In an effort to protect people’s genetic information from exploitation, President George W. Bush signed the Genetic Information Nondiscrimination Act (GINA) into law on May 21, 2008. The Act forbids insurance providers from denying medical coverage to otherwise healthy people because they have a genetic predisposition to a particular disease, and thus have a higher chance of developing that disease in the future. Additionally, the Act prohibits genetic discrimination in the workplace by “bar[ring] employers from using individuals’ genetic information when making hiring, firing, job placement, or promotion decisions.” Although most employers do not require potential employees to submit DNA samples in order to gain employment, this practice is commonplace for one preeminent American sports organization–Major League Baseball (MLB).

In recent months, MLB has admitted to using DNA testing on prospective Latin American players, due to the increased tendency of members of this minority group to falsify their age and identity in order to secure a position on a Major League team. My hometown team, the Washington Nationals, dealt first-hand with this type of fraud when it recently discovered that its 19-year-old shortstop from the Dominican Republic, Esmailyn Gonzales, who signed with the Nats for a record $1.4 million, was actually 23-year-old Carlos Alvarez Daniel Lugo.

MLB uses this genetic information to ascertain the true age of a player in order to ensure that it will receive its expected return on its investment. However, a New York Times article raised the concern that such DNA information could also be used to predict a player’s medical future. With such information, MLB could use a player’s susceptibility to an illness to gauge the approximate length of the player’s career, which could in turn influence MLB’s decision to hire or fire a player–the precise use GINA forbids.

With GINA’s November 21 effective date looming around the corner, many have begun to speculate about the implications of the Act on this particular MLB hiring practice. Questions have been raised about whether GINA will impact MLB at all, as the players voluntarily consent to the DNA testing. Furthermore, because the individuals who undergo the DNA test are normally not U.S. citizens, it is unclear whether they would qualify for the protection afforded by GINA. A legal argument can be made, however, that such consent cannot really be deemed “voluntary,” as a significant employment opportunity (and an absurd amount of money) depend on a player’s compliance with the request. Additionally, one could argue that because these international players are seeking employment with American teams, GINA should be extended to apply to them.

It remains to be seen whether the Equal Employment Opportunity Commission, the agency charged with implementing GINA, will enforce the Act against MLB, and MLB has not indicated whether it will continue to employ DNA testing after GINA becomes effective next month. It will be interesting to see whether GINA will serve as a new basis for litigation for those players whose contracts have been voided as a result of their genetic information.

Casey McLaughlin

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