MLB Meets GINA

Baseball65According to an article in today’s New York Times, Major League Baseball’s department of investigations is conducting genetic testing on certain Latin American prospects in an attempt to verify their reported ages. The Times reports that MLB has confirmed that it conducts genetic testing to confirm paternity/maternity “in very rare instances and only on a consensual basis to deal with the identity fraud problem that the league faces in [the Dominican Republic].” It appears that MLB is using paternity/maternity testing to verify identity by confirming that a particular prospect is in fact the child of the parents claimed on his birth certificate. MLB’s program appears to be the first publicly disclosed genetic testing program since the passage of the Genetic Information Nondiscrimination Act, or GINA as it is known, fourteen months ago.

This is not the first time that genetic testing in professional sports has made its way into the headlines. In 2005, the Chicago Bulls demanded that center Eddy Curry submit to a genetic test for Hypertrophic Cardiomyopathy (HCM). Despite playing in 72 games the prior season, Curry was diagnosed with an irregular heartbeat and an enlarged heart and the team insisted on the HCM test as a condition to extending his contract. Curry refused to take the genetic test and was ultimately traded to the New York Knicks, temporarily defusing the situation.

Curry’s saga was ultimately just another milepost on the road to GINA. First proposed by Representative Louise Slaughter in 1995, GINA took thirteen years – the same length of time required to complete the Human Genome Project – before it was finally signed into law May 21, 2008.

One reason for GINA’s tortuous trip from bill to law is that, despite an oft-reported public fear of genetic discrimination — a frequently cited 2007 study by the Genetics and Public Policy Center (pdf) found more than 90% of Americans were concerned about potential misuse of their genetic information – there have been few reported cases of employers using genetic testing in any fashion, let alone refusing to hire or otherwise discriminating on the basis of those results. (Note: the UK’s House of Lords, in its recent report on Genomic Medicine, declined to recommend specific genetic nondiscrimination legislation for just this reason.)

It is too early to determine whether MLB’s practice of screening certain prospects to verify their age would violate GINA. First, the provisions of GINA prohibiting discrimination in employment on the basis of genetic information (Title II) will not be in effect until November 21, 2009. (The prohibition on genetic discrimination by health insurers (Title I) became effective May 21, 2009, although implementing regulations have yet to be finalized).

In addition, genetic tests used to establish paternity/maternity typically analyze only a handful of genetic markers and are generally not used for, or capable of, predicting other genotypes or phenotypes, including the risk or presence of a particular disease. Although GINA, once in effect, will prohibit employers from discrimination on the basis of the results of a genetic test, the statutory definition of “genetic test” covers only an “analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutation or chromosomal changes.”

Thus, whether or not MLB’s practice of genetic testing to confirm identity, should it continue, would violate GINA will depend in large part on how the provisions of Title II of GINA are interpreted, a responsibility that Congress has delegated to the Equal Opportunity Employment Commission (EEOC). Although Congress required the EEOC to issue final regulations interpreting GINA by May of this year, to date the EEOC has issued proposed regulations only. It remains to be seen how the EEOC will incorporate the several dozen public comments into its proposed regulations, how it will interpret GINA and, ultimately, whether and how it will attempt to enforce GINA’s provisions against Major League Baseball.