The sports law legacy of Justice Antonin Scalia
U.S. Supreme Court Justice Antonin Scalia, who died Saturday at the age of 79, was perhaps the most influential Supreme Court justice over the last three decades. In the coming weeks, his long list of significant opinions will be studied and debated. Justice Scalia’s sharply conservative views attracted praise from some and scorn from others. All who followed his career, however, would agree that Justice Scalia possessed a profound gift for writing in an instantly accessible style.
Justice Scalia was also regarded as an unusually engaging person. I can attest to that. I had the opportunity to meet him at a lunch in 2006. It was my first year as a law professor at Mississippi College School of Law and I was teaching a seminar on sports law. I only spoke with Justice Scalia for a few minutes—he was the guest of honor and everyone wanted to talk to him—but those few minutes were memorable to me. I remember feeling a little bit disappointed, however, when he doubted that sports law existed. Instead, he thought that sports law merely consists of a series of cases and laws that happen to involve sports. It wasn’t exactly a ringing endorsement of my professional field. On the other hand, Justice Scalia thought that teaching sports law was a great vehicle to instruct on the many facets of law. He believed so because students are uniquely interested in the underlying facts of sports cases. As I have learned over the last decade, he was absolutely correct. Consider Deflategate: while “labor law” may not pique the interest of readers, put it in the context of Tom Brady and Roger Goodell and watch out.
Even if Justice Scalia was skeptical of sports law, it was among the many topics he wrote about in his opinions. Justice Scalia’s most influential opinion on sports was in PGA Tour, Inc. v. Casey Martin, 532 U.S. 661 (2001). Martin was a professional golfer afflicted with Klippel-Trenaunay-Weber Syndrome, a degenerative leg disorder that caused him to experience pain while walking long distances. The only way Martin could realistically compete on the PGA Tour was by using a cart to get from hole-to-hole. The PGA Tour, however, prohibited golfers from using a cart. Further, the Tour rejected Martin’s request for a cart exemption on grounds that it would have given him an unfair advantage.
Martin sued, arguing that the Americans with Disabilities Act protected him and that a cart would be a reasonable accommodation. In a 7–2 decision authored by Justice John Paul Stevens, the U.S. Supreme Court in 2001 ruled for Martin. The majority reasoned that use of a cart would not fundamentally alter the sport of golf. Martin, who is now 43 years old and head coach of the University of Oregon men’s golf team, could therefore continue his PGA career and use a cart.
Justice Scalia, joined by Justice Clarence Thomas, categorically disagreed with Justice Stevens. In a colorful dissent, Justice Scalia asserted that judges have no idea if changing one rule of play would fundamentally alter a sport and that such decisions should be left to those who operate and understand the sport. He further warned that the Supreme Court was inviting opportunistic attorneys to find disabled athletes to flood the courts with lawsuits. Along those lines, Justice Scalia feared that helicopter parents who were certain that but for a disability, their son or daughter would become a sports star would be motivated to sue like Martin. Consider arguably the most famous passage of Justice Scalia’s dissent in the Martin case:
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.)
It doesn’t appear that disabled athletes have flooded the courts since the Supreme Court instructed the PGA Tour to let Casey Martin use a cart. Indeed, the kid who demands four strikes at the plate hasn’t yet surfaced in any courthouse that I know of. Still, Justice Scalia’s underlying point—that judges aren’t in a position to know whether changing a rule would fundamentally alter a sport—is extremely interesting. Much like Justice Scalia. RIP.
SI legal analyst Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law.