Bounce Check

A club is not required to change its raquetball league rules for a wheelchair athlete.

Ever since the U.S. Supreme Court ruled that walking was neither an essential element nor an indispensable feature of tournament golf [PGA Tour Inc. v. Martin, 532 U.S. 661 (2001)], thus allowing golfer Casey Martin to ride a golf cart rather than walk the course, sport administrators around the country have been forced to ask themselves what rules are essential to the nature of sport. An example of how important this question can be to administrators was recently demonstrated by the Supreme Judicial Court of Massachusetts in Kuketz v. Petronelli [821 N.E.2d 473 (MA. 2005)].

Stephen Kuketz, a member of the Brockton Athletic Club, paid a nominal league fee and requested placement on the men's "A" racquetball league roster. The club sponsored a league in which men and women competed in divisions organized by gender and ability, with the men's "A" league being the most competitive division. Kuketz, a nationally ranked wheelchair racquetball player, wanted to join the men's "A" league so that he could compete against the best able-bodied players available to help prepare for upcoming international wheelchair competitions. Because of his physical limitations, however, Kuketz requested that the club allow him the wheelchair-racquetball-standard two bounces during "A" league play, instead of the one bounce allowable under standard racquetball rules.

After consulting with other players in the league, the general manager of the club, Roslyn Petronelli, informed Kuketz that he would not be allowed to play in the men's "A" league. Petronelli claimed that the primary reason for her decision was concerns she had regarding the safety of the other players. In particular, Petronelli was worried that the presence of a wheelchair on the court during a fast-paced game with "A" league players, compounded by a lack of familiarity those players would have with the differing nature of a game in which one player was permitted two bounces, could be potentially dangerous. Instead, Petronelli offered Kuketz two alternatives: He could play in a lower-level league under the one-bounce rule or he could play in a wheelchair league that she would assist him in organizing.

Kuketz declined both offers, instead filing a lawsuit claiming that Petronelli, as the general manager of the club, violated both federal and state anti-discrimination laws by refusing to allow him to participate in the men's "A" league. Before the case could get to trial, however, the lower-court judge dismissed Kuketz's lawsuit, ruling that Title III of the Americans with Disabilities Act does not require the club to permit Kuketz two bounces in league-sponsored games because such a modification would fundamentally alter the nature of the racquetball competition.

Dissatisfied with the ruling, Kuketz appealed to the Supreme Judicial Court of Massachusetts, asserting that the judge erred in his finding, and that the ADA required the club to conduct an individualized assessment both of his abilities and of the reasonableness of the requested modification.

Since the court ruled that Kuketz's state anti-discrimination claim went hand in hand with his federal claim, it began its analysis by reviewing Title III of the ADA. Title III states that "no individual shall be discriminated against on the basis of disability in the full and equal 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."

In evaluating Kuketz's claim, the Supreme Judicial Court of Massachusetts held that it was undisputed that Kuketz was an individual with a disability and that the club was a place of public accommodation as defined in Title III. Therefore, the court concluded that the only issue it must decide was whether the club unlawfully discriminated against Kuketz when it refused to modify its policies and practices.

The ADA 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." Citing a three-part test outlined in PGA Tour Inc. v. Martin, the Supreme Judicial Court of Massachusetts held that Kuketz must demonstrate that:

1. the requested modification was "reasonable";
2. the modifications were "necessary" for the individual; and
3. the requested modification would not "fundamentally alter the nature of" the competition or sport.

The court concluded that Kuketz's requested modifications were necessary for him to play in the men's "A" league. Since the "fundamental alteration" inquiry was the central issue before the U.S. Supreme Court in Martin, the Supreme Judicial Court of Massachusetts decided to address the third issue first.

In reviewing Martin, the court noted that the U.S. Supreme Court found that Casey Martin's request to use a golf cart during the final stage of a professional qualifying tournament would not fundamentally alter the character of the competition. In particular, the Supreme Court ruled that the PGA's walking rule, which was based on an optional condition buried in an appendix to the Rules of Golf, was neither an essential element of the game, nor an indispensable feature of tournament golf. The essence of the game, the Supreme Court held, was shot making.

In distinguishing Martin from the present case, the Massachusetts court held that unlike the use of carts in golf, the allowance for more than one bounce in racquetball was inconsistent with the fundamental character of the game. As expressly articulated in the rules of racquetball, the court found that the essence of the game of racquetball is the hitting of a moving ball with a racquet before the second bounce. Giving a player in a wheelchair two bounces and a player on foot one bounce in head-to-head competition would alter such an essential aspect of the game that it would be unacceptable even if it affected all competitors equally. In addition, the court found that unlike golf, the speed at which racquetball is played is important and is one of the factors distinguishing players in different levels. Therefore, if one player were allowed to play the game with two bounces, it would require a change in the strategy, positioning and movement of the players during the game, and would essentially create a new game, with new strategies and new rules.

As for Kuketz's argument that the club should do an individual assessment of his particular circumstances before rejecting his specific modification requests, the court found that this argument was based on a misreading of the ADA and Martin. In particular, the court held that while an individualized inquiry was required by the ADA, no assessment was necessary if waiving the one-bounce rule would cause a fundamental alteration to the nature of the event. Since Kuketz's requested modification would in fact require the waiver of an essential rule of competition, the club did not need to make an individualized inquiry to determine the reasonableness of those modifications.

Some people might be tempted to look at the decision of the court in Kuketz as a backlash to the Supreme Court's decision in Martin, and thus, a blow to the rights of individuals with disabilities. On its face this interpretation seems valid, especially when one considers that the lower court relied on the Supreme Court's dissenting opinion in Martin when it reflected on what the sporting world would look like if the ADA were interpreted as Kuketz proposed. In particular, the lower court used the extreme examples cited by the Martin dissent, such as the baseball scenario requiring first base to be moved closer to home plate so that the hitter in a wheelchair could reach first base in roughly the time it would take a running player to cover 90 feet, or lowering the basket in basketball to compensate for a wheelchair user's greater difficulty in shooting without the use of his or her legs.

Such a reading of Kuketz, however, would be incorrect and potentially costly for sports organizations and clubs. If anything, the Massachusetts decision reinforces the Supreme Court's ruling in Martin. Reading both decisions together, it is now clear that under the ADA, sports leagues and clubs have the right to organize racquetball, golf and other activities in accordance with the games' official rules without running afoul of the ADA. If, however, the challenged rule has only a peripheral impact on the game, it still must be reasonably modified.