Long John Silver playing for the Tampa Bay Buccaneers? With the U.S. Supreme Court’s decision, Tuesday, in P.G.A. Tour, Inc., vs. Casey Martin, it’s not so farfetched.
While disabilities activists celebrate, Justice John Paul Stevens, writing the majority opinion, decided that a judge or jury can change the rules of the game. And cost fans higher ticket prices to make up for increased and unreasonable liability for sports teams, inevitable under the Court’s expansion of the Americans with Disabilities Act (ADA).
Justice Scalia, in his dissent, is correct that, now, “there is every reason to think that in future cases involving requests for special treatment by would-be athletes [o]ne can envision the parents of a Little League player with attention deficit disorder trying to convince a judge that their son’s disability makes it at least 25 percent more difficult to hit a pitched ball,” with the judge changing the rules to give him an advantage over others.
It’s no exaggeration. We won’t see quarterbacks on wheelchairs or one-legged defensemen on the ice. But teams will be buying extra liability insurance to shield against lawsuits from injured has-beens and wanna-be professionals cut from the team – and writing specific job requirements for players, with specific justifications for those requirements. Lest they be forced to hire a lineman with a prosthetic arm who can block and tackle – but not well enough to get to the Super Bowl. Or a running back with an artificial leg, who can run – but not very fast. Discrimination against them is inherent in the competition of pro sports. But under the ADA, these individuals could still perform the “essential functions” of the job.
While lawyers debate the Martin decision’s reach, it’s a foregone conclusion that it opened the floodgates for injured pro-athletes – like Bryan Berard. Berard, the top draft pick in the National Hockey League (NHL) 1995 draft, was recently forced to retire from the NHL due to an eye injury – a detached retina – that caused almost total vision loss in his right eye.
NHL rules require its players to have 20/400 vision. The reason: A reasonable field of vision in both eyes is required to safely play hockey. “When I’m on the ice skating [i]t’s like I’m in a big whiteout,” he told USA Today, in January. Nevertheless, he said he’s considering suing the NHL to eliminate the vision requirement. And now, like Martin, he could win.
Berard just has to get a judge to see it his way. And that’s the problem with the ADA, so well illustrated by the professional sports context of Martin. Employers – whole industries – have to justify job descriptions for employees. And judges, not employers, get to decide whether those descriptions contain “essential functions” of the job. Or a la Justice Stevens, et al, that they are unnecessary job requirements. Former Rep. Bob McCollum warned of this when he opposed the ADA during floor debate of the legislation prior to its passage. For years, I’ve written and done legal consulting for pro sports entities on the ADA’s potential harm, and I, too, feel like Cassandra, the Greek goddess who made unbelieved predictions that came true.
Stevens, an avid golfer, imposed his personal opinion on the necessity of the walking rule to competitive golf. As Scalia pointed out, he’s forced judges to “confront what is indeed an awesome responsibility – to decide What is Golf.” And it’s equally conceivable, that, say, Minnesota Supreme Court Justice Alan Page – who played pro football for the Minnesota Vikings, might impose his ideas on the NFL. For example, an amputee with only one arm and leg, might not have the necessary balance and strength to be an NFL kicker. But with a crutch – not currently allowed on the gridiron – he might be a record-setter. Should a court be allowed to amend the rules of competition? The Supreme Court said “yes.” But where will it stop?
Many pro athletes have excelled without court-imposed help – without imposing their disabilities on the rules of competition. Like one-handed former-pitcher Jim Abbott. Or Atlanta Falcons left tackle, one-eyed Bob Whitfield. Or Kenny Walker, a deaf former Denver Broncos defensive end. Or Tom Dempsey, once a New Orleans Saints kicker who, indeed, had only part of a foot and arm. He set a 63-yard field-goal record. But what if the Falcons change formations, and Whitfield, who is right-eye blind, sues to remain on the left-side? And the Broncos had to change hand-signals to accommodate Walker, and Dempsey had a special metal-plated shoe.
And under the ADA’s “reasonable accommodation” rule, coupled with the broad Martin decision, there is almost no limit to what accommodations the sports teams will have to make. Because “reasonable” under the ADA is defined as “economically feasibly,” deep-pocketed owners will have to spend fortunes on technology that allows their injured athletes to play. And that cost will be passed on to shallow-pocketed fans.
Courts have done it before.
In the late 70s, a one-eyed pro hockey player, Gregory Neeld, sued to regain the sports career he lost to impaired vision, like Berard. He lost because there was no ADA yet – only its predecessor, section 504 of the Rehabilitation Act of 1973, which the ADA extended to private employers and employees, was in existence. But the New York court speculated that – despite his higher risk of going completely blind – had the law applied to his private hockey-league employers, they’d have to purchase an expensive eye-mask and assume the liability of letting him play. Also under the 1973 Act, courts forced schools to allow one-eyed, one-kidneyed, and other disabled players to play, despite the risks and liability. Under the ADA and Martin, that will be the result in pro sports.
And the broad ADA doesn’t adequately define “disability,” with transvestism as its only explicit exception. So, only a lawsuit by Dennis Rodman against the Mavericks will be unlikely.
Casey Martin and the ADA changed pro sports forever. Once for the elite fraction of athletic excellence, it may no longer be for the best of the best. Scalia correctly criticizes the majority opinion’s “Animal Farm determination that fairness and the ADA mean that everyone gets to play by individualized rules which will assure that no one’s lack of ability will be a handicap.” On a good day, Martin may be at the top. But on a day like Monday, in which Kemper Open players played – and walked – 36 holes due to previous-day rain delays, he wouldn’t be.
Until now, since the Supreme Court altered the rules of the game. And made it more expensive for fans picking up the tab.
Is America prepared and willing to fight and win a war?
Ron Boat