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: The Sports Law Professor

In English, Please

By Jeffrey Standen

The Ladies Professional Golf Association stirred up some controversy this week with its announcement that soon LPGA tour players will be required to be able to speak English. SI.com has a good piece here outlining the tour's position and discussing its legality. The tour's argument is that communication in English is needed during pro-am rounds, post-round interviews and victory speeches. (The many South Koreans on the tour have increasing occasion to make victory speeches.) The putative argument of an upset, litigious, non-English-speaking lady golfer would be that English requirements are allowable only where English-language communication is necessary for worker safety or work-place efficiency, and that neither applies here. Obviously the LPGA's defense will rest on the latter consideration. All the LPGA has to do is provide a legitimate reason for its restriction and it's good to go. Well, maybe.

Most lawyers, like the one interviewed for the SI story, will suggest that the LPGA's English requirement will be struck down. Although I'm not optimistic that the requirement will be upheld, I think it should be upheld. The reason it won't be vindicated has nothing to do with the law. It's because of the bar and the bench. Lawyers and judges don't understand sports, and their failure to understand sports leads them to err.

1. First of all, I am a fan of the LPGA tour, at least as far as watching its tournaments on television. (I would love to attend the local tournament in person if it came at a slower time in the academic schedule; yes, even the academic life gets busy.) These women play very well, and with the likes of Lorena Ochoa, Paula Creamer, Annika Sorenstam, and Suzann Pettersen leading the way, today's lady professionals play a brand of golf that, to this golfer, looks just a few shades below that of the men. The players hit it further and attack the pins better than ever before; long gone are the days of LPGA players hitting drives 225 and bouncing the ball up to greens. Add in the sex-appeal angle from Natalie Gulbis (I'd link you to her racy calendar but of course I've never seen it) and some other pros, and arguably the LPGA is in its golden years. It should be drawing fans and generating purses like never before. Apparently it's not.

2. I've read that the LPGA is healthy, but the current economic slowdown (I won't say recession; it's an election year) has apparently slowed the tour's growth and led to the cancellation of some tournaments. Unlike the PGA tour, where huge television contracts provide the bulk of the purses, the LPGA tour functions more like a traveling goodwill show. The LPGA stars do not have the luxury of remaining coolly aloof like the pampered aristocrats of the PGA: interaction with fans and sponsors is clearly expected and is apparently vital to the tour's financial survival. Of course for the individual players all this forced friendliness is likely a chore, at times. All the players care about is winning the purse. But the LPGA as an entity or business is indifferent as to who wins the tournaments. Its money is made by good competition. It's also made from pricey amateur player fees for pro-am's, from happy, generous tournament sponsors, and from press and television coverage. In short, the LPGA profits from players doing things that don't enhance their chances at winning tournaments, and in fact may diminish them.

3. The LPGA tour, much like the PGA, imposes quality-control restrictions on its players. The tours have dress-code standards, require pro-am attendance, obligate media interviews and the like. How is a requirement that the players speak a modicum of English all that different from the one that they wear golf-appropriate clothing or place sponsor advertisements only in certain areas of their garments? Here's how: language is unavoidably and completely bound up with national and cultural identity. Language triggers all the anti-discrimination rules that pertain to the workplace or to places of public accommodation, like a tour golf course. Language is important (just ask the Quebecois, who are ready to divide a country over it). The LPGA's reason for implementing a language requirement is going to be subjected to a level of judicial scrutiny far exceeding what might be the case for some more trivial tour rule.

4. So far the LPGA's language restriction seems legitimate: the tour makes money in substantial part from its personal player interactions, the tour is an American tour, and so such interactions are much more easily accomplished in English. This reason seems so powerful and persuasive that it should (in an ideal world) hold up even under intense judicial scrutiny. (Indeed, the apparent surprise with which the LPGA tour officials have reacted to the public firestorm suggests that they felt themselves to be on solid legal ground.)

5. But here's why I'm not optimistic about the restriction's legality: a court will likely overturn it not because the tour's reasons lack requisite legal legitimacy. Instead, a court will strike down the restriction because it does not understand the sport. Case in point: the famous Casey Martin decision of the U.S. Supreme Court. Recall that the PGA tour had implemented a requirement that all players walk the course. Martin couldn't, due to his particular physical condition. In ruling against the PGA, the Court (modest as always) impliedly decided that the PGA officials didn't understand golf, at least not as clearly as did the hackers on the bench. The PGA had said that golf, or at least PGA tour golf, included walking. No it doesn't, said the court. According to the judicial duffers, golf is the act of hitting a ball at a hole. In other words, the court defined golf in a way different from the golf officials. The court ruled as if it had in mind a platonic ideal of "golf" that exists apart from the rules of the sport devised by those empowered to define the rules of the sport.

6. So what is "golf"? Isn't it just what we golfers (or the PGA or LPGA, or the USGA, etc.) say it is? If tomorrow the golf lords decided that lost balls should be penalized by just one stroke, and not stroke and distance (as should be the rule, I argue here), should a court have anything to say about it? I realize one can always characterize this differently, but in this case isn't the LPGA (which after all is accustomed to imposing quality control restrictions on its players and product) now defining this thing called "LPGA tour golf" to include a requirement (however harsh it may be) that its members have some minimal or sufficient English skills? Does this re-definition of "LPGA Tour golf" conflict with the platonic conception of "golf" presumed in the Martin decision?

7. Courts have always been this bold when it comes to sports, feeling free to tell sports people just what their sport is. It is an odd approach: no judge in America is going to, for instance, tell a corporate business how to organize itself. The "business judgment rule" insulates corporate business maneuverings from judicial oversight, no matter how dumb the judgment may in fact be. Yet when it comes to sports, apparently judges watch the big games on the weekend and, just like everybody else, feel no hesitation to second-guess the managers. Baseball leagues can explicitly prohibit intentional beanballs, imposing ejection and suspension penalties for perpetrators, yet courts have decided that the intentional beanball is just "part of the game"! It's part of the game and there's (apparently) nothing baseball can do about it. Why? Can't baseball change its rules without judicial approval? It's a game, just arbitrary make-believe. When kids playing some made-up contest in the yard decide that the driveway is "out" then it's out. There's no normative grounds to appeal; there's nothing "wrong" with the driveway being out instead of the sidewalk. Would a judge prohibit MLB from implementing a rule that said two strikes make an out? Yes, a judge would, probably. "Baseball" exists apart from the rules that define it, right up there in the judge's head. (I addressed this issue in a mere three-part post, to be found here, if you scroll down.) The judge watches baseball every Saturday, and it always takes three strikes to make an out! It's part of the game.

8. I suspect the LPGA will avoid a court fight on this one by toning it down a bit, making the rule advisory instead of obligatory. One thing that tour doesn't need right now is bad publicity and an expensive court battle. Indeed, the battle might be one it loses, not that it should. The courts are off and running with a judicially created definition of sports contests. It's not a good development. I see the Martin decision as potentially a devastating one for professional sports, as it limits the latitude sports leagues and associations have always enjoyed to define and modify their contests as they see fit, to keep pace with evolving conditions and changing fan interest. In an era where judges are increasingly reluctant to invoke the "natural law" or some other non-textual inclination as a source of legal rules, the emerging sports law jurisprudence stands out, and not in a favorable light.

Full post as published by The Sports Law Professor on August 27, 2008 (boomark / email).