"As a society, we are so much better off with people like Casey Martin, who show us that heart is just as important as talent, who only want an opportunity to compete against the best in their profession."1
"We may not have a Tour at all. It may disappear."2
Many people are scared that the world of professional sports is facing a drastic, unwelcome change. Soon, basketball players are going to be wearing spring-loaded shoes. Every participant in a championship race is going to have her own individual starting line. Quarterbacks are going to have on-the-field sign language interpreters. Umpires are going to have guide dogs. Finally, some professional golfers are going to be able to ride carts around golf courses, while the rest of the competitors walk.
The Americans with Disabilities Act ("ADA") is either the culprit or the savior, depending on one's point of view. Two recent federal cases have addressed the ADA's application to professional sports. Casey Martin, a professional golfer whose disability prevents him from walking a full round of golf, sued the Professional Golf Association ("PGA") Tour for the right to use a golf cart in PGA competition. Ford Olinger, also a professional golfer with a disability, sued the United States Golf Association ("USGA"), claiming he should be allowed to use a golf cart in U.S. Open competition. As things stand, Casey Martin has won his suit,3 whereas Ford Olinger has not.4
Notwithstanding their different results, both of these cases held that the ADA applies to professional sports. Together, these two cases started outlining an approach by which this can happen. Applying the ADA to professional sports will be a difficult process, because professional sports contain unique qualities that will make for challenging cases. Although the Martin and Olinger decisions began the process, the approaches they use are insufficient to decide ADA cases involving professional sports in a fair and consistent manner. The Olinger case in particular comes dangerously close to establishing an overly deferential method of ADA review.
This article will propose an analysis that a court can use when a professional athlete (or would-be athlete) requests a rule modification from her league or association. In doing so it will use the statutory framework of the ADA, precedents involving other industries, critical commentary, and the Martin and Olinger opinions themselves to outline an analytical approach that strikes a balance between the need to deal with professional sports' uniqueness and the desirability of treating sports the same as other industries. This approach will distinguish those rules that cannot be modified without fundamental change from those that can and discuss how a court should determine if an athlete's proposed change should in fact be made. This article will further argue that as a matter of policy rigorous review of these rule modification proposals is desirable. Many businesses and industries involve intense competition, and professional sports should not be separated from these areas in any blanket fashion. Even accepting that the essence of professional sports involves preserving competition that is as "equal" as possible, properly applying the ADA will protect that value.
This article is divided into seven parts. Part II provides a brief background and overview of the ADA, and also discusses the basic purposes and organization of the ADA. Part III presents the ADA's "reasonable accommodations" statutory framework, explaining why the Title I "undue burden" and Title III "fundamental alterations" analyses are central to ADA cases involving professional sports. Part IV focuses on the Martin and Olinger decisions, discussing the manner in which they were decided and how they differ from one another. Part IV also demonstrates why neither of these cases provides an adequate form of analysis for addressing future cases involving disability discrimination in professional sports. …