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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 661

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0406%3A11. Public record. Not legal advice.