodations. For example,

an “auditorium,” a “museum” and a “private school” are

places of public accommodation (42 U.S.C. §§ 12181(7)(D),

(H) & (J)), and do not cease to be for an invited speaker who is

paid a fee as an “independent contractor.” Petitioner posits that

members of the public attending the lecture are protected, but

the guest speaker can be discriminated against on the basis of

disability. Similarly, petitioner would withhold anti-

discrimination protection from a game show contestant

competing for prize money before a studio audience, even

though Title III unambiguously applies to all places of

“exhibition or entertainment.” 42 U.S.C. § 12181(7)(C).

But Congress extended the protections of Title III to all

“individuals” at public accommodations, regardless of Title I's

potential applicability, and this is how the statute is being

consistently applied across the country. See, e.g., Menkowitz,

154 F.3d at 118-23; CarParts, 37 F.3d at 19-20.

As the Ninth Circuit held, competitors in PGA events

necessarily are members of the “public” whom the PGA has

admitted to its courses. App. 7a. The record showed that:

Any member of the public who pays a $3000 entry

fee and supplies two letters of recommendation may

try out in [petitioner’s] qualifying school. At the

initial stage, it seems plain that the golf course on

which the elimination begins is a place of public

accommodation. As even the PGA admits, “[t]he

competition areas of some amateur sporting events

may well constitute places of public accommodation

under Title III of the ADA when virtually any

12

member of the public can participate.” We fail to

see, however, why a winnowing process would

change the nature of the facility. . . .

Id. at 7a-8a.

Petitioner argued in the district court that it was entirely

exempt from Title III of the ADA as a private club. The district

court rejected this contention, “because, among other reasons,

it is a commercial enterprise offering athletic events to the

public.” /d. at 3an.5; see also id. at 44a-51a.* Although petitioner

did not challenge this ruling in the Ninth Circuit or here, at

bottom it continues to seek a license to discriminate. Accepting

petitioner’s argument that Title III does not apply to it would

“render[ | the private club exemption virtually irrelevant,”

id. at 53a, and would grant the PGA free rein to discriminate

“inside the ropes” not only on the basis of any disability, but on

the basis of race or religion. The PGA’s counsel acknowledged

this before the district court. Resp’t App. la-3a. The Ninth

Circuit foreclosed this result by applying Title III according to

its terms, consistent with all relevant precedent.

B. The Ninth Circuit Held Only That Based On The Full

Record Developed At Trial, The District Court Properly

Found That Mr. Martin Was Entitled To Relief Under

Title 11 Of The ADA

Petitioner misstates the Ninth Circuit’s holding and analysis

under Title III to argue that the Ninth Circuit sweepingly

required “professional sports organizations to grant waivers of

their substantive rules of competition to accommodate disabled

competitors.” Pet. at 19. Similarly, seeking to create the

impression that Martin has broad ramifications, petitioner

4. Petitioner is a lucrative commercial enterprise employing

hundreds of persons and has annual revenues of over $300 million. Its

assets include golf courses which it owns, leases and operates and on

which it conducts professional golf tournaments. See Resp’t App.

36a-39a; App. 2a.

13

mischaracterizes the nature of Mr. Martin’s claim under the ADA

as an outright “challenge ... to one of the competitive rules

applicable to certain golf tournaments.” /d. at 2. Mr. Martin did

not seek and the Ninth Circuit did not grant such broad relief.

Rather, Mr. Martin challenged the petitioner’s discriminatory

conduct toward him in failing to comply with the ADA’s mandate

that it reasonably accommodate his permanent disability. The

Ninth Circuit clarified that its holding, which was expressly

based on the unique factual record developed at Mr. Martin’s

trial, carried no such broad significance:

The nature of the district court’s findings reflect the

fact that whether an accommodation fundamentally

alters a competition is an intensively fact-based

inquiry. For that feason, we reject PGA’s argument

that permitting Martin to use a golf cart would open

the door to future decisions requiring that disabled

swimmers or runners be given a head start in a

race.... We have little doubt that fact-based

inquiries into the effects of such accommodations

would result in rulings that those accommodations

fundamentally altered the competitions.

App. !2a.

The Ninth Circuit simply affirmed as “not clearly

erroneous” (/d.) the district court’s findings of fact made after a

six-day bench trial under the individualized inquiry mandated

by the ADA. Title III of the ADA broadly provides that any

private entity that owns, leases or operates a “public

accommodation” must make a “reasonable modification” of its

“policies, practices, or procedures” when necessary to make its

“goods, services, facilities, privileges, advantages, or

accommodations” available to individuals with disabilities,

unless such modification would “fundamentally alter the nature”

14

of its “goods, services, facilities, privileges, advantages or

accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii).°

Because the PGA conceded that Mr. Martin has a disability,

Mr. Martin’s only burden was to show that a reasonable

modification was requested. See, e.g., Johnson, 116 F.3d at 1059.

Petitioner has never contested the reasonableness of a cart as

an accommodation that will permit Mr. Martin to participate in

the “goods, services, facilities, privileges, advantages, or

accommodations” offered by petitioner. App. 9a. Consistent with

uniform authority under the ADA, the Ninth Circuit held that

the ADA required the PGA to permit the modification unless it

could prove that, in view of Mr. Martin’s individual

circumstances, the modification would fundamentally alter

the nature of PGA Tour golf competition. App. 10a;

accord Johnson, 116 F.3d at 1060 (Title III analysis “focuses

on the specifics of the plaintiff’s or defendant’s circumstances

and not on the general nature of the accommodation”);

Crowder v. Kitagawa, 81 F.3d 1480, 1486 (9th Cir. 1996)

(“the determination of what constitutes reasonable modification

is highly fact-specific, requiring case-by-case inquiry”);

Staron v. McDonald’s Corp., 51 F.3d 353, 356 (2d Cir. 1995)

(“it is clear that the determination of whether a particular

modification is ‘reasonable’ involves a fact-specific,

case-by-case inquiry”); D'Amico v. New York State Bd. of Law

Examiners, 813 F. Supp. 217, 221 (W.D.N.Y. 1993) (“the most

important fact that the Court must consider in determining the

reasonableness of the . . . accoramodations is the nature and

extent of plaintiff’s disability”); see also 29 C.FR. pt. 1630,

5. Petitioner totally avoids discussing the governing statutory

phrase — “reasonable modifications.” 42 U.S.C. § 12182(b)(2)(A)(ii).

Through this technique, petitioner misdescribes the Ninth Circuit's

opinion as requiring “waiver” (as opposed to “reasonable modification”)

of a “substantive rule.” See, e.g., Pet. at 2, 8-9, 11, 21, 24. Petitioner’s

attempt to divert this Court from Martin's actual and proper analysis

only underscores the absence of any genuine issue requiring this Court's

authoritative guidance. See infra pp. 16-24. ~

15

app. § 1630.9 (process of determining appropriate reasonable

accommodation requires individual assessment of particular job

at issue and the specific limitations of the particular person in

need of the reasonable accommodation).°

The individualized inquiry employed by the Ninth Circuit

and other courts accords with the individualized approach

endorsed by this Court when evaluating a proposed

accommodation under the Rehabilitation Act of 1973, the civil

rights statute the ADA was modeled after and which this Court

has field should be interpreted consistently with the ADA.

Bragdon, 524 U.S. at 638. This Court has instructed:

[T}he district court will need to conduct an

individualized inquiry and make appropriate

findings of fact. Such an inquiry is essential if § 504

[of the Rehabilitation Act] is to achieve its goal of

protecting handicapped individuals from

deprivations based on prejudice, stereotypes, or

unfounded fear, while giving appropriate weight to

[any countervailing considerations].

School Bd. of Nassau Co. v. Arline, 480 U.S. 273, 287 (1987)

(emphasis added). Significantly, the Seventh Circuit (the court

petitioner contends has repudiated individualized inquiry under

“the ADA) recently quoted this language from Arline in

reaffirming the appropriateness of evaluating the individual

6. Accord Matthews v. NCAA, 79 F. Supp. 2d 1199, 1204

(E.D. Wash. 1999) (“When any court applies the ADA, it must examine

the facts specific to the case and the disabled individual's circumstances,

and the accommodations that might allow him to participate.”); Stillwell

v. Kansas City, Mo. Bd. of Police Comm'rs, 872 F. Supp. 682, 687 (W.D.

Mo. 1995); cf. Anderson v. Gus Mayer Boston Store of Del., 924

F. Supp. 763, 781 (E.D. Tex. 1996) (“The legislative history of [Title I

of] the ADA recommends that the disabled person be consulted about

what a reasonable accommodation might be to avoid employers

overstating costs.’’).

16

circumstances of a plaintiff alleging an ADA claim. Washington

v. Indiana High Sch. Athletic Ass'n, 181 F.3d 840, 851 (7® Cir.),

cert. denied, 120 S. Ct. 579 (1999). Petitioner relegates to a

footnote its citation to Washington, and there does not even

acknowledge the Seventh Circuit’s specific adoption of an

individualized inquiry. See also infra Point B(2).

1. The Ninth Circuit's Holding Was Expressly Based

On Specific Factual Findings Supporting The

Conclusion That Golf Is A Game Of Shot Making,

Not Walking

The petition reads as if the Ninth Circuit’s conclusions

under the ADA were judicial fiat based on “guesswork.”

Pet. at 22: see also id. at 8, 21. In fact, each of the Ninth

Circuit’s conclusions was expressly based on evidence

admitted at the six-day bench trial conducted by the district

court. Remarkably, the petition does not even acknowledge

that the findings were made by the district court and affirmed

by the Ninth Circuit under the appropriate clearly erroneous

standard.

The record demonstrated that the Rules of Golf are the

recognized fundamental rules of the game; as the immediate

past president of the USGA testified, “[i]f you want to

play golf, you need to play by these rules.” Resp’t App. 18a.

Although it is nowhere found in the petition, the Ninth Circuit

noted that the definition of the game set forth in the Rules of

Golf makes it clear that the essence of the game is shot-

making:

Rule 1. The Game.

1-1. General.

The Game of Golf consists in playing a ball from

the teeing ground into the hole by a stroke or

successive strokes in accordance with the Rules.

17

Id. at 59a; App. 9a. Significantly, the Ninth Circuit and the

district court relied on evidence establishing that the Rules

of Golf do not prohibit the use of carts or require players to

walk. App. 9a. The PGA Commissioner acknowledged that

“the essentials” of the game of golf are contained in Rule

1-1 of the Rules of Golf, id. at 23a; see also id. at 17a-18a,

and that “the key element of skill in the game of golf is shot-

making.” /d. at 28a. Petitioner was unable to produce any

document stating directly or indirectly that walking is

fundamental to competitive golf.’ Jd. at 22a-23a.

With limited exception, the only way a player can obtain

the right to participate in the PGA or Nike Tour is to “qualify”

at the annual qualifying event, called the “Q School.” /d. at

40a-58a. For 30 years the PGA rules permitted players to use

carts in all three stages of the Q School. There was no evidence

that over the course of 30 years any player or PGA official ever

complained that a player who chose to use a cart had an

advantage over those players who chose to walk.*

Second, as the Ninth Circuit observed, petitioner, outside

this lawsuit, regularly rebuts its contention that walking is

fundamental to PGA golf by applying exceptions that permeate

its must-walk rule:

* Every golfer who advances to the third stage of

Q School is assured of a place on either the PGA or

7. The Rules of Golf provide a model optional condition for a

competition to include if the competition wishes to require players to

walk. The PGA did not adopt such optional condition for its

competitions. The conditions of competition adopted by the PGA

specifically provide for exceptions to the must-walk rule. /d. at

18a-20a, 59a-60a, 62a-63a.

8. Only in 1997, the year Mr. Martin played in the qualifying

rounds of the Q School, did the PGA for the first time require players

to walk in the final stage unless an exception was granted.

18

Nike Tour. /d. at 25a-26a, 34a-35a. Yet the PGA still

does not require any golfer to walk in the first two

qualifying stages when testing the skills of players

who will become Tour members. /d. at 5a-7a,

16a-17a, 21a-22a, 40a-58a.

* A player can also earn the right to play in a single

PGA event on the PGA and Nike Tours as an exempt

entry by playing in the open qualifying event for

that tournament and being one of the four lowest-

scorers in that event. Carts are permitted for such

events. Jd. at 24a-25a, 29a-33a.

* The PGA routinely permits all players-to ride in

carts during PGA and Nike Tour competition for

administrative convenience, including when players

retrieve a ball hit out of bounds, when a lengthy

distance separates a green and the next tee and

sometimes during play of an entire hole. /d. at

4a-Sa, 61a.

* The PGA permits carts and does not require

walking on its highly competitive Senior Tour,

which has been called “the most successful

professional sports venture of the 1980s.”

Id. at 7a-16a.

* The PGA admits that carts have been a part of

the game of golf for 30-40 years. Id. at 28a.

19

hypothetically confer a competitive advantage to certain

golfers. The Ninth Circuit noted that petitioner regularly

disproves this contention by its own conduct. For example:

* The PGA permits golfers who walk to compete

against golfers who use carts in (i) Q School, (ii)

the weekly qualifying tournaments, and (iii) the

Senior Tour.

* The PGA rules provide no nated or penalty

for players who use carts.

See App. 10a; Resp’t App. 24a-25a, 29a-33a. Petitioner has

never questioned the integrity of any of these competitions.

Consistent with the case-by-case inquiry mandated by

the ADA, the Ninth Circuit did not “guess” whether

permitting Mr. Martin to use a cart would “fundamentally

alter” PGA tournament golf. Rather, it addressed the factual

record developed in Martin showing that golf is not a race

against the clock or against human endurance, and that “[t}he

central competition in shot-making would be unaffected by

Martin’s accommodation” (App. 10a-1 Ja):

The district court found that the purpose of

requiring players to walk was to inject a fatigue

factor into the shot-making of the game. /t also

found, however, that “the fatigue factor injected

into the game by walking the course cannot be

deemed significant under normal circumstances.”

Petitioner argues that it has adopted a rule requiring

players to walk and that it cannot be required to modify this

rule in any manner because “high-level athletic competition

requires that competitors be tested under the same rules.”

Pet. at 21. A change in any rule, petitioner contends, could

It further found that, at the low levels of intensity

of exercise involved in untimed walking of a golf

course during a competition, “fatigue ... is

primarily a psychological phenomenon. .. . Stress

and motivation are the key ingredients here.” The

court noted that, given the choice of carts or

walking in other tours, large numbers of players

20

chose to walk. ... Against this background, the

district court evaluated whether use of a cart

would give Martin an advantage over the other

players who were required to walk.

Id. at 10a (citations omitted & emphasis added).

The Ninth Circuit observed that the fact-intensive issue

of whether permitting Mr. Martin to use a cart would

fundamentally alter the nature of PGA golf competition also

was “fully tried in the district court.” Jd. (emphasis added).

The court summarized the evidence admitted at trial

concerning the nature and extent of Mr. Martin’s disability,

and how it affects his ability to walk a golf course, and agreed

with the district court’s finding “after considering these

factors... . that Martin ‘easily endures greater fatigue even

with a cart than his able-bodied competitors do by walking.’ ”

Id. The court specifically noted “[t}here was ample evidence

to support all of these findings, and they are not clearly

erroneous.” Jd.’

9. Unable to point to any real conflict, petitioner strains to

analogize Martin to inapposite cases holding that maximum age

or semester requirements in high school sports cannot be waived

without upsetting the competitive balance of high school athletics.

Pet. at 23 n.26. As the Ninth Circuit concluded, these cases present

issues not involved here. The “foundation of these cases ... Was a

finding, or evidence compelling a finding,” that the eligibility

requirements sought to be modified for disabled students — unlike the

walking rule in the present case — were closely fitted with the purpose

of athletic competition involving teenagers still growing up. App. 13a.

See, e.g., Sandison v. MHSAA, 64 F.3d 1026, 1035 (6th Cir. 1995)

(age maximum is a “necessary” regulation in high school sports because

it “safeguards against injury” and “prevents any unfair competitive

advantage”); Pottgen v. MSHSAA, 40 F.3d 926, 929 (8th Cir. 1994)

(age maximum is essential element of high school team sports because

it “reduc[es] the competitive advantage flowing to teams using older

(Cont'd)

21

The Ninth Circuit astutely recognized that “[t}he mere fact

that the PGA has defined walking to be part of the competition

cannot preclude inquiry, or PGA will have been able to define

itself out of the reach of the ADA.” App. 12a. Petitioner’s

misplaced emphasis on whether it has declared one of its rules

“substantive” — a term not employed in the ADA, Martin or

even Olinger — is an effort to avoid the plain language of the

ADA. The Ninth Circuit exposed the fatal flaw in petitioner’s

argument that once it unilaterally deems a rule substantive, the

rule is insulated from any accommodation that could permit a

person with a disability to participate. “The difficulty with this

position is that it reads the word ‘fundamentally’ out of the

statutory language, which requires reasonable accommodation

unless PGA can demonstrate that the accommodation would

‘fundamentally alter the nature’ of its cornpetition.” /d. at lla

(quoting 42 U.S.C. § 12182(b)(2)(A)(ii)).

If petitioner’s view were adopted, the PGA would

effectively elevate professional sports beyond the reach of

Congress, no matter how great a barrier to participation a

given rule poses, no matter how insignificant the rule to the

competition, and no matter how reasonable the modification

requested. As the district court accurately observed,

the PGA Tour’s contention that it may alone set

the rules of competition, and that any modification

of any of its rules (which may be necessary to

accommodate the disabled) fundamentally alters

the nature of PGA tournaments, is simply another

version of its argument that the PGA Tour is

exempt from the provisions of the ADA.

(Cont'd)

athletes; protects younger athletes from harm; discourages student

athletes from delaying their education to gain athletic maturity; and

prevents over-zealous coaches from engaging in repeated red-shirting

to gain a competitive advantage”).

22

App. 23a. The district court noted:

the ADA does not distinguish between sports

organizations and other entities when it comes to

applying the ADA to a specific situation. . . . the

disabled have just as much interest in being free

from discrimination in the athletic world as they

do in other aspects of everyday life.

Id. at 24a."°

The Ninth Circuit properly enforced the ADA’s

requirement that all organizations subject to the ADA modify

their rules to permit full participation by people with

disabilities. The ADA’s mandate has required organizations

to make significant changes not only to rules of style, but to

the way they do business.'' To argue that in sport the rules

10. Moreover, professional sports organizations including the

NBA, the NFL, the NHL and Major League Baseball appeared before

Congress during its consideration of the ADA. None of these

organizations suggested that the ADA would not apply to them.

Instead, they sought guidance from Congress concerning whether

drug-testing programs for players would comply with the ADA.

See H.R. Rep. No. 101-485 pt. 2, at 80-81 (1990), reprinted in

1 Staff of House Comm. on Educ. and Labor, 101st Cong., Legislative

History of P.L. 101-336, The Americans with Disabilities Act, at 353-

54 (1991).

11. For example, after challenges under the ADA, Burger King

agreed to develop an electronic device to enable hearing-impaired

people to order drive-through food, and a bar review course agreed

to provide sign language interpreters and braille materials. Sullivan,

The Americans with Disabilities Act of 1990: An Analysis of Title II]

and Applicable Law, 29 Suffolk U.L. Rev. 1117, 1135-36 (1995);

D'Amico, 813 F. Supp. at 223-24 (requiring Board to allow person

with disability four days to complete bar exam); see aiso Stevens v.

Premier Cruises, Inc., 215 F.3d 1237 (11th Cir. 2000) (Title III

applies to cruise ships in U.S. waters); cf. 42 U.S.C. § 12101(a)(5)

(discrimination against persons with disabilities includes “failure

to make modifications to existing facilities and practices”).

—

23

themselves are what is fundamental to the enterprise is to

try to define sport as exempt from the ADA — and to do so

in an insidious way. If no rule of competition, regardless of

its purpose, can be modified to permit participation by people

with disabilities, then — ironically — sport would become

the only industry in America permitted to construct barriers

to access that are unrelated to performance. If a player

qualifies by demonstrating exceptional ability in the sport's

essential skills, that he has a permanent disability unrelated

to the sport’s essentials should not exclude him from using

that ability. It bears emphasis that professions with weightier

responsibilities to society, such as the medical profession,

have accommodated persons with learning and other

disabilities by, for example, allowing additional time to take

exams, to give them the opportunity to participate in these

important professions. See, e.g., Menkowitz, 154 F.3d at 122

(“medical doctor with staff privileges . . . may assert a cause

of action under Title III of the ADA”); U.S. Dep't of Justice,

Civil Rights Division, The Americans with Disabilities Act:

Title III] Technical Assistance Manual { 4.1100, illus. 4

(Nov. 1993) (same); Agranoff v. Law School Admission

Council, Inc., 97 F. Supp. 2d 86, 88 (D. Mass. 1999) (time

and a half to complete Law Schoo! Admissions Test is

reasonable accommodation); D’Amico, 813 F. Supp. at 224

(plaintiff may take bar examination over four days rather

than the usual two).'?

12. Congress enacted the ADA understanding that discrimination

against people with disabilities manifests itself in a variety of ways.

42 U.S.C. § 12101(a)(3)-(5). In addition to blatant discrimination born

of malice, people with disabilities have been unintentionally but

routinely deprived cf the opportunity to participate in a variety of

activities because of facially neutral rules or procedures that have the

effect of excluding the disabled. Congress specifically foreclosed retreat

to “facially neutral” rules, and rejected attempts to justify exclusion

based on disability because “the rules are the rules.” See, e.g., Crowder,

81 F.3d at 1484 (Title II requires modification of state law animal

(Cont'd)

24

The Ninth Circuit did not purport to change the rules of

golf; it only enforced the ADA’s mandate that an otherwise

qualified competitor must be allowed to get to the game.

App. 11a (“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.”).

2. The Ninth Circuit's Decision Does Not Conflict With

Olinger

Petitioner's obligatory assertion that the Ninth Circuit’s

ruling based on the unique record before it is “squarely contrary”

(Pet. at 9) to Olinger is rebutted by reference to both Martin

and Olinger. The Ninth Circuit acknowledged the Olinger

district court opinion (subsequently affirmed by the Seventh

Circuit) and stated that the detailed factual findings made by

the Martin district court “distinguishes Martin's case from

Olinger, . . . in which the district court found on the evidence

there presented that use of a cart can provide a golfer with a

competitive advantage over a golfer who walks.” App. 13a-14a

n.9 (emphasis added). Similarly, the Seventh Circuit

acknowledged the district court decision in Martin, but never

suggested that its holding was inconsistent with Martin. Olinger,

205 F.3d at 1003-04. Thus, any differences in the decisions arise

from differing factual records, not from conflicts on the law.

The district court opinion affirmed by Olinger confirmed

even more directly the lack of any conflict with Martin:

A word should be added about the Martin case... .

this case is different from the Martin case. First, this

(Cont'd)

quarantine requirement, although the “requirement applies equally to

all persons entering the state with a dog, its enforcement burdens

visually-impaired persons in a manner different and greater than it

burdens others”); Thomas v. Davidson Academy, 846 F. Supp. 611, 619

(M.D. Tenn. 1994) (ADA forecioses “blind adherence to policies and

standards resulting in a failure to accommodate a person with a

disability”).

25

case focuses on a single event, not a series of multi-

level weekly tournaments. Further the parties in

Martin presented different evidence, so the records

differ. For example, the Martin court cited the

testimony of Dr. Gary Klug with some frequency;

this court granted the USGA’s motion to exclude

Dr. Klug’s testimony. . . .

Olinger, 55 F. Supp. 2d at 933 n.4 (emphasis added).

Petitioner misreads Olinger to contend that the Seventh

Circuit and district court there did not undertake an

individualized inquiry. This contention does not survive a

reading of Olinger. The Olinger district court stated that

“[a] court deciding a case under the ADA must make an

individualized decision concerning the plaintiff.” Id. at 937

(emphasis added). Consistent with the analysis undertaken in

Martin, the Seventh Circuit affirmed the Olinger district court,

examining: (1) “the ‘nature of the “program” to which Mr.

Olinger seeks access: the U.S. Open’ ” and (2) whether granting

the requested accommodation “would alter the fundamental

nature of that competition,” i.e., the U.S. Open, not the continual

succession of tournaments over the course of nearly a year,

to which Mr. Martin sought access based on a different

factual record. Olinger, 205 F.3d at 1006 (emphasis added);

see also Olinger, 55 F. Supp. 2d at 937 (“As noted before . . . it

is also important to remain focused on the nature of the

‘program’ to which Mr. Olinger seeks access: the U.S. Open.”).

Petitioner nowhere acknowledges the important distinctions

recognized in Olinger between (a) the U.S. Open, a single

tournament comprising 72 holes of golf (usually played over

four days) (Olinger, 55 F. Supp. 2d at 928), and (b) the nearly

year-long succession of tournaments around the nation in which

PGA or Nike Tour members compete.

The Seventh Circuit also noted that “[t)he focus of our opinion

has been on one question: Must the USGA allow Ford Olinger to

26

compete while riding in a golf cart instead of walking?”

Olinger, 205 F.3d at 1007 (emphasis added). It expressly based its

ruling on the Olinger factual record, which was a substantially

different record than the record developed at the Martin trial.

Acknowledging that the accommodation of a cart was “reasonable

in a general sense” (/d. at 1006),'’ the Seventh Circuit nevertheless

agreed with the district court’s conclusion that the lay and

expert testimony admitted in Olinger justified denying

Mr. Olinger’s request to use a cart in the U.S. Operi. This fact-

specific holding was expressiy based on the Seventh Circuit's

endorsement of the district court’s comprehensive factual “findings

[that] are amply supported in the record.” Olinger, 205 F.3d at 1006.

In addition to crediting testimony from golfers concerning the role

physical stamina had played in certain U.S. Opens, the Seventh

Circuit emphasized that “Olinger’s own expert witness ...

—Tikewise testified that physical endurance and stamina and

uniform rules are critical factors... .” Jd. at 1006. Thus, far

from announcing any broad split with the Ninth Circuit, the

Seventh Circuit simply affirmed a district court holding based

on findings of fact made “after a full trial” in which the

evidence received was quite different than the evidence

heard by the court in Martin. Id. at 1004.

Any doubt as to whether the Seventh Circuit employs the

same “individualized inquiry” employed under the ADA by the

Ninth Circuit and other courts is conclusively dispelled by the

Seventh Circuit’s recent unambiguous adoption of that inquiry:

We think that the individualized approach is

consistent with the protections intended by the ADA.

The entire point of Arline’s statement that a person

is otherwise qualified if he is able to participate with

13. See also Olinger, 55 F. Supp. 2d at 934 (“The USGA does not

appear to challenge the reasonableness of Mr. Olinger’s requested

accommodation in a general sense, and the golf cart has become so

ubiquitous in the sport that any such challenge would seem doomed.”).

27

the aid of reasonable accommodations is that some

exceptions ought to be made to general requirements

~ to allow opportunities to individuals with

disabilities.

Washington, 181i F.3d at 851. Petitioner is suggesting that a

few months later the Olinger panel rejected this holding without

even citing Washington or acknowledging its departure from

prior case law. Even if petitioner were correct that Olinger

rejected “ ‘individualized determination’ ” (Pet. at 22), the

conflict would be between different panels of the same circuit

and should be resolved by the Seventh Circuit. See, e.g., Davis

v. United States, 417 U.S. 333, 340 (1974).

Subsequent to Martin and Olinger, the United States

District Court for the Western District of Texas entered a

preliminary injunction under Title III of the ADA requiring the

USGA to permit a professional golfer suffering from Post Polio

Syndrome to use a cart in the United States Senior Open and its

qualifying round. See Jones v. United States Golf Ass'n. Civ.

No. A-00-CA-278 JN (W.D. Tex. June 15, 2000), App. 64a-

67a. The court voncluded that “[u]pon review of the ADA and

the relevant cases, particularly Martin ... Olinger ... and

Johnson v. Gambrinus Co., 116 F.3d 1052 (5® Cir. 1997), the

Court finds that Plaintiff has demonstrated a substantial

likelihood of success on the merits.” Referencing Martin and

Olinger together, the Jones court never suggested any

inconsistency existed between those circuit court decisions.

Simply stated, it is reasonable to expect that if the Seventh

Circuit, the Ninth Circuit, the district court in Olinger or the

district cout in Jones had perceived a conflict between Martin

and Olinger, at least one of those courts would have said so.

28

C. This Case Does Not Have Far-Reaching Implications

While petitioner perfunctorily declares that the Ninth

Circuit’s decision may have far-reaching consequences for

professional sports (Pet. at 24-25), in reality the decision is a

fact-specific ruling with no general application beyond its effect

on the litigants, and arguably the small group of professional

golfers who compete in PGA-sponsored golf tournaments. The

Seventh Circuit noted in Olinger that since 1986 only eleven

golfers have requested permission to use a cart in the U.S. Open

— fewer than one a year. Olinger, 205 F.3d at 1003. Moreover,

petitioner does not dispute that the group of individuals who

possess the talent to compete even in the PGA’s qualifying

rounds is minuscule. App. 48a (“The Tour contends that .. .

only very few golfers possess the requisite skills to become

members of the Tour and compete at its events”).

Petitioner contends that the modification requested by Mr.

Martin will fundamentally alter PGA golf without ever

considering the nature and extent of his disability — facts it

deems irrelevant. Jd. at 13a (“PGA has steadfastly declined to

consider Martin’s condition in adhering to its position’’). Having

refused even to look at Mr. Martin’s medical records, petitioner

conclusorily asserts that the case-by-case evaluation of disability

mandated by the ADA would not result in “reliable”

determinations of whether an individual “might obtain an unfair

advantage.” Pet. at 22. First, organizations across the country

are complying with the ADA by consulting physicians and

medical records to determine how persons with disabilities can

reasonably be accommodated so that they may fully participate in

various aspects of life. See, e.g., Rascon v. U.S. West Comm., Inc.,

143 F.3d 1324, 1327 (10th Cir. 1998) (discussing communications

between U.S. West and employee’s physicians in attempting to

accommodate employee’s post-traumatic stress); Davis v. Lockheed

Martin Operations Support, 84 F. Supp. 2d 707,712 (D. Md. 2000)

(employer complied with ADA where it engaged in extensive

communications with employee about her disability and provided

29

her with every accommodation her doctor said she needed);

Darian v. University of Massachusetts Boston, 980 F. Supp. 77,

88 (D. Mass. 1997) (school met its obligation to make reasonable

accommodation to disabled student under ADA by, inter alia,

consulting doctor).

Moreover, as the Ninth Circuit noted, “[nJothing in the

record establishes that an individualized determination would

impose an intolerable burden on PGA.” App. 14a. Petitioner

fails to acknowledge that it already makes these individualized

determinations pursuant to a medical extension rule for PGA

members who miss certain events because of a medical

condition. Its Commissioner testified that the PGA reviews a

PGA or Nike Tour player’s medical condition — which

petitioner refused to do in Mr. Martin’s case — and generally

accepts a treating physician’s conclusion that the player missed

tournament play for medical reasons. Petitioner then permits

this temporarily disabled player to return to the Tour (to the

extent determined by a formula) without having to return to

Q School, which petitioner concedes gives the exempt player

an advantage on the basis of disability over those who must

qualify.'* Resp’t App. 26a-27a. Thus, petitioner is already

evaluating the medical condition of golfers and is willing to

make judgments about the effect of even a temporary disability

on the ability to play for one of its own. The Ninth Circuit

correctly held that the ADA prohibits petitioner from refusing

to exercise its demonstrated ability to evaluate golfers with

disabilities when the reqiest is from a golfer seeking to play on

a tour.

14. Petitioner’s speculative hypotheticals about golfers who do

not have a disability but who are not at their physical best on a given

day (Pet. at 23) are entirely beside the point. The ADA does not protect

individuals with temporary ailments, and does not cover the average

person ill from the flu or incapacitated by short term surgery for a

hangnail. 29 C.FE.R. § 1630.2(j); 29 C.ER. pt. 1630, app. § 1630.2(j)

(interpreting § 1630.2(j)).

30

This case simply does not present any issue of national

importance warranting this Court’s review. Rather, the decision

reflects the proper application of settled legal principles to a

fully developed factual record unique to Mr. Martin.

Finally, even if the petition could be deemed to raise an

issue that may ultimately warrant review, the broader

Significance and recurring nature of any issue presented by the

Ninth Circuit’s decision are far from established. Accordingly,

sound judicial administration supports this Court awaiting

further developments in the lower courts to allow the Court to

(a) ascertain whether any national issue wat!ranting a writ exists

and (b) properly frame the nature and extent of any such issue.

See, e.g., McCray v. New York, 461 U.S. 961, 963 (1983)

(certiorari denied where issue requires “further study” in lower

courts “before it is addressed by this Court”).

CONCLUSION

For all of the foregoing reasons, the petition should be

denied.

Respectfully submitted,

Roy L. REARDON

Counsel of Record

MARTHA L. WALTERS JosepH M. McLauGHLin

WALTERS RoMM CHANTI MICHAEL P. PANAGROSSI

& DICKENS CHRISTINA E. PAGLIA

Eugene, OR 97401-3114 425 Lexington Avenue

(541) 683-2506 New York, NY 10017-3954

WILLIAM WIsWALL (212) 455-2000

rammaas, & Wena, PL. Attorneys for Respondent

P.O. Box 11736 Casey Martin

Eugene, OR 97440-3936

(541) 484-6630

Of Counsel

APPENDIX

APPENDIX A — EXCERPTS FROM

TRIAL TRANSCRIPT

[commencing at page 21]

Argument - Defendant

THE COURT: Well, if you are exempt from the ADA,

you are also exempt from the Civil Rights Act, correct?

MR. MALEDON: That’s correct. They are one and the

same. The test is the same, and that is correct.

THE COURT: And not that the PGA Tour would ever

do this, but hypothetically, then, you would be arguing that

you could lawfully ban golfers based on race or religion?

MR. MALEDON: Any private organization unfortunately,

Your Honor, can do that, and the PGA Tour has never done

that.

THE COURT: I’m not saying you did or you would.

MR. MALEDON: Yes.

THE COURT: But hypothetically, if the private {22}

club exemption applies to you, you would also assert that

you could lawfully do that.

MR.MALEDON: Your Honor is hypothetically correct

that that is true as to any private organization, a country club,

a — the Boy Scouts, anybody that qualifies for an exemption

2a

Appendix A

as a private membership organization, that is correct, Your

Honor, they are exempt from the civil rights laws. In my

view that’s — that’s one of the unfortunate aspects of what

Congress did, but that’s what they did, and that’s what the

law is. So Your Honor is correct.

THE COURT: And you don’t think that the participation

of the public in the PGA Tour and what they do in terms of

generating economic benefits for its members would be such

that the courts would not deem PGA Tour to be private under

the Civil Rights Act?

MR. MALEDON: No, Your Honor. No, Your Honor,

not any more than the same thing is true with respect to the

Boy Scouts and the money that they raise. I submit that the

Boy Scouts of America probably have as much if not more

assets than the PGA Tour, but nevertheless, the courts have

held that they are a private organization exempt from the

Civil Rights Act.

[76] . . . The fact of the matter is that with respect to a private

membership organization and that issue, the law is clear,

and, indeed, | would refer Your Honor to the Chicago Club

case we cited where the court says, “The club allows

nonmember guests the use of its facilities under certain

conditions and under the sponsorship of a member.

Members may arrange for guests to be issued a guest card

3a

Appendix A

that affords them the use of club facilities for as many as

14 days.” The court said that didn’t take away the indicia of

a private membership organization. The mere fact that you

have guests is to be expected in private membership

organizations.

Some of these participants I guess would fall into the

category of guests, but the fact of the matter is most of the

rest of them are members of one kind, and it is not unusual,

as we said in our papers, Your Honor, for private clubs to

have different kinds of members. Kinds of members.

Your Honor, you asked Ms. Walters about the

handicapped caddie situation, and categorically | disagree.

The handicapped caddie would not have to be

accommodated, again, because it is not a place of public

accommodation where the handicapped caddie is. It is not

an area that is open to the general public.

[119] D. Jones ReD

BY MR. WISWALL:

Q. In the event of the amputation, would it be below or

above?

4a

Appendix A

[120] A. If it was necessary today, it would be below the

knee, but there’s a possibility with the changes in his knee it

would eventually be above the knee, as well.

[222] E. Johnson — D

Q. Now, there may be some testimony in this case that

officials of the. PGA Tour can transport players who have

hit a ball out of bounds or who have lost their ball back to

the tee to hit their next shot and then back again.

A. Yes.

Q. Have you seen that?

A. I’ve seen that and been involved in that.

Q. All right. So — So it’s just not that there can be shuttles

between green and tee where there’s a long distance, but if

you've lost your ball and you are in the play of the game,

right in the middle of the hole, and you've hit a 285-yard

shot, you’ve lost your ball, you can’t find it, an official can

take you back by automated cart and take you back to the

tee; is that correct? —

A. That is correct.

Sa

Appendix A

Q. Then you hit your ball, and let’s say that you fire this

one straight down the fairway. Can the official then take

you right back down to the ball that you’ve hit?

A. That’s his discretion, but in most cases they will, yes.

[434] R. Ferris — D

Q. Now, Mr. Ferris, you were chairman of the policy board

in 1997; is that correct?

A. That is correct.

Q. In 1997, Mr. Ferris, did an issue arise concerning whether

competitors in the finals of the PGA Tour qualifying

tournament would be required to walk?

A. That was one of the subjects that came up regarding the

qualifying tournament.

Q. All right. And was it always the case, Mr. Ferris, that

prior to 1997 that competitors in the PGA Tour qualifying

tournament were required to walk?

A. Would you repeat that, please.

Q. Sure. Prior to 1997, sir, was it required that competitors

in the PGA Tour qualifying tournament walk the course?

6a

Appendix A

A. To the best of my knowledge, it was not required.

Q. All right. And what happened in 1997 at the board level,

Mr. Ferris, that brought about a change in that requirement?

A. The feel was on the part of staff and was brought to [435]

the board — by staff, 1 mean the commissioner and the staff

— was brought to the board that they wanted to make some

improvements to the final stages of the qualifying tournament

and, to the best of their ability, to approximate playing

conditions as encountered — that the players would encounter

at the — out on tour, out on the PGA Tour once they got

their card and they would be out on tour. And so they took a

number of actions, and which the board approved, to — to

create a situation where we mirrored PGA Tour-like conditions

at qualifying school, and I believe that one of those actions

was to cease to have the use of carts and to put in place that

in the finals, I think it’s the final, that you must walk.

There were a number of other things done, too.

Q. What’s your understanding, Mr. Ferris, as to why

competitors in the qualifying tournament in prior years were

not required to walk the course?

A. It was a matter of basically practicality. And for the most

part, economic practicality. The qualifying tournament is a

— it starts out with 1100 people, and it’s a series of

tournaments and you have the first round and then you have

the second round. It’s a winnowing down. You start with

1100 and you winnow it down and you go to the second

round. Then you go from the second round into the finals. |

believe that’s the series.

7a

Appendix A

[436] And in many of the locations where we played the

first and second rounds, the quality of the golf courses wasn’t

as good, the availability of caddies, not always available,

hard to come by. Also from the fact, and this has been a

personal concern of mine over the years, is the cost of going

to qualifying school is pretty expensive, and for many

fellows, they couldn’t afford a caddie. It was too expensive

to bring their caddie, bring them into the town and be able to

pay for it.

So I believe the way they had it was you could always

use a Cart in those, or you could bring a caddie. You could

take your choice. And that’s what was done in round one,

round two, and then we had this discussion about the final

round. And it was, well, this is going to be the final round.

Let’s make it like life is out on tour. Let’s make it as

exactingly as life is, so the quality of the course, make sure

it’s meticulous, make sure we are playing at the lengths, make

sure the pin positions are tough, make sure that the greens

are fast and let’s walk. There’s a number of issues.

[490] R. Ferris — X

* * *

Q. All right. Now, I want to talk to you about the Senior

Tour that you’ve had some experience with.

Am I right that the Senior Tour has been called by many

in the sports world the most successful sports venture of the

1980s?

et tlt i A

8a

Appendix A

A. I think that’s a correct term, yes.

Q. And the Senior Tour includes 78 of the most talented

golfers in the world, doesn’t it?

A. No. The Senior Tour includes 78 of some of the used-

to-be most talented golfers in the world. They are still

talented, but they are not nearly as talented as the young

people that play on the regular tour or the Nike Tour.

Q. Are you saying that applies to all 78 of them?

A. I'd say it applies to the vast majority of them, yes. That’s

why we make the courses shorter. That’s why the pin

positions are in the middle of the green. That’s why the rough

isn’t as deep. There — You know, with age, we all know

that the baseball player, everybody, with age your physical

prowess declines, your abilities decline. So to make the

statement that you just made, which is that they are, what

did you say, the finest? Could you repeat what you said?

[491] Q. The field that you field for the Senior Tour —

A. Yeah.

Q. — includes 78 of the most talented golfers in the world?

A. Well, see, I have a hard time with that. It includes people

who were at one time in their career the most talented golfers

in the world, and if you said that they are the most talented

for their age bracket, then I’d agree with that statement.

—— a

9a

Appendix A

Q. All right. Well, let’s say that we included the Nike Tour

and the regular tour and the Senior Tour. Would those three

tours together encompass the most talented golfers in the

world?

A. For their differing age brackets, yes, I’d say that’s a fair

statement.

Q. Now, in fact, you’ve publicly advertised the Senior Tour

players using the slogan, These Guys Are Good.

A. They are.

Q. And when the Senior Tour started in 1980, by 1986 when

you were on the Senior Player Division Board, it had grown

in stature beyond all expectations; is that correct?

A. That is correct.

Q. And it had done so with players using golf carts, hadn’t

it?

A. That is correct, because it was a nostalgia tour.

[492] Q. It had been able to establish its stature with players

using golf carts, hadn’t it?

A. It was a different form of competition, yes. It was a

different form of competition, where you were playing for

the pleasure of playing with one of your heroes, just like

people go out and play with the Cubbies in Chicago. The

old Cubbies, that is.

10a

Appendix A

Q. Now, the Tour had evolved by 1986 into an event that

had started as two events in 1980 and by 1985 was up to

27 events; is that right?

A. To the best of my knowledge, that’s correct.

Q. And during that period from 1980 to 1985 there had been

no discussion in any board minutes, policy board or senior

division board, about cart use, had there?

A. To the best of my knowledge, that is correct.

Q. So then it was in 1985 that ESPN first televised seven

Senior Tour events, wasn’t it?

A. I don’t know.

Well, could you look at —

I mean, I will accept your statement as a fact.

oO F

All nght.

A. I'm not —

Q. And then it was in January of 1986 that Mr. Arnold

Palmer raised the issue and argued that carts should be

banned, wasn’t it?

[493] A. The reason it was is because that’s when the tour

policy board — or Senior Tour board was formed. It wasn’t

formed until late 1985, and so now we have an official body

eee ere BE

|

|

lla

Appendix A

whereby the players can express their feelings to a board of

directors rather than up through the other form of chain of

command. So things were starting to become a little more

formal. Things were getting a little more organized because

of this sudden wealth.

Q. Actually, in 1980 was the first time a Senior Advisory

Council was organized, and at that time —

A. I think that’s a Players Advisory Council.

Q. Well —

A. It had no advisory council until 1986.

Q. In 1980 there was a Senior Advisory Council, am |

correct?

A. That could have been a nomenclature. I can only tell you

there was no board of directors for the Senior Tour until late

1985, early 1986, at which time it was formed. I believe

what’s referred to there probably is the — what we now call

the Players Advisory Council, which we have on all tours.

And that’s just composed of players, to the best of my

knowledge.

Q. And then it was in — after 1985 when you got the

televising of your tournaments, it was in January of 1986

that Mr. Arnold Palmer first raised the issue at a board [494]

meeting and argued that carts detracted from the public image

of the tour; is that correct?

12a

Appendix A

A. Are you reading from something so I can just accept it

without having to look at it?

Q. I was reading from Mr. Palmer’s testimony.

A. Oh.

Q. Given in this case.

A. I can only tell you, having been intimately involved with

Mr. Palmer, being both a business associate and a close

friend, that I had no pleasure in voting against him in this

matter, and he has never let me forget it. But Arnold brought

the subject up in 1986 because we had a forum in which to

bring it up.

Q. But what he brought up was that he thought that carts

detracted from the public image of the tour, wasn’t it?

A. He felt it was a physical part of the game. Arnold feels

very strongly that walking is an integral physical part of the

game. I should know that because he’s told it to mc enough

times.

Q. Well, could you look at Defendant’s Exhibit 115.

A. 115. Okay.

THE COURT: 115 or 116?

MS. WALTERS: I thought it was 115, Your Honor.

13a

Appendix A

THE COURT: Defendant’s?

MS. WALTERS: Yes.

[495] THE WITNESS: Defendant’s? Defendant. Is that

us? That’s us. Okay. Which way does it go?

MR. WISWALL: That’s you.

THE WITNESS: Okay. 116, ma’am?

BY MS. WALTERS:

Q. Just a minute. I will check.

A. Okay.

Q. No. If you could look at 115, please.

A. 115.

Q. Now, these are the minutes where Mr. Palmer first raised

the issue?

A. I believe that’s correct.

Q. All right. And it doesn’t say anything in those minutes

about Mr. Palmer wanting this to be conducted as a physical

competition, does it?

A. I wish I was a speed reader.

14a

Appendix A

These minutes do not reflect that, but I can tell you in

the discussions I’ve had with Mr. Palmer over the years,

that’s exactly what he means. Minutes don’t always

completely and accurately reflect everything that took place

in a meeting.

Q. Well, in the discussions you’ve had with Mr. Palmer over

the years, has he told you his feelings that he was concerned

about the public image, including television?

A. I don’t recall him ever saying anything about [496]

television. | recall him talking about, you know, walking is

integral to the game. It’s part of the game. It’s a physical

part. You know, walking is tiring, and the older you get, the

more tiring it becomes.

Q. And have you been there when Mr. Palmer has discussed

with members of the tour policy board about how the image

of the PGA is affected by the appearance of these carts?

A. My memory of the conversation does not revolve around

image. My memory of the conversation regards — regards

the part that it’s an integral, purposeful part of the game.

THE COURT: We’ll never finish this case if we don’t

move on, unless one or the other of you agree. That is not

going to happen, so I think we’ ve exhausted this. You might

move on to another area.

MS. WALTERS: Thank you.

LB PAPAL DRRODAE LIE BE ay sp RG NE

ea One

4

SPT RRO ERR NE Oe Un Sg RT OC ae rR LATIN ye OS

1Sa

Appendix A

BY MS. WALTERS:

Q. At the time you made — Mr. Palmer came forward with

this proposal, you suggested that what should happen is that

carts should be banned and medical exemptions given; is

that correct?

A. Yes, that is correct.

Q. And you were going to allow any player with a bona fide

medical certificate to use a cart; is that correct?

A. As far as | was concerned, it was even broader than [497]

that. In other words, we could not afford to lose, let’s say,

Sam Snead or Julie Boros out there. We needed every great

name we could go get, so if they said they needed a cart to

complete 18 holes, they got a cart.

Could you look at your minutes, again, of Exhibit 138?

138.

That's Defendant's Exhibit 115. I’m sorry.

Thank you. Yes, ma’am.

On the last page?

Yes, ma'am.

or 82 FF GB > &

. And was it a unanimous determination of the board that

carts be banned except that cart use would be permitted in

l6a

Appendix A

Pro-Am rounds and for players with bona fide medical

certificates?

A. Yes, that was, you know, a medical — yeah, that’s

correct.

Q. That was what the division board unanimously agreed

on?

A. Right. Because we needed those fellows out there for

the draw.

Q. Now, to this day, then, members of the — if someone is

50 years or older and they have a medical disability, that

condition is accommodated; is that night?

A. Could you repeat that, please?

[498] Q. To this day, any player who is 50 or older and who

needs a cart due to a medica! disability is accommodated,

am | correct?

A. No. Today on the Senior Tour, to the best of my

knowledge, if they want to use a cart, they can use a cart. If

they want to walk, they can walk.

* * *

[576] Casey Martin — D

A. You had two options. You either had a caddie or you

took a cart. And you couldn’t deviate from those two.

17a

Appendix A

Q. Did it change the nature of the competition?

A. Absolutely not. It was the same game. Everyone played.

And the PGA Tour made no distinction, they didn’t know

who rode, who didn’t. It was a nonissue.

Q. All right. And then — and then at the second stage of

competition, same rules, USGA?

A. USGA rules. You — you know, it was the same deal as

first stage.

Q. And did it change the nature of the competition as far as

you could perceive?

A. Absolutely not.

Q. Okay. And did it appear that the players with carts were

given any advantage over the ones that were walking and

using caddies?

A. Clearly not.

[s83}* * *

BY MR. WISWALL:

Q. 1.1 States the game of golf consists of playing a ball from

the teeing ground into the hole by a stroke or successive

strokes in accordance with the rules.

18a

Appendix A

Is that your understanding of what the game is?

A. Yes.

* * *

[722] J. Bell — D

* * o

Q. All right.

Tell the court, if you would, Ms. Bell, who it is that

plays under these Rules of Golf that are promulgated by the

United States Golf Association?

A. Well, these are the rules of the game, so all golfers. These

are for all people who play the game.

Q. So the two amateurs that go out on the weekend to play

golf together would — would play by the Rules of Golf?

A. We certainly hope so.

Q. Or a tournament that is conducted at a private country

club for its members, is it your understanding that that would

typically be conducted under the Rules of Golf?

A. Well, that’s — that’s right. If you want to play golf, you

need to play by these rules.

19a

Appendix A

Q. Now, you mentioned the Rules of Golf as including

certain provisions that are in the appendices. Would you

explain to the court what you mean by that.

A. Well, it’s just the way the rules are organized. When you

get to the appendices, for instance, if we look at Appendix I,

the language for local rules that may be adopted by the

committee in charge of the competition, this is the people

that are conducting the competition.

Q. Now, let’s explain that a little bit more. When you say

the committee in charge of conducting the competition, [723]

who precisely is it that you are talking about?

A. Well, it could be, for instance, at the — at the competition

you mentioned it could be the local pro, it could be a

championship committee at a club. It could be — In the

instance of the United States Open Championship, it would

be the United States Golf Association’s championship

committee. And they would define the conditions of the

competition. And those conditions — There’s conditions in

the appendix as — in terms of there’s optional conditions,

and there is also language for local rules that relate to specific

situations on certain courses. And it’s up to this committee,

under Rule 33, to define the conditions of the competition.

Q. Now, let’s explore that, Ms. Bell. When a committee that

is conducting a competition — and let’s take the PGA Tour,

for example. If the committee or the organization conducting

PGA Tour events decides to adopt certain of the — the

optional conditions contained in the appendix to the USGA

Rules of Golf, are those still rules of golf for those

competitions?

20a

Appendix A

A. Once they are adopted, they certainly are. They are rules

of the game being played in that competition.

* * *

(730)* * *

Q. Am | correct, Ms. Bell, that the one-ball rule and the

walking requirement are optional conditions that are taken

from the appendix of the USGA Rules of Golf?

A. Yes, they are listed as optional conditions under

Appendix I.

Q. And the USGA in its championship events adopts its

optional conditions for its events?

—a—_— ~

ae

—

A. We do. J

Q. Now, is it correct, Ms. Bell, that walking is required in

all 13 of the USGA’s championship events, or are there some

in which walking is not required?

A. Thé two championships where walking is permissible,”

to use automotive transportation, is in the Senior Women’s

Amateur Championship and the Senior Amatec.

Championship.

-

“THE COURT: And the Senior what? = = - >

THE WITNESS: The United States Senior Women’s

Amateur Championship and the Senior Amateur

tenet

Q. — have competitors beéri permitted to use golf carts? _

-~ AT They have.

2la

Appendix A

Championship. The one that’s, again, it’s open to anyone,

Senior Amateur Championship. The Senior Women’s is only

for women over the age of 50. The Senior Amateur

Championship is for players over the age of 55.

* * .

[794] T. Finchem — D

Q. In the qualifying tournament in past years, sir —

A. Yes.

Q. And what is the reason, Mr. Finchem, that competitors

in the national qualifying tournament have been permitted

to use golf carts in past years?

A. Well, | think there’s a couple reasons. One is that the —

we get an awful lot, in the thousands, of people who aspire

to play the PGA Tour, who enter the qualifying tournament

at the local level. Administratively it has been determined

over the years that it’s impossible to require them, all of

those players, to — to get caddies, for the combined reasons

of the availability ef that number of caddies at the first and

second stage of qualifying, and, I suppose, the cost of

caddies, as well, plays some [795] role in that, as well.

22a

Appendix A

In addition to that, the —- in ihe early stages of qualifying,

the competition is to go to a higher stage. And frankly, we

get a lot of people who enter the qualifying tournament who

have a quality of game that is not going to take them on to

the next stage, and we view it as a winnowing-out process,

if you will, but those are the basic reasons.

Q. Now, in this past year, 1997, Mr. Finchem, did the PGA

Tour make a decision to alter the requirement or at least

change the procedure with respect to use of golf carts, at

least in the finals of the qualifying tournament?

A. Yes, we did.

[832] T. Finchem — X

* * -

Q. All right. Now, since 1988, when you did come with the

Tour as an employee, am I correct that the only board meeting

minutes in which carts or walking have been discussed at all

were the minutes that have been offered into evidence of the

March 1997 meeting, when the changes were made in the

Q school format?

A. As far as I know.

Q. And you have not been able to find a single document

where the defendant has put in writing, prior to 1998, that

walking is a fundamental part of its tournaments, have you?

23a

Appendix A

A. A document that uses those words?

Q. Well, anything that the defendant has produced which

either states or in some way — whether it states directly or

indirectly, that walking is a fundamental part of the

tournaments it produces?

A. I don’t know a document that says that, no.

Q. Now, you know that the game of golf, the essentials, the ~

definition of the game of golf, is stated in the rules at Rule

1-1, don’t you?

{833] A. Yes.

Q. And that definition of the game of golf, in its essentials,

has been adopted by the PGA Tour, Inc. for its tournaments,

hasn’t it?

A. We accept the USGA Rules of Golf, and we reserve the

right to amend them as we might see fit, which we have done

from time to time.

Q. Right. But you haven’t amended this definition of the

game, have you?

A. No, we have not.

24a

Appendix A

ane °°

Q. And you require that to the extent possible the conditions

in the open qualifying shall be comparable to those of the

tournament site in conditioning, speed of greens, et cetera,

Gort you?

A. If possible, that’s correct.

Q. And that is so that you can test golfing skill, isn’t it?

A. As best as we can, yes.

Q. But you don’t require in that document that the golfers

in the open and sectional qualifying tournaments walk, do

you?

A. No, we don’t.

Q. You could include that requirement if walking were an

important part of your competition, couldn’t you?

A. Well, we could. But it’s covered under the rules of

competition.

Q. Well, professional golfers do not have to walk in Monday

and sectional qualifying tournaments, do they?

A. We allow them to ride carts in Monday qualifying, yes.

*_ * *

25a

Appendix A

(s40)* * *

Q. So you’re saying that every Notice to Competitors for

[841] a qualifying event would say that you don’t have to

walk?

A. No, | didn’t say that. I said if the tournament committee

determined that there was going to be — there was no

requirement to walk in an open qualifying, just like the

second stage — first or second stage of the qualifying school,

it would most likely be in the Notice to Competitors, if you’re

searching for where it will appear. | will tell you that we do

not require walking most weeks in opening qualifying, just

like we don’t require the first and second stage of the

qualifying tournament. If that’s what you’re searching for,

that’s true.

(845])* * *

Q. All right. And you take in about 1200 applications, and

then you winnow those down and the top 168, as long as

they finish the Q school, will be members of either the regular

or the Nike Tours, is that right?

A. What was the number you used?

Q. Down to 168.

A. Yes, they would be members on some level of access,

that’s correct.

26a

Appendix A

Q. All right. The highest 37 plus ties become members of

the regular Tour, and then all the remainder become members

of the Nike Tour, just with differing rights, depending upon

where they fall?

A. Differing levels of access, that’s correct.

Q. All right.

So once the player makes it to the final stage, where

you’re down to those 168, he knows that he’s on one tour or

the other?

A. That’s correct.

[s70}* * *

Q. And on the medical extension that you talked about, you

could make these people who have to be — who miss playing

in some tournaments due to their medical condition, you

could make — you could make them come back to Q school

[871] and demonstrate that they can play at that level,

couldn’t you?

A. Well, we could. Some of them still have to. But we also

provide them, if they’re an exempt player, we provide them

the ability to pick up some of the access they lost by virtue

of the injury.

27a

Appendix A

Q. And before you put that into effect they did have to come

back to Q school and prove themselves?

A. Well, they had to do whatever they had to do. There was

no — there was no additional access provided them because

of an injury.

Q. Right. But normally they would have had to be in one of

the other either top 125 money-makers, let’s use the regular

PGA Tour, they would have to be in the top 125, and if they

couldn’t be because of their injury, their only way back in

was to go to Q school?

A. That’s correct.

Q. And if they didn’t have to go to Q school, that would

give them an advantage over other players who did have to

go to Q school, wouldn’t it?

A. Well, I guess so....

[873]* * *

A. I think walking to certain players in certain circumstances

can be an advantage over riding the cart, yes.

Q. Shot-making is obviously the primary skill of

professional golfers.

28a

Appendix A

A. I think from a skill standpoint, you’d have to admit that

what — the key element of skill in the game of golf is

shot-making, yes.

Q. Golf carts have become a part of the game of golf in the

last 30 to 40 years.

A. Absolutely.

29a

APPENDIX B — EXCERPTS FROM ALL-EXEMPT

TOUR PRIORITY RANKINGS

ALL-EXEMPT TOUR PRIORITY RANKINGS

Each PGA TOUR player has earned a position on the priority

ranking system that will be used to select tournament fields.

The complete ranking system, in order of priority, is as

follows:

1. Winners of PGA Championship or U.S. Open prior

to 1970 or in the last 10 calendar years.

(Beginning in 1998, this is a five-year exemption.)

Paul Azinger Tom Kite

Mark Brooks Gene Littler

Jack Burke Davis Love III

Billy Casper Orville Moody

John Daly Bobby Nichols

Steve Elkington Jack Nicklaus

Ernie Els Arnold Palmer

Dow Finsterwald Corey Pavin

Jack Flec Gary Player

Raymond Floyd Nick Price

Al Geiberger Bob Rosburg

Wayne Grady Jeff Siuman

Lionel Herbert Sam Snead

Hale Irwin Payne Stewart

Don January Curtis Strange

Lee Janzen Lee Trevino

Steve Jones Ken Venturi

30a

Appendix B

. Winners of the THE PLAYF?S Championship in

the last 10 calendar years.

(Beginning in 1998, this is a five-year exemption.)

Fred Couples Mark McCumber

Jodie Mudd Greg Norman

._ Winners of the NEC World Series of Golf in the last

10 calendar years.

(Beginning in 1998, this is a three-year exemption.)

Fulton Allem Tom Purtzer

David Frost Mike Reid

Phil Mickelson Craig Stadler

. Winners of the Masters Tournament in the last

10 calendar years.

(Beginning in 1998, this is a five-year exemption.)

Ben Crenshaw Sandy Lyle

Nick Faldo Tiger Woods

. Winners of the British Open in the last 10 calendar

years (1990-present).

(Beginning in 1998, this is a five-year exemption.)

Tom Lehman

Justin Leonard

. THE TOUR Championship winners of the last three

years, beginning with the 1998 winner.

3la

Appendix B

. The leader in PGA TOUR official earnings in each

of the last five calendar years.

- Winners of PGA TOUR cosponsored or approved

events (except team events) within the last two

calendar years, or during the current year; winners

receive an additional year of exemption for each

additional win, up to five years.

Stuart Appleby Gabriel Hjerstedt

Phil Blackmar Scott Hoch

Guy Boros Peter Jacobsen

Michael Bradley Billy Mayfair

Billy Ray Brown Scott McCarron

Mark Calcavecchia _—__ Frank Nobilo

Stewart Cink Mark O’Meara

John Cook David Ogrin

David Duval Loren Roberts

Brad Faxon Clarence Rose

Ed Fiori Vijay Singh

Fred Funk Paul Stankowski

Jim Furyk Steve Stricker

Jim Gallagher, Jr. David Toms

Bill Glasson Tom Walston

Paul Goydos D.A. Weibring

Dudley Hart Willie Wood

Tim Herron

. Members of the last-named U.S. Ryder Cup team.

Jeff Maggert

32a

Appendix B

10. Leaders in official PGA TOUR career earnings, as

follows:

a. Players among the Top 50 in career earnings as

of the end of the preceding calendar year may

elect to use a one-time, one-year exemption for

the next year.

John Huston

Scott Simpson

Fuzzy Zoeller

b. Players among the Top 25 in career earnings as

of the end of the preceding calendar- year may

elect to use this special exemption for a second

year, provided that the player remains among the

Top 25 on the career money list.

Chip Beck

Bruce Lietzke

. Sponsor exemptions (a maximum of eight, which

may include amateurs with handicaps of two or less),

on the following basis:

a. Not less than two sponsor invitees shall be PGA

TOUR Regular, Life or Past Champion members

not otherwise exempt.

b. Not less than two of the top 50 finishers from the

last Qualifying Tournament, if not all of them can

otherwise be accommodated (Note: PGA TOUR

12.

13.

16.

17.

33a

Appendix B

members may receive unlimited number of

sponsor invitations. Non-TOUR members may

receive maximum of five per year.)

Two foreign players designated by the Commissioner.

The current PGA Club Professional Champion for a

maximum of three open events, in addition to any

sponsor selections.

Bruce Zabriski

. PGA Section Champion of the Section in which the

tournament is played.

. Two members of the PGA Section in which the

tournament is played, who qualify through sectional

qualifying competitions.

Four low scorers at Open Qualifying, which shall

normally be held on Monday of tournament week.

Past champions of the particular event being

contested that week, if co-sponsored by the PGA

TOUR and the same tournament sponsor (except for

Team events), as follows:

Winners prior to July 28, 1970 — unlimited

exemptions for such events.

Winners after July 28, 1970 — ten years of

exemptions for such events.

* * * *

34a

APPENDIX C — EXCERPTS FROM 1997 PGA

TOUR QUALIFYING TOURNAMENT

1997 PGA TOUR QUALIFYING TOURNAMENT

Grenelefe Golf and Tennis Resort, Grenelefe, FL

West Course— Par: 36-36—72 Yards: 7,301

South Course— Par: 36-35—71 Yards: 6,717

December 3-8, 1997

Approximately 1.200 applications were received, with

11 first-stage regionals and six second-stage regionals held

to reduce the field to 168 players for the final qualifying

stage, which was six rounds with no cut.

There were two weather delays during the tournament.

The second-round start time on Thursday was delayed from

8:30 a.m. until noon due to rain, and the 8:30 a.m. start time

for Sunday’s fifth round was delayed 30 minutes due to frost.

The top-35 players and ties (a total of 38) received their

PGA TOUR cards for 1998. The next 77 finishers earned

fully exempt NIKE TOUR cards for 1998, and the balance

of the field earned conditional NIKE TOUR status for 1998.

The following players earned their 1998 PGA TOUR

cards:

Scott Verplank 66-64-67-70-69-71 407

Blaine McCallister 67-70-68-72-66-70 413

"PPP >

Lee Porter 70-71-67-69-71-68 416

Stephen Ames 70-68-69-69-70-70 416

Spike McRoy 69-71-69-71-68-69 417

35a

Appendix C

Franklin Langham

Sonny Skinner

Jim McGovern

Bob Gilder

John Riegger

Bruce Fleisher

Richard Coughlan

. Vance Veazey

. Guy Hill

Hugh Royer III

Kent Jones

. Niclas Fasth

. Kevin Wentworth

J.P. Hayes

Tim Conley

. Jim Estes

. Esteban Toledo

. Steve Jurgensen

Keith Nolan

. Tom Pernice, Jr.

Clark Dennis

. John Morse

. Craig Barlow

Bradley Hughes

Dicky Pride

. Mike Weir

. Jeff Gallagher

. Bob Friend

lain Steel

. Mark Wurtz

Bobby Gage

Lan Gooch

. Tim Loustalot

72-71-68-68-66-72

71-70-66-73-69-69

75-66-68-69-72-68

67-72-69-74-68-69

70-69-70-72-68-70

69-72-69-69-7 1-69

73-66-70-70-71-69

73-68-66-7 1-71-70

69-67-69-73-69-72

67-71-69-70-71-71

72-70-67-64-71-75

73-67-74-72-63-71

72-69-68-73-68-70

71-69-67-74-66-73

70-73-73-7 1-69-65

71-72-71-71-70-66

71-72-70-70-66-72

74-67-67-73-69-71

71-70-68-70-70-72

71-69-67-70-70-74

71-72-69-74-66-70

74-70-70-72-66-70

76-67-70-7 1-71-67

70-73-67-74-68-70

72-68-69-72-69-72

71-68-69-72-71-71

71-67-69-73-69-73

76-69-76-69-70-63

68-75-72-72-67-69

75-69-66-76-67-70

69-77-66-69-70-72

69-68-70-71-73-72

71-71-69-68-69-75

417

418

418

419

419

419

419

419

419

419

419

420

420

420

421

421

421

421

421

421

422

422

422

422

422

422

422

423

423

423

423

423

423

36a

APPENDIX D — CONSOLIDATED STATEMENTS

OF ACTIVITY OF THE PGA TOUR, INC.

AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF ACTIVITY

PGA TOUR, INC. and SUBSIDIARIES

(in thousands)

1995 1996 1997

Actual Actual Projected

REVENUES

Television Revenues $ 86,967 $ 95,575 $103,259

Tournament Revenues 90,938 101,395 104,851

Tournament Players Clubs 69,275 76,423 90,810

Marketing and Promotions

Revenues 24,202 29,053 32,380

Interest and other income 13,027 15,112 12,742

TOTAL REVENUES 284,409 317,558 344,042

EXPENSES

Television Cests and

Expenses 32,367 32,532 33,873

Tournament Operations

Expenses 27,496 33,210 37,526

Tournament Players Clubs 58,097 64,620 78,678

Marketing and Promotions

Expense 8,996 9,367 9,231

Interest Expense 4,004 2,930 3,205

TOTAL EXPENSES 130,960 142,659 162,513

REVENUES OVER

EXPENSES FROM

OPERATIONS 153,449 174,899 181,529

37a

Appendix D

Board Designated Funds

Utilized (Reserved) for

Allocations (Net) 4,286 (922) (2,545)

Net REVENUES

AVAILABLE FOR

ALLOCATIONS 157,735 173,977 178,984

ALLOCATIONS TO PLAYERS AND

SPONSORS

Players Prize Money/

Sponsor Allocations 131,519

Player Retirement Plan

142,148 152,084

contributions:

PGA TOUR 5,000 5,500 6,000

Senior PGA TOUR 3,750 4,000 4,500

Retirement Plan

Earnings 6,060 6,045 5,875

TOTAL ALLOCATIONS 146,329 157,693 168,459

REVENUES OVER

ALLOCATIONS AND

EXPENSES FROM

OPERATIONS 11,406 16,284 10,525

State and Federal Income

Taxes (4,027) (3,307) (3,348)

REVENUES OVER EXPENSES

AND ALLOCATIONS ADDED

TO UNDESIGNATED

UNDISTRIBUTED NET

ASSETS $ 7,379

$ 12,977 $ 7,177

38a

39a

Appendix D

Board designations for future

Player and Sponsor purposes.

Additions to designated

undistributed net assets (7,906)

Allocations for designated

Appendix D

YEAR ENDED DECEMBER 31

1996 1995

in thousands

REVENUES:

Television revenues $ 95,575 $ 86,967

Tournament revenues 100,590 89,833

Tournament Players Clubs 76,423 69,275

Marketing and promotions 28,447 21,506

revenues

Interest and other income 16,536 13,312

ToTaL REVENUES 317,571 280,393

EXPENSES:

Television costs and expenses 34,012 34,124

Tournament operations 34,724 29,248

Tournament Players Clubs 64,620 58,097

Marketing and promotions

expenses 7,141 6,664

Interest and financing

expense 2,162 2,827

TOTAL EXPENSES 142,659 130,960

Revenues over expenses from

operations 174,912 149,433

Provision for income taxes 3,307 4,027

Net REVENUES OVER

EXPENSES

171,605

145,406

purposes

6,971

(2,049)

10,351

170,670

153,708

ALLOCATIONS TO PLAYERS AND

SPONSORS:

Players prize money and

Sponsor allocations

Player Retirement Plans

contnbutions

Player Retirement Plans

earnings

142,148

9,500

6,045

131,519

8,750

6,060

ToTaL ALLOCATIONS TO

PLAYERS AND

SPONSORS

157,693

146,329

Change in undesignated net

assets from operations

$ 12,977

$ 7,379

40a

APPENDIX E — EXCERPTS FROM APPLICATION

TO ENTER 1997 PGA TOUR QUALIFYING

TOURNAMENT (FOR PGA AND NIKE TOUR)

APPLICATION TO ENTER

1997 PGA TOUR QUALIFYING TOURNAMENT

(FOR PGA AND NIKE TOUR)

CONDUCTED BY THE PGA TOUR

First Qualifying Stage (72 Holes Scheduled)

Second Qualifying Stage (72 Holes Scheduled)

Final Qualifying Stage (108 Holes Scheduled)

The undersigned hereby applies to enter the 1997 PGA

TOUR Qualifying Tournament. Although membership in the

PGA TOUR and NIKE TOUR is based principally on this

competition, PGA TOUR reserves the right to apply other

reasonable criteria (including but not limited to, character,

conduct, financial responsibility, etc.) to all applicants for

membership. Based on all such factors, the PGA TOUR in

its discretion will determine whether to extend the

undersigned an invitation to join the applicable Tour.

If the undersigned successfully qualifies and accepts such

invitation to join the PGA TOUR or NIKE TOUR, he shall

pay the fees and dues and abide by the Tournament

Regulations of the PGA TOUR cr NIKE TOUR, as

applicable, in consideration of all the rights and privileges

of such membership.

The undersigned also understands that this application may

at any time be rejected (including during the Qualifying

Tournament) by the PGA TOUR. Conduct unbecoming a

professional or noncompetitive performance in previous

4la

_ Appendix E

PGA TOUR Qualifying Tournaments or NIKE TOUR

Qualifying Tournaments can be a basis for the rejection of

an application.

The PGA TOUR reserves the right to change the

Qualifying Tournament format and schedule

of play as presently contemplated.

I. FORMAT AND SCHEDULE OF PLAY

Competition will be in three stages, at stroke play:

A. First Qualifying Stage — 72 holes scheduled — for

all applicants except the following, who are

automatically exempt into the Second Qualifying

Stage:

1. 1997 PGA TOUR members.

2. Former winners of Tournament Players Series,

Ben Hogan Tour or NIKE TOUR tournaments.

3. Those who have earned $100,000 or more in

official PGA TOUR prize money (as determined

in accordance with PGA TOUR Tournament

Regulations) in their careers as of September 26,

1997.

4. Those who have made 25 or more cuts in

tournaments awarding official PGA TOUR prize

money (as determined in accordance with

PGA TOUR Tournament Regulations) in their

careers as of September 26, 1997.

42a

Appendix E

5. Those finishing 26-55 on the final 1997 Official

NIKE TOUR Money List (as defined in the NJKE

TOUR Tournament Regulations).

6. Winners of PGA Section Championships from

September 20, 1996 through September 26, 1997.

7. PGA Assistant Professionals originally qualified

to play in the 1997 Foot Joy Titleist PGA

Assistants Championship.

8. The low 50 scores and ties from the 1997 PGA

Club Professional Championship.

9. Professionals making the 36-hole cut in the 1997

PGA Championship.

10. The leading fourth, fifth and sixth available

players, to a limit of 25th position, on each of the

three international tours (PGA European Tour,

Japan PGA and Australasian Tour) applicable

official money list or order of merit as of

September 26,1997.

Field sizes will be approximately 78 players, with no

reduction of fields scheduled. The number of players

advancing from each First Qualifying Stage site will

be on a pro rata basis (i.e., an approximately equal

percentage of players from each site will advance),

and will be announced during the First Qualifying

Stage. PGA TOUR reserves the right to add players

to the field of the Second Qualifying Stage if it deems

it appropriate.

43a

Appendix E

Dates Site Course or Club

Tues—Fri Dayton, NV Dayton Valley CC

Oct. 14-17 Jackson, MS Colonial CC

(Deerfield Course)

Murfreesboro, TN Old Fort GC

Pensacola, FL Pensacola CC

Wilmington, NC Porters Neck

Plantation

Savannah, GA Southbridge GC

Tues—Fri Llano, CA Crystalaire CC

Oct. 21-24 Valrico;FL Bloomingdale GC

Bogart, GA Jennings Mill GC

West Palm Bear Lakes CC

Beach, FL (Lakes Course)

Richmond, TX Longwood GC

. Second Qualifying Stage — 72 holes scheduled —

After the First Qualifying Stage, the field for the

Second Qualifying Stage will be approximately 468

players, including all those automatically exempt for

the Second Qualifying Stage and any other players

which PGA TOUR deems should be added to the

Second Qualifying Stage. After entries of the exempt

players are processed, Second Qualifying Stage

preferences will be based upon First Qualifying Stage

finish positions and in the order described to

determine alternates under Section IV.B.3. All

applicants will participate in this qualifying stage

except the following who are automatically exempt

into the Final Qualifying Stage.

44a

Appendix E

1. Those applicants among the top 25 finishers

immediately after the 125th position on the final

1997 Official PGA TOUR Money List (as defined

in the PGA TOUR Tournament Regulations).

2. Those applicants finishing 16-25 on the final 1997

Official NIKE TOUR Money List (as defined in

the NIKE TOUR Tournament Regulations).

3. The leading first, second and third available

players, to a limit of 10th position, on each of the

three international tours (PGA European Tour,

Japan PGA and Australasian Tour) applicable

official money list or order of merit as of

September 26, 1997.

Field sizes shall be limited to 78 players with no

reduction of fields scheduled. The number of players

advancing from each Second Qualifying Stage site

into the First Qualifying Stage will be on a pro rata

basis, and announced during the Second Qualifying

Stage. PGA TOUR reserves the right to add players

to the field of the First Qualifying Stage if it deems it

appropriate.

ee

45a

Appendix E

Dates Site Course or Club

Tues-Fri Florence, SC The CC of South

Carolina

Nov. 11-14 Kingwood,TX Deerwood GC

Panama City, FL Hombre CC

Tues-Fri Rio Rico, AZ Rio Rico Resort

Nov. 18-21 Seaside, CA Bayonet Black Horse

(Bayonet Course)

Gull Shores, AL Kiva Dunes

. Final Qualifying Stage — 108 holes scheduled —

After the Second Stage, the field for the Final

Qualifying Stage will be approximately 168 players,

including applicants automatically exempt under

Section 1.B.3. Play will be on the Grenelefe Golf &

Tennis Resort West and South Courses (Haines City,

Florida). Dates will be Wednesday through Monday,

December 3-8, 1997. The field will play 108 holes

with no cut. PGA TOUR reserves the right to add

players to the field if it deems it appropriate.

Groupings for the first and second rounds will

alternate courses; groupings for the third and fourth

rounds will be done based on scores, alternating

courses; groupings for the fifth and sixth rounds will

be done based on scores, alternating courses.

il. PGA TOUR MEMBERSHIP

PGA TOUR memberships for 1998 will be awarded to

the lowest 35 finishers and any tying for 35th position

after the conclusion of play in the Final Qualifying Stage.

46a

Appendix E

Ties among those earning PGA TOUR membership will

be broken for the purpose of ranking (i.e., determining a

Qualifying Tournament player’s initial number on the

1996 eligibility list) by matching combined sixth and fifth

round scores. Ties remaining after a match of combined

sixth and fifth round score will be broken by matching

18-hole scores from the contestants’ last completed round

on the Grenelefe West Course. Ties remaining after a

match of rounds will be broken by matching hole scores,

beginning with the last completed hole at Grenelefe West

Course. (PGA TOUR reserves the right to periodically

reevaluate Qualifying Tournament members in 1998, and

to reorder the ranking based on competitive performance

during the 1998 season). If fifth and sixth rounds cannot

be completed, the numbering would be consistent with

Section VII Postponements and Cancellations.

Access to PGA TOUR cosponsored tournaments is

determined by a player’s finish position at the PGA

TOUR Qualifying Tournament and is subject to change

as a result of the periodic reshuffle, which benefits those

players who perform best.

In 1996, 39 cosponsored tournaments awarded official

prize money. Listed below are the number of such

tournaments certain positions from the initial numbering

and during the periodic renumberings were able to play

in 1996.

47a

Appendix E

CATEGORY NUMBER OF 1996

POSITION TOURNAMENTS

QT #1 33 of 39

QT #15 30 of 39

QT #30 27 of 39

QT Last Position 21 of 39

A minimum of $500,000 in prize money will be

distributed among those earning PGA TOUR and fully

exempt NIKE TOUR memberships.

Ill. NIKE TOUR MEMBERSHIP

Following the lowest 35 finishers and ties who earn PGA

TOUR memberships, the next number of finishers nearest

70 will earn fully exempt 1998 NIKE TOUR

memberships and all remaining players in the Final

Qualifying Stage and alternates for the Final Qualifying

Stage will earn nonexempt 1998 NIKE TOUR

memberships. Ties among those earning NIKE TOUR

membership will be broken for the purpose of ranking

(i.€., determining a player’s initial number on the 1998

eligibility list) by matching combined fifth and sixth

round scores. Ties remaining after a match of combined

sixth and fifth round score will be broken by matching

18-hole scores from the contestants’ last completed round

on the Grenelefe West Course. Ties remaining after a

match of rounds will be broken by matching hole scores,

beginning with the last completed hole at Grenelefe West.

Alternates will be ranked in the order in which they are

alternates for the Finals, as described in Section IV.B.3

of this application.

48a

Appendix E

IV. WITHDRAWALS; SUBSTITUTIONS AND

REALLOTMENT OF SPOTS

A. Applicants withdrawing prior to their first applicable

stage of competition MUST inform PGA TOUR of

withdrawal by telephone by the applicable deadline

listed below in order to receive a refund of entry fee.

NOTE: Only withdrawals made personally by the

applicant will be accepted. Any attempt to withdraw

an applicant by someone other than the applicant

himself will not be accepted. Applicant must also state

his entry confirmation number when withdrawing

from Qualifying Tournament.

All applicants are REQUIRED to substantiate verbal

withdrawal in writing in order for their refund to be

processed. REFUNDS WILL NOT BE PROCESSED

UNTIL WRITTEN SUBSTANTIATION OF

WITHDRAWAL IS RECEIVED. A processing fee of

$100 will be automatically deducted from ALL

withdrawal refunds. Notwithstanding any prior

written notice of withdrawal furnished by applicant,

once an applicant begins play in any stage of the

Qualifying Tournament, he will be ineligible to

receive such refund.

49a

Appendix E

WITHDRAWAL DEADLINE

First Qualifying Stage — 5:00 p.m. EDT Tuesday,

October 7, 1997.

Second Qualifying Stage — 5:00 p.m. EST Tuesday,

November 4, 1997.

Final Qualifying Stage — 5:00 p.m. EST Tuesday,

November 25, 1997.

. Alternates from each site will be determined by hole-

by-hole playoffs held immediately following the

conclusion of play at each site to determine the order

for alternates. Five alternates will be determined from

each First Qualifying Stage site and three alternates

will be determined from each Second Qualifying

Stage site. Substitutions and reallotment of positions

for alternates from withdrawals will be made as

follows:

1. If a successful First Qualifying Stage player

withdraws prior to such player beginning play in

the Second Qualifying Stage, the first available

alternate from the same First Qualifying Stage site

will be substituted.

2. If a successful Second Qualifying Stage player

withdraws prior to such player beginning play in

the Final Qualifying Stage, the first available

alternate from the same Second Qualifying Stage

site will be substituted.

50a

Appendix E

3. If an applicant automatically exempt into the

Second Qualifying Stage withdraws before all

players have begun play in the First Qualifying

Stage, the position will be included in the

positions to be allocated to the First Qualifying

Stage sites on a pro rata basis.

If a player automatically exempt into the Second

Qualifying Stage withdraws after all players have

begun play in the First Qualifying Stage (a

“Second Qualifying Stage Automatically Exempt

Withdrawal”), the position reserved will be

reallotted to the first available alternate from the

various First Qualifying Stage sites determined

in accordance with the following procedure.

Before play has concluded at the first to occur of

the First Qualifying Stages, Tournament

Competition personnel at PGA TOUR

Headquarters will conduct a blind clinical drawing

to determine the order in which the alternates from

the First Qualifying Stage sites will replace

Second Qualifying Stage Automatically Exempt

Withdrawals. In conducting such drawing, each

First Qualifying Stage site will be written on an

index card and all cards will be shuffled. Cards

will then be drawn on a blind basis one by one

for purposes of determining the 11 First

Qualifying Stage sites in order. The first alternate

from the first First Qualifying Stage site drawn

will be the first alternate to replace a Second

Qualifying Stage Automatically Exempt

Sla

Appendix E

Withdrawal, the first alternate from the second

First Qualifying Stage site drawn with be the

second alternate to replace a Second Qualifying

Stage Automatically Exempt Withdrawal, and so

on through the first alternate from the First

Qualifying Stage site which is chosen 11th.

Alternates 12 through 22 will be the second

available alternates from the various First

Qualifying Stage sites in the order drawn, and

alternates 23 through 33 will be the third available

alternates from the various First Qualifying Stage

sites in the order drawn and so on.

. Ifan applicant automatically exempt in the Final

Qualifying Stage withdraws before all players

have begun play in the Second Qualifying Stage,

the position will be included in the positions to

be allocated to the Second Qualifying Stage sites

on a pro rata basis.

If an applicant automatically exempt into the Final

Qualifying Stage withdraws after all players have

begun play in the Second Qualifying Stage

(a “Final Qualifying Stage Automatically Exempt

Withdrawal”), the position reserved will be

reallocated to the first available alternate from the

various Second Qualifying Stage sites determined

in accordance with the following procedure.

Before play has concluded at the first to occur of

the Second Qualifying Stages, Tournament

Competition personnel at PGA TOUR

52a

Appendix E

Headquarters will conduct a blind clinical drawing

to determine the order in which the alternates from

the Second Qualifying Stage sites will replace

Final Qualifying Stage Automatically Exempt

Withdrawals. In conducting such drawing, each

Second Qualifying Stage site will be written on

an index card and all cards will be shuffled. Cards

will then be drawn on a blind basis one by one

for purposes of setting the six Second Qualifying

Stage sites in order. The first alternate from the

first Second Qualifying Stage site drawn will be

the first alternate to replace a Final Qualifying

Stage Automatically Exempt Withdrawal, the first

alternate from the second Second Qualifying

Stage site drawn will be the second alternate to

replace a First Qualifying Stage Automatically

Exempt Withdrawal, and so on through the first

alternate from the Second Qualifying Stage site

which is chosen sixth. Alternates 7 through 12

will be the second available alternates from the

Second Qualifying Stage sites in the order drawn,

and alternates 13 through 18 will be the third

available alternates from the Second Qualifying

Stage sites in the order drawn.

V. ENTRY FEES; CLOSING DATE

ENTRY APPLICATIONS MUST REACH PGA

TOUR HEADQUARTERS BY 5:00 P.M. EDT ON

FRIDAY, SEPTEMBER 26, 1997. NO FACSIMILE

APPLICATIONS WILL BE ACCEPTED.

53a

Appendix E

ALL APPLICANTS MUST ENTER BY THE ENTRY

DEADLINE OF SEPTEMBER 26, 1997, WITHOUT

EXCEPTION.

Subsequent to and based upon final results of the NIKE

TOUR Championship, some exemptions into the Second

Qualifying Stage will be earned. Such applicants will be

refunded $250 and their entry will be adjusted.

A. Applicants required to play in the

FIRST QUALIFYING STAGE: $3,000

B. Applicants required to play in the

SECOND QUALIFYING STAGE: $2,750

C. Applicants required to play in the

FINAL QUALIFYING STAGE: $2,500

NOTE: Entry fees for First and Second Qualifying

Stages includes greens fees, practice balls and, if

applicable, half of an 18-hole golf cart on each day

beginning at noon two days before and during every

day of competition. Entry fee for Final Qualifying

Stage includes greens fees and practice balls

beginning two days before and during every day of

competition. Use of golf carts is prohibited at the

Final Qualifying Stage; players are required to use

caddies.

ONCE AN APPLICANT HAS TEED OFF IN

ANY QUALIFYING STAGE, REFUND OF

ENTRY FEE IS NOT POSSIBLE.

54a

Appendix E

All applicants must apply on the PGA TOUR’s

Application to Enter 1997 PGA TOUR Qualifying

Tournament form and pay the fee prescribed herein.

ACCEPTANCE OF APPLICATION TO ENTER;

NOTICE OF QUALIFYING SITE(S)

Upon receipt of entry, all applicants will be assigned a

confirmation number indicating that their application has

been received and that they are entered into the

Qualifying Tournament. Applicant is responsible for

keeping this confirmation number and must refer to it

when contacting PGA TOUR regarding his entry. Written

notification for assignment of qualifying site(s) with

confirmation number will be sent by Wednesday, October

8, 1997. PGA TOUR IS NOT RESPONSIBLE for the

timely delivery of the U.S. Postal Service OR any

overnight carrier. It is the applicant’s responsibility to

contact PGA TOUR Headquarters to verify his status in

qualifying site(s).

PLEASE NOTE First Qualifying Stage assignments are

made based on the date application is received at PGA

Headquarters (first come, first served). In order to

improve your chances to play at the First Qualifying Stage

of your choice, it is IMPERATIVE that your application

be received early by PGA TOUR. While PGA TOUR

will attempt to accommodate an applicant’s preference,

assignment to qualifying sites shall be in the discretion

of PGA TOUR. Assignments to Second Qualifying Stage

sites will be based on First Qualifying Stage finish

positions.

55a

- Appendix E

VII. INFORMATION, CONDITIONS, ETC.

PRACTICE

Applicants may practice at no charge:

First and Second Qualifying Stages — beginning at

12 . 00 noon two days before the first tournament round

and;

Final Qualifying Stage — Monday and Tuesday,

December | and 2, 1997

Practice before these designated times must be set up

with course in advance by applicant. Fees for these

practice rounds are at the discretion of the host facility.

RULES OF GOLF

Play shall be governed in accordance with the Rules of

Golf of the United States Golf Association, as modified

by PGA TOUR. Questions or disputes shall be settled

by the Rules Committee appointed by PGA TOUR,

whose decisions shall be final. -

POSTPONEMENTS AND CANCELLATIONS

If, in the judgment of the on-site PGA TOUR Tournament

Director (whose decision shall be final), adverse weather

conditions or any other occurrence or condition beyond

the control of PGA TOUR renders commencement or

continuation of tournament play inadvisable, play shall

56a

Appendix E

be postponed until such time as the Tournament Director,

determine that such weather conditions or other

occurrence have improved sufficiently for play to

commence or resume, provided that:

First and Second Qualifying Stage is normally scheduled

for four rounds and Final Qualifying Stage is normally

scheduled for six rounds and in all cases arrangements

have been made with the host club to extend through one

additional day in the event of postponement or

suspensions. The completion of First and Second

Qualifying Stage or Final Qualifying Stage competition

shall not be postponed beyond one additional day: (a)

unless the tournament is not yet considered “official” (at

least 36 holes completed for First or Second Qualifying

Stage and 72 holes completed fro Final Qualifying Stage),

or (b) if at least half the field has completed play before

the postponement of the final round, the final round will

be completed when conditions permit. If the sixth round

cannot be completed as stated above, qualifying would

revert back to the standings at the competition of the

fourth round.

APPEARANCE OF PLAYERS

Players shall present a neat appearance, in both clothing

and personal grooming. Blue jeans or shorts shall not be

worn during practice or Qualifying Stage rounds.

57a

Appendix E

CONDUCT OF PLAYERS

A. If a player is determined by Tournament Officials on

site at any stage of the Qualifying Tournament to be

noncompetitive, PGA TOUR reserves the right to

remove said player from the competition.

B. In accordance with the PGA TOUR Alcohol and

Substance Abuse Policy, players are not permitted to

consume alcoholic beverages during any practice

round or tournament round, on the practice tee or

putting green. Violation of this policy will result in

the removal of the player from the competition.

CADDIES/GOLF CARTS

A caddie and/or golf cart is required during all practice

and tournament rounds of the First and Second Qualifying

Stages. No more than two carts will be allowed per

grouping. The player may designate an individual to serve

as a caddie and drive a cart for him. Caddies are required

to wear long pants while on property. Use of golf carts is

prohibited during the Final Qualifying Stage. Players are

required to use caddies.

NEW MEMBER ORIENTATION

New PGA TOUR members will be required to attend

the New Member Orientation Program (beginning with

a reception on Tuesday evening) December 9 through

Friday, December 12, at the TPC at Sawgrass Media

Center in Ponte Vedra Beach, FL. During the New

58a

Appendix E

Member Orientation Program, the PGA TOUR will incur

housing and meal expenses, and will allocate a travel

allowance. Further information will be made available

immediately following the Qualifying Tournament.

New NIKE TOUR members will be required to attend

an orientation session on Tuesday, December 9, 1997

from 7:30 a.m. to 12:00 noon at Grenelefe Resort. Exact

locations will be posted at the PGA TOUR official

scoreboard.

INQUIRIES

“Please direct inquiries regarding the 1997 PGA TOUR

Qualifying Tournament to:

ze Tournament Competition

PGA TOUR, Inc.

112 TPC Boulevard

Ponte Vedra Beach, FL 32082

Phone: 964-285-3700 Fax: 904-285-2052

Copyright © 1997 by PGA TOUR, Inc.

All rights reserved.

59a

APPENDIX F — EXCERPTS FROM THE RULES

OF GOLF 1998-1999 AND THE RULES OF

AMATEUR STATUS (THE USGA)

SECTION Ill

THE RULES OF PLAY

THE GAME

Rule 1. The Game

1-1. General

The Game of Golf consists in playing a ball from the

teeing ground into the hole by a stroke or successive strokes

in accordance with the Rules.

ADMINISTRATION

Rule 33. The Committee

33-1. Conditions; Waiving Rule

The Committee shall lay down the conditions under

which a competition is to be played.

The Committee has no power to waive a Rule of Golf.

Certain special rules governing stroke play are so

substantially different from those governing match play that

combining the two forms of play is not practicable and is

not permitted. The results of matches played and the scores

returned in these circumstances shall not be accepted.

60a

Appendix F

In stroke play the Committee may limit a referee's duties.

Appendix I

LOCAL RULES;

CONDITIONS OF THE COMPETITION

Conditions of the Competition

Rule 33-1 states: “The Committee shall lay down the

conditions under which a competition is to be played.”

Conditions should include such matters as method of entry,

eligibility requirements, format, the method of deciding ties,

the method of determining the draw for match play and

handicap allowances for a handicap competition.

OPTIONAL CONDITIONS

* * *

Transportation

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.

* * . *

6la

APPENDIX G — NOTICE TO COMPETITORS

1997 QUAD CITY CLASSIC

NOTICE TO COMPETITORS

1997 QUAD CITY CLASSIC

This information supplements the PGA TOUR RULES OF

PLAY.

OUT OF BOUNDS — Defined by white stakes and where

applicable white stakes tying into

snow fencing and green web

fencing.

The Driving Range is out of

bounds. Defined by white stakes

and where applicable white stakes

tying into chain link fencing, snow

fencing and green web fencing.

FLOWER BEDS — are ground under repair. Defined

by wooden ties, black plastic or the

cut of the ground.

AUTOMOTIVE

TRANSPORTATION — Competitors are permitted to use

Automotive Transportation during

play of Hole #12.

PGA TOUR RULES COMMITTEE en omens

* Do not put a white line around the TV compound!

62a

APPENDIX H — EXCERPTS FROM CONDITIONS

OF COMPETITION AND LOCAL RULES

CONDITIONS OF COMPETITION

AND LOCAL RULES

The Rules of the United States Golf Association govern play,

as modified by the PGA TOUR. See applicable competition's

‘Notice to Competitors (Players)”’ for additional Definitions,

Local Rules and Conditions. Complete text of Rules and

Appendix I may be found in the current Rules of Golf.

Unless otherwise noted *he penalty for a breach of a Local

Rule or Condition is:

Match play — Loss of Hole; Stroke Play — Two Strokes

Section A — Conditions of Competition

6. Transportation — Appendix I

Players shall walk at all times during a stipulated round

unless permitted to ride by the PGA TOUR Rules

Committee. Penalty for Breach of Condition:

Match play — At the conclusion of the hole at which the

breach is discovered, the state of the match shall be

adjusted by deducting one hole for each hole at which a

breach occurred. Maximum deduction per round: two

holes.

63a

Appendix H

Stroke play — Two strokes for each hole at which any

breach occurred; maximum penalty per round; four

strokes. In the event of a breach between the play of two

holes, the penalty applies to the next hole.

Match or stroke play — Use of any unauthorized form

of transportation shall be discontinued immediately upon

discovery that a breach has cccurred. Otherwise, the

player shall be disqualified.

* * * ~

64a

APPENDIX I — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE WESTERN DISTRICT

OF TEXAS, AUSTIN DIVISION IN JONES v. UNITED

STATES GOLF ASSOCIATION, INC. DATED,

ENTERED AND FILED JUNE 15, 2000

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CIVIL NO. A-00-CA-278 JN

JA RO JONES

VS.

UNITED STATES GOLF ASSOCIATION, INC.

ORDER

Before the Court is Plaintiff Jones’ Application for

Preliminary Injunction. On June 14, 2000, the Court

conducted a hearing in open court and heard arguments on

this matter. Upon consideration of the arguments presented

at the hearing, the evidence submitted, the briefs filed, the

United States of America’s amicus curiae brief, the

applicable legal authority and the entire case file, the Court

enters the following Order.

I. Factual Background

Plaintiff Jones is a skilled golfer who suffers from Post

Polio Syndrome. This disability' forces Plaintiff to use a cart

1. The parties stipulated that Plaintiff Jones is disabled within

the meaning of the Americans with Disabilities Act of 1990,

42 U.S.C. § 12181 et seq. (“ADA”).

65a

Appendix I

to play golf. In all other ways he qualifies to participate in

the qualifying round of the United States Senior Open Golf

Championship (“Senior Open”). The United States Golf

Association (“USGA”) does not allow the use of golf carts

in the Senior Open. Plaintiff Jones filed suit pursuant to Title

III of the ADA seeking an injunction requiring the USGA to

allow him to use a cart to play in the United States Senior

Open and its qualifying round.

Il. Laches

As a preliminary matter, the USGA pleads the defense

of laches to Plaintiff's application for preliminary injunction.

Essentially the USGA argues that Plaintiff Jones has known

for over three years, since he first applied for a waiver of the

no-cart rule, that he would not be granted leave to use a cart

in the Senior Open. USGA argues that filing suit at this late

date, mere days before the qualifying round, has prejudiced

its right to present a defense. Upon consideration of the

Defendant’s arguments and pursuant to the elements

necessary to prove laches as set forth in National Ass'n of

Govern. Emp. v. City Pub. Serv., 40 F.3d 698, 708 (5™ Cir.

1994), the Court finds there was no undue delay on the

Plaintiff's part and that there is no undue prejudice on the

Defendant’s ability to present a defense. Therefore, the Court

finds that Defendant’s laches argument is without merit.

II. Preliminary Injunction

To obtain a preliminary injunction, the Plaintiff must

demonstrate: (1) a substantial likelihood of success on the

merits; (2) a substantial threat of irreparable harm if the relief

66a

Appendix I

is not granted; (3) that granting injunctive relief will not result

in even greater harm to the other party; and (4) that granting

\ relief will be in the public interest. United Offshore Co. v.

S. Deepwater Pipeline, 899 F.2d 405, 407-08 (5® Cir. 1990).

Plaintiff's cause of action is based upon Tit!« III of the

Americans with Disabilities Act, 42 U.S.C. § 12181 et seq.

Upon review of the ADA and the relevant cases, particularly

Martin v. PGA Tour, Inc., 204 F.3d 994 (9" Cir. 2000);

Olinger v. United States Golf Ass'n, 205 F.3d 1001 (7™ Cir.

2000); and Johnson v. Gambrinus Co./Spoetzl Brewery, 116

F.3d 1052 (5" Cir. 1997), the Court finds that Plaintiff has

demonstrated a substantial likelihood of success on the

merits. The Court further finds that Plaintiff has demonstrated

a substantial threat of irreparable harm because Plaintiff

Jones’ condition is worsening and this is in all likelihood

his last opportunity to compete in the Senior Open. See

Affidavit of Ja Ro Jones. The Court finds that granting

injunctive relief will not result in harm to the USGA. Finally,

the Court finds that the public interest weighs in favor of

granting injunctive relief.

No arguments were made concerning bond. A district

court may elect not to require bond. See Kaepa, Inc. v.

Achilles Corp., 76 F.3d 624, 628 (S" Cir. 1996). Accordingly,

the Court finds no bond is required in this case.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED that the USGA is hereby ENJOINED from

prohibiting Plaintiff Ja Ro Jones from using a golf cart during

the Senior United States Open Golf Championship and its

qualifying round.

67a

Appendix I |

IT IS FURTHER ORDERED that no bond shall be

required.

SIGNED AND ENTERED this 15th day of June, 2000.

s/ James R. Nowlin

JAMES R. NOWLIN

CHIEF UNITED STATES

DISTRICT JUDGE