Amicus Curiae Brief — PGA Tour, Inc. v. Martin

IN THE

Supreme Court of the Patss States

PGA Tour, INC.,

Petitioner,

|

CASEY MARTIN,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR ATP TOUR, INC. AND THE LADIES

PROFESSIONAL GOLF ASSOCIATION,

AMICI CURIAE, IN SUPPORT OF THE PETITIONER

Bradley I. Ruskin

Counsel of Record

Richard M. Goldstein

Christopher J. Collins

PROSKAUER ROSE LLP

1585 Broadway

New York, New York 10036

(212) 969-3465

Attorneys for Amici Curiae

TABLE OF CONTENTS

THE INTEREST OF THE AMICUS CURIAE ............2..-. 1

EES es ee ae

L ANY ABROGATION OR MODIFICATION OF A

SUBSTANTIVE RULE OF PROFESSIONAL ATHLETIC

EVENTS WOULD FUNDAMENTALLY ALTER THE

NATURE OF THE COMPETITION .................4

Il. THE COMPETITION AREA OF A PROFESSIONAL-

LEVEL ATHLETIC EVENT Is NoT A “PLACE

OF PUBLIC ACCOMMODATION” UNDER TITLE III OF

-ii-

TABLE OF AUTHORITIES

Bowers v. Nat'l Collegiate Athletic Ass'n,

9 F. Supp. 2d 460 (D.N.J. 1998) .............-. 16

Jankey v. Twentieth Century Fox Film Corp.,

14 F. Supp. 2d 1174 (C.D. Cal. 1998), aff'd,

212 F.3d 1159 €9th Cir. 2000) ............-4-. 16

Louis v. Ideal Cleaners,

Nos. C-99-1557, C-99-1814, 1999 U.S. Dist.

28 CFR. § 36.308 (1999)... .. ccc cee ceeececeuees

LEXIS 19811 (N.D. Cal. Dec. 14, 1999) ........ 16

Martin v. PGA Tour, Inc.,

204 F.3d 994 (9th Cir. 2000) ............2005. 10

Stevens v. Premier Cruises, Inc.,

215 F.3d 1237 (11th Cir. 2000) ............... 15

STATUTES & REGULATIONS

42 USC. § 1ZIGL ...ccccccccesecscecnsesuseneenee 3

42 U.S.C. § 12181(b)(1)(A)(i) «0. ee eee ee eee 12

42 USS. § ISIGHT) ... sovccvvecseneseent oteeennen 12

42 U.S.C. § 1IZISECTIR) .. oc ccccccsccccccnccseuseen 13

“G2 UBC. § IZISICTIG) .. .cccccscccccsscnuennnnee 14

28 CPR. Ft. 56, AGB .ccccccccscssesss 12, 13, 16, 17

28 C.F.R. § 36.102(b)(2) (1999) ....... eee eee eee 17

-iii-

OTHER AUTHORITY

Department of Justice Technical Assistance

EEE 9

Department of Justice Technical Assistance

EE EES TTT TT TTT TS 13

H.R. Rep. No. 116, 101st Cong., Ist Sess. (1989) ....... 14

CO a

THE INTEREST OF THE AMICI CURIAE

ATP Tour, Inc. (the “ATP Tour”) is the organizing and |

governing body for the circuit of men’s professional tennis

tournaments worldwide. The Ladies Professional Golf

Association (the “LPGA”) organizes, administers and governs

the LPGA Tour, a tour of women’s professional golf

tournaments. In this respect, both the ATP Tour and the LPGA

are similar to the PGA TOUR as that organization is the

governing body in men’s professional golf in the United States.

The ATP Tour and the LPGA have an interest in how the

Americans With Disabilities Act (the “ADA”) is applied to

professional sports competitions. '

The ATP Tour generally adheres to the rules of tennis

competition promulgated by the International Tennis Federation

(“ITF’’). As with most professional-level athletic competitions,

however, the ATP Tour has certain rules of competition of its

own, and the ATP Tour reserves the right to depart from the

rules of the ITF.

The ATP Tour administered over 190 professional tennis

tournaments in 1999 at a variety of different sites throughout

the world, consisting of 74 tournaments in its top categories,

and an additional 116 entry-level events (known as its

Challenger Series events). Members of the ATP Tour include

most major tournaments (except for the Grand Slam events)

and the very best tennis players in the world. ATP Tour events

are considered to be tennis competition at its highest level.

The LPGA is the pre-eminent women’s professional golf

association in the world. The LPGA Tour consists of over 40

professional golf tournaments in the United States and several

, Letters from each party consenting to the filing of this

brief have been lodged with the Clerk. No counsel for a party

authored this brief in whole or in part or provided a monetary

contribution to its preparation and submission. See Supreme

Court Rule 37(6).

2

foreign countries. No other women’s professional golf

association has stature, participation, attendance or level of

competition comparable to the LPGA. ~~

The LPGA Tour generally adheres to the rules of golf

competition promulgated by the United States Golf Association

(the “USGA”). As with many professional-leve! athletic

competitions, however, the LPGA Tour has certain rules of

competition of its own, and the LPGA Tour reserves the right _

to depart from the rules of the USGA.

3

SUMMARY OF ARGUMENT

The U.S. Court of Appeals for the Ninth Circuit made two

cnitical errors in the decision below. First, by concluding that

Title Ill of the Americans with Disabilities Act, 42 U.S.C.

§ 12101, et seg. (“ADA”) requires courts to consider the

relative importance of the rules of a professional sport, and to

decide (on a case-by-case basis) whether a particular rule

should be modified to accommodate the physical limitations of

a disabled athlete, the Ninth Circuit ignored the most essential

nature of all athletic competition — and especially professional

level competition: athletic competition is based on nothing

more than an agreed-upon set of uniform rules, all of which, in

interplay with one another, define the game. At bottom, the

singularity of a sports competition and the autonomy of its rules

compel the conclusion that any court-imposed modification or

abrogation of a rule of how the game is played changes its

fundamental nature.’ Such fundamental alteration is not

required by the ADA.

Athletic competition is supposed to favor the more skilled

and physically able. It is a test of who is the “best” at mastering

the game as defined by its rules, and it is this characteristic that

makes it compelling to both competitors and spectators. When

courts begin to change the rules of how the game is played to

assist a particular individual with a disability, this essential

characteristic is vitiated. A competition judicially managed to

eliminate this or that “unfairness” may appear more “fair” in the

view of a court because less skilled or less able-bodied

individuals may be able to compete, but it is not the same

athletic competition envisioned by the creators and fans of the

game. The fundamental fairness of the game — i.e., that all the

rules apply equally to all competitors — has changed, and we

no longer have a competition that tests who is the ‘best” at that

particular game.

2

play.

We are, of course, referring to those rules which affect

4

~ Second, the Ninth Circuit erred in concluding that the

playing area of a professional golf tournament is a “place of

public accommodation.” The operative statutory language

describes twelve types of “places of public accommodation”

and a professional golf tournament does not fall within any of

these categories. The two possibilities identified by the Ninth

Circuit (i.e., a place of “exercise or recreation” or a place of

“entertainment or exhibition”) simply do not apply. A golf

course, when used for a professional golf tournament, is not

being used as a place of “exercise or recreation.” Certainly no

competitor or spectator would consider the competition to be a

form of exercise or recreation. To the extent a golf tournament

is a place of entertainment, it is so only with respect to the

places to which the public ‘> permitted access (i.e., the viewing

areas, the bathroom facilities, the concession areas), not in the

space where the athletic competition is waged. Simply because

the sections of the course set aside for the gallery are open to

the public does not re. der the competitive area where the public

is not permitted (such as the playing area of an LPGA golf

tournament, or the field of a professional baseball league, or the

tennis courts at the National Tennis Center during the U.S.

Open, or a bob-sled track during the Olympics) subject to the

public accommodations provisions of Title III.

ARGUMENT

I. ANY ABROGATION OR MODIFICATION OF A

SUBSTANTIVE RULE OF PROFESSIONAL ATHLETIC EVENTS

WOULD FUNDAMENTALLY ALTER THE NATURE OF THE

COMPETITION

The rules that a professional sports organization establishes

for its competition are fundamental to the existence and

definition of the sporting event. The dangers inherent in the

Ninth Circuit’s decision are most vividly seen by identifying

examples of other “accommodations” that the courts might

impose on professional sporting competitions in the name of

advancing access by the disabled. Such a list might easily

include, for example, reducing the height of the basket to

5

accommodate a short or even wheelchair-bound basketball

player, giving a “head start” to a runner who has a circulatory

condition in her legs that may lead to excessive cramping,

increasing the length of rest periods between points or games to

accommodate a tennis player who suffers from a heart

condition or other disability that affects endurance, or even

permitting a vision-impaired football player to touch an

opposing lineman before the play begins in order to gauge his

distance to the line of scrimmage. Indeed, the boundaries of

such a list are as broad as the labyrinthian rules that define sport

are complex. Nonetheless, the Circuit Cevrt’s decision paves

the way for each such “accommodation,” no matter how far-

fetched the example might be, without any discernable limits or

practically manageable standards.

The Court of Appeals may have intended that only those

“rules of the game” that might be said not to fundamentally

alter the nature of the competition be subject to accommodation

and compromise, and may have believed that such a standard

could be rationally implemented. But even so it erred, for that

court’s implicit belief that “there are rules and then there are

rules” ignores four immutable, defining elements of all athletic

competition.

First, every competition or “game” is, in the end, nothing

but a set of manufactured rules, with each rule contributing to,

and therefore defining, the nature of the competition. Who can

recall, or even know, why bases are ninety feet apart? Who can

explain why a tennis player who touches the net during play

automatically loses the point? These are simply the rules, and

the point, of course, is that every rule of athletic competition is,

by definition, fundamental to that game, whatever that game

might be.

Even though, or more accurately precisely because, every

rule helps define the particular game, any change in auy rule of

competition must perforce fundamentally alter the nature of the

competition. Change the size of the ball and the distance from

the pitcher’s mound to home plate and you no longer have

6

baseball — you have softball, or stickball, or something

entirely different than professional baseball. Change the length

of a Canadian Football League field from 110 yard to 100 yards

to conform to the usual way “football” is played in the United

States, and you may still have “football” in the generic sense of

the sport, but you no longer have Canadian Football League

football. And that of course is part of the majesty of sport; it is

anything the designers of the rules want it to be, autonomous

and, within its realm, sovereign. As such, each variation

heralds a new form of competition, a new game.

Indeed, the rules of athletic competition are simply

designed to provide a standard against which to distinguish

among competitors. There is no “reason,” for example, why the

height of the net cord at center court during an ATP Tour

tennis tournament must be exactly three feet; why a tennis court

must measure precisely 78 feet by 27 feet; or why a tie-breaker

is played at six games all in a set, and that the first player to

reach seven, with a margin of two points, wins the tie-breaker.

There is no reason why the size of the hole in a golf tournament

must be 4 1/4 inches in diameter: it could be larger and make

the skill of putting somewhat less critical in comparison to

other skills in the sport. This is simply how the games are

played, and what the games are. The rules may be changed, but

then the game will be changed as well.

How many children are forced to create their own rules to

accommodate the circumstances of the moment, as when the

shape of the field, or the uneven number of players, or the lack

of equipment forces them to imagine a-new and different

variation of the game they may have intended to play? What

they devise is a new game played by different rules, no matter

how much it might resemble another. For the same reason,

whether a variation of a traditional game is more or less fair for

the disabled athlete than the game it replaced, or, for that

matter, more or less interesting to the public at large, is entirely

besides the point. Respecting that simple proposition means

7

that any change to any rule of any game fundamentally affects

the nature of the competition.

Second, every athletic competition is intended and

designed to reward and favor the most able. In this sense, every

“accommodation” to improve access to the competition by a

would-be participant (whether disabled or not) or to adjust for

different physical abilities is, by definition, a fundamental and

material compromise of the competition itself.

To some, it undoubtedly seems “unfair” that few athletes

are born with the natural athleticism of Michael Jordan, Pete

Sampras or Karrie Webb. And it might seem particularly unfair

that an athlete can prevail, or fail, in a competition (or be

unable to compete altogether) because of inherited physical

characteristics such as height or strength, or because of vastly

different training opportunities (such as limited opportunities in

the athlete’s homeland). Yet by its very nature athletic

competition does not seek to compensate for these inequities;

to the contrary, it is precisely these inequities in abilities, and

the testing of such disparate abilities according to a uniform set

of rules defined by the governing sports organization, that is at

the heart of competitive sport.

Third, only those charged by tradition or agreement with

enforcing the rules of the game may amend them, else the game

itself is fundamentally changed. Since the game is but a

collection of its rules, it is, in the end, only what those int charge

say it is. The “keepers” of the game must therefore have

ultimate control over what does or does not affect the nature of

the competition, much the same way an umpire or referee is, by

tradition and agreement, the final arbiter of an on-field dispute.

It is not so much whether the runner stealing a base was “safe

at second,” or whether the tennis ball hit the line, as whether the

umpire thought it so. In other words, the rule-making is itself

part of the game, and its impact cannot be measured by

objective criteria (or even, in the case of the stolen base or the

long forehand, by absolute truth). It is only the convention that

8

all will follow the same rules, determined by the same

governing body, that gives meaning to the game.

Fourth, the integrity of every athletic competition depends

entirely upon the uniform application of agreed-upon rules.

The fairness of the event is determined not by “leveling the

playing field” to encourage access by the many, but by ensuring

that every competitor must play on the same field, however

unlevel it might be, so that only a small few who possess

superior physical and mental abilities will succeed against the

common challenge. Fairness therefore dictates that there be no

exceptions or accommodations, only the same rules for all.

Reduced to its essence, athletic competition is nothing

more than an established set of rules applied equally to all

competitors, who bring to the competition their own unique

physical and mental attributes, training, and skills. The athlete

whose unique personal characteristics happen to be superior to

the other competitors, when measured by the established rules

of the game, prevails in the competition.

By concluding that it is reasonable to abrogate a rule

governing how professional golf is played in the PGA TOUR

to accommodate a single competitor, and that such an abroga-

tion would not fundamentally alter the nature of the

competition, the Ninth Circuit ignored these most fundamental

characteristics of professional athletic sports. Indeed, it is the

singularity of the rules and the nature of athletic competition

that renders professional sports entirely unique from public

accommodations covered by Title III of the ADA (such as

libraries, restaurants and museums), whose policies and

procedures are incidental to, but not the essence of, the “public

accommodation” itself.’

. The examples provided in the Department of Justice's

Technical Assistance Manual of the types of policies and

procedures that may have to be modified confirm that such

(continued...)

9

Because it springs from a misapprehension of the nature of

professional athletic competition, it is not surprising that the

Ninth Circuit’s decision defies rational implementation in two

separate respects. First, the decision below would have courts

evaluate the importance of a particular rule, when the essence

of a game necessarily depends on the interplay of all the rules.

It makes no sense to consider whether it is “important” that the

net cord during a tennis tournament be exactly three feet from

the ground at center rather than two, or whether it is

“important” that a tennis court be 27 feet wide rather than 25,

or the importance of a rule requiring a golfer to walk from one

hole to another. Judges could of course change all of these

rules, but then the competitors would have a different game —

one that, if tennis or golf at all, is not ATP Tour tennis or PGA

golf or LPGA golf.

Second, the decision below seeks to render more “fair” an

aspect of competition that seems unfair — the personal

characteristics that the athlete brings to the competition — by

requiring an exception to a rule of the game that is otherwise

applied uniformly, and fairly, to all competitors. But doing so

vitiates the very essence of competition by seeking to make fair

that which must be unfair (the different athletic abilities of the

contestants), thereby making unfair that which previously was

fair (the uniform application of rules). Subjecting an athletic

competition to this sort of “tinkering” changes the fundamental

characteristics of the competition. No longer is it a test of who

is the most skilled or most able to perform that competition.

The Ninth Circuit’s failure to appreciate fully the essential

characteristics of athletic competition is nowhere more obvious

’ (...continued)

policies and procedures are not so closely identified with the.

fundamental purpose of the accommodation (e.g., emergency

evacuation procedures of a private health clinic, procedures for

reserving motel rooms). Department of Justice Technical

Assistance Manual § III-4.2100.

10

than in its conclusion that an “individualized inquiry” is

necessary to determine, on a competitor-by-competitor basis,

whether a relaxation or modification of a rule of the game for

a disabled competitor would fundamentally alter the game, or

give a particular disabled competitor an advantage. The court

suggests, at least in the case of Casey Martin, that the walking

requirement could be eliminated because Martin’s disability

was such that he would still be sufficiently fatigued by the

limited walking he would have to do. Martin v. PGA Tour,

Inc., 204 F.3d 994, 1001-02 (9th Cir. 2000). But the fact that

Martin was substantially disadvantaged by application of this

uniform rule is precisely the point: athletes who, for whatever

reason, cannot perform as well as others when measured against

the uniform rules of the game are not supposed to win! In fact,

if their particular physical traits (e.g., height, weight, strength,

endurance) or psychological characteristics (e.g., ability to

concentrate, risk aversion, “mental toughness”) create sufficient

barriers, they may not be able to compete effectively at all. The

“game” is designed to test for those characteristics and to make

thém outcome determinative, not to compensate for individual

differences.

In the context of professional tennis or professional golf,

the consequences of an “individualized inquiry” into the effects

of altering a rule of play for a particular disabled athlete could

have obviously prejudicial results. Would it mean, for

example, that, depending on the results of an “individualized

inquiry,” a professional tennis player with a tendency to skin

cancer could insist on playing only at night? Or that one with

a heart problem might demand two minutes rather than 20

seconds between points to ensure that he can compete during a

point at the same level of play as an able-bodied player? And

how would it be possible to verify the “need” for the additional

_time at any particular point in the game? Would a player with

a mobility impairment be permitted to cover a smaller court if

he could demonstrate that he would have no advantage because

it would be difficult for him to cover even the smaller court due

a

eee > _——_———

ee

11

to his condition? Would a golfer with a motor control disability

be entitled to putt into a larger hole if, because of her condition,

her chances of sinking the putt were no better than other non-

disabled professional golfers? The rationale of the Ninth

Circuit would seem to require consideration of such

accommodations notwithstanding the impossibility of rational

implementation, the absence of judicially manageable

standards, and the obvious impact such case-by-case changes

would have on the competition itself.‘

At bottom, the decision of the Ninth Circuit invites courts

to create new athletic competitions that, in the court’s view,

give disabled athletes a better chance at competing. However

laudable it might be for courts to create new sporting

competitions, with constantly adapting rules so that disabled

individuals might be able to compete more effectively, doing so

is clearly beyond the intended scope of the ADA.

In the realm of professional sports, such an expansion of

the ADA would be particularly devastating, inasmuch as a

professional sport depends on its entertainment value for its

very existence. Fans and spectators want to know who is the

fastest, the strongest, the most able or the most skilled at a

given competition. It is the unbiased and uncompromising

determination of who is “the best” that fascinates the public,

and gives professional athletics its significant entertainment

value. No professional athletic competition attempts to

compensate for the different physical abilities of athletes or

gives a particular athlete a waiver or exemption from a

substantive rule, and a professional sport that would attempt to

do so would quickly jeopardize its entertainment value.

4

Such an approach is diametrically opposed to one of the

explicit purposes of the ADA, which is to create “clear, strong,

consistent, enforceable standards addressing discrimination

against individuals with disabilities.” 42 U.S.C. § 12101(b)(2).

12

Accordingly, any modification of a rule of professional athletic

competition would necessarily and fundamentally alter the

nature of the competition and its entertainment value. The

ADA requires no such result.°

Il. THE COMPETITION AREA OF A PROFESSIONAL-LEVEL

ATHLETIC EVENT Is Not A “PLACE OF PUBLIC

ACCOMMODATION” UNDER TITLE III OF THE ADA

The Ninth Circuit’s conclusion that the playing area of a

professional golf tournament is a “place of public accommo-

dation” is plainly contrary to the ADA’s statutory language and

legislative history for the reasons articulated by the PGA

TOUR, and as explained below.

Title III’s definition of a place of public accommodation

consists of a list of exampies of places that are covered by Title

III, followed in each case by a specification of the kind of

activity or function included and a categorical inclusion of other

places falling within that specification (e.g., “A museum,

library, gallery or other place of public display or collection ;

“A park, zoo, amusement park, or other place of recreation’;

“A gymnasium, health spa, bowling alley, golf course, or other

place of exercise or recreation”). 42 U.S.C. § 12181 (7)

(emphasis added). The grammatical structure of this definition

plainly indicates that the specific examples of “places of public

accommodation” are just that — examples of what is described

generically in the balance of the definition. Indeed, many

places that are not specifically mentioned in the definition

nonetheless qualify as places of public accommodation because

' Of course, a sports league or governing body cannot

create rules that are in reality simply a pretext for invidious

discrimination, but there are other provisions of Title I that

would prevent such intentional and discriminatory exclusion

(e.g.,42 U.S.C. § 12181(b)(1)(A)(i)). No one disputes that the

PGA TOUR walking requirement was not created for the

purpose of eliminating potential disabled competitors.

LA li alli ait agua Sie ln

’

13

they meet the qualitative, generic definition. See 28 C.F.R. Pt.

36, App. B at 622-23 (Preamble to Regulations on

Nondiscrimination on the Basis of Disability by Public

Accommodations and in Commercial Facilities (Published July

26, 1991)).

Conversely, notwithstanding that they may be specifically

identified on the ADA’s list of public accommodations, places

that are purely private in nature are not regulated places of

public accommodation. For example, although a “library” is

included on the list, a private library in an individual home is

not a place of public accommodation because it is not a “place

of public display.” 42 U.S.C. § 12181(7)(H). Similarly, a

private “hotel” with permanent residents is not a place of public

accommodation even though “hotel” is on the list because a

private hotel is not a “place of lodging” (which, according to

the Department of Justice, suggests only short-term stays). See

28 C.F.R. Pt. 36, App. B at 623.

The critical issue is not whether a specific “place” is

mentioned, but whether the “place” falls within the descriptive

criteria set forth in the definition. It is the descriptive language

that necessarily governs, and coverage therefore depends on

application of a functional test focusing on the nature of the use

of the facility, as contemplated in Congress’s choice of

language and the statutory structure.°

. The Department of Justice’s guidance on Title III of the

ADA is consistent with the view that it is the functional

descriptions of places of public accommodations that determine

coverage. In its Technical Assistance Manual on Title III, the

Department explains that places of public accommodation

include “Places of exercise or recreation (e.g., gymnasiums,

health spas, bowling alleys, golf courses).” Department of

Justice Technical Assistance Manual § III-1.2000. Answering

the question “Can a facility be considered a place of public

accommodation if it does not fall under one of these 12

(continued...)

14

Among Title IIl’s definitions of a “place of public

accommodation” is “a gymnasium, health spa, bowling alley,

golf course, or other place of exercise or recreation.” 42 U.S.C.

§ 12181(7)(L). To fall within this type of “place of public

accommodation,” a place must necessarily fall within the

descriptive part of this definition, i.e., it must be a “place of

exercise or recreation.” Thus, public tennis courts, beaches,

swimming pools, playgrounds and video arcades would fall

within this definition to the extent they satisfy the functional

definition (ie., to the extent they are places of exercise or

recreation). See H.R. Rep. No. 116, 101st Cong., Ist Sess. at

59 (1989) (Senate Committee on Labor & Human Resources).

However, to the extent a gymnasium, health spa, bowling alley,

golf course (or for that matter a tennis court, swimming pool or

beach) is not used as a place of exercise or recreation, it 1s not

a place of public accommodation.

Under this functional test, the competition area of a

professional golf tournament is quite obviously not a place of

exercise or recreation — certainly no participants in the

competition would view themselves as engaging 1n exercise Or

recreation as those terms are ordinarily understood, nor would

a spectator or fan have such an impression. Although golf

courses are places of public accommodation when used as

places of exercise or recreation, on those occasions where the

course is used for some other purpose such as a competition

with highly selective participation criteria, the playing area of

the course itself is not a place of public accommodation,

although the public gallery may be. Similarly, although public

tennis courts are generally used by the public for exercise or

recreation, when a court is used for another purpose, such as a

. (...continued)

categories?”, the Department’s guidance responds “No, the 12

categories are an exhaustive list. However, within each

category the examples given are just illustrations.” (/d.)

(emphasis added).

15

professional competition, it is not being used for exercise or

recreation and is therefore not a place of public

accommodation. :

The fundamental error made by the District Court and the

Ninth Circuit in interpreting the definition of Title III is to have

ignored the functional test required by the descriptive language

in the relevant definition of place of public accommodation

(i.e., a “place of exercise or recreation”). The courts below.

improperly focused solely on the fact that a “golf course” is

specifically included as an example of a place of exercise or

recreation, ignoring the statutory functional test for determining

what qualifies as a place of public accommodation. By taking

the “examples” as the end of the statutory analysis without

taking account of the full statutory provisions which include a

specification of the kinds of places or activities to be regulated,

the courts below simply misread and misapplied the statute.

For the reasons set forth above, the courts below applied an

incorrect interpretation of the statutory language, one with no

warrant whatsoever in the legislative history.

Nor does the Ninth Circuit’s alternative holding that a

professional golf tournament is a place of public accommoda-

tion because it is a “place of exhibition or entertainment”

support the conclusion that the actual playing area of the

competition, where the public cannot go, is covered by Title III.

That argument extends at most to the public areas of the

tournament, i.e., those areas from which the public views the

exhibition or entertainment (and the public restrooms, conces-

sion areas and other facilities serving the public), but not to

those areas where the public is not permitted — the playing-

field, or tennis court. The plain statutory language and its

functional test to determine coverage under Title II] compels

this result. The parameters of a “place of exhibition or enter-

tainment” are necessarily limited to those aspects of the facility

that are used by the public for exhibition or entertainment. See

Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1241 n.5 (11th

Cir. 2000) (while “a cruise ship contains some public accom-

16

modations [,]that does not mean that the entire cruise ship

necessarily is subject to Title III”); Bowers v. Nat'l Collegiate

Athletic Ass'n, 9 F. Supp. 2d 460, 482 (D.N.J. 1998) (“Mere

operation of one place of public accommodation does not by

itself subject every other aspect of the operator’s business to

Title Ir”).

The public does not use the stage of a theatrical perform-

ance, or the playing area of a sports competition, for entertain-

ment, but rather uses the public spectating areas, and the ADA

has no application in determining what plays will be performed,

what scenery used, or what scenes cut — any more than it

regulates what rules of competition must be changed. Similar-

ly, although the public areas of a museum or gallery would be

a place of public accommodation, the private areas of the

museum (e.g., the office and storage areas, and the gallery walls

where art is hung) are not “places of public accommodation”

subject to the ADA; the ADA no more regulates what art will

be purchased or stored, or whether brighter paintings must be

acquired or darker ones moved for particular viewers, than it

regulates the rules of professional sports competitions. See 28

C.F.R. Pt. 36, App. B. at 614-15 (1997). See also Louis v. Ideal

Cleaners, Nos. C-99-1557, C-99-1814, 1999 U.S. Dist. LEXIS

19811 (N.D. Cal. Dec. 14, 1999). So too, a public tour route of

a factory would be a place of public accommodation (because

it is a place of exhibition), but not the areas that the public is

not permitted — even if the public is able to view the other

areas that are not covered. See Jankey v. Twentieth Century

Fox Film Corp., 14 F. Supp. 2d 1174, 1181 (C.D. Cal. 1998),

aff'd, 212 F.3d 1159 (9th Cir. 2000).

This analysis is supported by the rules promulgated to

implement the ADA: the published regulations that pertain to

places of entertainment or exhibition such as stadiums, theaters

and concert halls focus on the public areas of these facilities,

not the places to which the public does not have access (e.g.,

the stage or the backstage area). See 28 C.F.R. § 36.308 (1999)

(application of Title III to seating in assembly areas). This is

17

entirely consistent with the overall purpose of Title III of the

ADA which was to insure that “public” spaces are accessible to

the disabled — not to regulate the entirely private areas and

activities to which the public does not have access. See 28

C.F.R. Pt. 36, App. B at 616.’

To accept the Ninth Circuit’s conclusion, unmoored to the

Statutory text, that if a facility is deemed to be a place of

entertainment or exhibition, then a// aspects of the facility are

places of public accommodation, would effect a dramatic

expansion of the scope of Title II] for which there is no warrant

in the statutory language or in its lengthy legislative history. It

would mean, for example, that a// aspects of museums,

stadiums, and theaters — back offices, storage areas, decisions

about what scenery to use or where to place it — would be

covered under the public accommodation provision of Title III.

But these areas clearly do not fall within the functional defini-

tion a place of public accommodation (i.e., they are not places

of entertainment or of retail sales).

=

The Preamble to the Title III regulations provides:

Section 36.102(b)(2) emphasizes that the general

and specific public accommodations requirements of

subparts B and C obligate a public accommodation

only with respect to the operations of a place of

public accommodation. This distinction is drawn in

recognition of the fact that a private entity that meets

the regulatory definition of public accommodation

could also own, lease or lease to, or operate facilities

that are not places of public accommodation. The

rule would exceed the reach of the ADA if it were to

apply the public accommodations requirements of

subparts B and C to the operations of a private

entity that do not involve a place of public

accommodation.

28 C.F.R. Pt. 36, App. B at 616 (emphasis added).

18

The expansive interpretation of Title II] adopted below is

contrary to the functional statutory test for determining what

qualifies as a place of public accommodation. Moreover, it

would represent an unprecedented governmental incursion into

the rules for and management of professional sports competi-

tion previously left to the unfettered judgments of the

professional sports leagues and sanctioning bodies. If Congress

had meant to make professional sports competitions subject to

the ADA in the way the Ninth Circuit has, surely it would have

said so, and the legislative history would have so reflected.

Accordingly, for these reasons and the reasons articulated

by the PGA TOUR, the Ninth Circuit erred in concluding that

a professional golf tournament is a place of public

accommodation.

CONCLUSION

For the reasons expressed above, the judgment of the Ninth

Circuit should be reversed.

Respectfully submitted.

Bradley I. Ruskin,

Counsel of Record

Richard M. Goldstein

Christopher J. Collins

Proskauer Rose LLP

1585 Broadway

New York, NY 10036

(212) 969-3465

Attorneys for ATP Tour, Inc.

and the Ladies Professional

Golf Association, Amici Curiae