The full case caption appears at the
end of this opinion. OPINION CANBY, Circuit Judge: PGA Tour, Inc. (“PGA”) appeals from the district court’sdecision in favor of Casey Martin, a disabled professionalgolfer, ordering PGA to make an exception to its “walkingrule” 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 notfundamentally alter the nature of those events. We thereforeaffirm the district court’s decision. BACKGROUND Casey Martin suffers from Klippel-Trenaunay-Weber Syndrome, a congenital, degenerative circulatory disorder that ismanifested in a malformation of his right leg. This disordercauses Martin severe pain and atrophy in his lower leg, rendering him unable to walk for extended periods of time. Themere 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.
[FOOTNOTE 2] Itsponsors three competitive tours: (1) the PGA Tour, its mostcompetitive tour, (2) the Nike Tour, one step down from thePGA 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.
[FOOTNOTE 3] The primary means of gaining entry to the PGA Tour andNike Tour is by a competition known as the qualifyingschool. The best scorers in that competition qualify for thePGA Tour, and the next-best finishers qualify for the NikeTour. Players in the Nike Tour may qualify for the PGA Tourby winning three Nike Tour tournaments in one year or bybeing in the top fifteen money-winners in the Nike Tour. The qualifying school competition is conducted in threestages. In the first two stages, players are permitted to use golfcarts. In the third stage, and in the PGA and Nike Tours themselves, players are required to walk as they play the course.
[FOOTNOTE 4]After qualifying for the third and final stage of the 1997 qualifying school, Martin requested permission from PGA to usea golf cart. PGA denied this request, and Martin sued. The district court granted Martin a preliminary injunctionand, using a golf cart, he performed well enough in the finalstage of the qualifying school to earn a spot on the 1998 NikeTour. The court subsequently granted Martin partial summaryjudgment, holding that PGA is subject to Title III of the ADAbecause it owns, operates and leases golf courses, which theADA identifies as places of public accommodation.
[FOOTNOTE 5] Martinv. PGA Tour, Inc., 984 F. Supp. 1320 (D. Or. 1998). After asix-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 golftournaments. Martin v. PGA Tour, Inc., 994 F. Supp. 1242 (D.Or. 1998). It accordingly entered a permanent injunctionrequiring PGA to permit Martin to use a golf cart in PGA andNike Tour competitions in which he is eligible to participate,and in any qualifying rounds for those tours. PGA appeals.
[FOOTNOTE 6] DISCUSSION I. Applicability of Title III (Public Accommodation) The district court granted Martin’s motion for summaryjudgment, holding that, as a matter of law, Title III of theADA applies to the PGA and Nike Tour competitions. Wereview de novo the district court’s interpretation of the ADA.Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir.1999). [1] We begin our analysis, as did the district court, with theterms of the statute. The basic anti-discrimination clause ofTitle 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. S 12182(a). The first issue for decision is whetherMartin seeks to enjoy the facilities of a “place of publicaccommodation.” The definition section of Title III of theADA 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. S 12181(7)(L) (emphasis added). There is nothingambiguous about this provision; golf courses are publicaccommodations. Indeed, PGA does not dispute that duringone of its tournaments a golf course is a public accommodation with regard to the spectator areas; its contention is thatthe competitors’ area “behind the ropes” is not a publicaccommodation 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. [2] The district court held that a public accommodationcould not be compartmentalized in the fashion PGA desired.At least in the present context, we agree. It is true that thegeneral public cannot enter the area “inside the ropes,” butcompetitors, caddies, and certain other personnel can. PGAcontends that the restricted area is not being used as a “placeof exercise or recreation,” within the meaning ofS 12181(7)(L), because the competitors are trying to winmoney, not exercise or recreate. Even if we were to agreewith this point, it would not aid PGA. The statute also defines”public accommodation” to include a “theater, . . . stadium orother place of exhibition or entertainment.” 42 U.S.C.S 12181(7)(C). If a golf course during a tournament is not aplace of exercise or recreation, then it is a place of exhibitionor entertainment. The statute does not restrict this definitionto 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 itscharacter as a public accommodation. See Independent LivingResources v. Oregon Arena Corp., 982 F. Supp. 698, 759 (D.Or. 1997) (arena’s executive suites contracted by businessesare public accommodations). Indeed, the underlying premiseof the cases dealing with disabled student athletes is that TitleIII applies to the playing field, not just the stands. See, e.g.,Bowers v. National Collegiate Athletic Ass’n, 9 F. Supp. 2d460, 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 WL680000, at *8-11 (N.D. Ill. Nov. 21, 1996); see also Andersonv. Little League Baseball, Inc., 794 F. Supp. 342, 344 (D.Ariz. 1992) (undisputed that Title III applies to access tocoaches’ 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 disabilitysued a hospital under Title III after it denied him hospital staffprivileges. The Third Circuit rejected the argument that TitleIII could be invoked only by the patients of a hospital, andheld that denial of staff privileges qualified as a denial of “fulland equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of publicaccommodation” prohibited by Title III, S 12182(a). Id. at122. Staff privileges, of course, entail access to parts of thefacility to which patients and the general public are deniedentry. In contending that it may compartmentalize golf coursesduring tournaments, PGA leans heavily on two examples setforth in the regulations. One is of a “mixed use facility,” inthe 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 FairHousing Act) is not a place of “public accommodation.” Seeid. The hotel wing, however, would fall under 42 U.S.C.S 12181(7)(A) as an “inn, hotel, motel, or other place oflodging.” 28 C.F.R. ch I, pt. 36, app. B, at 623; see 42 U.S.C.S 12181(7)(A). But in this example, the residential wing hasnever 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 commercialfacility, 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 theportions 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 otherwisea place of public accommodation.” Id. Second, the examplewould be analogous only if Martin were a spectator seekingto use his golf cart within the competitors’ area of a tournament. [3] This point brings us to the greatest difficulty withPGA’s argument. It assumes that there is nothing public aboutthe competition itself. According to PGA, the fact that itstournaments are restricted to the nation’s best golfers meansthat the courses on which they play during tournamentscannot be places of public accommodation. But the fact thatusers of a facility are highly selected does not mean that thefacility cannot be a public accommodation. For example, TitleIII includes in its definition “secondary, undergraduate, orpostgraduate private school[s].” 42 U.S.C.S 12181(7)(J). Thecompetition to enter the most elite private universities isintense, and a relatively select few are admitted. That factclearly does not remove the universities from the statute’sdefinition as places of public accommodation. It is true thatthe rest of the public is then excluded from the schools, butthe students who are admitted are nevertheless members ofthe public using the universities as places of publicaccommodation.
[FOOTNOTE 7] [4] Competition to enter the select circle of PGA and NikeTour golfers is comparable. Any member of the public whopays a $3000 entry fee and supplies two letters of recommendation may try out in the qualifying school. At the initialstage, it seems plain that the golf course on which the elimination begins is a place of public accommodation. As even PGAadmits, “[t]he competition areas of some amateur sportingevents may well constitute places of public accommodationunder Title III of the ADA when virtually any member of thepublic 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 distanceraces, and continued to run heats until only the ten best runners remained, the track would be no less a place of publicaccommodation when the final race was run. We see no justification in reason or in the statute to draw a line beyond whichthe 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 suchjustification for drawing a line between use of a place of public accommodation for pleasure and use in the pursuit of a living. [5] We conclude, therefore, that golf courses remain placesof public accommodations while a PGA tournament is beingconducted 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. S 12182(b)(2)(A)(ii) (emphasis added). [6] Here, it is clear that permitting Martin to use a golf-cartis “reasonable” in the sense that it solves the problem of Martin’s access to the competition. It is also “reasonable,” as thedistrict court found, in that golf-carts are used in other 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 districtcourt’s finding that Martin could not walk the course, evenwith artificial aids. These matters are no longer in seriouscontention. [7] The issue on which most of the dispute centers iswhether permitting Martin to use a golf cart will”fundamentally alter” the nature of the goods or service–thePGA or Nike Tour. It is readily apparent that walking is notessential to the generalized game of golf. Rule 1-1 of theRules 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 doesnot 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 offeringthe generalized game of golf in its PGA and Nike Tours, it isoffering 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 roundunless permitted to ride by the PGA TOUR RulesCommittee.” On occasions when the Committee has permittedplayers to ride, the waiver applies to all competitors, as whenall players must be shuttled from the 9th green to the 10th teewhen the distance is great. It also appears that, to save time,rides have been given from the fairway back to the tee toplayers who have lost a ball and must tee off again. The issue for decision, then, is whether the accommodationof permitting Martin to use a golf cart fundamentally altersthe PGA and Nike Tour competitions. That issue was fullytried 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-makingof the game. Martin, 994 F. Supp. at 1250. It also found, however, that “the fatigue factor injected into the game of golf bywalking the course cannot be deemed significant under normal circumstances.” Id. It further found that, at the low levelsof intensity of exercise involved in untimed walking of a golfcourse during a competition, “fatigue . . . is primarily a psychological phenomenon . . . . Stress and motivation are thekey ingredients here.” Id. at 1251. The court noted that, giventhe choice of carts or walking in other tours, large numbers ofplayers chose to walk. See id. In the events in which PGA permits carts, it assigns no handicap penalty to those who ride asopposed 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 giveMartin an advantage over the other players who were requiredto walk. Even with a cart, Martin must walk about twenty-fivepercent of the course because the cart cannot be brought nearto the ball in many cases. Martin endures significant painwhile walking, and while getting in and out of his cart. Thedistrict court, after considering these factors, found that Martin “easily endures greater fatigue even with a cart than hisable-bodied competitors do by walking.” Id. at 1252. [8] In light of these findings, we conclude, as did the district court, that permitting Martin to use a golf court in PGAand Nike Tour competitions would not fundamentally alterthe nature of those competitions. The central competition inshot-making would be unaffected by Martin’s accommodation. All that the cart does is permit Martin access to a typeof competition in which he otherwise could not engage because of his disability.
[FOOTNOTE 8] That is precisely the purpose of theADA. See 42 U.S.C. S 12101(a)(5) (discrimination againstdisabled includes “failure to make modifications to existingfacilities and practices”); Crowder v. Kitigawa, 81 F.3d 1480,1483 (9th Cir. 1996) (Congress intended ADA to cover discriminatory impact of facially neutral barriers). PGA argues that the kind of balancing engaged in by thedistrict court and now by this court is wholly illegitimate. Itagrees that some athletic rules, such as dress codes or uniformrequirements, may be subject to exceptions to accommodatethe disabled. But it contends that a rule intended to affect thecompetition cannot be made subject to exception. Accordingto PGA, the case should have ended in its favor the momentthe district court concluded that the purpose of PGA’swalking-only rule was to inject the fatigue factor into thecompetition. Once that rule is determined to be “substantive,”according to PGA, it is not subject to exceptions to accommodate disability. [9] The difficulty with this position is that it reads the word”fundamentally” out of the statutory language, which requiresreasonable accommodation unless PGA can demonstrate thatthe accommodation would “fundamentally alter the nature” ofits competition. 42 U.S.C. S 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 ofthe competition fundamental. But the statute mandates aninquiry into whether a particular exception to a rule would”fundamentally alter” the nature of the good or service beingoffered. The issue here is not whether use of carts generallywould fundamentally alter the competition, but whether theuse 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 the554accommodation.” Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F. 3d 1052, 1060 (5th Cir. 1997). We cannot tellwhether a golf cart for Martin fundamentally alters the competition without first investigating whether walking is fundamental to the competition. The mere fact that PGA hasdefined walking to be part of the competition cannot precludeinquiry, or PGA will have been able to define itself out ofreach of the ADA. The district court, as we have said, foundthat the fatigue factor injected into the game by walking wasnot significant, and that finding was not clearly erroneous. The nature of the district court’s findings reflect the factthat 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 golfcart would open the door to future decisions requiring thatdisabled swimmers or runners be given a head start in a race,or that a growth-impaired basketball player be allowed toshoot 3-point baskets from inside the three-point line. Wehave little doubt that fact-based inquiries into the effects ofsuch accommodations would result in rulings that thoseaccommodations fundamentally altered the competitions. Thesame would be true if Martin were seeking to use a specialgolf ball that carried farther than others, or was seeking toplay 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, foundthat this accommodation does not fundamentally alter thecompetition. PGA next contends that it was wholly improper for the district court to consider whether Martin’s condition was suchthat 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 thatpermitting him to use a cart would fundamentally change itscompetition. It contends that it would be far too burdensomefor PGA to determine whether disabled individuals using cartswould have an advantage over non-disabled walking competitors. PGA relies on Sandison v. Michigan High Sch. AthleticAss’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 ofonly average athletic ability; it stated that “[i]t is plainly anundue burden to require high school coaches and hired physicians to determine whether [various] factors render a student’sage an unfair competitive advantage.” Id. at 1035; see alsoMcPherson v. Michigan High Sch. Athletic Ass’n, 119 F.3d453, 462 (6th Cir. 1997) (upholding maximum eight-semestereligibility rule on same grounds); Pottgen v. Missouri StateHigh Sch. Activities Ass’n, 40 F.3d 926, 931 (8th Cir. 1994)(same). The foundation of these cases, however, was a finding, orevidence compelling a finding, that the rule against older ormore 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 whenolder and more experienced than the others. See Sandison, 64F.3d at 1035; McPherson, 119 F.3d at 462; Pottgen, 40 F.3dat 931 & n.6. The record in this case is quite different; the district court found that the fatigue factor introduced by walkingwas not significant.
[FOOTNOTE 9] [10] 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, thatthe inquiry must focus on the individual exception and that,in light of the plaintiff’s individual characteristics as found bythe district court, “the age requirement could be modified forthis individual player without doing violence to the admittedlysalutary purposes underlying the age rule.” Pottgen, 40 F.3dat 932 (dissenting opinion). The Seventh Circuit adopted suchan approach in Washington v. Indiana High Sch. AthleticAss’n, 181 F.3d 840 (7th Cir.), cert. denied , 120 S. Ct. 579(1999), in enjoining enforcement of an eight-semester ruleagainst a learning-disabled student. It observed that applyingthe eight-semester rule to exclude the particular plaintiffwould not “add anything to the protections provided by theIHSAA’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 recordestablishes that an individualized determination would imposean intolerable burden on PGA. Although PGA refused to consider the effect of Martin’s disability, the district courtappeared to have little difficulty making the factual determination that providing Martin with a golf cart would not givehim an unfair advantage over his competitors. We concludethat, under the ADA, that determination was a proper one forthe 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 courseis a place of public accommodation while PGA is conductinga tournament there. We also conclude that the district courtdid not err in determining that the provision of a golf cart toMartin was a reasonable accommodation to his disability, andthat use of the cart by Martin did not fundamentally alter thenature of the PGA and Nike Tour tournaments. We accordingly affirm the judgment of the district court.
[FOOTNOTE 10] AFFIRMED. :::FOOTNOTES:::
FN1 The Honorable Jeremy Fogel, United States District Judge for theNorthern District of California, sitting by designation.
FN2 We refer hereafter to the defendant PGA Tour, Inc. as “PGA,” in orderto 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 “wouldinclude sublessees, management companies, and any other entity thatowns, leases, leases to, or operates a place of public accommodation, evenif the operation is only for a short time.” 28 C.F.R. ch. I, pt. 36, app. B.,at 628 (1999).
FN4 Players are permitted to use golf carts on the Senior Tour.
FN5 The district court also ruled that PGA is not exempt from the ADA asa “private club,” see 42 U.S.C.S 12187, because, among other reasons, itis 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 hasprotectively appealed that order; it does not contest the amount but seeksreversal of the award if it succeeds on appeal. Because we affirm on themerits, we also affirm the award of fees and costs to Martin as the prevailing party.
FN7 Title III does not restrict its coverage to members of the public; it provides that “No individual shall be discriminated against” in the enjoymentof public accommodations by reason of disability. 42 U.S.C. S 12182(a)(emphasis added). This provision does not, however, grant access to aplace where the individual is not entitled to be; the rejected applicant foradmission is not entitled to access to the university, and the spectator isnot entitled to access to the tees, fairways and greens during a PGA golftournament.
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 tournamentswhen he was a student.
FN9 This finding also distinguishes Martin’s case from Olinger v. UnitedStates 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. Seeid. at 935. To the extent that other rulings in Olinger are inconsistent withour decision today, we respectfully disagree with it.
FN10 Our ruling that Martin is entitled to relief under S 12182(a) of Title IIImakes it unnecessary to address his alternative arguments.
Martin v. PGA Tour Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Case Name: MARTIN V PGA TOUR 9835509 Case Number: 98-35309 Date Filed: 03/06/00 FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CASEY MARTIN, Plaintiff-Appellee, v. PGA TOUR, INC., a Maryland corporation, Defendant-Appellant. Nos. 98-35309, 98-35509 D.C. No. CV-97-06309-TMC Appeals from the United States District Courtfor the District of Oregon Thomas M. Coffin, Magistrate Judge, Presiding Argued and Submitted May 4, 1999–Portland, Oregon Filed March 6, 2000 Before: William C. Canby, Jr. and Thomas G. Nelson,Circuit Judges, and Jeremy Fogel,
[FOOTNOTE 1] District Judge. Opinion by Judge Canby COUNSEL 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. GolfAssociation; Brian D. Shannon, Texas Tech UniversitySchool of Law, Lubbock, Texas, for amicus Klippel-Trenaunay Syndrome Support Group.
