On January 17, 2001, the United States Supreme Court is scheduled to hear arguments on (i) the applicability of the Americans with Disabilities Act (ADA) to competitive sports and (ii) whether the ADA empowers courts to direct governing bodies of professional sports competitions to modify the rules of a competition in order to accommodate the physical limitations of a disabled athlete.

Casey Martin sued the PGA Tour Inc., (the "PGA") after it denied him permission to use a cart during the third and final stage of the qualifying school (carts are allowed during the first two stages). The trial court ordered the PGA to allow Martin to use a cart during PGA and Nike Tour competitions. This decision was upheld by the United States Court of Appeals for the Ninth Circuit and is presently before the Supreme Court.

Available for Interviews Bradley I. Ruskin and Richard M. Goldstein, partners at Proskauer Rose LLP, co-authored an Amicus Brief (friend of the court brief) in the Martin case on behalf of the Ladies Professional Golf Association (LPGA) and the ATP Tour, Inc.

Among the Points Ruskin and Goldstein Raise 1. The Ninth Circuit erred by concluding that the ADA empowers the courts to modify the rules of a professional sport to accommodate the physical limitations of a disabled athlete.

A. The ADA does not require modifications which would "fundamentally alter" the nature of a program or facility. Every rule which affects the play of a competitive sporting event helps define that particular game, whether it be the size of the "cup" on a golf green, the height of a tennis net or the distance between bases on a baseball diamond. Accordingly, any modification of a rule of professional sports is, by definition, a fundamental alteration of that particular game and, hence, not required under the ADA.

B. An athletic sporting event is, at its core, a test of disparate abilities as measured by a uniform set of rules which are designed to favor the most able. Thus, the very nature of athletic competition is materially altered if the rules are changed to compensate for the physical differences of individual athletes.

C. The integrity of athletic competition depends upon the uniform application of agreed-upon rules. By allowing Martin to use a golf cart, the Ninth Circuit was attempting to "level the playing field," but the result was to make unfair that which was fair ? i.e., the testing of every contestant's physical skills according to the same set of rules.

D. The governing body charged with enforcing the rules of a particular sport should have the sole authority to amend or modify them. Since a "game" is nothing but a collection of its rules, the game is, in the end, only what the governing bodies say it is. By tradition and consensus, such bodies give meaning to the game and are, arguably, part of the game itself.

E. The decision of the Ninth Circuit invites courts to create new athletic competitions that, in their view, give disabled athletes a better chance at winning. No matter how laudable it might be for courts to create new sporting competitions, with constantly changing rules so that disabled athletes might be able to compete more effectively, doing so is clearly beyond the intended scope of the ADA.

2. The competition area of a professional-level athletic event is not a "place of public accommodation" within the meaning of the ADA.

A. The statutory language of the ADA describes 12 types of "places of public accommodation," two of which the Ninth Circuit focused upon in its decision: (i) a place of "exercise or recreation" and (ii) a place of "entertainment or exhibition". However, when a golf course is used for a professional golf tournament, no competitor or spectator would consider the competition to be a form of "exercise or recreation."

B. Additionally, to the extent that the professional golf tournament is a place of "entertainment", it is so only with respect to the places to which the public is permitted access (i.e., viewing areas, concession areas, etc.), not in the space where the competition is conducted (the field of competitive play).

Impact on Professional Sports Should the Supreme Court Uphold the Ninth Circuit's Ruling

Expanding the ADA to regulate professional sports competitions would have a potentially serious adverse effect on their entertainment value. Fans and spectators want to know who is the most skilled at a given competition. It is the unbiased and uncompromising determination of who is "the best" that is at the core of any sports' entertainment value. Affording a particular athlete a waiver or exemption from a rule would gravely jeopardize the legitimacy and entertainment value of the athletic competition.