Business 8th Edition by Marianne Jennings

Exercise 3

A Stroke of Genius for an ADA in Full Swing
FACTS
Casey Martin (respondent) is a talented golfer. As an amateur, he won 17 Oregon Golf Association junior events before he was 15 and won the state championship as a high school senior. He played on the Stanford University golf team that won the 1994 National Collegiate Athletic Association (NCAA) championship. As a professional, Mr. Martin qualified for the Nike Tour in 1998 and 1999, and based on his 1999 performance, he qualified for the PGA Tour in 2000.
Mr. Martin is also an individual with a disability, as defined in the Americans with Disabilities Act of 1990 (ADA). Since birth he has been afflicted with Klippel-Trenaunay-Weber Syndrome, a degenerative circulatory disorder that obstructs the flow of blood from his right leg back to his heart. The disease is progressive; it causes severe pain and has atrophied his right leg. During the latter part of his college career, the Pacific 10 Conference and the NCAA waived for Mr. Martin their rules requiring players to walk and carry their own clubs.
The PGA Tour, Inc. (petitioner) sponsors and cosponsors professional golf tournaments conducted on three annual tours.
The basic rules of golf apply equally to all players in tour competitions. As one of the petitioner's witnesses explained with reference to "the Masters Tournament, which is golf at its very highest level… the key is to have everyone tee off on the first hole under exactly the same conditions and all of them be tested over that 72-hole event under the conditions that exist during those four days of the event." The PGA interpretation of its rules was that Mr. Martin's use of a cart for participation in the four-day, 72-hole event would be an unfair advantage. The PGA would not allow him to use a cart.
The lower court and the court of appeals found that the hard cards (that contain the PGA rule on no carts) violated the ADA and required the PGA to permit Mr. Martin to use a cart pursuant to the act's rules on reasonable accommodation. The PGA appealed.
JUDICIAL OPINION
STEVENS, Justice
This case raises two questions concerning the application of the Americans with Disabilities Act of 1990, to a gifted athlete: first, whether the Act protects access to professional golf tournaments by a qualified entrant with a disability; and second, whether a disabled contestant may be denied the use of a golf cart because it would "fundamentally alter the nature" of the tournaments, § 12182(b)(2)(A)(ii), to allow him to ride when all other contestants must walk.…
It seems apparent, from both the general rule and the comprehensive definition of "public accommodation," that petitioner's golf tours and their qualifying rounds fit comfortably within the coverage of Title III, and Martin within its protection.
According to petitioner,… petitioner operates not a "golf course" during its tournaments but a "place of exhibition or entertainment," and a professional golfer such as Martin, like an actor in a theater production, is a provider rather than a consumer of the entertainment that petitioner sells to the public. Martin therefore cannot bring a claim under Title III because he is not one of the "'clients or customers of the covered public accommodation.'" Rather, Martin's claim of discrimination is "job-related" and could only be brought under Title I-but that Title does not apply because he is an independent contractor (as the District Court found) rather than an employee.…
Petitioner does not contest that a golf cart is a reasonable modification that is necessary if Martin is to play in its tournaments. Martin's claim thus differs from one that might be asserted by players with less serious afflictions that make walking the course uncomfortable or difficult, but not beyond their capacity. In such cases, an accommodation might be reasonable but not necessary. In this case, however, the narrow dispute is whether allowing Martin to use a golf cart, despite the walking requirement that applies to the PGA TOUR, the NIKE TOUR, and the third stage of the Q-School, is a modification that would "fundamentally alter the nature" of those events.
We are not persuaded that a waiver of the walking rule for Martin would work a fundamental alteration in either sense.
Over the years, there have been many changes in the players' equipment, in golf course design, in the Rules of Golf, and in the method of transporting clubs from hole to hole. Originally, so few clubs were used that each player could carry them without a bag. Then came golf bags, caddies, carts that were pulled by hand, and eventually motorized carts that carried players as well as clubs.… The walking rule that is contained in petitioner's hard cards, based on an optional condition buried in an appendix to the Rules of Golf, is not an essential attribute of the game itself.
To be sure, the waiver of an essential rule of competition for anyone would fundamentally alter the nature of petitioner's tournaments. As we have demonstrated, however, the walking rule is at best peripheral to the nature of petitioner's athletic events, and thus it might be waived in individual cases without working a fundamental alteration.
The judgment of the Court of Appeals is affirmed.
DISSENTING OPINION
Justices SCALIA and THOMAS
In my view today's opinion exercises a benevolent compassion that the law does not place it within our power to impose. The judgment distorts the text of Title III, the structure of the ADA, and common sense. I respectfully dissent.…
The Court, for its part, pronounces respondent to be a "customer" of the PGA TOUR or of the golf courses on which it is played. That seems to me quite incredible. The PGA TOUR is a professional sporting event, staged for the entertainment of a live and TV audience. The professional golfers on the tour are no more "enjoying" (the statutory term) the entertainment that the tour provides, or the facilities of the golf courses on which it is held, than professional baseball players "enjoy" the baseball games in which they play or the facilities of Yankee Stadium. To be sure, professional ballplayers participate in the games, and use the ballfields, but no one in his right mind would think that they are customers of the American League or of Yankee Stadium. They are themselves the entertainment that the customers pay to watch.…
It is as irrelevant to the PGA TOUR's compliance with the statute whether walking is essential to the game of golf as it is to the shoe store's compliance whether "pairness" is essential to the nature of shoes. If a shoe store wishes to sell shoes only in pairs it may; and if a golf tour (or a golf course) wishes to provide only walk-around golf, it may. The PGA TOUR cannot deny respondent access to that game because of his disability, but it need not provide him a game different (whether in its essentials or in its details) from that offered to everyone else.
Nowhere is it writ that PGA TOUR golf must be classic "essential" golf. Why cannot the PGA TOUR, if it wishes, promote a new game, with distinctive rules (much as the American League promotes a game of baseball in which the pitcher's turn at the plate can be taken by a "designated hitter")? If members of the public do not like the new rules-if they feel that these rules do not truly test the individual's skill at "real golf" (or the team's skill at "real baseball") they can withdraw their patronage. But the rules are the rules. They are (as in all games) entirely arbitrary, and there is no basis on which anyone-not even the Supreme Court of the United States-can pronounce one or another of them to be "nonessential" if the rulemaker (here the PGA TOUR) deems it to be essential.
... 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 "[t]o regulate Commerce with foreign Nations, and among the several States," U.S. Const., Art. I, § 8, cl. 3, 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. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a "fundamental" aspect of golf.
Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.
Do the dissenting justices believe that the court must define the essential elements of the game of golf? 7