Lessons from Martin: the ADA and athletics don't mix.

• Author: Green, Thomas E.
• Position: Casey Martin, Americans with Disabilities Act of 1990

1. INTRODUCTION

   When Casey Martin's story hit the news, it was apparent that whatever resolution was reached, it would be met with controversy. In the words of U.S. Supreme Court, Justice Antonin Scalia,

   It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government's power "to regulate Commerce with foreign Nations, and among the several States[]" ... to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. [I]t will henceforth be the Law of the Land, that walking is not a "fundamental" aspect of golf. (1) As you can see, the controversy did not stop at the steps of the Supreme Court.

   Martin is a professional golfer in his twenties who is stricken by Klippel-Trenaunay-Weber Syndrome. (2) This disability makes it medically impossible for him to play golf without the use of a golf cart. (3) The pain and swelling that results from sustained periods of walking only slightly subsides when Martin elevates his leg. (4) Using a golf cart provides only minimal relief from the pain Martin suffers while golfing; indeed, he suffers pain even while he is at rest. (5)

   Martin sued the PGA Tour in 1997 after his request to use a golf cart in a tour event was denied. (6) Martin made this request just prior to the third stage of PGA qualifying school in Grenelefe, Florida, in which competitors are precluded from using golf carts. (7) The United States Court of Appeals for the Ninth Circuit affirmed the decision of the United States District Court for the District of Oregon allowing Martin to use a golf cart for PGA events. (8) The U.S. Supreme Court affirmed the Ninth Circuit's ruling. (9)

   In a similar case that attracted much less media attention, professional golfer Ford Olinger was also denied use of a golf cart in a professional golf event. (10) Olinger, who "suffers from bilateral avascular necrosis, a degenerative [hip] condition that significantly impairs his ability to walk," (11) requested the use of a golf cart for play in qualifying rounds that proceed the 1998 United States Open. (12) The United States Golf Association ("USGA"), which conducts the US Open, denied Olinger's request, and Olinger thereinafter sued the USGA in the United States District Court for the Northern District of Indiana. (13) After initially allowing Olinger to compete in the qualifying rounds, the District Court, and subsequently the Court of Appeals for the Seventh Circuit, denied Olinger the use of a golf cart in events governed by the USGA. (14) Recently, the Supreme Court vacated the Seventh Circuit's ruling. (15)

   Considering that both golfers' claims were under the Americans with Disabilities Act of 1990 ("ADA"), and the facts and circumstances are almost identical in each case, (16) the opposite holdings reached by the courts of appeals is confounding. Equally perplexing is the Supreme Court's decision in Martin. This note will indicate how the enlightened District Court for the Northern District of Indiana correctly decided, and the Seventh Circuit Court of Appeals subsequently affirmed, the Olinger matter. It will also highlight some of the many flaws in the Supreme Court's opinion in Martin.

   This Note begins that task by giving, in Part II, a brief background of the ADA. Part III closely examines the interpretation of the ADA that the District Court, the Ninth Circuit, and the Supreme Court engaged in while deciding Martin. Part IV provides a similar examination, except of the Seventh Circuit's and the District Court's interpretation in Olinger. Part V explains how Martin and Olinger, as professional golfers, do not meet the statutory definition of "disabled." Part VI examines why athletics, by their nature, should not be governed by the ADA. Part VII concludes this Note by arguing that the Supreme Court should have followed the reasoning of the Olinger courts and the logical analysis of dissenting Supreme Court Justice Scalia, thereby denying Martin's and Olinger's ADA claims and preventing the ADA from being applied to the substantive rules of competitive athletics.

2. BACKGROUND OF ADA

   The stated purpose of the ADA, as set forth by Congress, is to provide a "mandate for the elimination of discrimination against individuals with disabilities[,]" to establish "clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities[,]" and to ensure the federal government's central role in enforcing these standards while invoking the sweep of congressional authority. (17)

   When instituted in 1990, the ADA "expand[ed] the basic protections of Titles II and VII of the Civil Rights Act of 1964 beyond prohibiting considerations of personal characteristics such as race, religion, sex, or national origin ... to prohibiting discrimination on the basis of physical or mental disabilities. (18) Thus, persons with disabilities victimized by discrimination were extended a cause of action similar to that already available to members of other minority groups.

   Congress found that an increasing number of Americans have one or more physical or mental disabilities, estimating that number at forty-three million in 1990. (19) Additionally, Congress found that our society isolates disabled individuals, and discriminates against them in the areas of "employment, housing, public accommodations, education, transportation, communication, recreation, ... and access to public services." (20) Also, unlike persons discriminated against based on their race, color, sex, national origin, religion or age, persons discriminated against based on a disability often have had no avenues through which to pursue a legal claim. (21) There was a need for such a claim based on Congress' findings that disabled persons regularly encounter various forms of discrimination, "including outright intentional exclusion, the ... effects of architectural, transportation, and communication barriers, ... exclusionary qualification standards and criteria ... and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities[.]" (22)

   The various provisions of the ADA include the following: Title I deals with employment issues, and is designed to prevent employers with fifteen or more employees from discriminating on the basis of disability with respect to the terms, conditions, and privileges of employment, which includes, but is not limited to hiring, discharge, and promotion. (23)

   Title II is focuses on public services, such as transportation services provided by a state or local governments. (24) Its purpose is to prohibit discrimination by reason of disability in regards to the benefits of services, programs, or activities provided by a public entity. (25)

   Title HI deals with public accommodations and services that are owned or operated by private entities. (26) Its purpose is to ban discrimination against disabled individuals in the "full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." (27)

   Title IV of the ADA is titled "Telecommunications," and provides regulations applicable to the telephone and broadcast media. (28) The purpose of this section is to make media accessible to speech and hearing impaired persons through items such as the Telecommunications Device for the Deaf--commonly known as TDD--and close-captioned television programs. (29)

   Title V denotes several miscellaneous provisions, including that homosexuals, bisexuals, and transvestites are not disabled for purposes of this Act. (30) Title V also excludes individuals who engage in the illegal use of drugs from the definition of disabled. (31) Additionally, Title V delineates a claimant's alternative means of dispute resolution, (32) and remedies, which include attorney's fees. (33)

   Titles II, IV and V are beyond the scope of this Note; however, a close examination of Titles I and HI follows in the discussion of Martin and Olinger, as they are the provisions at issue in each case.

3. MARTIN V. PGA TOUR

   1. District Court Decision

      Casey Martin brought his ADA claim in the District Court for the District of Oregon. (34) Magistrate Judge Thomas M. Coffin presided in the District Court; he wrote each of the court's two opinions. (35) The court examined Martin's plight, which was his attempt to gain membership to the PGA Tour, or the Nike Tour (36)--a "minor leagues" also operated by the PGA--by competing in a three-stage qualifying school tournament. (37) The qualifying school is set up in stages:

      The first stage consists of 72 holes. Those who score well enough in this stage advance to the second stage consisting of 72 holes. The top qualifiers, approximately 168 players, advance to the third and final stage consisting of 108 holes .... [¶] In the first two stages of the qualifying tournament, players are permitted to use golf carts. In the third stage, as well as on the regular PGA Tour and Nike Tour, players are required to walk.... (38) As noted above, Martin suffers from a debilitating disease that "curtails blood circulation in [his] leg. This condition has resulted in significant atrophy in the lower leg and bone deterioration of the tibia ... substantially limit[ing] his ability to walk." (39) Thus, Martin asserted, by not allowing him to use a golf...