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

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE

UNITED STATES GOLF ASSOCIATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

LEE N. ABRAMS Roy T. ENGLERT, JR.

JAMES C. SCHROEDER Counsel of Record

ROBERT M. Dow, JR. Mayer Brown & Platt

Mayer Brown & Platt 1909 K Street, N.W.

190 South LaSalle St. Washington, D.C. 20006

Chicago, Illinois 60603 (202) 263-3000

(312) 782-0600

)

JOHN W. VARDAMAN

Williams & Connolly

725 12th Street, N.W.

Washington, D.C. 20005

(202) 434-5000

Counsel for Amicus Curiae United States Golf Association

—_—_—_—_—_—_——sae— ess eee

Yipy

QUESTIONS PRESENTED

1. Whether Title III of the Americans With Disabilities

Act, 42 U.S.C. § 12101, et seq., regulates standards established

for competitors (here, professional golfers) in athletic

competitions held at places of public accommodation.

2. Whether, if so, Title II] requires professional sports

organizations to grant selective waivers of their substantive

rules of athletic competition in order to accommodate disabled

\

ii

RULE 29.6 STATEMENT

Amicus United States Golf Association is a private, not-for-

profit association of member golf clubs and golf courses.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................00000000.

RULE 29.6 STATEMENT ......2.......000cecce0e. ii

INTEREST OF THE AMICUS CURIAE .............. 1

SUMMARY OF ARGUMENT ...................0-. 5

Nee Tn cuntcceccess g

I. TITLE tll OF THE ADA DOES NOT APPLY TO

THE SUBSTANTIVE RULES OR THE

COMPETITION AREAS OF CHAMPIONSHIP-

LEVEL ATHLETIC COMPETITIONS ............ 8

Il. PERMITTING AN INDIVIDUAL COMPETITOR TO

USE A GOLF CART WOULD FUNDAMENTALLY

ALTER THE NATURE OF A CHAMPIONSHIP-

LEVEL GOLF COMPETITION................. 19

Ill. THIS CASE HAS BROAD RAMIFICATIONS FOR

OTHER CHAMPIONSHIP-LEVEL ATHLETIC

Se AChehees6eceesbeeseccecess 28

TT UPPER GGbGeeeeeeseocecsccccccecss 30

iv

TABLE OF AUTHORITIES

Page

Cases:

Auer v. Robbins, 519 U.S. 452 (1997) ~... 2... 6 55-- 15, 16

Beecham v. United States, 511 U.S. 368 (1994) ........ 12

Bowen v. Georgetown Univ. Hosp.,

GDS. BOOED o occccccesssccsapanusees 15-16

Bowers v. NCAA, 9 F. Supp. 2d 460 (D.N.J. 1998) ...... 19

Brookins v. International Motor Contest Ass'n,

219 F.3d 849 (8th Cir. 2000) ...............-. 7,21

Buckles v. First Data Resources, Inc.,

176 F.3d 1098 (8th Cir. 1999) ........0....000 ee 25

Bushendorf v. Freightliner Corp.,

‘pA | ol lt 8 errr 16

Carparts Distrib. Ctr., Inc. v. Automotive Wholesaler's

Ass'n, 37 F.3d 12 (ist Cir. 1994) ............. beter a

Chevron U.S.A. Inc. v. NRDC,

GIFTS, GeV Ge ccccccccccccccvcceccccecss 13

Christensen v. Harris County,

ee 15

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

TDG. FOGG oc occccccevesscecicdecccoss 4

“Oe eee

Vv

Doe v. Mutual of Omaha Ins. Co.,

179 F.3d 557 (7th Cir. 1999),

cert. denied, 120 S. Ct. 845 (2000) ............... 15

Dole v. Steelworkers, 494 U.S. 26 (1990) ............. 11

East Bay Mun. Util. Dist. v. Department of Commerce,

BGS Fe S00 Ge GO BOUED cc ccccccecccesesce 16

Ganden v. NCAA, 1996 WL 680000

SE A En cccusekeccececeneehos 19

Gunter Harz Sports, Inc. v. United States Tennis Ass'n,

665 F.2d 222 (8th Cir. 1981) ........ eecenenas 7,21

Independent Living Resources v. Oregon Arena Corp.,

982 F. Supp. 698 (D. Or. 1997), modified,

1 F. Supp. 2d 1159 (D. Or. 1998) ................ 19

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)............ 16-17

Jarecki v. G.D. Searle & Co.,

I 6, 11

Jones v. USGA, No. A-00-CA-278 JN

(W.D. Tex. Aug. 30, 2000),

appeal pending (Sth Cir. No. 00-50850) ......... 3,27

_ Kumho Tire Co. v. Carmichael,

Ph CE cteseccubiviedcconeuceeuus ss

Louie v. Ideal Cleaners, 1999 WL 1269191

Gee Gs ES Uh BE ov ovcccccccccccccscs 17, 18

vi

Massachusetts v. Morash, 490 U.S. 107 (1989) ........ 11

NCAA v. Board of Regents, 468 U.S. 85 (1984) ...... 7, 21

Office of Workers’ Comp. Programs v. Newport

News Shipbuilding & Dry Dock Co.,

PO ED oc decbcdeseccccesceatedess 16

Olinger v. USGA, 52 F. Supp. 2d 947

EN dad dcasatekinibenanduawth 5

Olinger v. USGA, 55 F. Supp. 2d 926

RE BE GOED ccc dcscdvoceccosesccscodess 3, 24

Olinger v. USGA, 205 F.3d 1001 (2000),

petition for cert. filed , 69 U.S.L.W. 3235

(U.S. Sept..20, 2000) (No. 00-434)............ passim

Perry v. Local Lodge 2569, 708 F.2d 1258

ts a 20

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) ...... 1

Rodriguez v. United States, 480 U.S. 522 (1987) .....-. 16

Rosen v. Ciba-Geigy Corp., 78 F.3d 316

SEL EEE scaeccddetenvessoovceccecss 20-21

Sanders v. Arneson Prods., 91 F.3d 1351

SG, CUED Se cvccedecceccécciocersqeteses 25

Sandison v. Michigan High Sch. Athletic Ass'n,

64 F.3d 1026 (6th Cir. 1995) ............00000e- 25

School Bd. v. Arline, 480 U.S. 273 (1987) ........ 7, 24-25

~———ese ee -

vii

Schreiber v. Burlington Northern, Inc.,

Gres WEEE vkdicsavekadhewsbsesectadin 11

Sutton v. United Air Lines, Inc.,

Ser GUE » cde bbscacedvoneteccswecas 27

Tatum v. NCAA, 992 F. Supp. 1114 (E.D. Mo. 1998) .... 19

Third Nat’! Bank vy. Impac Lid., 432 U.S. 312 (1977) .... 11 —

Statutes and Rules:

28 C-F.R. ch. 1, pt. 36, App.B................. 6, 13, 14

I I ccs vc dcedckedéncuddccbedees 17

Re AOE ee ae ee i.

SSIS pre ee 27

RE GUID esse ccdiscesciseccccseveeess 9

CT BRIIIID i.n ccc ccescccccccccccccs 5-6, 12

a 17

a as 18

42 U.S.C. § 12181(7(L) ...............0000ee 6, 10, 11

ID EEE. 9

42 U.S.C. § 12182(b)(2M(/AMii) .. 2.22. ee. 7, 20

viii

Title III of the Americans with Disabilities Act...... passim

Other Authorities:

Dave Addis, Can Allowances For Disabilities Work

In Sports?, VIRGINIAN-PILOT & LEDGER-STAR,

DI DEED actcviscdkusdneneseedeenducaende 29

Jeff Babineau, Fiori Makes Cart Inquiry, GOLFWEEK,

Mar. 18, 2000 (www.golfonline.com/news/

golfweek/2000 /march /fiori0318.html) ........... 26

Brief for the United States as Amicus Curiae in

Martin v. PGA Tour, Inc., No. 98-35309

SED pAccuceuscaseyiatensueudns 14, 15, 16, 27

W. Kent Davis, Why is the PGA Teed Off at Casey

Martin? An Example of How the Americans

With Disabilities Act (ADA) Has Changed

Sports Law, 9 MARQ. Sports L.J. 1 (Fall 1998) . 28, 29

JOHN FEINSTEIN, A GOOD WALK SPOILED (1995) ..... 2, 22

Todd A. Hentges, Driving in the Fairway Incurs

No Penalty: Martin v. PGA Tour, Inc. and

Discriminatory Boundaries in the Americans

With Disabilities Act, 18 LAW & INEQ. J. 131

CUPPED vccccescoeuceéeneseoseneceveses 28

Matthew Kensky, Casey Martin v. PGA Tour, Inc.:

Introducing Handicaps to Professional Golf

by Widening the Scope of the ADA,

9 GEO. MASON U. Civ. Rts. L.J. 151 (1998) ..... 23-24

ee ne

Se

ix

Gary Reinmuth, Struggle to Make Field Goes

Overtime, CHICAGO TRIBUNE, July 4,2000 ........ 22

CURT SAMPSON, HOGAN (1996) ................. 22, 30

Robert S. Shwarts, A Good Walk Spoiled: The 9th

Cireuit Improves Its Lie, Mar. 23, 2000

(www.lawnewsnetwork.com/opencourt/

stories/A19345-2000Mar22.html) ............... 27

THE OXFORD DESK DICTIONARY AND THESAURUS

DGD SUDO 6 bbe ccccdbcéusecencéccaces 15

— me

INTEREST OF THE AMICUS CURIAE'

By the common and voluntary consent of the golf com-

munity, amicus United States Golf Association (“USGA”) is

regarded as the governing body of golf within the United States.

The USGA is concerned with virtually every aspect of the game

of golf, especially preserving the integrity of the game and the

conditions under which it is played. Among other things, the

USGA formulates and issues the Rules of Golf. Petitioner PGA

Tour is a separate entity (unrelated to the USGA) that conducts

a series of professional golf tournaments each year. Petitioner

voluntarily follows the USGA’s Rules of Golf.

Each year, the USGA conducts national championships in

each of thirteen designated categories (e.g., U.S. Open, U.S.

Women’s Open, U.S. Senior Open, U.S. Amateur). Among the

many professional and amateur golf competitions held each year

in the United States, the USGA’s championships are unique.

There is only one national championship annually for each

category of competitors, and the rules of competition for each

championship are uniform for all competitors.

_The U.S. Open is the national championship of golf in the

United States, and, as the Seventh Circuit noted in a case similar

to this one, it is by “consensus * * * the greatest test in gol..”

Olinger v. USGA, 205 F.3d 1001, 1003 (2000), petition for cert.

filed , 69 U.S.L.W. 3235 (U.S. Sept. 20, 2000) (No. 00-434).

The USGA selects difficult golf courses for the U.S. Open, and

compounds the difficulty by making the course conditions ex-

tremely challenging. Moreover, because the U.S. Open is al-

ways held in June, “Open week is very often hot and humid, the

pressure builds each day, and every mistake is magnified, espe-

cially on Sunday afternoon,” when the final round is played

(unless there is a tie, which necessitates a playoff on Monday).

' Pursuant to Rule 37.3 of the Rules of this Court, the parties have

consented to the filing of this brief. The parties’ letters of consent

have been lodged with the Clerk of the Court. This brief was not

written in whole or in part by counsel for a party, and no person or

entity other than the amicus curiae has made a monetary contribution

to the preparation and submission of this brief.

2

JOHN FEINSTEIN, A GOOD WALK SPOILED 333 (1995). “It is

often said that the toughest eighteen holes in golf are the last

eighteen at a U.S. Open,” because “[t]he combination of the

heat, the rough, the greens, and the pressure leaves everyone

drained even before the last round begins. Once it starts, it only

gets worse.” /d. at 352. In 31 of the 100 U.S. Opens played to

date, two or more competitors were tied at the end of regulation

play, so that a playoff was needed to determine the champion.

Twenty-five other U.S. Opens have been won by a single stroke.

The U.S. Open is not a mere shot-making contest. Rather,

at its core, it is athletic competition at the highest level.

Walking the course is (and always has been) a condition of the

competition in the U.S. Open and its Qualifyings; players have

always walked during the competition, since the first U.S. Open

in 1895.2 The USGA requires the competitors in the U.S. Open

(and in ten of its twelve other national championships) to walk

the course because physical endurance and stamina are very

important parts of the test to which the competitors are

subjected in championship-level golf competitions.”

? After the Oregon magistrate judge ruled in favor of respondent,

the USGA, acting on an ad hoc basis through its Championship Com-

mittee, waived the walking requirement for respondent in the U.S.

Open and its Qualifyings during the pendency of this case. The

USGA chose this course of action out of deference to the magistrate

judge’s ruling. Although the ruling was not legally binding on it, the

USGA believed that respect for the judicial system made voluntary

deference appropriate pending further review. Except for this one

instance, the USGA has never granted an individual waiver of the rule

requiring walking during the U.S. Open and its Qualifyings.

> The USGA has permitted competitors to use golf carts in the

Senior Amateur and the Senior Women’s Amateur championships

because of the limited availability of caddies during the school year

(when those events are played) and the age of the competitors. All of

the competitors in those two championships are allowed to use carts,

(continued...)

3

By virtue of its status as the governing body of golf in the

United States, the USGA has a significant interest in the out-

come of this case. The USGA’s interest is heightened by its

own involvement in litigating the very questions that are

presented in this case. In Olinger, a disabled professional golfer

sued the USGA, seeking to use a golf cart in the U.S. Open and

its Qualifyings. The district court held that the USGA need not

allow Olinger to use a golf cart, because doing so would

fundamentally alter the nature of the competition and would

impose an undue administrative burden on the USGA. Olinger

v. USGA, 55 F. Supp. 2d 926 (N.D. Ind. 1999). The Seventh

Circuit affirmed. Olinger v. USGA, 205 F.3d 1001 (7th Cir.

2000). Olinger then filed a petition for a writ of certiorari, in

which the USGA acquiesced. That petition remains pending.

In addition, in May 2000 (after the Ninth Circuit and the Sev-

enth Circuit issued their respective decisions), another disabled

professional golfer sued the USGA, seeking to use a golf cart in

the U.S. Senior Open and its Qualifying. Jones v. USGA, No.

A-00-CA-278 JN (W.D. Tex. Aug. 30, 2000) (granting

permanent injunction compelling USGA to permit plaintiff to

use a golf cart), appeal pending (Sth Cir. No. 00-50850).

The USGA receives applications from eligible golfers for

each of its national championships. This year, the USGA re-

ceived more than 8,400 applications for the U.S. Open, more

than 3,000 applications for the U.S. Senior Open, and approxi-

mately 26,000 applications for its other eleven national cham-

pionships combined. Most of the applicants for the U.S. Open

and the U.S. Senior Open competed in Local and/or Sectional

Qualifying for an opportunity to earn one of the non-exempt

places in a field of 156 competitors. (Slightly more than one-

third of the competitors in the field for the U.S. Open and the

U.S. Senior Open are exempt from qualifying, based on past

> (...continued)

because uniform rules are necessary for fair competition.

4

success as measured by published criteria.) For the U.S. Open,

Local Qualifying takes place in mid-May, with one 18-hole

round at each of nearly 100 qualifying sites around the country.

Of the more than 8,000 competitors who participate in Local

Qualifying, approximately 750 advance to Sectional Qualifying,

which is conducted at 12 sites across the country in June; each

competitor in Sectional Qualifying plays 36 holes in one day.

Moreover, because nearly 40,000 applicants seek entry into

the USGA’s national championships each year, the USGA

would face an enormous administrative burden if the Ninth Cir-

cuit’s ruling were upheld. Cardiologist Dr. James Rippe, found-

er and director of the Center for Clinical and Lifestyle Research

and one of the nation’s leading experts on the physiology of

walking, testified in Olinger. He analyzed two hypothetical

comparable golfers, one using a golf cart and the other walking,

under conditions of heat and humidity analogous to those exper-

ienced in championship-level competitions. Dr. Rippe deter-

mined that the competitor who walked would expend more calo-

ries and suffer greater degradation of hand-eye coordination,

dexterity, cognitive skills, and judgment than the one who used

a golf cart, and that increases in heat, humidity, or hills would

increase the physiological stress on the walker. Dr. Rippe’s un-

controverted testimony also demonstrated that the specific in-

quiry required by the Ninth Circuit is literally impossible to per-

form: the only way to determine whether a particular individual

competitor gains an advantage by using a golf cart is to run a

battery of tests with that individual and his clone.‘ That

* Dr. Rippe did not testify in Martin. Moreover, in Olinger, the

district court excluded the proffered testimony of Dr. Gary Klug, the

key expert on whose testimony the Oregon magistrate judge and the

Ninth Circuit relied in ruling in favor of Martin. The district court

excluded Dr. Klug’s contempiated testimony regarding the physiolog-

ical effects of walking versus using a golf cart as unreliable, under

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),

(continued...)

5

manifestly cannot be done. Consequently, if the Ninth Circuit’s

decision is upheld, the entities conducting championship-level

athletic competitions will be forced to render scientific judg-

ments that the best trained scientists are not competent to make,

and federal courts will be forced to review those judgments.

SUMMARY OF ARGUMENT

I. The threshold question in this case is whether Title III

of the ADA applies to the rules of competition in championship-

level golf competitions. Because there is not even a hint in the

text or the legislative history of the ADA that Congress intended

Title III to apply to championship-level athletic competitions,

respondent has seized on the location of the competition — a

golf course — to argue that the rules of competition are subject

to Title III because the statute lists a “golf course” as a “place

of public accommodation.” But, as demonstrated below, a golf

course is not a “place of public accommodation” at all times and

for all purposes. Respondent does not seek access to the golf

courses used in PGA Tour competitions as a spectator, or as a

person playing a casual round of golf. To the contrary,

respondent asserts that the PGA Tour must make an exception

to the uniform rules of its competitions so that he may use a golf

cart. Title II] does not apply in this circumstance, because

neither the competitions themselves, nor the competition areas

of the golf courses used in those competitions, are “place[s] of

public accommodation.” :

Title III of the ADA lists twelve categories of “place[s] of

public accommodation,” none of which includes the competition

areas of championship-level golf competitions. The competitors

in championship-level golf competitions are not using the golf

courses as “place[s] of exhibition or entertainment” (42 U.S.C.

* (...continued)

and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) —a case de-

cided after the district court proceedings in the present case, but be-

fore the USGA moved to exclude Dr. Klug’s proffered testimony in

Olinger. See Olinger v. USGA, 52 F. Supp. 2d 947 (N.D. Ind. 1999).

6

§ 12181(7)(C)), “place[s] of exercise or recreation” (id.

§ 12181(7)(L)), or places of any other category covered by Title

III. The mention of golf courses in 42 U.S.C. § 12181(7)(L)

does not require the application of Title III to the competi-

tion areas of golf courses during championship-level competi-

tions. This Court construes terms in a list according to their

shared attributes, “to avoid the giving of unintended breadth to

the Acts of Congress.” Jarecki v. G.D. Searle & Co., 367 U.S.

303, 307 (1961). Here, Congress has identified the shared attri-

bute that must guide construction of the statute: only a “place

of exercise or recreation” (whether listed or unlisted) is covered.

To be sure, a golf course is covered by the ADA on days

when golfers are using it as a “place of exercise or recreation.”

But during the U.S. Open or a PGA Tour event, the competition

areas of the golf course are used for championship-level

competition, with large amounts of prize money at stake. Title

Il] does apply to the spectator areas of a championship-level

golf competition, because those areas (i.e., the areas outside the

gallery ropes that separate the spectators from the competitors)

properly may be described as “place[s] of exhibition or enter-

tainment.” But none of the categories of places listed in Title III

encompasses the competition areas inside the gallery ropes.

As the Seventh Circuit explained in Olinger, under the

Justice Department regulations implementing Title III, “an

entity may simultaneously be both a place of public

accommodation and a place that is not fully subject to Title Il

— in other words, a ‘mixed use’ facility.” 205 F.3d at 1004.

The regulations provide that “to the extent that a mixed use

facility ‘is not open to the general public,’ it ‘is not subject to

the requirements for public accommodations.’” /bid. (quoting.

28 C.F.R. ch. 1, pt. 36, App. B, at 624). Just as “in a large hotel

that has a separate residential apartment wing, the residential

wing would not be covered by the ADA,” 28 C.F.R. ch. 1, pt.

36, App. B, at 623, the golf courses used in championship-level

competitions are mixed-use facilities: the competition areas,

from which the public is excluded and to which Title III does

,

not apply, are a private enclave that is separate from the place

of ~? accommodation subject to Title III (the spectator

areas).

Il. Even if Title II] extends to the competition areas of

championship-level athletic competitions, the statute does not

require the PGA Tour or the USGA to grant a selective waiver

of the uniform rule that all competitors must walk the course in

championship-level competitions. Title III does not require enti-

ties to make accommodations that would “fundamentally alter

the nature of” their ent 2rprise (42 U.S.C. § 12182(b)\(2)(A\ii)),

or that would impose an “undue financial and administrative

burden” (Olinger, 205 F.3d at 1006 (citing School Bd. v. Arline,

480 U.S. 273, 287 n.17 (1987), and other authorities)). Respon-

dent seeks an accommodation that would do both. The relevant

enterprise here is championship-level golf competition. Skilled

shotmaking, physical endurance and stamina, and the ability to

overcome fatigue are fundamental to that competition. A set of

rules, applied uniformly to all competitors, also is fundamental

to the integrity of the competition.

The USGA and the PGA Tour have determined, reasonably

and in good faith, that requiring all competitors to walk the

course best accomplishes the objective of creating a rigorous

and objectively fair championship-level golf competition. The

Court should defer to that rational determination. See, e.g.,

NCAA v. Board of Regents, 468 U.S. 85, 101-02 (1984);

Brookins v. International Motor Contest Ass'n, 219 F.3d 849,

853 (8th Cir. 2000); Gunter Harz Sports, Inc. v. United States

Tennis Ass'n, 665 F.2d 222, 223 (8th Cir. 1981).

Even if it were theoretically possible to determine accu-

rately which competitors would gain an unfair advantage over

the rest of the field by being allowed to use a cart — and it is

not — a court-imposed mandate requiring such determinations

would impose an extremely heavy burden. Amicus USGA, for

example, receives a total of almost 40,000 applications every

year for the thirteen national championships that it conducts

annually. The USGA is not equipped to undertake the medical

8

evaluations that would be required to process individual waiver

requests from even a small fraction of those applicants, and (as

the Olinger courts held) the ADA does not require that the

USGA “develop a system and a fund of expertise’” to do so.

Olinger, 205 F.3d at 1007 (quoting district court opinion).

I]. Championship-level golf is the context in which this

case arises, but this Court’s decision undoubtedly will have

broad ramifications for all championship-level athletic competi-

tions. In holding that the ADA requires the PGA Tour to grant

an individual waiver of a substantive rule of its competitions,

the Ninth Circuit has extended the reach of the ADA radically.

There is not even a hint in the text, history, or purposes oi Title

[II that Congress intended that statute to apply to competitors in

championship-level athletic competitions. At their core, those

competitions test the ability of people of different physical

abilities to compete against each other under uniform rules.

Equalization of physical attributes cannot be the guiding maxim

for championship-level athletic competitions. The very purpose

of such competitions is to ascertain, recognize, and reward

physical excellence in the skills being tested. If the Ninth

Circuit's decision is upheld, federal courts will be called on in

myriad contexts to make the kinds of determinations that not

even physicians, much less sports governing bodies, are capable

of making with any degree of confidence, let alone precision.

There is no reason to inject the federal judiciary into the

micromanagement of championship-level athletics, because

there is no evidence that Congress intended such a result.

ARGUMENT

I. TITLE Ul OF THE ADA DOES NOT APPLY TO

THE SUBSTANTIVE RULES OR THE COM-

PETITION AREAS OF CHAMPIONSHIP-LEVEL

ATHLETIC COMPETITIONS.

A. Initially, this Court must determine whether Title II] of

the ADA applies to the substantive rules, or the competition

areas, of championship-level golf competitions. “Congress

enacted the ADA to ensure that individuals with disabilities

9

fully enjoy the goods, services, privileges, and advantages

available indiscriminately to other members of the general

public.” Olinger, 205 F.3d at 1004; accord Carparts Distrib.

Cir., Inc. v. Automotive Wholesaler's Ass'n, 37 F.3d 12, 20 (1st

Cir. 1994). The ADA’s mandate extends to three broad, yet

distinct, areas: employment (Title I), public services (Title II),

and places of public accommodation (Title III). This case

involves only Title III.

Title II] provides that “[n]o individual shall be discriminat-

ed a = om 4 basis of disability in the full and equal enjoy-

ment o g services, facilities, privi advantages, or

oumunntiinetenpeenaeiceaimeiios

person who owns, leases (or leases to), or operates a place of

public accommodation.” 42 U.S.C. § 12182(a). The text of the

Statute, its implementing regulations, and the case law all help

in resolving the question whether, and to what extent, Title III

applies to the substantive rules, or to the competition areas, of

a championship-level golf competition.

The ADA defines the following entities as “place{s] of

public accommodation” under Title III (42 U.S.C. § 12181(7)):

(A) an inn, hotel, motel, or other place of lodging * * *;

(B) a restaurant, bar, or other establishment serving food

or drink;

(C) a motion picture house, theater, concert hall, stadium,

or other place of exhibition or entertainment;

(D) an auditorium, convention center, lecture hall, or other

place of public gathering;

(E) a bakery, grocery store, clothing store, hardware store,

shopping center, or other sales or rental establishment:

(F) a laundromat, dry-cleaner, bank, barber shop, beauty

shop, travel service, shoe repair service, funeral parlor,

gas station, office of an accountant or lawyer,

pharmacy, insurance office, professional office of a

health care provider, hospital, or other service

establishment;

10

(G) a terminal, depot, or other station used for specified

public transportation;

(H) a museum, library, gallery, or other place of public

display or collection;

(1) a park, zoo, amusement park, or other place of

recreation;

(J) a nursery, elementary, secondary, undergraduate, or

postgraduate private school, or other place of

education;

(K) a day care center, senior citizen center, homeless

shelter, food bank, adoption agency, or other social

service center establishment; and

(L) a gymnasium, health spa, bowling alley, golf course,

or other place of exercise or recreation.

None of these categories even remotely suggests that

Congress intended Title III to apply to the substantive rules, or

the competition areas, of championship-level athletic com-

petitions. Indeed, only two categories conceivably could apply

to any aspect of a championship-level golf competition such as

the U.S. Open or a PGA Tour event. Title III applies to some

venues that are sometimes used to conduct championship-level

athletic competitions — including gymnasiums, bowling

centers, and golf courses — when those venues are used as

“place[s] of exercise or recreation.” 42 U.S.C. § 12181(7\L).

But the mere reference to a “golf course” in this subsection does

not mean that Title III requires the PGA Tour or the USGA to

make an exception to the uniform rules of a championship-level

golf competition. Although a golf course at which a U.S. Open

or a PGA Tour event is played may be a place of “exercise or

recreation” during most of the year, it is not such a place on the

days when it is being used for the conduct of the U.S. Open or

a PGA Tour event. On those days, the competitors (including

respondent) are not using the course to play a casual round of

golf. Rather, they are using the course to compete for a cham-

pionship, and for very substantial amounts of prize money. The

fact that the competition takes place on a golf course, where

~~

1]

spectators are present, does not convert the competition itself,

or the competition areas of the golf course, into a “place of

public accommodation.”

This case would be open and shut if subsection (7)(L) re-

ferred to “a gymnasium, health spa, bowling alley, golf course,

or other place fo the extent that it is used as a place of exercise

or recreation.” Although the italicized words do not appear in

the statute, settled principles of statutory construction counsel

that the statute should be so interpreted. “The maxim noscitur

a sociis, that a word is known by the company it keeps, while

not an inescapable rule, is often wisely applied * * * to avoid

the giving of unintended breadth to the Acts of Congress.”

Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961). With

or without invoking the Latin phrase, this Court has used that

principle to give limiting constructions to such broad and

seemingly unqualified terms as “injunction,” “manipulative,”

and “any plan, fund, or program * * * maintained for the

purpose of providing * * * vacation benefits.”

The Court’s technique in interpreting statutory lists is to

determine the shared attribute of the items in the list: “That

several items in a list share an attribute counsels in favor of

* Third Nat'l Bank v. Impac Ltd., 432 U.S. 312, 322-323 & n.16

(1977) (preliminary injunction against bank’s foreclosure on real

property was not an “injunction” within the meaning of a statute pro-

hibiting an “attachment, injunction, or execution” against a national

bank); Schreiber v. Burlington Northern, Inc., 472 U.S. 1, 8 (1985)

(action that allegedly distorted the market for a stock was not, in the

absence of misrepresentation or nondisclosure, “manipulative” within

the meaning of a statute prohibiting “fraudulent, deceptive, or manip-

ulative acts or practices”); Massachusetts v. Morash, 490 U.S. 107,

114-115 (1989) (policy of paying discharged employees for unused

vacation time is not a “plan, fund, or program * * * maintained for the

purpose of providing * * * vacation benefits”). Morash reiterated that

the Court is not “guided by a single sentence or member of a sen-

tence” in a statute. Jd. at 115 (quoting Pilot Life Ins. Co. v. Dedeaux,

—» — 51 (1987)). See also Dole v. Steelworkers, 494 U.S. 26,

6 (1990).

12

interpreting the other items as possessing that attribute as well.”

Beecham vy. United States, 511 U.S. 368, 371 (1994). Here,

Congress itself has identified the shared attribute: subsection

(7)(L) is intended to reach only “place[s] of exercise or recrea-

tion.” When respondent is competing for prize money and a

championship, he is not using the golf course for “exercise or

recreation.”

Title ITI also applies to “place[s] of exhibition or entertain-

ment,” and thus covers persons who attend sporting events as

spectators. 42 U.S.C. § 12181(7)(C). But even if a golf course

being used for a championship-level competition is a place of

“exhibition or entertainment” for the spectators, that is not its

function for the competitors. The spectators are separated from

the competitors by the gallery ropes, and the spectators are not

permitted to enter the competition areas of the golf course —

any more than they are permitted on stage during the per-

formance of a concert or an opera. The area inside the ropes is

off limits to spectators. This, of course, is true with respect to

any championship-level athletic competition or professional

entertainment — whether it is an NFL game at Texas Stadium,

a baseball game ai Wrigley Field, a basketball game at Madison

Square Garden, or a performance of Ariadne auf Naxos at the

Kennedy Center. Title III does not require a change in the

structure of a theatrical performance or in the rules of a compe-

tition. Even if the Folger Elizabethan Theatre must install

ramps so that patrons in wheelchairs may view a performance,

Title III does not require the theater to omit the sword fight

from Hamlet in order to accommodate an actor in a wheelchair.

Likewise, Title III does not affect the criteria by which the

actors are selected or the requirements of the roles that they

perform. During a PGA Tour event, respondent is using the

competition areas of golf courses not as a “place of exhibition

or entertainment,” but rather as a place of championship-level

athletic competition. Consequently, subsection (7)(C) does not

apply here.

B. The Seventh Circuit properly viewed with skepticism

the concept that the inclusion of a “golf course, or other place of

exercise or recreation,” in the statutorily enumerated categories

om ee a

so <

13

of places of public accommodation evinced Congress’s intent to

extend the ADA to the competition areas of championship-level

athletic competitions. As the Seventh Circuit noted, under the

Justice Department regulations implementing Title III, “an

entity may simultaneously be both a place of public accom-

modation and a place that is not fully subject to Title II] — in

other words, a ‘mixed use’ facility.” 205 F.3d at 1004. In

addition, as the Seventh Circuit further observed, the Justice

Department has determined that, “to the extent that a mixed use

facility ‘is not open to the general public,’ it ‘is not subject to

the requirements for public accommodations.” /bid. (quoting

28 C.F.R. ch. 1, pt. 36, App. B, at 624).

Although the Seventh Circuit ultimately decided Olinger

without resolving this issue, both the regulations implementing

the ADA and the decisions applying the ADA support the prop-

osition that a golf course is a mixed-use facility when it is used

for a championship-level competition. The regulations —

which are entitled to controlling weight unless they are arbitrary

and capricious (Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837,

844 (1984)) — provide expressly for a private enclave in a place

of public accommodation. Under Title III, “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.” 28 C.F.R. ch. 1, pt. 36,

App. B at 616. As the regulations also make clear, the mandates

of Title III “obligate a public accommodation only with respect

to the operations of a place of public accommodation.” /bid.

The Justice Department regulations provide examples of

“[mJany facilities” that are classified as “mixed use” facilities.

28 C.F.R. ch. 1, pt. 36, App. B at 623. For example, “in a large

hotel that has a separate residential apartment wing, the residen-

tial wing would not be covered by the ADA.” /bid. If the apart-

ment wing in a hotel is closed to the general public, that wing is

not subject to Title III, even though the rest of the hotel is. /bid.

Such a facility is predominantly a place of public accommoda-

tion (the hotel) containing a private enclave (“the residential

apartment wing”) that is not covered by Title III.

14

Other examples drawn from the same regulations further

illuminate the commonsense proposition that a single facility

can be a place of public accommodation for some purposes and

private for other purposes. The regulations state that a movie

studio that provides public tours is a mixed-use facility:

If a tour of a commercial facility that is not otherwise a

place of public accommodation, such as * * * a movie

studio production set, is open to the general public, the

route followed by the tour is a place of public accommoda-

tion and must be operated in accordance with the rule’s re-

quirements for public accommodations. The place of pub-

lic accommodation defined by the tour does not include

those portions of the commercial facility that are merely

viewed from the tour route. * * * If the tour is not open to

the general public, but rather is conducted, for example, for

selected business colleagues, partners, customers, or con-

sultants, the tour route is not a place of public accommoda-

tion and the tour is not subject to the requirements for pub-

lic accommodations.

Id. at 624. The upshot of these regulations, of course, is that

only those portions of a mixed-use facility that are open to the

public come within the scope of Title III of the ADA.

C. Notwithstanding the plain text and commonsense con-

struction of these regulations, the Justice Department’s amicus

brief to the Ninth Circuit contended that “there is no basis for

carving out a ‘private’ zone of a place of public accommodation

that would fall outside the coverage of Title III.” Brief for the

United States as:Amicus Curiae in Martin v. PGA Tour, Inc.,

No. 98-35309, at 12 (9th Cir.) (“DOJ 9th Cir. Br.”). That brief

asserted that, “[a]lthough the regulations provide that portions

of a non-covered entity may be covered by Title III, no such

regulations provide that portions of a covered entity may be

exempt from coverage.” /d. at 23-24. The brief also asserted

that the hotel “facility” described in the regulations “is really

two separate entities; they are not ‘zones’ of a single place of

public accommodation.” /d. at 23-24 n.16.

The Justice Department’s effort, in effect, to promulgate

new regulations in a brief cannot be credited. Informal agency

15

interpretive positions are not entitled to Chevron-style defer-

ence. See Christensen v. Harris County, 120 S. Ct. 1655, 1662

(2000) (“[i]nterpretations such as those in opinion letters—like

interpretations contained in policy statements, agency manuals,

and enforcement guidelines, all * * * lack the force of law,” un-

like agency interpretations “arrived at after, for example, a for-

mal adjudication or notice-and-comment rulemaking”). Chris-

tensen makes clear that even if an agency is interpreting its own

regulation, the agency’s interpretation is not entitled to defer-

ence if the regulation is clear. To the contrary, if the regulation

is clear, it must govern. Any other rule would “permit the

agency, under the guise of interpreting a regulation, to create de

facto a new regulation.” Jd. at 1663 (citing Auer v. Robbins,

519 U.S. 452, 461 (1997)).

As Chief Judge Posner has written, a position advanced in

a brief “cannot claim much democratic legitimacy to set over

against the intent of Congress so far as it can be gleaned from

the usual interpretive sources,” even when the agency has not

formally addressed an issue on which it takes a position in liti-

gation. Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 563

(7th Cir. 1999), cert. denied, 120 S. Ct. 845 (2000). The

agency’s litigation position is entitled to even less consideration

when it contradicts the plain meaning of a regulation and the

construction of a statute that is strongly indicated by settled

canons. Even though (i) the Justice Department’s own

regulations refer to a “residential apartment wing” of a large

hotel and (ii) the plain and ordinary meaning of the term “wing”

is a “part of a building, etc., extended in a certain direction”

(THE OXFORD DESK DICTIONARY AND THESAURUS 923 (Ameri-

can ed. 1997) (emphasis added)), the Department’s brief in the

Ninth Circuit insisted that the “facility is really two separate en-

tities.” DOJ 9th Cir. Br. 24 n.16. This interpretation cannot be

squared with the regulations as written. If the Department wish-

es to rewrite the applicable regulations, it must use the required

formal procedures to do so; only then can courts be certain that

the new regulatory commands are not merely the agency’s “con-

venient litigating position” (Bowen v. Georgetown Univ. Hosp.,

16

488 U.S. 204, 213 (1988)), but instead are the product of its

“fair and considered judgment”(Awer, 519 U.S. at 462).°

D. In view of the plain text of the Justice Department

regulations, it is not surprising that case law under the ADA

recognizes that a mixed-use facility can exist. For example, in

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), the

plaintiff sued a movie studio under the ADA, alleging that cer-

tain facilities at the studio’s production lot were inaccessible to

disabled persons. The court held that the production lot itself,

a commissary, a store, and an automated teller machine located

on the lot were not “places of ‘public accommodation.” /d. at

° In addition to attempting to rewrite its own regulations, the Justice

Department tried to justify its radical proposed extension of Title III

by invoking “the ADA’s broad remedial purpose and the well-settled

rule that such statutes are interpreted expansively.” DOJ 9th Cir. Br.

19: see also id. at 23 (attempting to justify the Department’s argument

that a predominantly private place may have a public enclave, while

a predominantly public place may not have a private enclave, on the

ground that such a conclusion “is fully consistent with the broad reach

of a remedial statute”). That “rule” — which this Court has described

as the “last redoubt of losing causes” (Office of Workers’ Comp.

Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U.S.

122, 135 (1995)) — has_ no application if the statute and the

regulations are clear. Indeed, this Court has stressed that “it frustrates

rather than effectuates legislative intent simplistically to assume that

whatever furthers the statute’s primary objective must be the law.”

Rodriguez v. United States, 480 U.S. 522, 526 (1987); see also East

Bay Mun. Util. Dist. v. Department of Commerce, 142 F.3d 479, 484

(D.C. Cir. 1998) (“We have recently expressed our general doubts

about the canon that ‘remedial statutes are to be construed liberally,’

since virtually any statute is remedial in some respect.”),; Bushendorf

v. Freightliner Corp., 13 F.3d 1024, 1026 (7th Cir. 1993) (“Remedial

statutes like other statutes are typically compromises, and a court

would upset the compromise if it nudged such a statute closer to the

victim side of the line than the words and history and other indications

of the statute’s meaning pointed”).

——

17

1184. In reaching that conclusion, the court quoted extensively

from the Justice Department regulations, observing that

“[m]ixed use” facilities can also exist, consisting of an ex-

empt facility of which a portion is a public accommodation.

That portion, and only that portion, will therefore be sub-

ject to the ADA. * * * Conversely, a public accommoda-

tion may contain within itself a portion which is an “ex-

empt area.”

Id. at 1179. The court then addressed the question whether the

facilities to which the plaintiff sought access were “‘available

indiscriminately to other members of the general public,’ as re-

quired for a public accommodation” (id. at 1181), and answered

in the negative in each instance. See id. at 1181-84.’

Similarly, in Louie v. Ideal Cleaners, 1999 WL 1269191

(N.D. Cal. Dec. 14, 1999), the court recognized that the “mixed

use” facility concept encompasses private enclaves within a

public accommodation as well as public enclaves within an

otherwise private facility. In Louie, the plaintiffs sought access

to the restroom at a dry cleaning establishment. The court stat-

ed that “[ijt is undisputed that the dry cleaners itself is a public

accommodation” under § 12181(7)(F) of the ADA, but ruled

that, “[u}nder the ‘mixed use’ analysis of Jankey, the employee-

only restroom in the back of the dry cleaners is not a public

accommodation even though the dry cleaners itself is a public

| ” In addition to being fully consistent with the ADA and its

implementing regulations, the Jankey court’s holding — that a

primarily exempt facility with a limited public component and a

primarily public facility with a limited private component are flip

sides of the same coin for purposes of Title II] analysis — also

comports with common sense. Whether the public/private division

within a given mixed-use facility is 60/40, 40/60, or any other ratio

does not change the overarching principle under the ADA, pursuant

to which compliance is mandated “only with respect to the operations

of a place of public accommodation.” 28 C.F.R. § 36.102(b)(2)

(emphasis added). For a championship-level golf competition, the

area from which spectators are excluded often will be larger than the

area that is open to spectators.

18

accommodation.” 1999 WL 1269191, at *1. As the court

noted, “the restrooms are not made available to the public and

are only for the use of employees.” /d. at *2.

E. Under the principles discussed above, the competition

areas of a championship-level athletic competition are not a

place of public accommodation within the meaning of Title III.

At a championship-level golf competition, there is a clear

delineation between the competition areas and the spectator

areas. Spectators are not allowed inside the gallery ropes that

separate the competitors, and the competition areas, from the

spectators. Because access to the competition areas is not

“available indiscriminately to * * * members of the general

public,” Olinger, 205 F.3d at 1004, those areas are not subject

to Title III.

In rejecting petitioner’s argument that the golf courses used

in PGA Tour events are mixed-use facilities, the Ninth Circuit

analogized the competition for entry to the field in a PGA Tour

event to the competition for admission to elite private

universities. Pet. App. 7a. On the basis of that comparison, the

Ninth Circuit concluded that “the fact that users of a facility are

highly selected does not mean that the facility cannot be a

public accommodation.” /bid. The Ninth Circuit’s analysis was

incomplete, however, because it failed to analyze the compar-

ison in light of the language of Title III itself. Whether a par-

ticular facility is a public accommodation, a mixed-use facility,

or a purely private facility is governed first and foremost by the

relevant statutory language. Title III, by its terms, covers “sec-

ondary, undergraduate, or postgraduate private school[s], or

other place[s] of education.” 42 U.S.C. § 12181(7)(J). Just as

golf courses are covered only as places of exercise or recreation,

private schools are covered only as places of education. Thus,

Title III applies unambiguously to students who seek access to

private schools as a place of education, even if those students

have been selected on the basis of rigorous criteria. However,

the Ninth Circuit did not consider the possibility that, depending

on the circumstances, a private school facility could be a mixed-

use facility for ADA purposes — if, for example, it included

both classrooms (which would be covered as “place[s] of educa-

19 ‘

tion”) and living quarters for faculty (which would not be cov-

ered). This configuration would be precisely analogous to the

hotel with a private residential wing, or to a golf course with

separate spectator areas and competition areas.

Moreover, the cases on which the Ninth Circuit based its

holding that Title III applies to the competition areas of cham-

pionship-level athletic competitions do not support that holding.

In fact, Independent Living Resources v. Oregon Arena Corp.,

982 F. Supp. 698 (D. Or. 1997), modified, 1 F. Supp. 2d 1159

(D. Or. 1998) (cited at Pet. App. 5a), is fully consistent with the

USGA’s reading of Title III and its implementing regulations.

In that case, the court held that executive suites in a sports arena

were places of public accommodation. The executive suites, as

the court recognized, are “merely an updated version of the ‘box

seats’ that have long been available at many ballparks.” /d. at

759. Such executive suites are used by spectators, not

competitors, and thus are analogous to the spectator areas

outside the ropes at the U.S. Open. The NCAA cases cited by

the Ninth Circuit — Bowers v. NCAA, 9 F. Supp. 2d 460(D.N.J.

1998), Tatum v. NCAA, 992 F. Supp. 1114 (E.D. Mo. 1998), and

Ganden v. NCAA, 1996 WL 680000 (N.D. Ill. Nov. 21, 1996)

(cited at Pet. App. 5a) — also are inapposite. Those cases

concerned eligibility requirements, rather than conditions of a

competition. The plaintiffs there sought waivers of threshold

GPA or test score requirements, not changes in the actual rules

of athletic competitions. In other words, those cases had

nothing to do with what happened once the competitions began

“inside the ropes.” Respondent is eligible to compete under the

same rules that apply to all of the competitors — and altering

those rules for respondent’s benefit would fundamentally alter

the competition, as we show next.

Il. PERMITTING AN INDIVIDUAL COMPETITOR TO

USE A GOLF CART WOULD FUNDAMENTALLY

ALTER THE NATURE OF A CHAMPIONSHIP-

LEVEL GOLF COMPETITION.

A. Even where the ADA applies, it does not require a

defendant to modify its “policies, practices, or procedures” if

the proposed modification would “fundamentally alter the

20

nature of” the defendant’s “goods, services * * * or

accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii). Thus, “the

ADA does not require entities to change their basic nature,

character, or purpose insofar as that purpose is rational, rather

than a pretext for discrimination.” Olinger, 205 F.3d at 1005.

The Ninth Circuit’s approach to the fundamental alteration

question is inherently flawed. The Ninth Circuit requires the

PGA Tour to show that the level of fatigue that respondent

would experience using a cart would be less than that

experienced by hypothetical “able-bodied competitors” who

walk the course. See Pet. App. 10a; see also id. at 36a. No

other court of appeals has even remotely suggested that the

ADA requires this type of purportedly precise calibration.

The Ninth Circuit’s decision forces the PGA Tour to

change its basic nature by applying different rules to different

competitors in a championship-level golf competition. There is

no statutory basis for the Ninth Circuit’s determination that the

PGA Tour must change its rules in a way that the PGA Tour

reasonably believes would give one competitor an advantage

over others. As Dr. Rippe, a nationally recognized expert in the

physiology of walking, testified in Olinger, a competitor who

uses a golf cart suffers less fatigue and less degradation of his

small motor skills during a round of golf than a competitor who

walks — and these advantages are magnified in hot, humid

weather or on a hilly golf course. Moreover, the Ninth Circuit's

approach is completely unworkable in practice, because it

requires an entity conducting a championship-level golf

competition to make scientific comparisons between (i) golfers

with various disabilities and (ii) hypothetical “able-bodied

competitors” — comparisons that highly credentialed scientists

believe are literally impossible to make. As Dr. Rippe testified

in Olinger, the only way to know for certain whether a disabled

golfer would get a physiological advantage from using a golf

cart would be to test the disabled golfer and his clone on a golf

course, with one walking and the other using a cart. Neither the

ADA nor any other law requires such an impossible inquiry.

See Perry v. Local Lodge 2569, 708 F.2d 1258, 1262 (7th Cir.

1983) (“the law does not require the impossible”); cf. Rosen v.

~-

21

C iba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996) (“Law lags

science; it does not lead it”).

B. As the Olinger courts correctly observed, the purposes

underlying the rule requiring that all competitors walk the

course in a championship-level golf competition are to inject

stamina as an element of the competition and to preserve

uniform tules for all competitors. See Olinger, 205 F.3d at 1006

(quoting district court opinion). It is clear that forcing the PGA

Tour or the USGA to waive the walking requirement for

selected competitors would fundamentally alter the nature of

championship-level competitions. Most significantly, petitioner

and the USGA have reasonably determined, in good faith, that

a competitor who uses a golf cart might gain a substantial

competitive advantage over a golfer who walks. The courts

generally have permitted sports governing bodies “to create and

define the competition” (NCAA v. Board of Regents, 468 U.S.

85, 101 (1984)), provided that they promulgate rules that are

rational and not a pretext for unlawful activity. See, é.g.,

Brookins v. International Motor Contest Ass'n, 219 F.3d 849,

853 (8th Cir. 2000) (noting that “the few courts to consider

antitrust challenges to rules defining a sports activity have given

the rule-makers considerable discretion to achieve their sporting

objectives”); Gunter Harz Sports, Inc. v. United States Tennis

Ass'n, 665 F.2d 222, 223 (8th Cir. 1981) (noting that governing

body of tennis “legitimately functions * * * to ensure that

competitive tennis is conducted in an orderly fashion and to

preserve the essential character of the game as played in

organized competition” and that its “regulation of racket charac-

teristics is rationally related to these goals”). Such deference is

entirely appropriate in the present context. As the Seventh

Circuit held in Olinger, a competitor who uses a golf cart could

obtain a “‘tremendous advantage”” over a competitor who walks

the course, and the riding golfer’s advantage would be greater

under Certain conditions that frequently are present in

championship-level golf competitions (heat, humidity, hilly

terrain). 205 F.3d at 1006. In addition, the Ninth Circuit’s

approach injects an element of non-uniformity into what has

always been a uniform set of rules for all competitors.

22

Championship-level golf, like all other championship-level

athletic competitions, is designed to produce a champion from

among a group of competitors who perform under exactly the

same rules. For more than 100 years, the USGA has required

the competitors in the U.S. Open to walk during each round,

often for more than 4% hours a day under a broiling sun, to

make the ability to overcome fatigue an essential part of the

gauntlet that the champion must endure. See Pet. App. 32a

(“the purpose of the walking rule is to inject the element of

fatigue into the skill of shot-making”) (magistrate judge's

opinion below); FEINSTEIN, A GOOD WALK SPOILED 332-33,

341-42 (discussing the brutal weather conditions during the

1994 U.S. Open at Oakmont, outside Pittsburgh); CURT

SAMPSON, HOGAN 139-47 (1996) (describing Ben Hogan's

victory in the 1950 U.S. Open even though Hogan was barely

able to walk at times; before each round, Hogan had to soak in

a tub of hot water and Epsom salts for an hour and wrap his legs

from ankles to crotch in elastic bandages to minimize swelling,

because of injuries that he had suffered in a near-fatal car

accident).*

In holding that allowing an individual competitor to use a

cart would “fundamentally alter the nature of” the U.S. Open,

Olinger, 205 F.3d at 1005-07, the Seventh Circuit understood

the critical importance of walking the course in championship-

level golf, as a means of formulating an appropriately difficult

test for determining the national champion and ensuring that the

test is administered uniformly to all competitors. In particular,

the Seventh Circuit agreed with the commonsense conclusion

that someone who walks for 4% hours on a hot, humid day wjll

® The amount of time spent in hot, humid conditions is greater if the

golfers are required to play more than 18 holes in a day, as they must

during sectional qualifying for the U.S. Open (36 holes in one day) or

if weather problems delay play. See Gary Reinmuth, Struggle to

Make Field Goes Overtime, CHICAGO TRIBUNE, July 4, 2000, § 4, at

5 (describing a golfer who had to play 34 holes on the second day of

the 2000 U.S. Open).

23

be more fatigued than someone who rides in a cart. The

found “particularly persuasive” the experience of Ken Veuturi,

a professional golfer who for the last 31 years has been the golf

analyst for CBS Sports. /d at 1006. In 1964, Venturi won the

U.S. Open in “grueling conditions” that included near-100

degree temperatures and 97 percent humidity. /bid. As Venturi

testified in Olinger, he combined a regimen of practice shots

with walking up to five miles a day in training for the U.S. Open

— and hitting practice shots at the end of the day, when he was

most fatigued. Despite this preparation, Venturi “battl[ed]

dehydration” in the “stifling heat and humidity.” Jbid

Nevertheless, “Venturi walked the course and, on the verge of

collapse, won the tournament.” /bid. Venturi testified that any

competitor who would have been permitted to use a cart in those

conditions would have had a “‘tremendous advantage."” /bid

The Seventh Circuit concluded that Venturi’s experience, “by

itself, supports the golf community’s insistence that all players

play all tournaments under the same conditions and rules.” Jhid

The effect of heat and humidity is especially important

because of the narrow margins that often separate competitors

In 30 of the 100 U.S. Opens played to date, two or more

competitors were tied at the end of regulation play. Twenty-fiv

other U.S. Opens have been won by a yarn a a, for

those who do not win, the difference of one stroke in the final

standings can be worth tens of thousands of dollars.°

. _Respondent’s first victory on the Nike Tour illustrates why

granting individual requests for waivers of the substantive rules of a

competition leads down a slippery slope. Respondent used a golf cart

in winning the 1998 Lakeland Classic by a single stroke. The second-

place finisher in that tournament was suffering from an ingrown toe-

nail that caused hitn to suffer intense pain. He received novocaine

shots the day before the tournament started. He had the toenail

surgically removed the next day, and played the last two rounds of the

tournament with the top of his golf shoe cut off. If that competitor

had been permitted to use a golf cart, he might have improved his

score by one or two strokes. See Matthew Kensky, Casey Martin v.

(continued...)

24

The Seventh Circuit properly concluded that the USGA’s

decision, for more than a century, to require walking as an

essential element of the national championship makes sense in

light of the “basic nature, character, [and] purpose” of the U.S.

Open. 205 F.3d at 1005. The standards of the competition are

exacting, and are enforced uniformly with respect to all

competitors. This is entirely proper under the ADA. As the

Seventh Circuit concluded, any competitor who is permitted to

use a golf cart may gain a significant advantage over other

competitors, and any such advantage would compromise the

integrity of the entire endeavor."°

C. The Olinger court also observed, correctly, that “courts

consistently have concluded that an accommodation is not rea-

sonable if it imposes an undue financial and administrative bur-

den.” 205 F.3d at 1005-06 (footnote omitted); see also Arline,

* (...continued)

PGA Tour, Inc.: Introducing Handicaps to Professional Golf by

Widening the Scope of the ADA, 9 GEO. MASON U. Civ. RTS. L.J. 151,

163 & n.81, 187 (1998).

‘© Expert testimony supports that conclusion. In Olinger,

Dr. Rippe, the founder of the leading walking research laboratory in

the United States, testified extensively on the effects of allowing a

waiver or modification of the rule requiring competitors to walk the

course during a championship-level golf competition. See Olinger,

55 F. Supp. 2d at 935-36 (summarizing testimony). Dr. Rippe

concluded that a competitor who is permitted to use a golf cart would

have a substantial and unfair advantage over a competitor who walks

the course. /d. at 935. Among other things, he found that the

individual who is walking the course performs significantly more

physiological work, and suffers greater cognitive and psychomotor

fatigue, than the individual who uses a golf cart. bid. Dr. Rippe

further testified that increased hills, humidity, or temperature would

increase the differential in stresses affecting the walker and the rider.

Id. at 936. In sum, as the Olinger district court found, “Dr. Rippe’s

report provides a strong basis to believe that as between two roughly

similar golfers, the golfer who rides is likely to have some advantage

when it comes to fatigue over the golfer who walks.” Jd. at 935-36.

————

25

480 U.S. at 287 n.17 (Rehabilitation Act case); Buckles v. First

Data Resources, Inc., 176 F.3d 1098, 1101 (8th Cir. 1999)

(ADA case) (“an accommodation is unreasonable if it * * * ‘im-

poses undue financial or administrative burdens’”); Sandison v.

Michigan High Sch. Athletic Ass'n, 64 F.3d 1026, 1035 (6th Cir.

1995) (ADA case) (“It is plainly an undue burden to require

high school coaches and hired physicians to determine whether

[various] factors render a student’s age an unfair competitive

advantage. * * * It is unreasonable to call upon coaches and

physicians to make these near-impossible determinations”).

Applying these decisions, the lower courts in Olinger held

that the ADA does not require the USGA to “‘develop a system

and a fund of expertise to determine whether a given applicant

truly needs, or merely wants, or could use but does not need, to

ride a cart to compete."” Olinger, 205 F.3d at 1007 (quoting

district court opinion). As the Seventh Circuit recognized, if the

rule were modified to permit competitors to request waivers on

an ad hoc basis, the USGA would be required to have a staff of

medical specialists available to evaluate (for the U.S. Open

alone) waiver requests from any of the more than 8,000 compet-

itors at almost 100 qualifying sites across the country.

Moreover, even if tae USGA had a large staff of medical

specialists — which it does not — it would be impossible to

draw the appropriate lines in evaluating the myriad disabilities

that conceivably could be used to justify a particular

competitor’s request for permission to use a golf cart. Although

“temporary, non-chronic impairments of short duration, with

little or no longterm or permanent impact, are usually not

disabilities” under the ADA (Sanders v. Arneson Prods., 91

F.3d 1351, 1354 (9th Cir. 1996)), there are countless golfers and

other professional athletes who very well might qualify as

disabled under the ADA on the basis of their physical ailments.

As the Sixth Circuit has held in similar circumstances

(Sandison, 64 F.3d at 1035), no cadre of doctors and athletic

officials can be expected to make the “near-impossible

determinations” that would be required in deciding whether a

waiver of the walking requirement would give a particular

26

competitor an unfair advantage, or merely would bring him up

to parity with his competitors.

The Ninth Circuit, however, concluded that the individu-

alized waiver determinations mandated by its decision in this

case do not pose any administrative difficulty. Pet. App. 14a-

15a. That conclusion is simply untenable. There is no way to

calibrate how much of a disadvantage a particular competitor’s

disability creates, and correspondingly there is no way to

determine whether an accommodation for that competitor's

disability merely negates the effect of the disability, or in fact

overcompensates that competitor. Consequently, tournament

officials who are forced by the Martin decision to evaluate

individual requests for the use of a golf cart will have to engage

in a speculative exercise, regardless of the other variables that

are present. The approach taken by the courts below in Olinger

is far more realistic, and this Court should endorse that

approach.

In addition to being wholly impracticable, the inquiry that

tournament officials must follow under the Ninth Circuit’s man-

date undoubtedly will spawn frequent litigation.'' PGA Tour

competitor Ed Fiori has stated that he would like to use a cart

because of his chronic back problems, and he “says there are 10

or 12 others who'd like to join him.” Jeff Babineau, Fiori

Makes Cart Inquiry, GOLFWEEK, Mar. 18, 2000, { |

(www.golfonline.com/news/golfweek/2000/march

/fiori0318.html). When the field of possible plaintiffs is ex-

panded from the 300 or so touring professionals with whom

Fiori is familiar to the more than 8,400 entries for this year’s

U.S. Open, it is readily apparent that the number of competitors

~

*

* —

'! It is not surprising that the USGA had not received many

requests for waivers of the walking rule before the Martin and Olinger

cases. For many years, the application for entry into the U.S. Open has

informed applicants that “[p]layers shall walk at all times during a

stipulated round.”

27

who may seek to use carts could be substantial.'? It will not al-

ways be obvious whether a particular competitor suffers from a

—— within the meaning of the ADA; doctors sometimes

isagree on a diagnosis. And even the Justice Departmen

acknowledged that sometimes it will “be difficult to aaa

whether the requested accommodation, in view of the plaintiff ’s

disability, would result in an unfair advantage.” DOJ 9th Cir

Br. 35 n.22. Disagreements on these issues are inevitable and

if the Ninth Circuit’s decision is affirmed each of those dis-

agreements will have to be resolved by a court. In short, to the

extent that the Ninth Circuit’s decision compels the USGA (or -

any other entity conducting a championship-level athletic com-

petition) to evaluate individual waiver requests on an ad hoc

basis, the USGA and the federal courts will be forced to engage

in an impracticable inquiry, seeking an unattainable answer.

* * *

The U.S. Open has long played a prominent role in Ameri-

can sports history. Until the golf cart controversy arose, exactly

the same rules of competition have applied to all of the competi-

tors in each U.S. Open since the championship was first held in

! 895. Permitting some select golfers to use carts would

change[ ] the nature of professional golf tournaments forever.”

Robert S. Shwarts, A Good Walk Spoiled: The 9th Circuit

Improves Its Lie, Mar. 23, 2000, 4 3 (www.lawnewsnetwork

com/opencourt/stories/A 19345-2000Mar22.html). Moreover,

the inability to determine accurately which arguably disabled

golfers should be permitted to use a golf cart — and the

'? Some 43 million Americans, rough! isabi

P . y One in seven, have disabil-

Jties that are covered by the ADA. Sutton v. United Air Lines,

527 U.S. 471, 484-486 (1999); 42 U.S.C. § 12101(aX(1). Even if the

percentage of championship-level golfers who meet the statutory defi-

nition is much smaller, the number of disabled golfers wanting to use

carts is likely to be considerable. This is especially true if one in-

cludes as potential litigants the golfers whose physical conditions are

at (or outside) the margins of ADA coverage. When competitors in

the U.S. Senior Open are considered, it is even more likely that many

will seek to use carts, particularly in light of the Jones decision.

28

extraordinary burden of trying to make such determinations —

may force golf's governing bodies to adopt a bright-line rule

allowing all competitors to use golf carts. Of course, allowing

all golfers to use carts because of the difficulty of comparing

one claimed justification for a waiver of the walking rule

against another claimed justification would be the most

fundamental alteration of all. The ADA does not require either

of those results. This Court should endorse the Seventh

Circuit’s conclusion, and reject the Ninth Circuit’s.

ill. THIS CASE HAS BROAD RAMIFICATIONS FOR

OTHER CHAMPIONSHIP-LEVEL ATHLETIC

COMPETITIONS.

The questions presented here concerning the scope of Title

III have broad ramifications not only for golf, but for all

championship-level athletic competitions. As several com-

mentators have pointed out, the golf cart controversy litigated

here and in Olinger has, for the first time, extended the reach of

the ADA to the realm of championship-level sports. E.g., Todd

A. Hentges, Driving in the Fairway Incurs No Penalty: Martin

v. PGA Tour, Inc. and Discriminatory Boundaries in the Ameri-

cans With Disabilities Act, 18 LAW & INEQ. J. 131, 148 (Winter

2000) (“Although several spectators have requested that covered

entities comply with the ADA’s accessibility requirements with

respect to watching professional sports, Casey Martin and Ford

Olinger are the only two athletes to claim that the ADA should

apply to the playing of professional sports”); W. Kent Davis,

Why is the PGA Teed Off at Casey Martin? An Example of How

the Americans With Disabilities Act (ADA) Has Changed Sports

Law, 9 MARQ. SPorRTS L.J. 1, 3 (Fall 1998) (noting that Martin’s

case is “the first to apply [the ADA] * * * to professional

sports”). Prior ADA cases frequently have involved eligibility

rules in scholastic and intercollegiate athletics, but none has in-

volved an attempt by a professional athlete to obtain a waiver of

a substantive rule of his or her sport. Unless this Court cabins

the Ninth Circuit’s impulse to extend the reach of the ADA to

places that Congress never contemplated — to decide, without

congressional warrant, that the disabled must be given a way to

be competitive in events whose very purpose is to determine the

> <n.

29

most physically able competitors according to predetermined,

uniformly applied rules of competition — then this case may

prove to be a “watershed event” that “interject[s] the ADA into

professional sports.” Jd. at 4; see also Dave Addis, Can Allow-

ances For Disabiliiies Work In Sports?, VIRGINIAN-PILOT &

LEDGER-STAR, JAN. 18, 1998, at J1 (“a precedent in Martin’s

case would become an immediate problem when applied to

other professional sports, which is certain to happen in a society

where pro-sports venues are drowning in dollars and lawyers”).

A ruling that the ADA compels the modification of the

basic, long-established rules of a championship-level sports

competition would have repercussions far beyond golf.

Olympic gold medalist Jackie Joyner-Kersee and tennis champi-

on Jimmy Connors have asthma. Must they be permitted extra

time between long jumps and tennis sets because asthma ad-

versely affects their ability to recuperate? Must a biathlete with

hypertension be permitted to take extra time between the long-

distance skiing and the shooting competition?’ A request by a

competitor to modify the time rules in any of these champion-

ship-level athletic competitions on the basis of an asserted im-

pairment of his or her ability to cope effectively with the physi-

cal stress of the competition — like respondent’s request to use

a golf cart in PGA Tour competitions — would eliminate an

essential element of the competitions.

These examples highlight the fundamental tension between

the ADA-based accommodation imposed by the Ninth Circuit

in this case and the realities of championship-level athletic com-

petitions. Athletic competition tests the ability of people with

different physical abilities to compete against each other under

uniform rules. Sometimes brute strength prevails. In other in-

stances, stamina, guile, or luck accounts for the result. The

point is that competitors try to play to their strengths and

overcome their weaknesses, within the rules of the game. What-

'° To cite just one more example, must that biathlete be permitted

to take drugs to combat hypertension, even if those drugs are

otherwise banned as performance enhancing?

30

ever “fairness” may mean in other aspects of life — where, for

example, it may be grossly unfair to treat one scientist or lawyer

differently from another based on physical abilities, because

physical abilities are not the relevant skills — “fairness” in

championship-level athletic competitions ordinarily means that

everyone competes under the same rules. Equality of opportuni-

ty is not the criterion of fairness in an athletic competition, be-

cause the very purpose of an athletic competition is to ascertain

who is most physically excellent in the skills being tested.

Modification of the rules to compensate for physical limitations

is not a common feature of championship-level athletic compe-

titions, in which the winners generally are those competitors

who overcome whatever physical limitations they may have.'*

The Seventh Circuit recognized this tension, and further

understood that Congress enacted the ADA to ensure that dis-

abled persons have access to places that are accessible “indis-

criminately to other members of the general public” (Olinger,

205 F.3d at 1004), not to inject the federal judiciary into the

micromanagement of championship-level athletic competitions.

As the Seventh Circuit sensibly concluded, whether the rules of

championship-level golf “should be adjusted to accommodate

[the plaintiff] is best left to those who hold the future of golf in

trust.” Jd. at 1007.

CONCLUSION

The judgment of the Ninth Circuit should be reversed.

'* The annals of sports history contain many examples in which

disabled competitors have struggled to compete — sometimes with

amazing success — under the uniform rules that governed their partic-

ular sports. Major league baseball pitcher Jim Abbott was forced both

to field his position and to take a turn at bat, even though he was born

without a right arm. No rules of baseball were modified to accommo-

date Abbott’s disability. Golfer Ben Hogan was not permitted to use

a golf cart in championship-level competitions, even though the debil-

itating injuries that Hogan sustained in a near-fatal automobile acci-

dent resulted in a “permanent loss of stamina” that forced Hogan to

reduce his annual tournament appearances from thirty to approx-

imately five. See SAMPSON, HOGAN 139.

Respectfully submitted.

LEE N. ABRAMS

JAMES C. SCHROEDER

ROBERT M. Dow, Jr.

Mayer Brown & Platt

190 South LaSalle St.

Chicago, Illinois 60603

(312) 782-0600

JOHN W. VARDAMAN

Williams & Connolly

725 12th Street, N.W.

Washington, D.C. 20005

(202) 434-5000

NOVEMBER 2000

31

Roy T. ENGLERT, JR.

Counsel of Record

Mayer Brown & Platt

1909 K Street, N.W.

Washington, D.C. 20006

(202) 263-3000