Originally published in: The Washington Times

Affirmative action may be coming to the playing fields.

The United States Supreme Court hears arguments today (January 17, 2001) in PGA Tour vs. Martin, a case that stems from professional golfer Casey Martin’s claim that the PGA Tour must comply with the Americans With Disabilities Act (ADA).

Common sense suggests that laws requiring special accommodation of disabled persons should not apply to professional sports. But political correctness often flies in the face of common sense.

Martin, a former Stanford teammate of Tiger Woods, suffers from a circulatory disorder that makes walking painful, and he has requested that he be allowed to use a cart.  But PGA Tour rules require all players to walk, and the Tour has denied Martin’s request for special treatment.

Martin is a sympathetic figure, and the PGA Tour’s decision may be unfair.  But is is not unlawful.

The ADA requires that “places of public accommodation” be made handicap accessible. Covered establishments must “accommodate” disabled persons, provided that the requested accommodation is “reasonable.”

The ADA was passed in order to remove barriers that prevent the disabled from equally participating in American life. This makes sense when we are talking about access to employment, restaurants or hotels. But when it comes to athletic competitions, all are not equal. And no amount of social engineering can change that without altering the very essence of sport.

This point was apparently lost on the U.S. Court of Appeals for the 9th Circuit, which last year upheld a federal trial court’s verdict in favor of Martin. The 9th Circuit rejected the PGA Tour’s claim that any exception to its walking rule would rewrite the rules of professional golf.  It concluded that Martin’s request for a cart was reasonable because it would not alter the “central competition in shot making.”

Within 24-hours of the decision in the Martin case, another appellate court reached the opposite conclusion.

In a case involving golfer Ford Olinger, the 7th Circuit ruled that allowing disabled golfers to ride was unreasonable because it would fundamentally alter the nature of the game – a point even Olinger seemed to concede when he reportedly complained that the judges who heard his case are golfers, while those who heard Martin’s are not.

“Reasonableness,” it seems, is often subjective.  And experts, as well as courts, disagree on whether allowing disabled golfers to use carts meets this legal test.  (Golf pro Greg Norman has weighed in on the side of Martin, while legends Jack Nicklaus and Arnold Palmer support the PGA Tour).

The debate, however, will be purely academic if the Court holds (as it should) that the ADA does not apply to competitive sports at all.

To be sure, Title III of the ADA prohibits discrimination in “places of public accommodation” and includes in its definition of public accommodation “golf course[s] or other place of exercise or recreation.”

Read in context, however, “golf course” clearly refers to a recreational facility – not to a particular competition.   In other words, golf courses -like theaters and restaurants – are properly prohibited from discriminating against the disabled, and they are required to make reasonable accommodations for disabled patrons, spectators, and employees.  They are not required to alter the rules of a tournament.

Moreover, the PGA Tour — unlike an actual golf course — is not a “place” open to the public.  The PGA Tour is a traveling competition of professional athletes who have beaten many excellent players in order to qualify for the competition.  Yes, all persons should be granted reasonable access to sporting arenas and facilities.  But no one is entitled to play professional sports.

Clearly, Congress did not intend the statute to apply to professional sports.  And expanding the statute’s reach in this way would have far-reaching consequences.

If the ADA applies to the PGA Tour, then it logically also applies to the NBA, NFL, NHL.

Of course, a lawsuit seeking affirmative action for short basketball players would be regarded by most people as silly.  But it would not be inconceivable under the reading of the statute advanced by Martin.

Nor would a lawsuit by players disabled in the course of playing competitive sports.  Football players, like Troy Aikman, who have suffered multiple concussions but are otherwise capable of playing could seek an exemption from tackling as an accommodation.  Such a request might not be reasonable, but it would take litigation and an individualized determination to find out.

And what of the NCAA’s academic eligibility requirements?

Such requirements, which play a critical role in assuring that the students who represent an educational institution in athletic competitions are actually advancing their studies, have been challenged with mixed results in the lower courts.  Should Martin prevail, any athlete who failed to make the grade would be able to demand a waiver of eligibility rules on the ground that he or she is learning disabled.

The PGA Tour’s refusal to allow a disabled golfer to use a cart is perhaps unfair.  But the question before the Supreme Court this week is not whether the PGA Tour should let Casey Martin use a cart, only whether federal law requires it to do so.   It doesn’t, and the justices should not allow their sympathy for Martin stand in the way of an accurate reading of the law.

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