Saturday, December 01, 2012

Lawsuit on "Anchoring" Strokes

Dear Folks, 

The question of a possible lawsuit filed to defeat either the ban on "anchoring" clubs when making a stroke or against any outright ban on belly and long putters doubtless is provoking a lot of nonsense presently from uneducated golfers nonetheless motivated to spout opinions. So, mostly as an antidote to confusion and gross stupidity in golf, and also because the issue has intrinsic interest, I offer the following educated analysis for the benefit of visitors to this PuttingZone Blog. 

[Disclaimer: The opinions expressed in this article are not legal advice but reporting and discussing issues of concern to golfers generally, and anyone considering a specific legal situation or taking legal action should consult a licensed attorney for advice.]

There are two possible lawsuits: one by a player, and one by a maker / seller of belly or long putters. 

Player Suit 

1. The federal law, the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., requires an entity operating public accommodations to make reasonable modifications in its policies when necessary to afford such accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such accommodations, §12182(b)(2)(A)(ii). The ADA mandates that "[n]o individual shall be discriminated against on the basis of a disability in the full and equal enjoyment of the privileges of any place of public accommodation." §12182(a). 

2. In the case of PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), the United States Supreme Court held the ADA prevented the Tour from applying a Rule prohibiting use of carts at Q School's final stage against Casey Martin; specifically ruling against the PGA Tour on four points, the Court held (1) that the Tour events including Q-School take place on places that are "public accommodations" and (2) that Casey Martin's leg problem preventing him from walking 18 holes was a "disability" and (3) that his request to be allowed to use a cart in the final stage of Q-School when others were not allowed was "a reasonable accommodation" the Tour was required to make and (4) that the use by Martin of a cart in the final stage of Q-School would not "fundamentally alter" the nature of" the Tour's "public accommodation" event. 

3. In the case of the potential claim of a player to be allowed to use a belly putter or a long putter or to "anchor" the stroke, the same four elements would have to be established to win the ADA claim. 

4. But the player would not be requesting this of the PGA Tour. He would be asking that the Rules of Golf not be applied as written against him only, and he would be suing the USGA (or the R&A) or whoever is operating the golf event.

5. The USGA is not subject to the ADA as an organization, but only to the extent it operates a golf event that takes place on a place as a "public accommodation" under the ADA. The Tour made two arguments that its events were not "public accommodations" under the ADA, and both were rejected. First, the Tour claimed it was a private club. Title 42 U. S. C. §12187 provides: "The provisions of this subchapter shall not apply to private clubs or establishments exempted from coverage under Title II of the Civil Rights Act of 1964 (42 U. S. C. §2000a(e)) or to religious organizations or entities controlled by religious organizations, including places of worship." Second, the Tour argued that even if the event is held to be a "public accommodation", the only area that is public is "outside the ropes" and "inside the ropes" where Casey Martin would be is not a "public accommodation." The District Court ruled against the Tour on both arguments, holding that a "golf course" is named specifically in the ADA as a place of "public accommodation" and that the Tour in holding events is "a commercial enterprise operating in the entertainment industry for the economic benefit of its members rather than as a private club." The District Court rejected the second argument as an attempt to create enclaves in "public accommodations" where the ADA would not reach. The Tour gave up on the "private club" argument in higher appeals, but persisted in the "enclave" argument. The Tour lost its appeal to the 9th Circuit Court of Appeals, and then the case went to the Supreme Court. 

6. In a related case at about the same time, the 7th Circuit Court of Appeals ruled against a player requesting to be allowed to use a cart in the U.S. Open, ruling in favor of the USGA on the ground that allowing one player to use a cart and compete with less fatigue than the other competitors would "fundamentally alter" the nature of the competition. Olinger v. United States Golf Assn., 205 F. 3d 1001 (7th Cir. 2000). In Martin's case, the USGA had allowed him a waiver in events that it sponsors, including the U.S. Open, but had denied Orlinger's request. The Supreme Court resolved the issues in both the Martin case and the Orlinger case by its decision in Martin

7. In the Supreme Court the Tour switched up its argument from asserting that it was a "private enclave" to asserting that the Tour was an "entertainment or exhibition" to the public but that players were like actors and employees of the exhibition, and the ADA only protects the consuming public, not employees in this sense. The Supreme Court viewed the Tour events as both entertainment for the public and as competitions in which the players were public consumers since they were paying entry fees and competing for money, and so rejected the argument and held the Tour events were "public accommodations". 

8. The USGA as the ruling authority for golf is not by that alone a "public accommodation". "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." 42 U. S. C. §12182(a). The twelve categories of places deemed "public accommodations" includes "golf courses" but do not include organizations per se, only public places like restaurants, bars, museums, stadiums, bowling alleys, and the like. The USGA is not a "place" but the ruling organization. It is only when the USGA operates a public golf event at a "place" that the ADA applies to the USGA, so that includes all the Opens and amateur championships. But when an amateur is suing the USGA to be allowed to play in a stipulated round on a golf course somewhere but the USGA does not specifically "own, lease (or lease to), or operate a place of public accommodation" for that golf event, the suing player has no claim. 

9. The player might have a claim against a golf course or tournament sponsor who applies the USGA Rules (and in certain events that would be the USGA), since then the course owner or event operator would likely be deemed operating a "public accommodation", provided the public generally is entitled to access and the event is truly not a "private club" event. 

10. 42 U. S. C. §12102 provides, in part: "The term disability means, with respect to an individual (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual . . . ." Clearly, there was no dispute that a person who cannot walk 18 holes and who is a professional golfer is someone with a physical limitation that limits one of his major life activities. Can the same be said about a person claiming a "need" to use a belly putter or a long putter, on the one hand, or to "anchor" any club, on the other hand? That depends on the "physical or mental impairment" the player says requires use of the putters or the anchoring. Presumably, the player could claim he suffers from the "yips" and the yips are either a mental or physical impairment. That claim is medically substantiated. Another possible claim is some sort of orthopedic inability to bend over at address on the green. But he would also have to sustain the argument that the impairment limits one of his major life activities, and that would seem to be "playing USGA-Rules golf events at public accommodations." (Golfers with the yips, according to the medical literature, never complain about the problem except on the course, and never experience the problem in connection with off-course movements.) Is that one of his "major life activities"? For a typical amateur, that claim does not necessarily take wing -- playing the casual round of golf 2-3 times a month, as most amateurs do, and then playing in a tournament 2-3 times a year, with the amateur-staus restriction against acceptance of event money, substantially undercuts the claim that playing in such an amateur event is a "major life activity" for that typical amateur. The case would be stronger for an avid golfer playing 2-3 times weekly and entering 6-7 amateur tournaments annually, but even then there is a major issue whether the impairment limits the player in "one of his major life activities". A professional playing in U.S. Open competition (for men, women, or seniors) paying entry fees and playing for money would not have difficulty with this aspect of the ADA case. 

11. Assuming that the player's case of the yips or other impairment amounts to a "disability" in the limiting sense, the player next would have to sustain the claim that not being exempted from the ban on belly or long putters or the ban on "anchoring" amounts to "discrimination" against him. "Discrimination" is defined in the ADA to mean "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." §12182(b)(2)(A)(ii). In plain terms, this means that discrimination occurs unless the player is exempted from the ban by a "modification" of the rule or policy, that the modification is "necessary" to give the player full access to the event, and that the exemption does not "fundamentally alter" the nature of the golf event. Exemption from the Rule is not hard, but there is the subtle question of whether exemption actually helps the player overcome the impairment. The statute provides that the "modification" sought has to be "necessary" to afford the player full access to the event. In Martin's case, there was no question that riding in the cart overcame his inability to walk 18 holes and was therefore "necessary". Not only was the cart effective in making Martin able to play the 18 holes, but it was also the ONLY way he could have his impairment addressed, and so the cart was "necessary" in both senses as effective and as the only option. But does use of a belly or long putter or anchoring actually alleviate the impairment of the yips (or other impairment) such that the "modification" is "necessary" in either of the two senses? That would require proof. 

12. Does use of a belly or long putter or anchoring the stroke overcome or substantially reduce the impairment caused by the yips in playing golf? The conventional wisdom is that players most often opt for the long or belly putter or anchoring not because of the yips, but because of problems making a conventional stroke with conventional and traditional clubs. Those players have no ADA case because they have no "disability" the ADA recognizes. But as to yips-afflicted golfers, even then the conventional wisdom is that it is not the club per se that addresses the yips but the change in the body action from the specific movement the yips afflict to another form of movement. The use of a belly or long putter MAY shift the movement to a new movement pattern, and thus help, but not necessarily. The anchoring is more often thought to address the afflicted movement, provided what gets anchored is not the club but the limb or body part that is afflicted. That also is not necessarily the case for anyone using these putters or anchoring. So there is a gap in the proof that needs filling with medical evidence to show that the belly or long putter or anchoring is necessary and effective to alleviate the impairment, since otherwise it is not any "accommodation" for the player at all. To date, there is no systematic study of this issue, and only anecdotal evidence from this or that individual without any clear establishment of the use of the special putters or anchoring actually causing alleviation of the yips. Even if there is proof that the modification sought by the player is effective to alleviate the yips, it is not necessarily the only option. Is it not possible that the player's yips can be alleviated in a manner that leaves the player using a conforming, conventional putter or a conforming, non-anchored stroke? In effect, the player might be required to prove that there is NO intervention for the yips OTHER THAN the use of a belly or long putter or an anchored stroke that alleviates his yips. It is possible that such a player with such a specific form of yips might make this case, but there are also abundant claims by others to "cure the yips" with interventions having nothing to do with the club or anchoring. One such is hypnotherapy; another is Emotional Freedom Technique (EFT); others include acupuncture, Botulinum injection, changing a right-hand grip of a right-hand yips golfer to left-hand-low grip, using a heavy putter, using a "claw" grip to tame the right hand out of the stroke, doing deep breathing exercises, taking rehabilitative training, and more. None of these require the long or belly putter or anchoring as the exclusive remedial modification. And with respect to a claimed impairment like a "back problem," this actually is advanced only in connection with "practicing putting for a lengthy period of time", and is almost never advanced as a problem making one or two putts per hole while playing a round. Afterall, the "back problem" doesn't seem to be serious enough to interfere with the 40-50 or more full swings taken in a typical round of 18 holes. So this "back problem" is not likely to be accepted as a serious "impairment" requiring use of a long or belly putter (and in any event has nothing to do with "anchoring").

13. The more weighty question is whether allowing one player to use a putter design that others cannot use or a grip form that others cannot use would fundamentally alter the competition. The Supreme Court in the Martin case identified two ways exemption from a Rule of the game might "fundamentally alter" the nature of the event: "In theory, a modification of petitioners golf tournaments might constitute a fundamental alteration in two different ways. It might alter such an essential aspect of the game of golf that it would be unacceptable even if it affected all competitors equally; changing the diameter of the hole from three to six inches might be such a modification. Alternatively, a less significant change that has only a peripheral impact on the game itself might nevertheless give a disabled player, in addition to access to the competition as required by Title III, an advantage over others and, for that reason, fundamentally alter the character of the competition.

14. First, does allowing use of a non-traditional putter design concern such an essential aspect of the game as to be unacceptable to call it golf when a player used such a putter or anchoring? At first blush, that's doubtful, so the player would appear likely to win that argument -- NOT a fundamental alteration to allow the non-traditional putter or anchoring. However, it is possible that the Court could say otherwise, and many golfers would indeed share the opinion, so one never knows how the argument would be received. There is, however, a stronger form of this argument. Unlike the Martin case, where use of carts was widespread in golf generally, and the Tour was simply arguing its authority to ban them in Q-School and in PGA Tour events, while allowing them in Senior Tour and Nike Tour events and in early stages of Q-School, the issue here is really about the authority of the Rules authority to specify what equipment is allowed for actually playing golf in the making of strokes. In other words, once the Rules authorities says that in ALL competitions everywhere and always, NO player can use a belly or long putter and must use only clubs that conform to the specifications it has set, and cannot use anchoring, but must only make strokes that conform to the Rules that apply equally always to everyone, and there are never any exceptions, may a player with a physical impairment that would be alleviated by use of the non-conforming belly or long putter or non-conforming anchoring have the right under the ADA to compel the Rules authority to allow him to use a non-conforming club or non-conforming stroke? Does allowing that "fundamentally alter" the nature of golf? There is a strong argument that it does, simply because what the impaired golfer is asking to be allowed to play just is not "golf." The Rules define the nature of the game in the equipment specifications and in the allowable stroke rules. This defines "golf". Exempting any player from those rules, for any reason, means the player would not be playing "golf". In this sense, the allowance of non-conforming clubs or non-conforming strokes is the equivalent of changing the size of the hole by judicial fiat. Yes, that fundamentally alters the nature of the game, because the game is "essentially" defined by these Rules of equipment and strokes. In the Martin case, the Court rejected the argument that "fatigue" was an essential aspect of golf. Here, the question is whether using allowable clubs and strokes is part of the essence of the game. That question seems more likely to be answered in the affirmative than the one posed in the Martin case.

15. Second, if allowing one player with the yips or other impairment to use a non-traditional design or stroke is deemed not to be an essential change, does it nonetheless give that player "an advantage over others" that fundamentally alters the competition? If the player has difficulty documenting that the long or belly putter or anchoring actually alleviates the impairment, the Rules authority will surely have a steeper hill to climb proving that the use affords that player "an advantage over others." The player is likely to prevail on this argument that use of the special putter or anchoring does NOT fundamentally alter the nature of the competition. Everyone who espouses the idea that belly and long putters and anchoring don't help that much are making the argument that helps a lawsuit to stop the Rule from applying to a player with the yips. In the Martin case, the Tour argued that exempting Martin from the fatigue of walking 18 holes that all other competitors had to endure gave him an unfair advantage, but the Court held that the "fatigue" the Tour claimed was proved by physiologists to be insignificant. So the claimed advantage in a suit about the putter or anchoring will likely be shot down immediately simply by quoting the widely held belief in golf that "It's not the arrow, but the Indian" to the effect that putters don't give significant advantages. (Obviously, putter makers don't want to admit this, but they don't have any proof to the contrary, and the only scientific study of the claimed benefits of putter designs says the manufacturers' claims of benefit are utterly insignificant and don't matter to score (Werner and Grieg, How Golf Clubs Really Work and How to Optimize Their Design.)) Moreover, no company making and selling belly or long putters (such as SeeMore) has ever claimed any expertise about the yips or about what putter designs might have to offer to address the yips phenomenon. These companies simply follow a transitory trend in golf following a noted success of some player using a belly putter or long putter and the ensuing media puffing that makes the belly or long putter a trendy, popular item. The companies follow the wind, wherever the market interest blows them, and certainly are not conducting medically-relevant R&D simply to help a few golfers suffering the yips. So no manufacturer can credibly claim that its long or belly putter design evolved in response to medical expertise to address and alleviate the yips and therefore has proof that the design gives any advantage. Likewise, there is not any scientific evidence that anchoring alleviates the yips. The well-known example of Bernard Langer clasping his right hand against his left forearm, also pinning the putter handle against his forearm (i.e., "anchoring"), appears to have served him well in "controlling" his specific form of the yips, but there was never any scientific probing of his yips and his mechanical prevention of the movement disorder disrupting his stroke. And there is clearly no proof he thereby gained a superior level of performance over other competitors. The Decisions under the Rules already prohibit any "artificial device" being use as a mechanical control of the stroke, such as strapping the putter handle to the forearm underneath a watch band. Anchoring the handle or hand against the body is mainly to "eliminate a degree of freedom" for any golfer making a stroke and therefore make good strokes easier for players struggling with conventional putting. The usual claim is that "anchoring" benefits any golfer precisely because it "eliminates a degree of freedom" from the conventional style, but there is never any accompanying proof that this "eliminating a degree of freedom" causes better results and lower scores compared to what other competitors can accomplish without this. So, the player would not lose on the ground that any putter design or anchoring gives the player an advantage. 

Club Maker / Seller Suit 

16. These lawsuits against the USGA never end in victory for the club maker, since courts recognize the authority of a sport to establish it own terms for equipment specifications. The only case that ever came close was the claim of Ping about the u-groove clubs that once were not illegal and then were allowed to be made and sold but then were ruled illegal. In that case, an out-of-court settlement ended the case with a grandfathering in of the existing u-groove clubs already made but future clubs to be made only with v-grooves, and Ping agreeing not to make any more u-groove clubs. But that small scent of club-maker positive outcome has unduly encouraged other club makes to have hope where on the merits of the claim, there really is not much hope. 

17. The maker /seller of long or belly putters would most likely not be allowed to stand in the shoes of a yips-afflicted golfer and assert that players' claim under the ADA, but would have to assert some independent claim on its own behalf. 

18. The likely claim would be some sort of fairness claim that prior USGA approval of the seller's long or belly putter precludes or "estops" the USGA from changing its mind and later banning the designs by changing the definition of what clubs are allowed in a way that excludes these long or belly putter designs as non-conforming. This eliminates any seller from bringing suit who had not previously obtained USGA approval and was currently marketing the designs. But even as to those selling pre-approved belly and long putters, the claim essentially means that those making money from the game of golf have gained by thee prior design approvals the right to prevent the USGA from altering the rules and equipment in the game until all sellers stop marketing belly or long putters. The more reasonable view, and therefore the more likely outcome in a lawsuit, is that the USGA maintains its authority to alter the club rules, since everyone recognized before that this authority existed and could be used (as indeed shown in the Ping case), and the likely development is that the USGA would give sufficient lead time before applying the change so that the business cycle could run its natural course to sell off existing inventory and change over to different product designs that conform. The end result is not that any company cannot continue to make money from golf, but that the company would have to allow the current designs to play out and start making money in a different product line. Against that, a seller who still claims a "right" to sell belly or long putters notwithstanding the Rule-maker's decision is taking an obstinate position, based either upon its admitted inability to shift to a conforming product line or upon simple intransigent refusal to yield to the rule-making authority of the USGA. Either way, that is not a sympathy-garnering position. 

That's pretty much the analysis. How such a case would actually come out is anyone's guess, and depends upon the caliber of the lawyering, the judges, the claimant, the evidence, and any other number of wildcard factors. But the above analytical skeleton maps the tracks the main lines of argument that any such case would have to follow. Make of it what you will as fair-minded "judge". 

For my personal view of the player lawsuit, I think the USGA argument that allowing use of clubs or strokes that are not part of the game's definition would fundamentally alter the nature of the event by affecting its essential nature is pretty strong (point #14), and the player's argument that a long or belly putter or anchoring amounts to a "necessary modification" that alleviates the yips is weak (point #12,) and the player's claim that the impairment amounts to a "disability" limiting the player's "major life activity" would be problem for a casual amateur even if not as much a problem for an avid amateur or no problem at all for a professional in one of the the US Open competitions (point #10). But otherwise, a yips-afflicted amateur or professional golfer could bring suit if denied exemption from a Rule banning use of the long or belly putter or anchoring, against whoever operates the event as a "public accommodation". But sustaining all four elements of the ADA case is not likely. 


Geoff Mangum 
Putting Coach and Theorist