They sit at a reserved table in the quiet section. As they must. The bartender recognizes them. He hands his waiter a glass of Saki and a mug of Sapporo beer. He tells the waiter to give the glass of Saki to whoever at the table has the most promising future as a professional tennis player. He tells the waiter to give the beer to the person who has the second most promising future as a professional tennis player. As for the third-place finisher, he tells the waiter to give that person free advice of the waiter’s choosing.
Unknown to the bartender, the waiter was an American ex-pat moonlighting as a waiter. He already had his law degree from Harvard and was studying international law at University of Tokyo Law School. The waiter, being a serious chap, takes the bartender’s instructions to heart. He considers the three persons sitting at the table, ponders for a minute, then says to the bartender, “I know who will get what. And I know what my free advice will be.”
What did the waiter decide? What will his free advice be? How would you handicap (pun intended) the patrons at that table? Who wins, who places, and who shows?
Before guessing the waiter’s decision, here’s a little background about the patrons and the waiter.
Naomi Osaka
Next to Serena Williams, Naomi is the most recognized female athlete in the world. A professional tennis player, in 2019 she was ranked as the number one female tennis player in the world by the World Tennis Association (“WTA”). She is a four-time grand slam singles champion. She lit the torch at the Tokyo Olympics. Most recently, Naomi was in the news because she withdrew from the French Open when the WTA told her that she had to give post-match interviews with the media. Naomi asked to be exempted from conducting these interviews because she said it negatively impacted her mental health. She was fined $15,000 for failing to appear at her first mandated press conference. Ultimately, she withdrew from the tournament. Then she skipped Wimbledon.
In an essay in Time Magazine entitled “It’s O.K. Not to be O.K.” Naomi explained her decision not to participate in post-match press conferences this way: “I communicated that I wanted to skip press conferences at Roland Garros to exercise self-care and preservation of my mental health. I stand by that. Athletes are humans.”
The WTA issued this statement to explain its position, “We have advised Naomi Osaka that should she continue to ignore her media obligations during the tournament, she would be exposing herself to possible further Code of Conduct infringement consequences. As might be expected, repeat violations attract tougher sanctions including default from the tournament (Code of Conduct article III T.) and the trigger of a major offence investigation that could lead to more substantial fines and future Grand Slam suspensions (Code of Conduct article IV A.3.).” It is unlikely that governing members of the WTA would ever be arrested for exhibiting excessive amounts of empathy beyond that of a common garden snail.
Ellen James
Ellen James is a fictional character in John Irving’s The World According to Garp. Let’s assume that she somehow possessed the same magical powers shared by the characters in Woody Allen’s, The Purple Rose of Cairo. Namely that Ellen was capable of leaving the work of fiction that embodied her and could step into the real world to live life as her character. As a fictional character, Ellen James suffered a very sad fate. She was raped, then rendered mute when she was attacked by her assailant. In Garp, women in support of Ellen formed the Ellen James Society, and made themselves mute by voluntarily undergoing a tongue-ectomy. Ellen begged her supporters to stop engaging in self-mutilation. Garp had no sympathy for such people. Garp’s mother, Jenny Fields, a nurse, simply viewed the Ellen Jamesians as people like us all who need healing. She thought it was her place to extend compassion to such people to help them heal.
The Dalai Lama
The Dalai Lama is the spiritual leader of Tibet. Prior to walking into the bar, he had recently renewed his Buddhist vow of silence. Talk is cheap and overrated. Enough said.
The Waiter
Bill, the waiter, while a student at Harvard had taken several courses in employment law. During his one minute of contemplation while making his decision, this is what he thought about.
Bill considered the actions of the WTA with respect to Naomi at the French Open. In essence, the WTA told Naomi that unless she participated in the post-game interview, she could take her rackets elsewhere. Her serve, her net game and her ground strokes would take a back seat to her participation in the post-game interview. The fact that she claimed to have a mental condition which made it debilitating for her to participate in such an interview was irrelevant to the WTA. The interview must go on.
Bill considered the ramifications of the WTA’s position with respect to Naomi: no conference participation, no tournament participation. How would such a requirement impact the tennis prospects of Ellen James? She can’t talk. She has a physical impairment that prevents her from talking. And what about the tennis prospects of the Dalai Lama? He had taken a vow of silence as part of his religious practice. So, he can’t talk.
Bill wondered if any of these three had a future in professional tennis.
How Bill Handicapped the Patrons
Having studied employment law, Bill had an interesting perspective on the dilemma. He thought the WTA’s edict regarding mandatory participation in the press conference seemed a bit harsh. He wondered if the WTA was justified in making participation in a post-match press conference a requirement for participation in a tournament.
Bill thought back to a case he studied in law school, Casey Martin v. the PGA Tour. That was an interesting case with many similarities to Naomi and the WTA. Casey Martin was a professional golfer. He was an excellent golfer, but he had a problem. He had a handicap that was physical, not numerical. Casey had a degenerative heart condition which prevented him from walking from hole to hole on a golf course. Instead, Casey used a golf cart. However, the Professional Golfers Association (“PGA”) had a rule that prohibited the use of golf carts in a tournament. Consequently, the PGA banned Casey from playing in professional tournaments.
Casey sued the PGA. He claimed that the PGA’s rule prohibiting use of a golf cart violated the Americans with Disabilities Act of 1990 (the “ADA”). The ADA requires an employer to make a reasonable accommodation to a disabled employee if that disabled employee is able to perform his or her essential job function. If the employee’s disability prevents them from performing an essential job function, then the employer does not have to make such an accommodation. That’s the legal backdrop.
This case made it all the way to the United States Supreme Court. It was a case that all judges loved to rule on, because it enabled a bunch of male senior citizens to pontificate on what is the essential element to the game of golf, and perhaps they could deduct their country club dues as a business expense for the year. If Casey, even with his heart condition, could do whatever was deemed essential to play golf, then the PGA had to accommodate his disability. The Supreme Court agreed with Casey. Justices Palmer (Arnold), Nicklaus (Jack), Hogan (Ben), and Snead (Slammin Sammy) all subscribed to the Court’s opinion, written by Chief Justice Woods (Tiger). Here is an excerpt: “From early on the essence of the game has been shot-making – using clubs to cause the ball to progress from the teeing ground to a hole some distance away with as few strokes as possible.” This Casey could do. His disability did not prevent him from performing this essential task.
The Supreme Court held that the manner that a player used to get from hole to hole was not essential to the game of golf. Therefore, the Supreme Court ruled that the PGA had to make a reasonable accommodation to Casey to enable him to play the essential game of golf. And using a golf cart was such a reasonable accommodation. By disallowing Casey to play because he wanted to use a golf cart, the PGA had committed a bogey.
What was the aftermath of Martin v PGA? The PGA permitted Casey to use a golf cart, and he played on the PGA tour for another year or two but then had to quit because he was getting old, and his heart condition had deteriorated. In other words, father time did not stop for anyone, except Tom Brady and Roger Federer. Casey’s best years were spent in the caddy shack waiting for the courts to decide his fate.
Bill thought about the WTA’s post-match press conference requirement in light of the Martin decision. It seemed to Bill that participation in a press conference was not essential to the game of tennis. Tennis tournaments existed for many years prior to press conferences. The essentials of tennis were pretty similar to those of golf, hitting a ball in a certain direction, in which the winner prevails because of their skill in shot making. A post-match press conference has nothing to do with playing the game of tennis.
In Bill’s mind, the WTA was at fault for declaring the press conference a mandatory part of the game of tennis. If Bill’s analysis were correct, then the question would be with respect to the persons at the table, who would have the easiest time getting the WTA to agree to an accommodation. Would it be Naomi, Ellen James, or the Dalai Lama?
Bill’s Decision
Bill handicapped the patrons thusly. He figured that Ellen would have the easiest time making her case that she has a disability that prevents her from participating in a press conference. Who can argue with a physical disability? Ellen is physically unable to talk. To Bill, she was a shoo-in for the most likely person to have a future in professional tennis. Ellen got the Saki.
Next was the Dalai Lama. He could claim a religious exemption from participating in the press conference. It conflicts with his spiritual vow of silence. And these days, in the U.S. at least, a religious justification will get you out of almost any legal requirement. So, Bill figured the Dalai Lama deserved the Sapporo.
That left Naomi. Even though the ADA specifically identifies mental conditions as providing a basis for reasonable accommodations, employers tend to be least accommodating to persons who claim to have mental impairments. It can be a lengthy battle for an employee to obtain a reasonable accommodation from an employer because of the employee’s mental health. So, Bill figured that Naomi probably had the least rosy future in professional tennis of anyone at that table.
What advice did Bill give to Naomi free of charge? Because Bill was feeling generous, he gave her two pieces of free advice. First, he told her that next time she should get a note from her doctor documenting the fragility of her mental state. Second, as a bonus piece of advice, he told her to see if she could get Jenny Fields to pull one of the tricks where she steps out of the pages of the World According to Garp and joins the governing body of the WTA. Bill thought the WTA could use a little healing.
Copyright 2021. Peter Kelman, Esq. All rights reserved.