Must Tennis Accommodate Naomi Osaka?

lot of bad stuff? How do you know? I'm not caught off invested? When she's serving in boats and then I'm arguing with myself, don't do it? Do it? Don't do it? Do it? And then the ball comes and then I hit it down the line and it goes in the net, and then I'm like, why did I do it? But Osaka skipped a post match news conference after her first round victory at the French Open and

was slapped with a fifteen thousand dollar fine. She then withdrew from the Open, tweeting that she experiences huge waves of anxiety before speaking to the media and has suffered long bouts of depression. There's no court case at this point, but in the court of public opinion, it's ignited a debate about whether sports organizations should provide their star athletes

with modifications or reasonable accommodations for mental health reasons. Joining me is Ruth Kulker, a professor of constitutional law and disability discrimination at Ohio State University. Ruth, what's your first

reaction to what happened to Osaka? Well, I think that we need to think about this through a disability frame, in that people for whom their disability is such that they would request accommodations entity should be reasonable and considering this requests, and I think in her case, her request to skip post match press conference should certainly be considered to be reasonable. Ruth, with the Americans with Disabilities Act cover a situation like this if it happened in this country.

As you may know, the U. S t A has stated publicly that they would expect Naomi a SOCCA to attend press conferences if she participated in their tours, and so they went through with that rule without accommodating her disability. In my view, they would likely be in violation of the ADA. The ADA says that a disability is a physical or mental impairment that the stantcy limits one or

more major life activities. And so it specifically says physical as well as mental and mental health issues are obviously something that can constitute an impairment. The tennis organizations require these press conferences, how would that requirement be viewed in the framework of the AD. So, what the A d A says is that employers can put down in writing what they considered to be the essential job trunkstens of

our particular job. So I'm a law professor, so if my employer would put down what are the essential fences of my job, you would expect them to include things like teaching my classes, right, something of that sort. And if the employer puts down to something that's essential, then the courts tend to air on the side or tend to conclude that it probably is essential. But that doesn't preclude the employee from saying, you know, actually that was personal,

not essential. And so if it's only a personal part of the job, then you can ask for an accommodation to be excused from engaging in that part of the activity. So, when we think about tennis, we think about the U s t A running a tennis tournament, we think that most of us would say, well, the essential thing is getting to the court, being there on time, using a racket that meets the guide that they have. Possibly we're in clothing that they they know is befitting of the

match that's going to be held. And so that's when most of us, I think, would say is essential about tennis? And now the U s t A is adding onto that by saying what attendee press conferences is potential. That's something that an employee would be able to challenge and say, wait a minute, why are you saying that? Why is that so essential? How does that affect the game that's being played that I'm an employee of your entity and

engaging in that kind of activity. So, Ruth, twenty years ago, Casey Martin sued the PGA to be able to use a golf card during competition and that turned out to be a victory for disability rights. How might that ruling apply here? Right, that's the perfect analogy. So what happened in the Casey Martin cases that Casey Martin has a genetic disorder in his leg, which makes it very difficult

for him to stand for extended periods of time. He can stand enough to go to the tea and play golf um, but if he would walk from shot the shot, hole the whole um, it would so impair him that he had actually would be at risk of having his like amputated. That's that's how serious his physical impairment is. And so he could not literally play golf on in certain PGA tournaments if they were not going to allow him to use a golf card to advance from hole

to hole. And there was a rule in writing that said that you had to walk on hole the whole you were not allowed to use a golf card. So that's a little bit like the Naomia Softwa situation. Right, there's a rule in writing it says you're expected to

attend these press press conferences. Well, Casey Martin argued, was it was reasonable to modify the rules to accommodate his very serious physical impairment by allowing him to ride the golf card from whole the whole, and that that would not fundamentally alter the nature of the enterprise that the PGA was running, and in particular would not give him a competitive advantage by sitting in a golf cart rather than walking from hole the whole the p g E

disagree with him. They felt that it gave him a competitive advantage, and that was a factual question. There was a hearing at which various renowned golfers testified in both directions, and at the end of the day, the court concluded that, um, writing a golf cart wasn't an essential aspect of the game. It wasn't like changing the club or the way to

the balls, or the way you kept score. Um. And so it's I think it's very analogous talking on a Saki situation, because I think attending a press conference even more peripheral to the game of tennis than writing a

golf cart when you play golf. So from that precedent, it sounds like Naomi Osaka would have a great case that she did decide to sue, right, and you know, I would hope that that the U. S t A got some lousy llegal advice and acted a little hastily, and then upon further reflection, um, they require this to become a legal case, that they'll they'll talk with Naomi Osaka and they'll have a conversation they'll figure out how they can recently accommodate her so that so that the

world has an opportunity to see this great tennis player play tennis um and they have an opportunity to do the kind of publicity that that's necessary for them as a business to have these tournaments. When you compare the reaction of the French Tennis Federation to Roger Federer withdrawing to preserve his knee and his energy for Wimbledon, he said, it's important that I listened to my body and I don't push myself too quickly on my road to recovery.

And the president of the French Tennis Federation didn't question his decision, said he had too much respect for Roger, and Federer was not fine for the withdrawal. It seems like a stark contrast to what happened to Osaka, wondering that the comparison between you know, a physical problem and a mental problem, or perhaps between a man and a woman.

I don't know. Yeah, Well, as I said, the French Federation wouldn't be covered by the AD, they be covered by their own domestic law, and I'm not an expert

in French domestic law. With regard to disability. But typically what laws said both the US and the international level says that both physical and mental impairments are equally considered to be disabilities, and therefore the rules about accommodation would be exactly the same um and if if someone is treated differently, then that sounds to me like a discrimination problem.

But as I think you know in the United States that there's been a lot of attention in recent years that we should take mental health disabilities as seriously as

we take physical health impairments. And so I think one of the things in Naomi Assaca case is raising for us as a as a community is to just remember that mental health impairments are everybody's real and physical impairments, and so hopefully people are treating Miami Assaca with respect that she entitled to as someone who's's claiming to have a mental health compairment. Thanks Ruth, that's law Professor Ruth Coulker of Ohio State University. This is Bloomberg Law with

June Brussel from Bloomberg Radio. The Supreme Court is approaching the finished line of the term, with decisions in twenty two cases to be handed down before the Jostices take off for three months of vacation. Among those cases are the constitutionality of Obamacare, a case involving Foster Care that pits religious rights against gay rights, an election law case that could be consequential, a case on college athletes compensation,

and on whether schools can regulate off campus speech. The Jostices are also deciding which case is to take for next term. Joining me is Kimberly, Strawbridge, Robinson, Bloomberg Law, Supreme Court Reporter Kimberly, Let's start with a disagreement between the White House and the Justice Department on a case for next term. There's a provision in federal law that the White House has expressed disagreement with, but the Justice Department plans to defend at the Supreme Court tell us

about that right. So there's this case that the Supreme Court has agreed to hear at the request of the federal government, which is a lower court ruling that found that the federal law violated equal protection. And what this law does is it provides uh supplemental Social Security income to UH low income individuals who are either elderly, blind, or in another way disabled. The law, though applies in the fifty States and DC and some other charactories, but

does not apply in Puerto Rico. And that's why the

lower court said, uh, that this law was invalid. The Supreme Court is going to review that, and in doing so, the parties have filed their brief and the Department of Justice files there's earlier this week, and it was accompanied by kind of a strange statement by the White House which said, while the White House doesn't agree with this law, it is the duty of the Justice Department to defend federal laws, and that that's the approach that it's going

to take here as well. The Justice Department hasn't defended every federal law. For example, recently, the Trump administration didn't defend Obamacare. That's right. And you know, we we've seen occasionally from not just the Trump administration but administrations before that,

that this so called duty to defend isn't really iron clad. Uh, And so I think most famously, we saw the Obama administration refused to defend the Defense of Marriage Act, which defines marriage as between a man and a woman for all federal purposes. And you know, this happens a handful

of times. That's happened a few dozen times since the nineteen seventies, and it really depends on, you know, the administration and how far they're they're willing to go to defend a statute that they think is really not defensible. There have been Supreme Court arguments where the Justices asked the lawyers why they had changed positions in the case,

especially during the Trump administration. There were sometimes two different agencies, the Justice Department and for example, the E O. C. We're arguing against each other, even that's right, and so that situation is a little bit different. Sometimes in those situations, the administration is defending law, but they're defending it in kind of a different way. Um, and so the Supreme Court will ask will appoint someone to argue uh that

position as well. Uh. The Biden administration has done this quite a bit as well, shifting positions from uh previous positions taken by the Trump administration. And you know, I think that's just something that the Justices expect to see whenever they see administrations turnover, particularly when they turnover from a Republican to a Democrat or vice versa. So now the Supreme Court turn to way a case over the

mail only draft, the Supreme Court ruled on this. Tell us about the ruling in one, Well, the Supreme Court back in nine eight one did have a challenge for the mail only draft, and they said at the time that that was okay. One of the things that they looked at was the fact that women at the time were actually barred from combat duty, and of course that

has changed over the over the past decade. The reason I think that the Supreme Court decided not to take up this case wasn't because they think that that's still a good rule, but because this is something that Congress

is actively considering. And so it seems, at least for now, that the Supreme Court is going to let Congress take a whack at the first uh, and then maybe down the line if nothing happens, we'll see the Justice Stepan who brought this case, Well, this was brought by a group um who was in the A C. L U who is challenging, Um, you know this mail only draft. Who wants to see it really opened up? Uh? Two

females as well, um, which is something interesting. It's not all the time that we see people asked to be part of registering for the draft, but you know, that's something I think that from a feminism or from equal protection is something that is important for this group. And

what did the Fifth Circuits say about this? Well, the Circuits said, you know, it's really up to the Supreme Court to change the law, even though facts on the ground have changed, it's not the prerogative of the lower federal courts to you know, change or to ignore Supreme Court precedent. That really the challengers were stuck making their case to the Justice tell us about the comment that was written by Justice Sonia Soto Mayor, joined in by

Justices Steven Bryan and Brett Kavanaugh. Right, so this is uh kind of an odd matchup here, um, you know, having two of the Court's liberals joined by Brett Kavanaugh. But essentially they said, you know, this is something that Congress is trying to work out for itself. And they said, you know, at least now we're gonna go ahead and defer to Congress and let them take you know, this

issue up and have the first shot at it. But they didn't leave out the possibility that, you know, if Congress fails to act, that the support will be there waiting to hear the case. I was trying to figure out why those three might want to make that kind of a statement in this case. Yeah, we don't really know. I mean, oftentimes we don't even have any statement from the justices telling us, you know, who voted to turn

the case away, who voted to take it up. Uh. Here we do have this statement from these three justices again and an odd kind of mix. Um, we don't know why others didn't join. But you know, it is more information than we than we typically have. So let's turn now to And this isn't an area that I think a lot of people have heard about the Foreign

Intelligence Surveillance Act FISA. So tell us the issue here. Sure, So this is the case that the Supreme Court agreed to take up for next term, and it deals with the vision that changes the way that courts are supposed to look at evidence that's claimed by the government to involve state secrets. So these are things that could threaten

national security. And the challenge here, um is that the Ninth Circuit said that when Congress packed the Foreign Intelligence Surveillance Act, that it actually did away with what courts had been previously doing under judgments law UH and created this new process for courts to consider UH. The state secrets, and in this process, the government has to turn over the information to the court, whereas before they did not.

The court kind of trusted that the government was was protecting state secrets and that these things would implicate uh, national security. Uh, that's not the case, at least not in the Ninth Circuit, which is where this case comes from. And so the Supreme Court has decided to take a look as well. What was the distinction the Ninth Circuit

made to reject the government's argument. Yeah, they said that, you know, once Congress passed this act fight so that it actually did away with this kind of judgments rule. It said, you know, we made up this rule in the absence of their being a congressional statute. But now that there is a statute, we have to follow what the statute says. The government, for its part, says, you know, Congress didn't want to do away with the whole way

that churts we're doing it. It was just really in this really small deliver of cases where the government wants to affirmatively use the evidence against someone else. Um, so they're urging the stream Court just rule that this process only applies in a really narrow circumstance and not in in case like this where individuals are trying to use the information against the government and explain who brought the case.

These are three Muslim men who claimed that they were targets of what they call a dragnet surveillance program by the FBI. You know, this was alleged to have been a year long surveillance not just of these three people, but of just Muslim individuals in general that eventually ended up targeting these three. Um, so those are their claims.

This is on a really early process that this case is in and so none of those facts have been proven yet, but at least for now, that's the way that the Court is operating, that what's been alleged it's true. So it's June and we're waiting for the Supreme Court decisions in cases that will argue this term, these really high profile cases. Lately, they've been handing down opinions in cases that didn't get a lot of notice, but the big cases have yet to come. Obamacare. It's sort of

puzzling to me because it was argued in November. Most people assume from the argument that the justices wouldn't be doing away with Obamacare. Why do you think it's taking so long? Well, I do agree with that the justices didn't seem to want to go as far as the challengdars here were urging them to go and on is to find that the whole Act, all the provisions in

Obama here were invalid. I do think one of the reasons that it's taking so long is that there are a lot of other issues in the case, so that you know, was just one part of kind of three parts to the case, and all these issues. There's a standing issue about who can bring a case. There's the merits issue about whether or not the certain provisions of the law is valid, and then there's this severance issue about whether or not, you know, if that provision is valid,

if the whole Act must fall. And so there's a lot of ways for the nine justices to come out differently, and I think we're we're going to be expecting one of those decisions where we get, you know, one justice concurring and joining in part A one B two four, but not A one B two five or or whatever it might be looking forward to that um. And now a case that has drawn a lot of attention is the case where gay rights and religious rights seemed to be in conflict. Tell us about that case that's right,

that was actually argued way back in November two. I think one of the reasons that this case is taking so long, it's just because it's genuinely a really difficult issue for the justices to sort out. So this is, as you hinted at, one in a long line of cases where the justices are trying to balance you know, these anti discrimination laws that are meant to protect LGBT citizens and you know, the rights of other individuals to

practice their religion freely. And this case is made even more difficult because we're dealing with the Philadelphia foster care system and Catholic Social Services, which has actually been involved in Philadelphia's foster care system longer than the city itself. So these issues are really tough for the justices, and I suspect that they're trying to work through an opinion

that really respects both sides. Often the most controversial cases seem to get decided in the last days of the term, and some people say it's because those are complicated decision ends and it takes a while to get all the opinions in etcetera, etcetera. But could the court be holding back these controversial decisions until the last minute before they scoot off for vacations. Well, they do say that as the opinions there are finished, that's when they send them out.

It may be that the justices, you know, it does just take more time to write an opinion that has a majority and a descent than it does take to write a unanimous opinion. And that's what we've been getting

most often so far up to the term. Are just these really short unanimous opinions, sometimes just a few pages long, where when you have one of these controversial cases that are gonna divide the justices maybe five four or six three, you have to put out a majority opinion, you have to get a dissent, They have to respond to the descent. The descent might change as well, and so you know, it does just take them longer to even write the decision, let alone come up with the right answer. Maybe I'm

just too suspicious, Kimberly. So. Also, there are two cases from Arizona that involve election law that could have far reaching impacts. That's right, and this case is really flying under the radar. If so much has happened this term with the death of RBT and with the newest justice and trying to figure out how this court is going to shake out that this one has been flying under the radar. The issue in the case deals with two specific Arizona provisions. But the case is important because it

could implicate really most voting rights challenges going forward. And so to understand this case, you have to understand the Supreme Court's decision in Shelby County, which undid a really large protection for voting changes that required that dates with a history of discrimination get their voting changes pre cleared before those changes can go into effect. That's no longer the law, although there are some efforts in Congress change that, and now what's left is kind of an after the

fact challenge. And because it's an after the fact challenge, most challenge just have happened under that preclearance formula. Now the Supreme Court is kind of playing catchup and setting the rules or what it's going to look like when courts try to analyze those challenges under this other provision. Now, a case that did not fly under the radar was the case involving off campus speech and a cheerleader who said some things that the school found objectionable. That's right.

This was, you know, an individual who was upset that she didn't make the varsity team when someone else did. I think we can all relate to how she was feeling. But she did use the F word on social media and was punished subsequently for using those terms. And this is a really hard case for the justices too, because they had decided a case long ago that says, when you're at school, you lose some free speech protection, but

you do hold on to a lot of them. But that is you just get, you know, kind of muddied up whenever you're talking about social media, which maybe it doesn't happen on campus, but it affects campus in a way that those issues just weren't there when the Supreme Court has decided that school speech cases before. And so it's another one of these cases where the Justices are trying to kind of update their old case longs to incorporate new technology. Are there any other cases that you're

looking for particularly? I think that really does capture most of the cases that we're watching really closely. There is another challenge from the n C double A, which looks at whether or not student athletes can be paid for playing their sport, given that so many schools do really benefit financially from things like football and basketball programs. So

that's another one to watch. But I'm going to be watching to see too how this court, newly reconstituted with these three Trump appointees, comes out, if they're going to continue to be unanimous and a lot of these cases, or as we get closer to the end of the term, whether it's going to be more divided. And also all eyes are on Justice Stephen Bryer because people think that if he's going retire this year, he would do it

on the last day of the term. He doesn't have to do it on the last day of the term, right right, He can do can do whatever they want, But that is a traditional time. You know, we saw Justice Kennedy announced after the screen Court had announced his last opinions for the term, say that he was going to be stepping away from the bench. And that makes a lot of sense because it gives the president time to nominate someone in Congress, time to hold hearings and

to confirm someone. So I would suspect that if Justice by our plants to step away that he'll do it at the end of June, but as you mentioned, of course he can do it whenever he wants. Thanks Kimberly, that's Bloomberg Law. Supreme Court reporter Kimberly Strawbridge Robinson, this is Bloomberg