Implications of the Genetic Information Nondiscrimination Act (GINA) on Professional Sports

by Ilya Gilman November 3 2009, 02:19

I.                   Introduction 

The sports business industry is one of the largest and fastest growing industries in the United States. In fact, the Sports Business Journal estimates the size of the sports business industry to be $213 billion in the United States alone. [1] Furthermore, sports business law is a dynamic field of law with new issues arising on an almost daily basis due to courts decisions, new legislation, and regulation. [2] One piece of new legislation, the Genetic Information Nondiscrimination Act (GINA), [3] will have a profound impact on employment decisions in professional sports. This article discusses the implications of GINA on professional sports: specifically, part II of the articles discusses GINA in detail, part III discusses GINA’s impact on professional sports, part IV discusses GINA’s economic impact on professional sports, and part V provides some concluding remarks.

II.                The Genetic Information Nondiscrimination Act (GINA) 

The Genetic Information Nondiscrimination Act (GINA) is designed to prohibit the improper use of genetic information in health insurance and employment decisions. [4] The Act, inter alia, bars employers from using individuals' genetic information when making employment decisions (i.e., hiring, firing, or promotion decisions, and for any decisions concerning terms of employment). [5]

The statute defines ‘genetic information’, inter alia, as information about (1) an individual’s genetic tests; (2) the genetic tests of the individual’s family members; and (3) the manifestation of a disease or disorder in family members (family history). [6] Genetic information, however, does not include information about the sex or age of any individual. [7] Moreover, the statute defines ‘genetic test’ as an analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes. [8] Nonetheless, the results of routine tests that do not measure DNA, RNA, or chromosomal changes, such as complete blood counts, cholesterol tests, and liver-function tests, are not protected under GINA. [9]

While the Equal Employment Opportunity Commission (EEOC) is responsible for promulgating regulations concerning GINA, it has not yet done so. [10] The Act, however, will only take effect on November 21, 2009. [11] Accordingly, the full scope of GINA will only be seen when regulations are promulgated and court decisions are made.  

III.             Impact on Professional Sports [12]   

A.     Major League Baseball (MLB)  

A common occurrence among Latin American baseball players is to lie about their age in order to appear younger and attract Major League Baseball (MLB) teams. [13] Accordingly, the MLB, currently collects DNA samples from prospective players whose identity it is questioning in order to prevent age fraud. [14] For instance, in July, the Yankees voided the contract of a shortstop they thought was Damian Arredondo after a DNA test conducted by the league's Department of Investigations established that he was older than the 16 years he claimed to be. [15] As was discussed above, GINA, however, explicitly bars employers from using genetic results in hiring and workplace decisions. [16] It is possible that the EEOC could determine that neither age nor identity represent “genotypes, mutations, or chromosomal changes” which might be enough to exclude the testing from GINA’s definition. [17] Moreover, the EEOC could reach the same result by deciding that the exclusion of “information about the sex or age of any individual” from the definition of “genetic information” encompasses genetic tests designed to ascertain an individual’s age. [18]. According to one commentator, however, that does not appear to be the intent of the statute’s exclusion. [19] According to Dan Vorhaus, an attorney who advises genomics and biotechnology researchers, entrepreneurs, companies and investors on legal compliance issues,

Neither of these outcomes seem particularly likely based on the plain language of GINA: the test at issue in the MLB matter is an “analysis of human DNA” and its results may be used, in some cases, to refuse to hire or otherwise discriminate against potential employees; seemingly the precise behavior that that GINA is intended to prevent. Still, there is sufficient ambiguity in the statutory language that the final analysis will depend in large part on how the EEOC, and courts, choose to interpret GINA. [20]  

Nonetheless, Robert Plummer, a MLB agent with extensive experience in recruiting Latin American prospects, thinks that GINA will be a non-issue for MLB because it will be impossible to prove anyone is being forced to submit their DNA. [21] He likens MLB’s DNA testing to off-season workouts in the National Football League (NFL): "Sure they're called voluntary," he says. "But do you want to be the one guy who doesn't show up?" [22]. Moreover, GINA may be unenforceable on practical terms. Plummer recently stated that "I have so many teams back out of deals for so many reasons, how could I ever prove that DNA testing was one of them?" he asks. "If I even tried to make the case, a GM would just turn around and say, 'Oh, I just don't like your guy for all these other reasons.'" [23]  

B.     Other Professional Sports   

Moreover, GINA will have increased significance in regards to the National Basketball Association and the National Football league and their current players. To illustrate, recall the 2005 case of Eddy Curry: in that instance the Chicago Bulls refused to extend the contract of Curry unless he took a genetic test. [24] The Chicago Bulls were concerned that Curry might have a rare mutation that increased the chance of him suffering a fatal heart attack while playing for the team. [25] Ultimately, Curry signed with the New York Knicks without ever having to take a genetic test. [26] GINA is designed to stop situations like the one described above. GINA prevents an employer (in the above instance, the Chicago Bulls) from requiring a genetic test. According to Eddy Curry’s former agent Alan Milstein, GINA is designed to prevent similar situations from arising again. [27] "It goes hand-in-hand with all the laws that say your medical history is your own and no one can have access to it," he says. [28] Should a similar situation come up again, it would seem to be clearly prohibited under GINA, and the team’s best option would likely be to simply assume the worst and not take the risk. [29] 

IV.              Economic Impact of GINA on Professional Sports 

The economic impacts of GINA on professional sports leagues, teams, and players may prove to be of significant consequence. As indicated above, if a situation similar to the one of Eddy Curry arises again, teams would likely assume the worst and not take the risk. [30] In essence, the team would not sign the particular player. Although this may not cause a considerable impact on professional sports leagues and teams if the player is a substitute who does not play, consider if the situation arose in the case of a marquee player. Consider, for instance, if Lebron James or Kobe Bryant were suspected of having a genetic disorder and not signed. Their respective teams would lose revenues, inter alia, from attendance, merchandise sales, and general team goodwill. Moreover, from an economic perspective, other teams would be harmed as their fans often go to games to watch these “superstars.” Lastly, the National Basketball Association would lose revenue from the loss of fans as they would no longer be able to produce as high quality a product (quality of play would diminish).

Furthermore, teams may not want to commit large amounts of money into players that may be older then they say they are or having a genetic condition which will not allow them to play. Accordingly, players may lose money as are forced to sign deals for lesser salaries or shorter number of years. In essence, an appropriate salary will be difficult to determine due to an asymmetry of information: the teams will not know if they are receiving a healthy or not healthy player and thus the teams will only be willing to pay for a player of average health. This asymmetry of information is inefficient from an economic viewpoint and may ultimately lead to market failure. In the case of professional sports, players, particularly basketball players, may decide to play in other professional sports league around the world. This should not be a serious problem, however, as an athlete can affirmatively disclose his genetic information to a sports team. [31] In fact, Robert Plummer encourages his clients to submit DNA samples to prove their identity. [32] Plummer claims that a DNA sample helped his client, 16-year-old Miguel Angel Sano, secure a $3.15 million signing bonus from the Twins. [33]  

V.                 Final Thoughts

Players may feel obligated to provide their genetic information even if they are not explicitly being asked for it. [34] According to Palmer, players are being forced to give up a DNA sample as MLB assumes that if you don’t, “you’re guilty, if you’re clean, you should want to do it.” [35] Whether other professional sports leagues will adopt a guilty-until-proven-innocent approach, remains to be seen. [36] Moreover, the implications of GINA on professional sports will only be seen when the EEOC promulgates regulations and court decisions are made. 

 End Notes:

[1] The Sports Industry, SportsBusiness Journal (Street & Smith's), 2008, available at http://www.sportsbusinessjournal.com/index.cfm?fuseaction=page.feature&featureId=1492.

[2] Shropshire, Kenneth L, Introduction: Sports Law, 35 Am. Bus. L.J. 181, 182 (1998).

[3] 42 USCA. § 2000ff et seq. (2009).  

[4] Assael, Shaun, Genetic Property: A New Law Protecting Genetic Information Could Butt Heads with MLB Policy, October 7, 2009, available at insider.espn.go.com/espn/insider/news/story?id=4537203.

[5] Statement of Administration policy, Executive Office of the President, Office of Management and Budget, April 27, 2007.

[6] 42 USCA § 2000ff (2009).

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Vorhaus, Dan, MLB Meet GINA, July 22, 2009, available at http://www.genomicslawreport.com/index.php/2009/07/22/mlb-meets-gina/

[12] See Assael, supra note 4 (No impact of college sports according to Chris Kuczynski, a policy-making attorney with the agency, because "College athletes are not employees…and if there's no employment, GINA does not apply”).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Vorhaus, Dan, MLB Genetic Testing Program at the Plate Again, July 28, 2009, available at http://www.genomicslawreport.com/index.php/2009/07/28/mlbs-genetic-testing-program-at-the-plate-again/

[18] Id.

[19] Id.

[20] Id.

[21] Assael, supra note 4.

[22] Id.

[23] Id.

[24] Vorhaus, supra note 11.

[25] Id.

[26] Id.  

[27] Assael, supra note 4.

[28] Id.

[29] Vorhaus, supra note 17.

[30] Id.

[31] Id.

[32] Assael, supra note 4.

[33] Id.

[34] Vorhaus, supra note 17.

[35] Schwartz, Alan, A Future in Baseball, Hinging on DNA, July 22, 2009, available at http://www.nytimes.com/2009/07/23/sports/baseball/23dna.html?_r=2&scp=1&sq=baseball%20genetic%20test&st=cse.

[36] Vorhaus, supra note 17.  

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