[Congressional Record Volume 141, Number 29 (Tuesday, February 14, 1995)]
[Extensions of Remarks]
[Pages E338-E339]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                   THE AMERICANS WITH DISABILITIES ACT

                                 ______


                          HON. PHILIP M. CRANE

                              of illinois

                    in the house of representatives

                       Tuesday, February 14, 1995
  Mr. CRANE. Mr. Speaker, while we all support the concept of providing 
equal treatment and access for those with disabilities, I believe that 
Congress must take time to evaluate how the Americans With Disabilities 
Act [ADA] of 1990 embodies those concepts. We must decide how to 
maintain the benefits that ADA provides as well as eliminate the 
problems that it causes.
  In pursuing this evaluation, I would recommend to my colleagues the 
following article, ``Why the ADA Could Ruin the Superbowl.'' The 
author, Deborah K. Schlussel, has vividly illustrated the problems 
encompassing the ADA. She gives unmistakable proof that the ADA has 
imposed unnecessary barriers on American companies and professional 
sports teams.
  It is our duty to proceed in making the correct and necessary 
alterations to the Americans With Disabilities Act, and I hope my 
colleagues will keep this article in mind as Congress considers this 
issue.
                  Why the ADA Could Ruin the Superbowl

                    (By Deborah K. Schlussel, J.D.)

       This year's Superbowl, the contest between football's top 
     American Football Conference (AFC) and National Football 
     Conference (NFC) teams, has come and gone. But the Americans 
     with Disabilities Act (ADA), a bill aimed at eliminating 
     discrimination against the disabled, may change the Superbowl 
     as we know it, and all professional sports competition, for 
     that matter.
       Though uncertain, it is conceivable that Title I of the 
     ADA, a provision written to penalize private employers who 
     discriminate based on disabilities, could make next year's 
     Superbowl more closely resemble the Special Olympics, rather 
     than the traditional contest between pro football's finest. 
     The ADA prohibits employers from using ``selection criteria 
     that screen out or tend to screen out an individual with a 
     disability or a class of individuals with disabilities unless 
     the * * * selection criteria'' relate to ``essential 
     functions'' of the job. The difficulty is that the courts 
     (who may know nothing about the functions needed to be an 
     inside linebacker), not the employers, ultimately decide the 
     ``essential functions'' of the job.
       Professional sports leagues, including the National 
     Football League (NFL), National 
     [[Page E339]] Hockey League (NHL), National Basketball 
     Association (NBA), and Major League Baseball (MLB), by their 
     very nature, are inherently discriminatory, and their 
     discrimination is necessarily based on disability. A man with 
     a wooden leg can't be a running back, and a man with a limp 
     won't be much more effective. Neither will make a good 
     kicker. And they probably wouldn't make good forwards or 
     defensemen on the NHL ice.
       But what if a one-eyed man wanted to play pro hockey, or a 
     man without use of his right arm felt qualified to be an NFL 
     kicker, or a man with a bad back and a risky spine condition 
     wanted to be an offensive lineman? In 1977-1979, a one-eyed 
     hockey player, Gregory Neeld, sued both the NHL and the 
     American Hockey League (AHL) for their refusal to let him 
     participate in league play. The courts held that, as private 
     employers, the leagues were not covered by federal rights 
     laws barring discrimination against the disabled.
       Now, however, the ADA extends civil rights protections for 
     the disabled to all private employers with 15 or more 
     employees, including employers, such as the major sports 
     leagues and teams, and their pro-athlete employees. In the 
     Neeld case, the one-eyed hockey player presented testimony 
     that he only needed a protective mask to shield his remaining 
     eye and would, then, be able to play hockey at a level on par 
     with that of other professional hockey players.
       Under the ADA, employers are required to ``reasonably 
     accommodate'' disabled employees and job applicants, and most 
     likely, a court would have required the NHL and AHL to 
     provide Neeld with the protective mask and let him play 
     hockey, despite the fact that his possession of only one eye 
     put him at high risk of blindness. That may not sound so bad, 
     but what if the NFL was required to let a man play football 
     who needed to wear obtrusive, heavy leg and back braces on 
     significant portions of his body? He probably couldn't run 
     very fast, but he could still run and throw and catch the 
     ball. Under the ADA, he could still perform the ``essential 
     functions'' of the job. Thus, a court might force the NFL to 
     let him play.
       The problem is that Congress doesn't appear to have 
     considered professional sports when it drafted Title I of the 
     ADA, except with regard to the issue of drug testing, and 
     because the ADA is fairly new, it has not yet been the 
     subject of much litigation. Therefore, its provisions as they 
     apply to professional sports, have not been sufficiently 
     tested in the courts.
       The ADA covers ``qualified individuals with a disability'' 
     who are employees or applicants for employment, and defines 
     ``qualified individuals'' as those who can perform the 
     ``essential functions'' of the job, with or without 
     ``reasonable accommodation'' by the employer. A one-armed 
     man, for example, can arguably perform the ``essential 
     functions'' of a defensive lineman, if he can still block the 
     other team's players.
       In addition, the ADA is extremely vague and ambiguous as to 
     whom is ``disabled,'' and, thus, covered by the Act. It seems 
     to be overinclusive in its definition of who is an individual 
     with a ``disability,'' and, in fact, the only individuals 
     explicitly excluded from coverage by the ADA are 
     transvestites and illegal drug addicts who aren't seeking 
     rehabilitation. (Perhaps, here, the only players the leagues 
     could fire with impunity would be Larry Johnson of the NBA's 
     Charlotte Hornets and Alexander Daigle of the NHL's Ottawa 
     Senators, both of whom donned women's dresses in recent 
     endorsement ads.)
       Generally, when a law is vague, its definitions are refined 
     and explained by court decisions, and because, as stated 
     above, this law is relatively new (1990), and there have been 
     few court cases interpreting its provisions, the sports 
     league and their teams will have to look to court decisions 
     involving Section 504 of the Rehabilitation Act of 1973, upon 
     which the ADA is largely based, for legal precedent. In these 
     cases, the courts have forced several high schools and 
     universities to allow disabled athletes to participate in 
     contact sports, including football
      players with one eye, one kidney, and other disabilities, 
     regardless of the fact that they might pose a direct 
     threat to themselves and others (because the courts felt 
     the risk wasn't significant enough). These decisions may 
     now be forced on professional sports.
       In the ADA, the courts may soon have an opportunity to 
     rewrite the rules of football. Under Title I of the Act, 
     though some consideration is given to the employer's judgment 
     as to what functions of the job are essential, the NFL's 
     determination of the essential functions of a quarterback, is 
     not final. Rather, the court decides, and in cases 
     interpreting the Rehabilitation Act of 1973, the courts have 
     rewritten job descriptions to their liking, as in the U.S. 
     Supreme Court's deletion of the ability to lift with both 
     arms as a job requirement for a U.S. Postal Service position, 
     in Prewitt v. U.S. Postal Service, a 1981 case. In the near 
     future, the court could decide that a man with two artificial 
     arms could be the Dallas Cowboys' new kicker, because he can 
     perform the ``essential functions'' of the job.
       As Rep. Bill McCollum (R-FL) stated during the ADA debate 
     on the Floor of the U.S. House of Representatives, ``The 
     issue * * * [is] who decides what those essential functions 
     are. Ultimately it could be a court, it could be a lot of 
     different folks who could decide this thing in the long 
     run.'' This ADA provides ample opportunity for ``courts [to] 
     arbitrarily substitut[e] their judgment for an employer's 
     when it comes to determining the essential functions of the 
     job.''
       The current standard ``NFL Player Contract'' requires that 
     a player be, and ``maintain himself in excellent physical 
     condition.'' The NFL may have to do some editing and go back 
     to the printer. Next season's Los Angeles Raiders (with the 
     Raider pirate as their mascot) might truly resemble Long John 
     Silver, wooden leg and all. Superbowl XXIX, beware.
     

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