In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2580

FORD OLINGER,

Plaintiff-Appellant,

v.

UNITED STATES GOLF ASSOCIATION,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:98-CV-252-RM--Robert L. Miller, Jr., Judge.


Argued February 7, 2000--Decided March 7, 2000



  Before KANNE, ROVNER, and EVANS, Circuit Judges.

  EVANS, Circuit Judge. This case presents a clash
between big-time sports and the Americans With
Disabilities Act (ADA). It pits the venerable
United States Golf Association (USGA) against a
professional golfer who wants to compete in
America’s greatest--and most democratic--golf
tournament, the United States Open.

  Ford Olinger is a highly skilled golfer who,
since 1988, has held a "professional" title by
virtue of a certification he received from the
Professional Golfers Association (the PGA). But
Olinger suffers from bilateral avascular
necrosis, a degenerative condition that
significantly impairs his ability to walk.
Everyone agrees he is a "disabled" person within
the meaning of the ADA. Because of his
disability, Olinger wants to be allowed to ride
in a golf cart as he competes to qualify for the
Open. The USGA balks at this request, arguing
that the ADA does not apply to its tournament and
that, even if it did, the use of a cart by a
player would "fundamentally alter the nature" of
the tournament. The district court, on the latter
argument, granted summary judgment for the USGA.
Today we resolve Olinger’s appeal from that
decision.

  The USGA is a private, not-for-profit
association of member golf clubs and golf
courses, chartered for the purpose of promoting
and conserving the best interests and the true
spirit of the game of golf. The USGA claims no
legal power with respect to the game beyond its
own championships which it conducts each year in
13 designated categories, such as the U.S.
Women’s Open, U.S. Senior Open, and U.S. Amateur.
Nevertheless, the USGA is regarded as the
governing body of golf in the United States by
the common and voluntary consent of the golf
community, including individual golf enthusiasts
everywhere. The USGA is concerned with all
aspects of golf, especially preserving the
integrity of the game and the conditions under
which it is played. The official "Rules of Golf"
by the USGA (and the Royal and Ancient Golf Club
of St. Andrews, Scotland) is a staple in the bag
of all true golfers.

  The United States Open is the men’s national
championship of golf in America. It has been
conducted yearly since 1895, with the exception
of the war years 1917-18 and 1942-45. It is
played at a different premier golf course in June
of every year./1 The 100th United States Open
golf championship will be contested this year at
the historic Pebble Beach course in California.

  Past winners of the U.S. Open include legends
in the game: Bobby Jones (1923, 1926, 1929, and
1930); Gene Sarazen (1922, 1932); Byron Nelson
(1939); Ben Hogan (1948, 1950, 1951, and 1953);
Arnold Palmer (1960); Jack Nicklaus (1962, 1967,
1972, and 1980); Gary Player (1965), Hale Irwin
(1974, 1979, and 1990); Tom Watson (1982); and
Lee Trevino (1968, 1971)./2

  The U.S. Open is treated with respect by great
players of the game. As John Feinstein reports in
his recent work "The Majors" (Little, Brown and
Company 1999), golfer Payne Stewart’s father
"always insisted" he use the formal "William
Payne Stewart" on his U.S. Open application
because, quoting Payne, "Dad always said this is
the United States Open, your national
championship, you write down your full name."/3

  In a typical year, over 7,000 players submit
applications to play in the U.S. Open. All
professional golfers can play in local qualifying
rounds, along with amateurs who carry at least a
1.4 certified USGA handicap index. Local
qualifying rounds in May reduce the field to
around 750 for the sectional qualifying rounds,
from which close to 100 survivors join about 60
of the world’s best golfers who are exempt, based
on published criteria, from preliminary rounds.
The field for the Open is limited to 156 players.

  The USGA holds its local and sectional
qualifying rounds at different courses every
year. Competition in the qualifying rounds is
keen, often necessitating playoffs to break ties
and establish who will advance to further action.
Competition in the U.S. Open itself is fierce. In
30 of the 99 U.S. Opens played since 1895, 2 or
more competitors were tied at the end of 72 holes
of regulation play, requiring a playoff to
determine the national champion. And that
champion is always the survivor of a brutal
ordeal, as the USGA sets up its championship
course with narrow fairways and rough so high
that even a slightly errant shot puts the player
in jail, where he usually faces at least a bogey
once he gets to a lightning-fast green. In short,
the consensus in the golf world is that the U.S.
Open is the greatest test in golf.

  This test is controlled by the "Rules of Golf"-
-34 separate rules and appendices, totaling 144
pages. In addition, the USGA publishes hundreds
of interpretations of the rules, applying them to
myriad specific facts and circumstances. The USGA
also develops and issues a set of "Local Rules
and Conditions of Competition for USGA
Championships" which apply to all USGA
Championships, as well as a "Notice to
Competitors" for players competing in each USGA
Championship spelling out the local rules that
have been adopted by the USGA Championship
Committee.

  The "Rules of Golf" restricts such things as
the physical properties of clubs and balls, the
number of clubs players may use during a round,
and golfers’ behavior while in play. The rules
are strict, sometimes even odd, as, for example,
the provision that penalizes a player two strokes
if he asks an opponent how far away he thinks the
green is, because information of that sort is
"advice which could influence a stroke."/4
Although the rules do not expressly preclude the
use of golf carts, they empower tournament
competition committees to set conditions for an
event, including whether to prohibit the use of
carts.

  Golf carts started appearing with increasing
regularity on American golf courses in the
1950’s. Today they are everywhere. And they are
encouraged. For one thing, they often speed up
play, and for another, they are great revenue
producers. But since 1955 the entry forms for
every U.S. Open have informed competitors that
"[p]layers shall walk at all times during a
stipulated round." The USGA requires competitors
to walk the course because it believes that their
physical endurance and stamina are important
parts of the competition./5
  Still, the record in this case discloses that
since 1986 the USGA has received 12 requests from
11 different people seeking waivers of the
prohibition against using carts in the U.S. Open.
The USGA does not have an established procedure
for waiving the rule. In fact, only one player
since 1895 has ever ridden in a cart while
playing in the U.S. Open. Every other player, and
there have been tens of thousands, has walked the
Open course from start to finish.

  Which brings us to Casey Martin. By now,
everyone in the golf world and most of the public
at large knows about Mr. Martin. He is, like our
Mr. Olinger, a disabled professional golfer.
Martin sued the PGA Tour (a separate entity
unrelated to the USGA) under the ADA for the
right to play in its tournaments while riding in
a golf cart. Martin won his suit when a federal
magistrate judge in Oregon cleared him to play in
PGA events, ruling that not doing so would
violate the ADA. Martin v. PGA Tour, Inc., 994 F.
Supp. 1242 (D. Or. 1998). That decision is on
appeal in the United States Court of Appeals for
the Ninth Circuit. And although the Martin
decision was not binding on it, the USGA
voluntarily agreed to abide by the ruling, and so
Martin played and rode his cart in the 1998 U.S.
Open.

  Like Martin, Olinger applied to play in the
1998 Open and asked to use a cart. When the USGA
denied his request, he sued under the ADA 4 days
before local qualifying was scheduled to get
underway in South Bend, Indiana. The district
court gave him a TRO and, armed with his court
order, Olinger played, but not well, failing to
advance to sectional action. Later, after a full
trial, the district court sided with the USGA.

  Congress enacted the ADA to ensure that
individuals with disabilities fully enjoy the
goods, services, privileges, and advantages
available indiscriminately to other members of
the general public. The ADA’s mandate extends to
three broad, yet distinct, areas: employment
(Title I), public services (Title II), and places
of public accommodation (Title III). This case
can only fit, if at all, under Title III.

  Title III of the ADA applies to "place[s] of
public accommodation." Regulations broadly define
"place of public accommodation" as "a facility,
operated by a private entity, whose operations
affect commerce and fall within at least one" of
the categories set forth in 42 U.S.C. sec.
12181(7):

(A) an inn, hotel, motel, or other place of
lodging . . . ;
(B) a restaurant, bar, or other establishment
serving food or drink;

(C) a motion picture house, theater, concert hall,
stadium, or other place of exhibition or
entertainment;

(D) an auditorium, convention center, lecture
hall, or other place of public gathering;

(E) a bakery, grocery store, clothing store,
hardware store, shopping center, or other sales
or rental establishment;

(F) a laundromat, dry-cleaner, bank, barber shop,
beauty shop, travel service, shoe repair service,
funeral parlor, gas station, office of an
accountant or lawyer, pharmacy, insurance office,
professional office of a health care provider,
hospital, or other service establishment;

(G) a terminal, depot, or other station used for
specified public transportation;

(H) a museum, library, gallery, or other place of
public display or collection;

(I) a park, zoo, amusement park, or other place of
recreation;
(J) a nursery, elementary, secondary,
undergraduate, or postgraduate private school, or
other place of education;

(K) a day care center, senior citizen center,
homeless shelter, food bank, adoption agency, or
other social service center establishment; and

(L) a gymnasium, health spa, bowling alley, golf
course, or other place of exercise or recreation.

  A "golf course" is mentioned in (L) but, as the
USGA correctly observes, an entity may
simultaneously be both a place of public
accommodation and a place that is not fully
subject to Title III--in other words, a "mixed
use" facility. Pursuant to Justice Department
regulations implementing Title III, to the extent
that a mixed use facility "is not open to the
general public," it "is not subject to the
requirements for public accommodations." 28
C.F.R. ch. 1, pt. 36, App. B, at 624. It is this
interpretation that the USGA banks on as its
reason for claiming that the ADA does not apply
to its tournament.

  In a nutshell, the USGA argues that the courses
where the U.S. Open is played are "mixed use"
facilities subject to Title III regulations
"outside the ropes" where the general public has
unfettered access to the course but not "inside
the ropes," where the actual championship
competition is conducted and access is tightly
restricted. The USGA concedes that a golf course
is listed as one of the examples of a place of
public accommodation under the ADA (42 U.S.C.
sec. 12181(7)(L)). But the USGA says it is only
properly classified as such when it is used for
"exercise or recreation," and the U.S. Open is
not conducted for those purposes: It is held to
identify America’s national golf champion.

  Following this thinking, places like Green Bay’s
Lambeau Field and Chicago’s Wrigley Field would
be "mixed use" facilities. Although they would be
subject to the ADA in general, their actual
fields of strife--where Packers battle Bears and
Cubs play Cardinals--would not be places of
public accommodation under the ADA.

  While there may be some logic to this
contention, we hesitate to embrace it for we can
resolve this appeal, as did the district court,
on a more narrow ground. Even assuming that the
competitive part of the golf course on which the
U.S. Open is played is a place of public
accommodation covered by the ADA, Mr. Olinger
cannot prevail because we believe his use of a
cart during the tournament would fundamentally
alter the nature of the competition.

  Olinger’s contention on appeal is that "the
USGA failed to present proof--responsive to the
disabled golfer’s personal circumstances as they
interacted with the USGA’s event--that in fact
allowing a cart would fundamentally alter the
event." According to Olinger, trial testimony did
not support the district court’s conclusion
because it "did not bear on Mr. Olinger at all."
In addition, Olinger contends that the USGA
"presented no proof" that allowing him to use a
cart "would impose impossible administrative
burdens."

  Under Title III of the ADA, an owner, operator,
lessee, or lessor of public accommodations must
"make reasonable modifications in policies,
practices, or procedures, when such modifications
are necessary to afford such goods, services,
[or] facilities . . . to individuals with
disabilities, unless the entity can demonstrate
that making such modifications would
fundamentally alter the nature of such goods,
services, . . . or accommodations[.]" 42 U.S.C.
sec. 12182(b)(2)(A)(ii) (emphasis added).

  The "fundamentally alter" concept originated
under the Rehabilitation Act, 29 U.S.C. sec. 701
et seq., in Southeastern Community College v.
Davis, 442 U.S. 397 (1979). In Davis, a deaf
nursing student who was unable to complete the
required clinical work in her program requested
that the school permit her to substitute
different work. The Supreme Court held that the
requested accommodation was unreasonable because
the Rehabilitation Act was not intended to
accommodate an individual who cannot "meet all of
a program’s requirements in spite of [a]
handicap." 442 U.S. at 406. The Court explained
that to lower or to effect substantial
modifications of standards to accommodate a
handicapped person is not a reasonable
modification. "Such a fundamental alteration in
the nature of a program is far more than the
’modification’ the regulation requires." Id. at
410.

  In light of Davis, courts have repeatedly held
that the ADA does not require entities to change
their basic nature, character, or purpose insofar
as that purpose is rational, rather than a
pretext for discrimination. See, e.g., Sandison
v. Michigan High Sch. Athletic Ass’n, 64 F.3d
1026, 1035 (6th Cir. 1995) (rejecting disabled
students’ challenge to an athletic age
requirement); Pottgen v. Missouri State High Sch.
Activities Ass’n, 40 F.3d 926 (8th Cir. 1994)
(finding that waiving an essential eligibility
standard would fundamentally alter the nature of
a youth baseball program). In addition, under
both the Rehabilitation Act and the ADA,/6
courts consistently have concluded that an
accommodation is not reasonable if it imposes an
undue financial and administrative burden. See
School Bd. v. Arline, 480 U.S. 273, 287 n.17
(1987) (Rehabilitation Act), and Sandison, 64
F.3d at 1035 (ADA case) ("It is plainly an undue
burden to require high school coaches and hired
physicians to determine whether [various] factors
render a student’s age an unfair competitive
advantage. . . . It is unreasonable to call upon
coaches and physicians to make these near-
impossible determinations.").

  The district court concluded that "the nature
of the competition would be fundamentally
altered" if the walking rule were eliminated
because it would "remove stamina (at least, a
particular type of stamina) from the set of
qualities designed to be tested in this
competition." As a result, "[c]onditions that now
affect a golfer’s performance, but which lie
beyond the golfer’s ability to control--the
fatigue born of hills, of heat, of humidity--
would lessen in importance to the competition."
Finally, in summarizing its ruling in favor of
the USGA, the district court returned to the
"nature of the ’program’ to which Mr. Olinger
seeks access: the U.S. Open" and concluded,
[t]he point of an athletic competition . . . is
to decide who, under conditions that are about
the same for everyone, can perform an assigned
set of tasks better than (not as well as) any
other competitor. The set of tasks assigned to
the competitor in the U.S. Open includes not
merely striking a golf ball with precision, but
doing so under greater than usual mental and
physical stress. The accommodation Mr. Olinger
seeks, while reasonable in a general sense, would
alter the fundamental nature of that competition.

  These findings are amply supported in the
record. For example, Ken Venturi, the winner of
the 1964 U.S. Open, testified that physical and
mental fatigue and a uniform set of rules for all
golfers are integral parts of championship-level
golf. Olinger’s own expert witness, Dennis
Hepler, likewise testified that physical
endurance and stamina and uniform rules are
critical factors in determining the winner of a
championship-level golf competition. Dr. Theodore
Holland also testified that physical endurance
and stamina are important criteria in determining
the national golf champion. As he put it,
"[t]here is a lot more to getting . . . around
those 72 holes than just hitting the shots."

  We find the testimony of Ken Venturi to be
particularly persuasive. During his storied
career as a PGA professional he competed in 15
Masters tournaments. For the last 31 years he has
been the golf analyst for CBS Sports. His
testimony regarding the 1964 U.S. Open, by
itself, supports the golf community’s insistence
that all players play all tournaments under the
same conditions and rules.

  Back in 1964 the U.S. Open was played over 3
days, with 18 holes played on Thursday and Friday
and the final 36 holes on Saturday. The
temperature hovered near 100 degrees in 1964, and
the humidity was at 97 percent. Venturi, like all
other competitors, walked the morning round and
fired a 66. (When asked his score during the
trial, Venturi replied "a 66" but, like all
golfers, he could not leave it at that, for he
added "with two small misputts. I 3-putted from
12 feet at 17 and missed a 3-footer at 18.")
Venturi said he rested for about a half an hour
before going out against the advice of his doctor
to play the afternoon 18. In the stifling heat
and humidity, battling dehydration, Venturi
walked the course and, on the verge of collapse,
won the tournament. In that tournament everybody
played under the same grueling conditions.
Venturi explained, "That’s the beauty of it." If
another competitor would have been riding in a
cart, there would have been a "tremendous
advantage to the other player," Venturi said.
  Finally, Venturi recalled the amazing story of
Ben Hogan. Hogan was severely injured in 1949
when his car collided with a Greyhound bus. He
was told he would never walk again, let alone
play golf. Yet the next year, he walked and won
the U.S. Open. During the trial, Venturi was
asked if there was any accommodation made to
Hogan as a result of his accident. Venturi
replied, "They never thought about it. They never
thought about carts. And knowing Ben Hogan as
well as I have, he wouldn’t take one." Olinger’s
situation, of course, is more dire than was
Hogan’s in 1950, and we don’t mean to suggest
that Olinger is any less of a competitor than the
great Hall of Famer. We offer Venturi’s statement
for one reason: it emphasizes the importance and
tradition of walking in championship-level
tournament golf competition.

  The district court also offered a second
rationale for ruling in favor of the USGA, the
administrative burdens of evaluating requests to
waive the walking rule and permit the use of a
golf cart. As the court explained, the USGA
"would need to develop a system and a fund of
expertise to determine whether a given applicant
truly needs, or merely wants, or could use but
does not need, to ride a cart to compete." The
district court thought that this should be
unnecessary. We agree.

  The focus of our opinion has been on one
question: Must the USGA allow Ford Olinger to
compete while riding in a golf cart instead of
walking? The answer is "no." The question we have
not addressed is whether the USGA should give
seriously disabled, but otherwise well-qualified,
golfers a chance to compete. Compared to most
people who play golf, Olinger’s skill level is
beyond comprehension. And without question, most
players would prefer to walk while playing
competitive, championship-caliber golf. Surely a
player like Olinger would gladly trade in his
cart if he could walk a golf course without pain.
But the decision on whether the rules of the game
should be adjusted to accommodate him is best
left to those who hold the future of golf in
trust. Because the law does not force the USGA to
make the accommodation Olinger seeks, the
judgment of the district court is

AFFIRMED.


/1 Its venues are true meccas of tournament golf,
places like Winged Foot (Mamaroneck, New York);
Medinah (Medinah, Illinois); Shinnecock Hills
(Southampton, New York); Merion (Ardmore,
Pennsylvania); and Congressional (Bethesda,
Maryland).

/2 Others, of course, could be added to this list.
Willie Anderson, for example, a Scotsman who
emigrated to the United States just before the
turn of the century, was the first four-time U.S.
Open winner (1901, 1903, 1904, and 1905), a feat
equaled only by Jones, Hogan, and Nicklaus.
Anderson is also the only player to win the Open
three years in a row, and he had several other
close calls as well. He finished second in 1897
when Joe Lloyd, one of the long drivers of the
time, eagled 18--the only Open to be won by an
eagle on the final hole. He also finished third,
fourth twice, and fifth three times. And he set
scoring records, including the first-ever 72
score (par) for a round at the Open in 1901. In
addition to Anderson, the list could include
double Open champions like Walter Hagen, Ralph
Guldahl, Julius Boros, Billy Casper, Andy North,
Curtis Strange, and Dr. Cary Middlecoff.

/3 Stewart won the U.S. Open in 1991 (at Hazeltine
National in Minneapolis) and again last year in
a memorable finish at Pinehurst in North
Carolina. He will not, of course, defend his
championship this June as he died, tragically, in
a mysterious plane crash last fall in South
Dakota.

/4 Rule 8, USGA "Rules of Golf," 1999-2000.

/5 The prohibition against using golf carts is in
effect for all but 2 of the 13 national
championships that the USGA conducts. The USGA
has permitted competitors to use carts in the
Senior Amateur and the Senior Women’s Amateur.
These events are played in the fall, when school
is in session, and there are few caddies
available to carry players’ bags. Especially
because of the age of the competitors, requiring
some competitors to carry their own bags while
others have caddies would give an advantage to
those with caddies. Thus, the USGA has ensured a
"level playing field" for all by allowing the use
of golf carts in those two championships.
Approximately 75 percent of the players in the
Senior Amateur and the Senior Women’s Amateur use
carts.

/6 Because the ADA is patterned in large measure on
the Rehabilitation Act, decisions interpreting
the Rehabilitation Act and its implementing
regulations provide useful guidance as to "the
meaning of the same terms in the new law." Vande
Zande v. Wisconsin Dep’t of Admin., 44 F.3d 538,
542 (7th Cir. 1995).
