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Martin v. PGA Tour, Inc. 204 F.3d 994 (9th
Cir. 2000), cert. granted, 121 S.Ct. 30 (2000)
United
States Court of Appeals,
Ninth
Circuit.
Casey
MARTIN, Plaintiff-Appellee,
v.
PGA
TOUR, INC., a Maryland corporation, Defendant-Appellant.
Nos.
98-35309, 98-35509.
Argued
and Submitted May 4, 1999.
Decided
March 6, 2000.
Professional golfer
suffering from circulatory disorder resulting in malformation of his right leg
sued non-profit professional golf association, alleging that association's rule
banning use of golf carts in certain of its tournaments violated Americans with
Disabilities Act (ADA). The United States District Court for the District of
Oregon, Thomas M. Coffin, United States Magistrate Judge, entered partial
summary judgment for golfer, holding that association was subject to ADA, 984 F.Supp. 1320,
and, following bench trial, entered permanent injunction requiring association
to permit golfer to use cart, 994 F.Supp. 1242.
Association appealed. The Court of Appeals, Canby, Circuit Judge, held that:
(1) golf courses were "places of public accommodation"
within meaning of ADA when they were being used for association's tournaments,
and (2) permitting golfer to use cart would not fundamentally alter nature of
services provided by association.
Affirmed.
William J. Maledon,
Andrew D. Hurwitz,
Osborn Maledon, Phoenix, Arizona, for the defendant-appellant.
Roy L. Reardon, New York,
New York, for the plaintiff-appellee.
Thomas E. Chandler,
United States Department of Justice, Washington, D.C., for amicus United
States; Guy G. Ward,
Mayer, Brown & Platt, Chicago, Illinois, for amicus U.S. Golf
Association; Brian D. Shannon, Texas
Tech University School of Law, Lubbock, Texas, for amicus Klippel-Trenaunay
Syndrome Support Group.
Appeals from the United
States District Court for the District of Oregon; Thomas M. Coffin, Magistrate Judge, Presiding. D.C. No. CV-97-06309-TMC.
Before: CANBY
and T.G. NELSON,
Circuit Judges, and FOGEL, [FN1]
District Judge.
FN1. The Honorable Jeremy Fogel, United States District Judge
for the Northern District of California, sitting by designation.
CANBY,
Circuit Judge:
PGA Tour, Inc.
("PGA") appeals from the district court's decision in favor of Casey
Martin, a disabled professional golfer, ordering PGA to make an exception to
its "walking rule" to allow Martin to ride a golf cart during PGA
competitions. We conclude that the
Americans with Disabilities Act ("ADA") applies to PGA competitions
and that allowing Martin to use a cart is a reasonable accommodation that does
not fundamentally alter the nature of those events. We therefore affirm the district court's decision.
BACKGROUND
Casey Martin suffers from
Klippel-Trenaunay-Weber Syndrome, a congenital, degenerative circulatory
disorder that is manifested in a malformation of his right leg. This disorder causes Martin severe pain and
atrophy in his lower leg, rendering him unable to walk for extended periods of
time. The mere act of walking subjects
him to a significant risk of fracture or hemorrhaging. There is no dispute that
Martin is profoundly disabled.
PGA is a non-profit
association of professional golfers. [FN2] It sponsors three competitive tours: (1) the PGA Tour, its most competitive tour,
(2) the Nike Tour, one step down from the PGA Tour, and (3) the Senior PGA
Tour, restricted to professional golfers age 50 and over. On days of tour competition, PGA is the
operator of the golf course. [FN3]
FN2. We refer hereafter to the defendant PGA Tour, Inc. as
"PGA," in order to differentiate it from the PGA Tour, which is one
of the three tours sponsored by PGA Tour, Inc.
FN3. The term "operates," as it is used in the ADA,
is extensive and "would include sublessees, management companies, and any
other entity that owns, leases, leases to, or operates a place of public
accommodation, even if the operation is only for a short time." 28 C.F.R. ch. I, pt. 36, app. B., at
628 (1999).
The primary means of
gaining entry to the PGA Tour and Nike Tour is by a competition known as the
qualifying school. The best scorers in
that competition qualify for the PGA Tour, and the next-best finishers qualify
for the Nike Tour. Players in the Nike Tour may qualify for the PGA Tour by
winning three Nike Tour tournaments in one year or by being in the top fifteen
money- winners in the Nike Tour.
The qualifying school
competition is conducted in three stages.
In the first two stages, players are permitted to use golf carts. In the third stage, and in the PGA and Nike
Tours themselves, players are required to walk as they play the course. [FN4]
After qualifying for the third and final stage of the 1997 qualifying school, Martin requested permission from
PGA to use a golf cart. PGA denied this
request, and Martin sued.
FN4. Players are permitted to use golf carts on the Senior
Tour.
The district court granted
Martin a preliminary injunction and, using a golf cart, he performed well
enough in the final stage of the qualifying school to earn a spot on the 1998
Nike Tour. The court subsequently granted Martin partial summary judgment,
holding that PGA is subject to Title III of the ADA because it owns, operates
and leases golf courses, which the ADA identifies as places of public
accommodation. [FN5] Martin v. PGA
Tour, Inc., 984 F.Supp. 1320 (D.Or.1998). After a six-day bench trial, the district court concluded that
modifying the walking rule for Martin was a reasonable accommodation that did
not fundamentally alter the nature of PGA golf tournaments. Martin v. PGA
Tour, Inc., 994 F.Supp. 1242 (D.Or.1998). It accordingly entered a permanent injunction requiring PGA to
permit Martin to use a golf cart in PGA and Nike Tour competitions in which he
is eligible to participate, and in any qualifying rounds for those tours. PGA appeals. [FN6]
FN5. The district court also ruled that PGA is not exempt from
the ADA as a "private club," see 42 U.S.C. § 12187,
because, among other reasons, it is a commercial enterprise offering athletic
events to the public. Martin, 984
F.Supp. at 1326. PGA has
not challenged that ruling on this appeal.
FN6. The district court awarded Martin attorneys' fees and
costs. PGA has protectively appealed that order; it does not contest the amount but seeks reversal of the award if
it succeeds on appeal. Because we
affirm on the merits, we also affirm the award of fees and costs to Martin as
the prevailing party.
DISCUSSION
I. Applicability of Title
III (Public Accommodation)
The district court granted Martin's motion
for summary judgment, holding that, as a matter of law, Title III of the ADA
applies to the PGA and Nike Tour competitions. We review de novo the district court's interpretation of the
ADA. Nunes v. Wal-Mart
Stores, Inc., 164 F.3d 1243, 1246 (9th Cir.1999).
We begin our analysis, as did the district
court, with the terms of the statute.
The basic anti-discrimination clause of Title III of the ADA provides:
No individual shall be
discriminated against on the basis of disability in the full 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.
42 U.S.C. §
12182(a). The first issue
for decision is whether Martin seeks to enjoy the facilities of a "place
of public accommodation." The
definition section of Title III of the ADA provides:
The following private
entities are considered public accommodations for purposes of this subchapter
...
. .
. . .
(L) a gymnasium, health
spa, bowling alley, golf course, or other place of exercise or recreation.
42 U.S.C. §
12181(7)(L) (emphasis added).
There is nothing ambiguous about this provision; golf courses are public accommodations. Indeed, PGA does not dispute that during
one of its tournaments a golf course is a public accommodation with regard to
the spectator areas; its contention is
that the competitors' area "behind the ropes" is not a public accommodation
because the public has no right to enter it.
Despite the surface plausibility of this argument, it too narrowly
construes the nature of a public accommodation.
The district court held that a public
accommodation could not be compartmentalized in the fashion PGA desired. At least in the present context,
we agree. It is true that the general
public cannot enter the area "inside the ropes," but competitors,
caddies, and certain other personnel can.
PGA contends that the restricted area is not being used as a "place
of exercise or recreation," within the meaning of § 12181(7)(L),
because the competitors are trying to win money, not exercise or recreate. Even if we were to agree with this point,
it would not aid PGA. The statute also defines "public accommodation"
to include a "theater, ... stadium or other place of exhibition or
entertainment." 42 U.S.C. §
12181(7)(C). If a golf
course during a tournament is not a place of exercise or recreation, then it is
a place of exhibition or entertainment.
The statute does not restrict this definition to those portions of the
place of exhibition that are open to thegeneral public. The fact that entry to a part of a public
accommodation may be limited does not deprive the facility of its character as
a public accommodation. See Independent Living
Resources v. Oregon Arena Corp., 982 F.Supp. 698, 759 (D.Or.1997)
(arena's executive suites contracted by businesses are public accommodations). Indeed, the underlying premise of the cases
dealing with disabled student athletes is that Title III applies to the playing
field, not just the stands. See, e.g.,
Bowers v. National
Collegiate Athletic Ass'n, 9 F.Supp.2d 460, 483-90 (D.N.J.1998); Tatum v. National
Collegiate Athletic Ass'n, 992 F.Supp. 1114, 1121 (E.D.Mo.1998); Ganden v. National
Collegiate Athletic Ass'n, 1996 WL 680000, at *8-11 (N.D.Ill. Nov.21,
1996); see also Anderson v. Little
League Baseball, Inc., 794 F.Supp. 342, 344 (D.Ariz.1992)
(undisputed that Title III applies to access to coaches' box on baseball
field).
The Third Circuit dealt
with a somewhat analogous problem in Menkowitz v.
Pottstown Memorial Medical Center, 154 F.3d 113 (3d Cir.1998). There a physician with a disability sued a
hospital under Title III after it denied him hospital staff privileges. The Third Circuit rejected the argument
that Title III could be invoked only by the patients of a hospital, and held that
denial of staff privileges qualified as a denial of "full and equal
enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation" prohibited by Title
III, § 12182(a). Id. at 122. Staff privileges, of course, entail access
to parts of the facility to which patients and the general public are denied
entry.
In contending that it may
compartmentalize golf courses during tournaments, PGA leans heavily on two
examples set forth in the regulations. One is of a "mixed use
facility," in the form of a large hotel that has a separate residential
wing. See 28 C.F.R. ch. I, pt. 36, app. B, at 623 (1999). The
non-public residential wing (which would be covered by the Fair Housing Act) is
not a place of "public accommodation." See id. The hotel wing,
however, would fall under 42 U.S.C. §
12181(7)(A) as an "inn, hotel, motel, or other place of
lodging." 28 C.F.R. ch I, pt. 36,
app. B, at
623; see 42 U.S.C. §
12181(7)(A). But in this
example, the residential wing has never functioned as a hotel. A golf course during a tournament, however,
is serving as a golf course.
The other example cited by
PGA is that of a commercial facility, such as a factory, that allows public
tours over specific routes at particular times. See 28 C.F.R. ch. I, pt. 36, app. B, at 624. The tour
route is a public accommodation but the portions of the facility merely viewed
from that route are not. See id. There are two reasons why this example is
not persuasive. First, it applies to
commercial facilities "not otherwise a place of public
accommodation." Id. Second, the
example would be analogous only if Martin were a spectator seeking to use his
golf cart within the competitors' area of a tournament.
This point brings us to the greatest
difficulty with PGA's argument. It
assumes that there is nothing public about the competition itself. According to
PGA, the fact that its tournaments are restricted to the nation's best golfers
means that the courses on which they play during tournaments cannot be places
of public accommodation. Butthe fact
that users of a facility are highly selected does not mean that the facility
cannot be a public accommodation. For
example, Title III includes in its definition "secondary, undergraduate,
or postgraduate private school[s]."
42 U.S.C. §
12181(7)(J). The competition
to enter the most elite private universities is intense,
and a relatively select few are admitted.
That fact clearly does not remove the universities from the statute's
definition as places of public accommodation.
It is true that the rest of the public is then excluded from the
schools, but the students who are admitted are nevertheless members of the
public using the universities as places of public accommodation. [FN7]
FN7. Title III does not restrict its coverage to members of
the public; it provides that "No
individual shall be discriminated against" in the enjoyment of public
accommodations by reason of disability.
42 U.S.C. §
12182(a) (emphasis added).
This provision does not, however, grant access to a place where the
individual is not entitled to be; the
rejected applicant for admission is not entitled to access to the university,
and the spectator is not entitled to access to the tees, fairways and greens
during a PGA golf tournament.
Competition to enter the
select circle of PGA and Nike Tour golfers is comparable. Any member of the public who pays a $3000
entry fee and supplies two letters of recommendation may try out in the
qualifying school. At the initial
stage, it seems plain that the golf course on which the elimination begins is a
place of public accommodation. As even
PGA admits, "[t]he competition areas of some amateur sporting events may
well constitute places of public accommodation under
Title III of the ADA when virtually any member of the public can
participate." We fail to see,
however, why a winnowing process would change the nature of the facility. If a stadium owner invited the public to
compete in long distance races, and continued to run heats until only the ten
best runners remained, the track would be no less a place of public
accommodation when the final race was run.
We see no justification in reason or in the statute to draw a line
beyond which the performance of athletes becomes so excellent that a
competition restricted to their level deprives its situs of the character of a
public accommodation. Nor do we see
any such justification for drawing a line between use of a place of public
accommodation for pleasure and use in the pursuit of a living.
We conclude, therefore,
that golf courses remain places of public accommodations while a PGA tournament
is being conducted on them.
II. Reasonable Modification
(Accommodation)
Title III further defines
"discrimination" to include:
a failure to make
reasonable modifications in policies, practices, or procedures, when such
modifications are necessary to afford such goods, services, facilities,
privileges, advantages, or accommodations to individuals with disabilities,
unless the entity can demonstrate that making such modifications would
fundamentally alter the nature of such goods, services, facilities, privileges,
advantages or accommodations.
42 U.S.C. §
12182(b)(2)(A)(ii) (emphasis added).
Here, it is clear
that permitting Martin to use a golf-cart is
"reasonable" in the sense that it solves the problem of
Martin's access to the competition. It
is also "reasonable," as the district court found, in that golf-carts
are used inother competitions (such as those on the Senior Tour), and it is not
a difficult practical matter to permit them.
Use of a golf cart is also "necessary"; there was ample evidence to support the
district court's finding that Martin could not walk the course, even with
artificial aids. These matters are no longer in serious contention.
The issue on which most of
the dispute centers is whether permitting Martin to use a golf cart will
"fundamentally alter" the nature of the goods or service--the PGA or
Nike Tour. It is readily apparent that walking is not essential to the
generalized game of golf. Rule 1-1 of
the Rules of Golf, promulgated by the United States Golf Association and the
Royal and Ancient Golf Club of St. Andrews, Scotland, states:
The Game of Golf consists
in playing a ball from the teeing ground into the hole by a stroke or successive
strokes in accordance with the Rules.
These Rules do not require
players to walk. Indeed, PGA does not
require players to walk in the early stages of the qualifying school or in the
Senior Tour.
PGA correctly points out,
however, that it is not offering the generalized game
of golf in its PGA and Nike Tours, it is offering a particular
competition. PGA provides, in the
Conditions of Competition for its PGA and Nike Tours, that "[p]layers
shall walk at all times during a stipulated round unless permitted to ride by
the PGA TOUR Rules Committee." On
occasions when the Committee has permitted players to ride, the waiver applies
to all competitors, as when all players must be shuttled from the 9th green to
the 10th tee when the distance is great.
It also appears that, to save time, rides have been given from the
fairway back to the tee to players who have lost a ball and must tee off again.
The issue for decision,
then, is whether the accommodation of permitting Martin to use a golf cart
fundamentally alters the PGA and Nike Tour competitions. That issue was fully tried in the district
court.
The district court found
that the purpose of requiring players to walk was to inject a fatigue factor
into the shot-making of the game. Martin, 994
F.Supp. at 1250. It also
found, however, that "the fatigue factor injected into the game of golf by
walking the course cannot be deemed significant under normal
circumstances." Id. It
further found that, at the low levels of intensity of exercise involved in untimed
walking of a golf course during a competition, "fatigue ... is primarily a
psychological phenomenon.... Stress and
motivation are the key ingredients here."
Id. at 1251. The court noted that, given the choice of
carts or walking in other tours, large numbers of
players chose to walk. See id. In the events in which PGA permits carts, it
assigns no handicap penalty to those who ride as opposed to those who
walk. See id. at 1248.
There was ample evidence to
support all of these findings, and they are not clearly erroneous. Against this background, the district court
evaluated whether use of a cart would give Martin an advantage over the other
players who were required to walk.
Even with a cart, Martin must walk about twenty-five percent of the
course because the cart cannot be brought near to the ball in many cases. Martin endures significant pain while
walking, and while getting in and out of his cart. The district court, after considering these factors, found that
Martin "easily endures greater fatigue even with a cart than his
able-bodied competitors do by walking."
Id. at 1252.
In light of these findings,
we conclude, as did the district court, that permitting Martin to use a golf
court in PGA and Nike Tour competitions would not fundamentally alter the
nature of those competitions. The central
competition in shot-making would be unaffected by Martin's accommodation. All that the cart does is permit Martin
access to a type of competition in which he otherwise could not engage because
of his disability. [FN8] That is precisely the purpose of the ADA.
See 42 U.S.C. §
12101(a)(5) (discrimination against disabled includes "failure
to make modifications to existing facilities and practices"); Crowder v.
Kitagawa, 81 F.3d 1480, 1483
(9th Cir.1996) (Congress intended ADA to cover discriminatory impact
of facially neutral barriers).
FN8. We note that the NCAA and Pac-10 rules of competition
require players to walk and carry their own clubs. Martin applied for, and was granted, a waiver of that rule that
permitted him to compete in college tournaments when he was a student.
PGA argues that the kind of
balancing engaged in by the district court and now by this court is wholly
illegitimate. It agrees that some
athletic rules, such as dress codes or uniform requirements, may be subject to
exceptions to accommodate the disabled.
But it contends that a rule intended to affect the competition cannot be
made subject to exception. According
to PGA, the case should have ended in its favor the moment the district court
concluded that the purpose of PGA's walking-only rule was to inject the fatigue
factor into the competition. Once that rule is determined to be
"substantive," according to PGA, it is not subject to exceptions to
accommodate disability.
The difficulty with this
position is that it reads the word
"fundamentally" out of the statutory language, which requires
reasonable accommodation unless PGA can demonstrate that the accommodation
would "fundamentally alter the nature" of its competition. 42 U.S.C. §
12182(b)(2)(A)(ii). PGA
essentially argues that permitting a player to ride alters the competition and
inquiry must stop there. It makes all
alterations of the competition fundamental.
But the statute mandates an inquiry into whether a particular exception
to a rule would "fundamentally alter" the nature of the good or
service being offered. The issue here
is not whether use of carts generally would fundamentally alter the
competition, but whether the use of a cart by Martin would do so. The evidence must "focus [ ] on the
specifics of the plaintiff's or defendant's circumstances and not on the
general nature of the accommodation."
Johnson v.
Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1060 (5th Cir.1997). We cannot tell whether a golf cart for
Martin fundamentally alters the competition without first investigating whether
walking is fundamental to the competition.
The mere fact that PGA has defined walking to be part of the competition
cannot preclude inquiry, or PGA will have been able to define itself out of
reach of the ADA. The district court, as we have said, found that the fatigue
factor injected into the game by walking was not significant, and that finding
was not clearly erroneous.
The nature of the district
court's findings reflect the fact that whether an accommodation fundamentally
alters a competition is an intensively fact-based inquiry. For that reason, we reject PGA's argument
that permitting Martin to use a golf cart would open the door to future
decisions requiring that disabled swimmers or runners
be given a head start in a race, or that a growth-impaired basketball player be
allowed to shoot 3-point baskets from inside the three-point line. We have little doubt that fact-based
inquiries into the effects of such accommodations would result in rulings that
those accommodations fundamentally altered the competitions. The same would be true if Martin were
seeking to use a special golf ball that carried farther than others, or was
seeking to play a shorter course than his competitors. Martin, however, seeks only to use a cart
between shots, and the district court, after considering the evidence presented
in a full trial, found that this accommodation does not fundamentally alter the
competition.
PGA next contends that it
was wholly improper for the district court to consider whether Martin's
condition was such that riding would not give him an unfair advantage over
competitors who walked. PGA has
steadfastly declined to consider Martin's condition in adhering to its position
that permitting him to use a cart would fundamentally change its
competition. It contends that it would
be far too burdensome for PGA to determine whether disabled individuals using
carts would have an advantage over non-disabled walking competitors. PGA relies on Sandison v.
Michigan High Sch. Athletic Ass'n, 64 F.3d 1026 (6th Cir.1995),
which upheld an upper-age limit for high school athletes. Sandison
rejected an argument that over-age would not provide a competitive advantage
for the learning-disabled plaintiffs because they were of only average athletic ability;
it stated that "[i]t 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." Id. at 1035; see also McPherson v.
Michigan High Sch. Athletic Ass'n, 119 F.3d 453, 462 (6th Cir.1997)
(upholding maximum eight-semester eligibility rule on same grounds); Pottgen v.
Missouri State High Sch. Activities Ass'n, 40 F.3d 926, 931 (8th Cir.1994)
(same).
The foundation of these
cases, however, was a finding, or evidence compelling a finding, that the rule
against older or more experienced high- school athletes was necessary to
protect the competition in the lower age group, and to prevent
"red-shirting" of athletes to permit them to compete when older and
more experienced than the others. See Sandison, 64 F.3d
at 1035; McPherson, 119
F.3d at 462; Pottgen, 40 F.3d
at 931 & n. 6. The record in this case is quite different; the district court found that the fatigue
factor introduced by walking was not significant. [FN9]
FN9. This finding also distinguishes Martin's case from Olinger v. United
States Golf Ass'n, 55 F.Supp.2d 926 (N.D.Ind.1999), in which the
district court found on the evidence there presented that use of a cart can
provide a golfer with a competitive advantage over a golfer who walks. See id. at 935. To the extent that other rulings in Olinger
are inconsistent with our decision today, we respectfully disagree with it.
Moreover, we do not share
the antagonism to individual determinations reflected in these cases. "We prefer the approach of Judge
Richard Arnold, dissenting in Pottgen,
that the inquiry must focus on the individual exception and that, in light of
the plaintiff's individual characteristics as found by the district court, the
age requirement could be modified for this individual player without doing
violence to the admittedly salutary purposes underlying the age rule." Pottgen, 40 F.3d
at 932 (dissenting opinion). The Seventh Circuit adopted such an
approach in Washington v.
Indiana High Sch. Athletic Ass'n, 181 F.3d 840 (7th Cir.), cert.
denied, --- U.S. ----, 120
S.Ct. 579, 145 L.Ed.2d 482 (1999), in enjoining enforcement of an
eight- semester rule against a learning-disabled student. It observed that applying the
eight-semester rule to exclude the particular plaintiff would not "add
anything to the protections provided by the IHSAA's age limit rule, which
generally limits the size, strength and athletic maturity of student
athletes." Id. at 852. The court continued:
Nor will the record support
the argument that a waiver of the rule in Mr. Washington's case would place an
undue administrative or financial burden on the IHSAA. The record indicates that Mr. Washington is
the only student athlete to seek a waiver because of a
learning disability in more than a decade.
The few case-by-case analyses that the IHSAA would need to conduct
hardly can be described as an excessive burden.
Id.
Much the same can be said here.
Nothing in the record establishes that an individualized determination
would impose an intolerable burden on PGA. Although PGA refused to consider the
effect of Martin's disability, the district court appeared to have little
difficulty making the factual determination that providing Martin with a golf
cart would not give him an unfair advantage over his competitors. We conclude that, under the ADA, that
determination was a proper one for the court to make. See Johnson, 116 F.3d
at 1059-60 (fundamental alteration defense focuses on individual
circumstances).
CONCLUSION
We conclude that, under
Title III of the ADA, a golf course is a place of public accommodation while
PGA is conducting a tournament there.
We also conclude that the district court did not err in determining that
the provision of a golf cart to Martin was a reasonable accommodation to his
disability, and that use of the cart by Martin did not fundamentally alter the
nature of the PGA and Nike Tour tournaments.
We accordingly affirm the judgment of the district court. [FN10]
FN10. Our ruling that Martin is entitled
to relief under § 12182(a) of Title III makes it unnecessary to address his
alternative arguments.
AFFIRMED.