US Supreme Court Briefs

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CASEY MARTIN,
                                                     Nos. 98-35309
Plaintiff-Appellee,
                                                          98-35509
v.
                                                     D.C. No.
PGA TOUR, INC., a Maryland
                                                     CV-97-06309-TMC
corporation,
                                                     OPINION
Defendant-Appellant.


Appeals from the United States District Court
for the District of Oregon
Thomas M. Coffin, Magistrate Judge, Presiding


Argued and Submitted
May 4, 1999--Portland, Oregon


Filed March 6, 2000

Before: William C. Canby, Jr. and Thomas G. Nelson,
Circuit Judges, and Jeremy Fogel,1  District Judge.


Opinion by Judge Canby

_________________________________________________________________

1 The Honorable Jeremy Fogel, United States District Judge for the
Northern District of California, sitting by designation.



COUNSEL

William J. Maledon, Andrew D. Hurwitz, Osborn Maledon,
Phoenix, Arizona, for the defendant-appellant.


Roy L. Reardon, New York, New York, for the plaintiff-
appellee.


Thomas E. Chandler, United States Department of Justice,
Washington, D.C., for amicus United States; Guy G. Ward,
Mayer, Brown & Platt, Chicago, Illinois, for amicus U.S. Golf
Association; Brian D. Shannon, Texas Tech University
School of Law, Lubbock, Texas, for amicus Klippel-
Trenaunay Syndrome Support Group.


_________________________________________________________________

OPINION

CANBY, Circuit Judge:

PGA Tour, Inc. ("PGA") appeals from the district court's
decision in favor of Casey Martin, a disabled professional
golfer, ordering PGA to make an exception to its "walking
rule" to allow Martin to ride a golf cart during PGA competi-
tions. We conclude that the Americans with Disabilities Act
("ADA") applies to PGA competitions and that allowing Mar-
tin to use a cart is a reasonable accommodation that does not
fundamentally alter the nature of those events. We therefore
affirm the district court's decision.


                               2457


BACKGROUND

Casey Martin suffers from Klippel-Trenaunay-Weber Syn-
drome, a congenital, degenerative circulatory disorder that is
manifested in a malformation of his right leg. This disorder
causes Martin severe pain and atrophy in his lower leg, ren-
dering him unable to walk for extended periods of time. The
mere act of walking subjects him to a significant risk of frac-
ture or hemorrhaging. There is no dispute that Martin is pro-
foundly disabled.


PGA is a non-profit association of professional golfers.2 It
sponsors three competitive tours: (1) the PGA Tour, its most
competitive tour, (2) the Nike Tour, one step down from the
PGA Tour, and (3) the Senior PGA Tour, restricted to profes-
sional golfers age 50 and over. On days of tour competition,
PGA is the operator of the golf course.3


The primary means of gaining entry to the PGA Tour and
Nike Tour is by a competition known as the qualifying
school. The best scorers in that competition qualify for the
PGA Tour, and the next-best finishers qualify for the Nike
Tour. Players in the Nike Tour may qualify for the PGA Tour
by winning three Nike Tour tournaments in one year or by
being in the top fifteen money-winners in the Nike Tour.


The qualifying school competition is conducted in three
stages. In the first two stages, players are permitted to use golf
carts. In the third stage, and in the PGA and Nike Tours them-
_________________________________________________________________
2 We refer hereafter to the defendant PGA Tour, Inc. as "PGA," in order
to differentiate it from the PGA Tour, which is one of the three tours spon-
sored by PGA Tour, Inc.
3 The term "operates," as it is used in the ADA, is extensive and "would
include sublessees, management companies, and any other entity that
owns, leases, leases to, or operates a place of public accommodation, even
if the operation is only for a short time." 28 C.F.R. ch. I, pt. 36, app. B.,
at 628 (1999).


                               2458


selves, players are required to walk as they play the course.4
After qualifying for the third and final stage of the 1997 quali-
fying school, Martin requested permission from PGA to use
a golf cart. PGA denied this request, and Martin sued.


The district court granted Martin a preliminary injunction
and, using a golf cart, he performed well enough in the final
stage of the qualifying school to earn a spot on the 1998 Nike
Tour. The court subsequently granted Martin partial summary
judgment, holding that PGA is subject to Title III of the ADA
because it owns, operates and leases golf courses, which the
ADA identifies as places of public accommodation. 5 Martin
v. PGA Tour, Inc., 984 F. Supp. 1320 (D. Or. 1998). After a
six-day bench trial, the district court concluded that modify-
ing the walking rule for Martin was a reasonable accommoda-
tion that did not fundamentally alter the nature of PGA golf
tournaments. Martin v. PGA Tour, Inc., 994 F. Supp. 1242 (D.
Or. 1998). It accordingly entered a permanent injunction
requiring PGA to permit Martin to use a golf cart in PGA and
Nike Tour competitions in which he is eligible to participate,
and in any qualifying rounds for those tours. PGA appeals.6


DISCUSSION

I. Applicability of Title III (Public Accommodation)

The district court granted Martin's motion for summary
judgment, holding that, as a matter of law, Title III of the
_________________________________________________________________
4 Players are permitted to use golf carts on the Senior Tour.
5 The district court also ruled that PGA is not exempt from the ADA as
a "private club," see 42 U.S.C.S 12187, because, among other reasons, it
is a commercial enterprise offering athletic events to the public. Martin,
984 F. Supp. at 1326. PGA has not challenged that ruling on this appeal.
6 The district court awarded Martin attorneys' fees and costs. PGA has
protectively appealed that order; it does not contest the amount but seeks
reversal of the award if it succeeds on appeal. Because we affirm on the
merits, we also affirm the award of fees and costs to Martin as the prevail-
ing party.


                               2459


ADA applies to the PGA and Nike Tour competitions. We
review de novo the district court's interpretation of the ADA.
Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir.
1999).


[1] We begin our analysis, as did the district court, with the
terms of the statute. The basic anti-discrimination clause of
Title III of the ADA provides:


       No individual shall be discriminated against on
      the basis of disability in the full enjoyment of the
      goods, services, facilities, privileges, advantages, or
      accommodations of any place of public accommoda-
      tion by any person who owns, leases (or leases to),
      or operates a place of public accommodation.


42 U.S.C. S 12182(a). The first issue for decision is whether
Martin seeks to enjoy the facilities of a "place of public
accommodation." The definition section of Title III of the
ADA provides:


       The following private entities are considered pub-
      lic accommodations for purposes of this subchapter
      . . .


      . . .

      (L) a gymnasium, health spa, bowling alley, golf
      course, or other place of exercise or recreation.


42 U.S.C. S 12181(7)(L) (emphasis added). There is nothing
ambiguous about this provision; golf courses are public
accommodations. Indeed, PGA does not dispute that during
one of its tournaments a golf course is a public accommoda-
tion with regard to the spectator areas; its contention is that
the competitors' area "behind the ropes" is not a public
accommodation because the public has no right to enter it.


                               2460


Despite the surface plausibility of this argument, it too nar-
rowly construes the nature of a public accommodation.


[2] The district court held that a public accommodation
could not be compartmentalized in the fashion PGA desired.
At least in the present context, we agree. It is true that the
general public cannot enter the area "inside the ropes," but
competitors, caddies, and certain other personnel can. PGA
contends that the restricted area is not being used as a "place
of exercise or recreation," within the meaning of
S 12181(7)(L), because the competitors are trying to win
money, not exercise or recreate. Even if we were to agree
with this point, it would not aid PGA. The statute also defines
"public accommodation" to include a "theater, . . . stadium or
other place of exhibition or entertainment." 42 U.S.C.
S 12181(7)(C). If a golf course during a tournament is not a
place of exercise or recreation, then it is a place of exhibition
or entertainment. The statute does not restrict this definition
to those portions of the place of exhibition that are open to the
general public. The fact that entry to a part of a public accom-

modation may be limited does not deprive the facility of its
character as a public accommodation. See Independent Living
Resources v. Oregon Arena Corp., 982 F. Supp. 698, 759 (D.
Or. 1997) (arena's executive suites contracted by businesses
are public accommodations). Indeed, the underlying premise
of the cases dealing with disabled student athletes is that Title
III applies to the playing field, not just the stands. See, e.g.,
Bowers v. National Collegiate Athletic Ass'n, 9 F. Supp. 2d
460, 483-90 (D.N.J. 1998); Tatum v. National Collegiate Ath-
letic Ass'n, 992 F. Supp. 1114, 1121 (E.D. Mo. 1998);
Ganden v. National Collegiate Athletic Ass'n, 1996 WL
680000, at *8-11 (N.D. Ill. Nov. 21, 1996); see also Anderson
v. Little League Baseball, Inc., 794 F. Supp. 342, 344 (D.
Ariz. 1992) (undisputed that Title III applies to access to
coaches' box on baseball field).


The Third Circuit dealt with a somewhat analogous prob-
lem in Menkowitz v. Pottstown Memorial Medical Center, 154


                               2461


F.3d 113 (3d Cir. 1998). There a physician with a disability
sued a hospital under Title III after it denied him hospital staff
privileges. The Third Circuit rejected the argument that Title
III could be invoked only by the patients of a hospital, and
held that denial of staff privileges qualified as a denial of "full
and equal enjoyment of the goods, services, facilities, privi-
leges, advantages, or accommodations of any place of public
accommodation" prohibited by Title III, S 12182(a). Id. at
122. Staff privileges, of course, entail access to parts of the
facility to which patients and the general public are denied
entry.


In contending that it may compartmentalize golf courses
during tournaments, PGA leans heavily on two examples set
forth in the regulations. One is of a "mixed use facility," in
the form of a large hotel that has a separate residential wing.
See 28 C.F.R. ch. I, pt. 36, app. B, at 623 (1999). The non-
public residential wing (which would be covered by the Fair
Housing Act) is not a place of "public accommodation." See
id. The hotel wing, however, would fall under 42 U.S.C.
S 12181(7)(A) as an "inn, hotel, motel, or other place of
lodging." 28 C.F.R. ch I, pt. 36, app. B, at 623; see 42 U.S.C.
S 12181(7)(A). But in this example, the residential wing has
never functioned as a hotel. A golf course during a tourna-
ment, however, is serving as a golf course.


The other example cited by PGA is that of a commercial
facility, such as a factory, that allows public tours over spe-
cific routes at particular times. See 28 C.F.R. ch. I, pt. 36, app.
B, at 624. The tour route is a public accommodation but the
portions of the facility merely viewed from that route are not.
See id. There are two reasons why this example is not persua-
sive. First, it applies to commercial facilities "not otherwise
a place of public accommodation." Id. Second, the example
would be analogous only if Martin were a spectator seeking
to use his golf cart within the competitors' area of a tourna-
ment.


                               2462


[3] This point brings us to the greatest difficulty with
PGA's argument. It assumes that there is nothing public about
the competition itself. According to PGA, the fact that its
tournaments are restricted to the nation's best golfers means
that the courses on which they play during tournaments
cannot be places of public accommodation. But the fact that
users of a facility are highly selected does not mean that the
facility cannot be a public accommodation. For example, Title
III includes in its definition "secondary, undergraduate, or
postgraduate private school[s]." 42 U.S.C.S 12181(7)(J). The
competition to enter the most elite private universities is
intense, and a relatively select few are admitted. That fact
clearly does not remove the universities from the statute's
definition as places of public accommodation. It is true that
the rest of the public is then excluded from the schools, but
the students who are admitted are nevertheless members of
the public using the universities as places of public
accommodation.7


[4] Competition to enter the select circle of PGA and Nike
Tour golfers is comparable. Any member of the public who
pays a $3000 entry fee and supplies two letters of recommen-
dation may try out in the qualifying school. At the initial
stage, it seems plain that the golf course on which the elimina-
tion begins is a place of public accommodation. As even PGA
admits, "[t]he competition areas of some amateur sporting
events may well constitute places of public accommodation
under Title III of the ADA when virtually any member of the
public can participate." We fail to see, however, why a win-
nowing process would change the nature of the facility. If a
_________________________________________________________________
7 Title III does not restrict its coverage to members of the public; it pro-
vides that "No individual shall be discriminated against" in the enjoyment
of public accommodations by reason of disability. 42 U.S.C. S 12182(a)
(emphasis added). This provision does not, however, grant access to a
place where the individual is not entitled to be; the rejected applicant for

admission is not entitled to access to the university, and the spectator is
not entitled to access to the tees, fairways and greens during a PGA golf
tournament.


                               2463


stadium owner invited the public to compete in long distance
races, and continued to run heats until only the ten best run-
ners remained, the track would be no less a place of public
accommodation when the final race was run. We see no justi-
fication in reason or in the statute to draw a line beyond which
the performance of athletes becomes so excellent that a com-
petition restricted to their level deprives its situs of the charac-
ter of a public accommodation. Nor do we see any such
justification for drawing a line between use of a place of pub-
lic accommodation for pleasure and use in the pursuit of a liv-
ing.


[5] We conclude, therefore, that golf courses remain places
of public accommodations while a PGA tournament is being
conducted on them.


II. Reasonable Modification (Accommodation)

Title III further defines "discrimination" to include:

      a failure to make reasonable modifications in poli-
      cies, practices, or procedures, when such modifica-
      tions are necessary to afford such goods, services,
      facilities, privileges, advantages, or accommodations
      to individuals with disabilities, unless the entity can
      demonstrate that making such modifications would
      fundamentally alter the nature of such goods, ser-
      vices, facilities, privileges, advantages or accommo-
      dations.


42 U.S.C. S 12182(b)(2)(A)(ii) (emphasis added).

[6] Here, it is clear that permitting Martin to use a golf-cart
is "reasonable" in the sense that it solves the problem of Mar-
tin's access to the competition. It is also "reasonable," as the
district court found, in that golf-carts are used in other compe-
titions (such as those on the Senior Tour), and it is not a diffi-
cult practical matter to permit them. Use of a golf cart is also


                               2464


"necessary"; there was ample evidence to support the district
court's finding that Martin could not walk the course, even
with artificial aids. These matters are no longer in serious
contention.


[7] The issue on which most of the dispute centers is
whether permitting Martin to use a golf cart will
"fundamentally alter" the nature of the goods or service--the
PGA or Nike Tour. It is readily apparent that walking is not
essential to the generalized game of golf. Rule 1-1 of the
Rules of Golf, promulgated by the United States Golf Associ-
ation and the Royal and Ancient Golf Club of St. Andrews,
Scotland, states:


      The Game of Golf consists in playing a ball from the
      teeing ground into the hole by a stroke or successive
      strokes in accordance with the Rules.


These Rules do not require players to walk. Indeed, PGA does
not require players to walk in the early stages of the qualify-
ing school or in the Senior Tour.


PGA correctly points out, however, that it is not offering
the generalized game of golf in its PGA and Nike Tours, it is
offering a particular competition. PGA provides, in the Condi-
tions of Competition for its PGA and Nike Tours, that
"[p]layers shall walk at all times during a stipulated round
unless permitted to ride by the PGA TOUR Rules
Committee." On occasions when the Committee has permitted
players to ride, the waiver applies to all competitors, as when
all players must be shuttled from the 9th green to the 10th tee
when the distance is great. It also appears that, to save time,
rides have been given from the fairway back to the tee to
players who have lost a ball and must tee off again.


The issue for decision, then, is whether the accommodation
of permitting Martin to use a golf cart fundamentally alters


                               2465


the PGA and Nike Tour competitions. That issue was fully
tried in the district court.


The district court found that the purpose of requiring play-
ers to walk was to inject a fatigue factor into the shot-making
of the game. Martin, 994 F. Supp. at 1250. It also found, how-
ever, that "the fatigue factor injected into the game of golf by
walking the course cannot be deemed significant under nor-
mal circumstances." Id. It further found that, at the low levels
of intensity of exercise involved in untimed walking of a golf
course during a competition, "fatigue . . . is primarily a psy-
chological phenomenon . . . . Stress and motivation are the
key ingredients here." Id. at 1251. The court noted that, given
the choice of carts or walking in other tours, large numbers of
players chose to walk. See id. In the events in which PGA per-
mits carts, it assigns no handicap penalty to those who ride as
opposed to those who walk. See id. at 1248.


There was ample evidence to support all of these findings,
and they are not clearly erroneous. Against this background,
the district court evaluated whether use of a cart would give
Martin an advantage over the other players who were required
to walk. Even with a cart, Martin must walk about twenty-five
percent of the course because the cart cannot be brought near
to the ball in many cases. Martin endures significant pain
while walking, and while getting in and out of his cart. The
district court, after considering these factors, found that Mar-
tin "easily endures greater fatigue even with a cart than his
able-bodied competitors do by walking." Id.  at 1252.


[8] In light of these findings, we conclude, as did the dis-
trict court, that permitting Martin to use a golf court in PGA
and Nike Tour competitions would not fundamentally alter
the nature of those competitions. The central competition in
shot-making would be unaffected by Martin's accommoda-
tion. All that the cart does is permit Martin access to a type
of competition in which he otherwise could not engage


                               2466


because of his disability.8 That is precisely the purpose of the
ADA. See 42 U.S.C. S 12101(a)(5) (discrimination against
disabled includes "failure to make modifications to existing
facilities and practices"); Crowder v. Kitigawa, 81 F.3d 1480,
1483 (9th Cir. 1996) (Congress intended ADA to cover dis-
criminatory impact of facially neutral barriers).


PGA argues that the kind of balancing engaged in by the
district court and now by this court is wholly illegitimate. It
agrees that some athletic rules, such as dress codes or uniform
requirements, may be subject to exceptions to accommodate
the disabled. But it contends that a rule intended to affect the
competition cannot be made subject to exception. According
to PGA, the case should have ended in its favor the moment
the district court concluded that the purpose of PGA's
walking-only rule was to inject the fatigue factor into the
competition. Once that rule is determined to be "substantive,"
according to PGA, it is not subject to exceptions to accommo-
date disability.


[9] The difficulty with this position is that it reads the word
"fundamentally" out of the statutory language, which requires
reasonable accommodation unless PGA can demonstrate that
the accommodation would "fundamentally alter the nature" of
its competition. 42 U.S.C. S 12182(b)(2)(A)(ii). PGA essen-
tially argues that permitting a player to ride alters the compe-
tition and inquiry must stop there. It makes all alterations of
the competition fundamental. But the statute mandates an
inquiry into whether a particular exception to a rule would
"fundamentally alter" the nature of the good or service being
offered. The issue here is not whether use of carts generally
would fundamentally alter the competition, but whether the
use of a cart by Martin would do so. The evidence must
_________________________________________________________________
8 We note that the NCAA and Pac-10 rules of competition require play-
ers to walk and carry their own clubs. Martin applied for, and was granted,
a waiver of that rule that permitted him to compete in college tournaments

when he was a student.

                               2467


"focus[ ] on the specifics of the plaintiff's or defendant's cir-
cumstances and not on the general nature of the
554<!>accommodation." Johnson v. Gambrinus Co./Spoetzl


Brewery, 116 F. 3d 1052, 1060 (5th Cir. 1997). We cannot tell
whether a golf cart for Martin fundamentally alters the com-
petition without first investigating whether walking is funda-
mental to the competition. The mere fact that PGA has
defined walking to be part of the competition cannot preclude
inquiry, or PGA will have been able to define itself out of
reach of the ADA. The district court, as we have said, found
that the fatigue factor injected into the game by walking was
not significant, and that finding was not clearly erroneous.


The nature of the district court's findings reflect the fact
that whether an accommodation fundamentally alters a com-
petition is an intensively fact-based inquiry. For that reason,
we reject PGA's argument that permitting Martin to use a golf
cart would open the door to future decisions requiring that
disabled swimmers or runners be given a head start in a race,
or that a growth-impaired basketball player be allowed to
shoot 3-point baskets from inside the three-point line. We
have little doubt that fact-based inquiries into the effects of
such accommodations would result in rulings that those
accommodations fundamentally altered the competitions. The
same would be true if Martin were seeking to use a special
golf ball that carried farther than others, or was seeking to
play a shorter course than his competitors. Martin, however,
seeks only to use a cart between shots, and the district court,
after considering the evidence presented in a full trial, found
that this accommodation does not fundamentally alter the

competition.

PGA next contends that it was wholly improper for the dis-
trict court to consider whether Martin's condition was such
that riding would not give him an unfair advantage over com-
petitors who walked. PGA has steadfastly declined to con-
sider Martin's condition in adhering to its position that
permitting him to use a cart would fundamentally change its


                               2468


competition. It contends that it would be far too burdensome
for PGA to determine whether disabled individuals using carts
would have an advantage over non-disabled walking competi-
tors. PGA relies on Sandison v. Michigan High Sch. Athletic
Ass'n, 64 F.3d 1026 (6th Cir. 1995), which upheld an upper-
age limit for high school athletes. Sandison rejected an argu-
ment that over-age would not provide a competitive advan-
tage for the learning-disabled plaintiffs because they were of
only average athletic ability; it stated that "[i]t is plainly an
undue burden to require high school coaches and hired physi-
cians to determine whether [various] factors render a student's
age an unfair competitive advantage." Id. at 1035; see also
McPherson v. Michigan High Sch. Athletic Ass'n, 119 F.3d
453, 462 (6th Cir. 1997) (upholding maximum eight-semester
eligibility rule on same grounds); Pottgen v. Missouri State
High Sch. Activities Ass'n, 40 F.3d 926, 931 (8th Cir. 1994)
(same).


The foundation of these cases, however, was a finding, or
evidence compelling a finding, that the rule against older or
more experienced high-school athletes was necessary to pro-
tect the competition in the lower age group, and to prevent
"red-shirting" of athletes to permit them to compete when
older and more experienced than the others. See Sandison, 64
F.3d at 1035; McPherson, 119 F.3d at 462; Pottgen, 40 F.3d
at 931 & n.6. The record in this case is quite different; the dis-
trict court found that the fatigue factor introduced by walking
was not significant.9


[10] Moreover, we do not share the antagonism to individ-
ual determinations reflected in these cases. "We prefer the
_________________________________________________________________
9 This finding also distinguishes Martin's case from Olinger v. United
States Golf Ass'n, 55 F. Supp. 2d 926 (N.D. Ind. 1999), in which the dis-
trict court found on the evidence there presented that use of a cart can pro-
vide a golfer with a competitive advantage over a golfer who walks. See
id. at 935. To the extent that other rulings in Olinger are inconsistent with
our decision today, we respectfully disagree with it.


                               2469


approach of Judge Richard Arnold, dissenting in Pottgen, that
the inquiry must focus on the individual exception and that,
in light of the plaintiff's individual characteristics as found by
the district court, "the age requirement could be modified for
this individual player without doing violence to the admittedly
salutary purposes underlying the age rule." Pottgen, 40 F.3d
at 932 (dissenting opinion). The Seventh Circuit adopted such
an approach in Washington v. Indiana High Sch. Athletic
Ass'n, 181 F.3d 840 (7th Cir.), cert. denied , 120 S. Ct. 579
(1999), in enjoining enforcement of an eight-semester rule
against a learning-disabled student. It observed that applying
the eight-semester rule to exclude the particular plaintiff
would not "add anything to the protections provided by the
IHSAA's age limit rule, which generally limits the size,
strength and athletic maturity of student athletes. " Id. at 852.
The court continued:


       Nor will the record support the argument that a
      waiver of the rule in Mr. Washington's case would
      place an undue administrative or financial burden on
      the IHSAA. The record indicates that Mr. Washing-
      ton is the only student athlete to seek a waiver
      because of a learning disability in more than a
      decade. The few case-by-case analyses that the
      IHSAA would need to conduct hardly can be
      described as an excessive burden.


Id. Much the same can be said here. Nothing in the record
establishes that an individualized determination would impose
an intolerable burden on PGA. Although PGA refused to con-
sider the effect of Martin's disability, the district court
appeared to have little difficulty making the factual determi-
nation that providing Martin with a golf cart would not give
him an unfair advantage over his competitors. We conclude
that, under the ADA, that determination was a proper one for
the court to make. See Johnson, 116 F.3d at 1059-60 (funda-
mental alteration defense focuses on individual circum-
stances).


                               2470


CONCLUSION

We conclude that, under Title III of the ADA, a golf course
is a place of public accommodation while PGA is conducting
a tournament there. We also conclude that the district court
did not err in determining that the provision of a golf cart to
Martin was a reasonable accommodation to his disability, and
that use of the cart by Martin did not fundamentally alter the
nature of the PGA and Nike Tour tournaments. We accord-
ingly affirm the judgment of the district court. 10


AFFIRMED.

_________________________________________________________________
10 Our ruling that Martin is entitled to relief under S 12182(a) of Title III
makes it unnecessary to address his alternative arguments.
                               2471



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