CASE ANALYSIS ASSIGNMENT INSTRUCTIONS OVERVIEW

Case 7-2 Barron vs. PGA Tour, Inc.

670 F.Supp.2d 674 (W.D. Tenn. 2009)

Doug Barron is a professional golfer who joined the PGA Tour in January of 1995. In 1987, when he was eighteen years old, he was diagnosed with mitral valve prolapse and was prescribed a beta blocker, Propranolol, to treat the condition. Without Propranolol, Barron experiences a racing heartbeat and chest pains. In 2005, Barron was found to have low testosterone levels and was prescribed monthly doses of exogenous testosterone in order to maintain his testosterone level within the normal range. Side effects of low testosterone can include fatigue, lethargy, loss of sex drive, and a compromised immune system, resulting in an increased incidence of infection.

The PGA Tour establishes rules and policies that govern the conduct of golfers who participate in PGA and Nationwide Tour events. Golfers must pay dues to the PGA Tour and agree to abide by the rules and policies established by the PGA Tour in order to participate in PGA Tour events.

In 2008, the PGA Tour promulgated its Anti-Doping Program (“the Program”), and on July 3, 2008, the Program went into effect. The Program was developed in conjunction with the major golf tours and governing bodies around the world and incorporated input from leading experts in the field of anti-doping. The Program was modeled on the standards of the World Anti-Doping Agency and its Anti-Doping Code.

The Program contains a list of “Prohibited Substances and Methods,” and included on this list of banned substances are Propranolol and exogenous testosterone. The Program allows players to apply for a Therapeutic Use Exemption (“TUE”). If granted, the TUE allows the player to use the substance despite its status on the list of banned substances. In order to obtain a TUE, the player must submit an application and supporting medical information. This information is submitted to a TUE Committee comprised of an independent medical advisor and one or more independent specialists of the medical advisor’s choosing with experience in the area relevant to the player’s illness or condition. The TUE Committee reviews the medical information and recommends to the PGA Tour whether to grant a TUE. Under the Program, a player may obtain a TUE if four criteria are met:

The player would experience a significant impairment to health if the Prohibited Substance or Prohibited Method were to be withheld in the course of treating an acute or chronic medical condition (the use of any Prohibited Substance or Prohibited Method to increase “low-normal” levels of any Endogenous hormone is not considered an acceptable therapeutic intervention); and

The therapeutic use of the Prohibited Substance or Prohibited Method would produce no additional enhancement of performance other than that which might be anticipated by a return to a state of normal health following the treatment of a legitimate medical condition; and

There is no reasonable therapeutic alternative to the use of the otherwise Prohibited Substance or Prohibited Method; and

The necessity for the use of the otherwise Prohibited Substance or Prohibited Method is not a consequence, wholly or in part, of a prior non-therapeutic use of any substance on the PGA Tour Prohibited List.

Prior to the effective date of the Program, on June 23, 2008, Barron submitted two TUE applications to the PGA Tour. The first application sought an exemption for the use of the beta blocker Propranolol. This application was reviewed by a TUE Committee consisting of a panel of doctors, including cardiologists. The application to use Propranolol was denied by the TUE Committee on October 10, 2008. Barron appealed the decision in accordance with the Program and the appeal was denied by the PGA Tour on October 22, 2008. Barron was instructed by the PGA Tour to begin weaning himself off of Propranolol. After his application was denied, Barron began reducing his dosage of Propranolol under a course of treatment prescribed by his medical doctor. He initially started the treatment with 160 milligrams of Propranolol, and by June of 2009, he had reduced his dosage to 40 milligrams.

The second application for a TUE sought an exemption for the use of testosterone. This application was reviewed by a TUE Committee consisting of a panel of doctors, including endocrinologists. At the request of the TUE Committee, Barron was reexamined by an independent endocrinologist. At the request of the independent endocrinologist, Barron stopped receiving monthly testosterone injections in October of 2008. The independent endocrinologist then took Barron’s blood samples in November and December of 2008. The November test indicated Barron’s Testosterone level was 325, while the December test indicated that it was 296. Both of these levels were within the normal range. The TUE Committee denied his application to use testosterone on January 21, 2009. Barron did not appeal the TUE Committee’s decision.

Barron admits that, in early June of 2009, he received a single dose of exogenous testosterone from his medical doctor. Barron then played in the St. Jude Classic golf tournament in Memphis, Tennessee, which began on June 8, 2009. In conjunction with the tournament, he signed a tournament application form, confirming his understanding that he was required to abide by the Program. On June 11, 2009, Barron was tested in connection with his play in the tournament. His sample was found to contain evidence of Propranolol and testosterone. Barron did not dispute the test results and admitted to continued use of both Propranolol and testosterone. Following the positive tests, Barron provided additional medical information to the PGA Tour on July 23, 2009, and August 12, 2009. The TUE Committees reviewed the additional information provided by Barron and found it insufficient to justify TUEs for the use of Propranolol and testosterone.

On October 20, 2009, the Commissioner of the PGA Tour, Timothy W. Finchem, provided Barron with a written decision suspending him for one year from participating in PGA Tour or Nationwide Tour competitions and any related activities (“PGA Tour events”), from September 20, 2009, to September 20, 2010. In that letter, Commissioner Finchem wrote as follows:

On June 23, 2008, you submitted a Therapeutic Use Exemption (TUE) application under the Program requesting that you be allowed to continue to use exogenous Testosterone and Propranolol. At that time, you were given full opportunity to medically justify your use of both substances. Your Therapeutic Use Exemption Application for Propranolol was denied by the PGA TOUR TUE Committee on October 10, 2008. You appealed that decision and your appeal was denied by Commissioner Finchem on October 22, 2008. Your application to use exogenous Testosterone was denied by the PGA TOUR TUE Committee on January 20, 2009. You did not choose to appeal that decision. As of October 23, 2008, you should have begun weaning off of Propranolol. As of January 21, 2009, you should have totally stopped using exogenous Testosterone. The PGA TOUR heard nothing further from you in 2009 concerning your use of Propranolol and exogenous Testosterone. We assumed, consistent with the denials of your Therapeutic Use Exemption applications, that your use of these Prohibited Substances had been discontinued.

On June 11, 2009, you provided a doping control sample. That sample was found to contain evidence of both Propranolol and exogenous testosterone. That laboratory finding is not contested, since you have subsequently admitted continuing to use both substances. We invited you to submit any new medical information that might mitigate your continued use of these substances in total disregard of the denial of your TUE applications. You submitted additional information on July 23, 2009, and August 12, 2009. The information that you provided was reviewed by the PGA TOUR TUE Committee and again, no justification for your use of Propranolol or exogenous testosterone was found.

Pursuant to Section H(5) of the Program, Barron could have appealed the PGA Tour’s ruling within seven days of receiving the notice of sanction. According to the PGA Tour, Commissioner Finchem told Barron during a telephone call that Barron “was unlikely to prevail in his appeal” and that “the third-party hearing officer would not be bound by the sanction imposed and…could impose a more significant sanction as a result of Mr. Barron’s use of two banned substances and as a result of aggravated circumstances.” According to Barron, the Commissioner said “in no uncertain terms that he would be wasting his time to appeal and that his punishment could be doubled if he appealed and lost.” Barron did not appeal the suspension.

Pursuant to Section 2(M) of the Program, the PGA Tour notified Barron that it would issue a press release regarding his one-year suspension, and invited Barron to participate in the press release by proposing a statement to be read in conjunction with the PGA Tour’s statement. On October 30, 2009, counsel for Barron sent a letter to Andrew B. Levinson, Executive Director of the Program, stating that Barron wanted the PGA Tour’s press release to include the following statement: “Doug Barron disagrees with the PGA Tour’s conclusion that he violated their Anti-Doping policy and the resulting sanction. All of the medications that were taken by Doug Barron were prescribed by his Medical Doctors for diagnosed medical conditions.” The PGA Tour declined to release Barron’s proposed statement, and instead, the following statement was released: “I would like to apologize for any negative perception of the TOUR or its players resulting from my suspension. I want my fellow TOUR members and the fans to know that I did not intend to gain an unfair competitive advantage or enhance my performance while on TOUR.”

As a result of the one-year suspension, Barron alleges that the PGA Tour has violated Title III of the Americans with Disabilities Act, because he suffers from abnormally low testosterone, which causes him to have a reduced sex drive, experience fatigue, and have a compromised immune system, and that by refusing to allow him to take exogenous testosterone and suspending him for using it, the PGA Tour has discriminated against him based on his disability. Barron also alleges in his complaint that the Program is an unconscionable contract and therefore is void; that the PGA Tour has breached its duty of good faith and fair dealing by applying the TUE provisions and imposing the sanction against him in an arbitrary and capricious manner; that by issuing a press release that was misleading, the PGA Tour defamed him and placed him in a false light; and that the PGA Tour tortiously interfered with his prospective business endorsement opportunities.

Barron argues that he qualifies as being “disabled” under the ADA because he has a physical impairment (abnormally low Testosterone) that substantially limits a major life activity (engaging in sexual relations). The Sixth Circuit has not yet found that engaging in sexual activities is “a major life activity.”

In addition to sexual relations, Barron also claims that his low testosterone causes fatigue and compromises his immune system. “Since fatigue in and of itself does not constitute an ‘activity,’ suffering from fatigue cannot qualify as a major life activity.” A major bodily function, on the other hand, including functions of the immune system, is considered a major life activity. According to Barron’s complaint, “low testosterone can prevent the body from healing at a normal rate and can further compromise a man’s immune system, placing him at a higher risk of infection and illness,” and Barron “experienced all of these symptoms.”

The court held that the PGA Tour did not violate the ADA because Barron’s requested accommodation—use of exogenous testosterone and propranolol—was not “necessary” in order for him to continue playing golf.

What is the rationale for the PGA to drug test their members?

PGA golfers do not have union representation. Should that be a consideration in the implementation of a drug testing program?

Under what circumstances should an individual’s medical condition excuse him or her from drug testing procedures?

If you were the PGA commissioner, how would you make an ethical decision concerning a player’s disability and still maintain integrity for the drug testing program?

Do you agree with the press release issued by the PGA in this case?

Barron v. PGA Tour, Inc., U.S. Supreme Court.

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