| July 25, 2001 IF ONLY IAN WOOSNAM HAD DYSCALCULIA On May 29, 2001, the Supreme Court issued its decision in PGA Tour, Inc. v. Casey Martin. As many of you may have heard, Casey Martin, a very good golfer, suffers from a rare circulatory disorder that makes walking extremely painful and difficult. Mr. Martin requested that the PGA, which is the organization that runs the "major league" of professional golf in the United States, waive its rule that golfers must walk the course and permit him to use a golf cart. The PGA refused, causing Mr. Martin to sue the PGA for allegedly violating the Americans with Disabilities Act by failing to provide him with a reasonable accommodation of his disability. After Mr. Martin was successful at trial and on appeal, the Supreme Court took the case. According to the ADA, places of public accommodations cannot discriminate against the disabled. Instead, they must provide "reasonable modifications to accommodate" the disabled. Like all terrible laws, the ADA is deliberately vague and can only be interpreted subjectively and in hindsight. Advertised as an effort to help the physically disabled become productive citizens, the ADA predictably has evolved into a shield the incompetent use to avoid being fired. The mentality that created the ADA was best expressed by Cong. John Dingell, who insisted that the securities laws be as vague as possible because "to define the criminal behavior would inevitably be underinclusive and provide a road map for fraud." Therefore, like the result under the antitrust laws, sexual harassment laws, and similar laws, an employer or business owner can never know for sure whether it is in compliance with the law until it is sued and a judgment rendered. In any event, the interesting part of the Casey Martin decision concerned whether permitting Mr. Martin to use a cart would "fundamentally alter the nature of the game." Because this question had to be answered, the Supreme Court felt compelled to determine what exactly is the game of "golf." After studying the history of golf, the rules of golf, and other important source materials, the Supreme Court determined that walking is not an element of the game of "golf ": "As an initial matter, we observe that the use of carts is not itself inconsistent with the fundamental character of the game of golf. From early on, the essence of the game has been shot-making -- using clubs to cause a ball to progress from the teeing ground to a hole some distance away with as few strokes as possible." This means, apparently, that when you play a round of competitive golf, when you hit the ball, you are playing "golf," but when you walk to the ball in order to hit it, you are not playing "golf." This is stupid. In essence, the Supreme Court managed to confuse playing competitive "golf" with hitting golf balls. The essence of hitting golf balls is hitting golf balls. The essence of competitive "golf" is playing by the rules of "golf" and achieving the lowest score pursuant to those rules. And there are a lot of rules of golf, almost all of which are peripheral to the actual act of hitting a golf ball, which the Supreme Court believed to be the essence of competitive "golf." See for yourself: http://www.usga.com/rules/index.html. In dissent, Justice Scalia made the commonsense observation that rules of games are arbitrary and, therefore, it is impossible to distinguish the essential from nonessential elements of a game. Justice Scalia then, as he is wont to do, listed the parade of horribles that the Supreme Court's decision was inviting: "One 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% more difficult to hit a pitched ball. (If they are successful, the only thing that could prevent a court order giving the kid four strikes would be a judicial determination that, in baseball, three strikes are metaphysically necessary, which is quite absurd.)" Along with Justice Scalia, we can only imagine what bizarre lawsuits will make their way into the courts as a result of the decision. Perhaps they will be few and far between, as many experts have predicted. But based upon the historic event that occurred at the British Open this past weekend, it is possible to imagine an improbable, but not unimaginable, set of circumstances that would make Justice Scalia prescient beyond his vivid imagination. At the British Open, a Scottish golfer named Ian Woosnam made a mistake of historic proportions. Going into the final round on Sunday, Mr. Woosnam was tied for the lead at 6 under. Before his tee time, he went to the driving range and spent extra time trying out several drivers. After choosing one, he told his caddy to put one of the drivers in his golf bag. Because he spent so time time at the driving range, Mr. Woosnam was late for his tee time and had only 30 seconds to prepare before he teed off. Rather uniquely, the first hole at the golf course is a par three, so Mr. Woosnam did not need the driver he had spent so much time practicing with on the driving range. Using a six-iron, Mr. Woosnam hit a wonderful shot six inches from the cup. He tapped in for a birdie, thereby lowering his score to 7 under. Mr. Woosnam, who is 43 years old and past his golfing prime, could sense that something special just might happen that day. At the second hole, Mr. Woosnam teed his ball and requested his driver from his caddy. As the caddy reached into the golf bag for the club, the caddy made a sickening observation that will change his life forever -- there were 2 drivers in the bag. Why was that important? Under the rules of golf, a player may only have 14 clubs in his bag. Because the caddy had mistakenly put 2 drivers in the bag, Mr. Woosnam was carrying 15 clubs, one over the limit. If Mr. Woosnam had required the driver at the first hole, as is the case at most golf courses, the caddy probably would have discovered the problem before Mr. Woosnam started playing and thereby avoided any problems. However, as Mr. Woosnam had played the first hole, under the rules, Mr. Woosnam was slapped with a two shot penalty, even though he did not use the extra club and reported the error as soon as it was discovered. Therefore, instead of being 7 under, he was now several shots back at 5 under. Mr. Woosnam was, to say the least, visibly upset. Shaken by the quirks of the golfing gods, he bogeyed the third and fourth holes to fall back to 3 under. Mr. Woosnam did regroup and played valiantly thereafter, but finished at 6 under, four shots behind the winner, David Duval. Because Mr. Woosnam finished four shots behind, his caddy's mistake probably did not cost him the victory. Therefore, Mr. Woosnam's misfortune is not on the level of the golfer Jean Van de Velde, who went to the final hole of 1999 British Open with a three shot lead, but triple bogeyed the hole and lost in a playoff. But one never knows. Undoubtedly, Mr. Woosnam and his caddy will have something to think about every day for the rest of their lives. But wait a minute. Let's assume that Mr. Woosnam finished, not four shots behind David Duval, but one shot. In other words, if the pathetic caddy had not screwed up, Mr. Woosnam would have won the tournament. In other words, if we only look at the fundamental elements of the game of "golf" as determined by the Supreme Court -- "using clubs to cause a ball to progress from the teeing ground to a hole some distance away with as few strokes as possible" -- and exclude the peripheral and nonfundamental elements -- such as only having 14 clubs in the bag -- Mr. Woosnam won. Therefore, according to the logic of PGA v. Casey Martin, if Mr. Woosnam could identify a disability that precluded the application of the peripheral and nonfundamental rule to his score, Mr. Woosnam would be entitled to a court judgment that he was, in fact, the winner of the tournament. And if there is anything better than winning a tournament, it is a certified court judgment that you won the tournament. Now, what possible "disability" could Mr. Woosnam assert? Since the trial court issued its decision in favor of Casey Martin in 1998, there is only one reported case where another plaintiff relied upon the Casey Martin decision. But what a case. In Jacobsen v. Tillmann, 17 F. Supp. 2d 1018 (D. Minn. 1998), Ms. Jacobsen wanted to be a teacher. She wanted to be a teacher so bad, she took the state math competency qualification test 14 times without success, notwithstanding that she was given double the amount of time normally provided, and provided a "reader," and provided other reasonable accommodations for her "dyslexia" and "dyscalculia." Dyscalculia, for those of you who do not know, is the "impairment of the ability to do mathematical problems because of brain injury or disease." At trial, Ms. Jacobsen analogized herself to Casey Martin. According to Ms. Jacobsen, the state's insistence that she pass the math competency test in order to teach elementary school was as unreasonable as the PGA's insistence that Mr. Martin walk in order to play in the PGA events. Just as Mr. Martin's disability prevented him from walking, Ms. Jacobsen's disability -- dyscalculia -- prevented her from passing the math test. Therefore, the state should waive its requirement that she pass the test. Perhaps concerned that Ms. Jacobsen might teach his children some day, the judge denied Ms. Jacobsen's request. Pertinently, the judge distinguished the Casey Martin decision, because while walking is not essential to golf, math competency is essential to the qualification to teach elementary school. This implies, however, that if math competency was not essential to the qualification, then Ms. Jacobsen's "dyscalculia" would require the waiver of the math competency requirement. Now we get to the important question: What would happen if Ian Woosnam suffered from dyscalculia? The possibility is so entertaining that the mind boggles. Mr. Woosnam, of course, would sue, and argue that the 2 shot penalty should be waived. Just as Casey Martin suffered from a disability that required accommodation, Mr. Woosnam would argue that he suffers from a severe case of the recognized disability of "dyscalculia," which causes him to occasionally miscount the clubs in his bag. His requested accommodation would simply be that if he miscounted his clubs, he should not be penalized so long as he did not use the extra club. Clearly, such a simple request would not "alter the fundamental nature of the game." After all, if walking is not essential to the game of "golf," how could carrying only 14 clubs be essential, especially if you do not use the extra club? I should add that the one of the stupid mistakes that professional golfers occasionally make in violation of the rules is incorrectly adding the the number of shots on their scorecard, signing the card, and then submitting the card to the tour officials. Most famously, at the 1968 Masters, Roberto De Vicenzo signed a scorecard for one stroke higher than he actually shot. Under the rules, that score was posted and he wound up losing by one shot. If only Mr. De Vicenzo had heard of "dyscalculia." Is the possibility of a sufferer of "dyscalculia" suing the PGA far-fetched? I suppose, but is it more far-fetched than what Ms. Jacobsen actually did -- suing to waive the requirement that she pass a mathematics competency test so that she can teach elementary school children mathematics? The ADA is terrible law with terrible consequences for the workplace, but it does provide great entertainment. Thank you for listening. DS |