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Genetic Property

10/7/2009
Senator Ted Kennedy called GINA, which was signed by George W. Bush, "the first new civil rights bill of the new century." Mark Wilson/Getty Images

A new law designed to protect the genetic information of employees across the country is putting Major League Baseball on a collision course with the federal agency in charge of enforcing the law.

MLB currently collects DNA samples from players whose identity it is investigating in order to prevent age fraud -- a common occurence among Latin American who wish to appear younger than they are to attract MLB teams. In July, the Yankees voided the contract of a Dominican shortstop they thought was named Damian Arredondo after a DNA test conducted by the league's Department of Investigations showed that he was not who he said he was, and that he was older than the 16 years he claimed to be.

But the Genetic Information Nondiscrimination Act (GINA), which goes into effect Nov. 21, explicitly bars employers from using genetic results in hiring and workplace decisions. The act protects an individual's genetic information and the genetic tests of family members.

'"When there is a prospect of employment, you can't be forced to surrender your DNA," says Chris Kuczynski, a policy-making attorney with the agency.

An MLB spokesman said it has "not made a decision" about whether to continue DNA testing after the new law goes into effect next month.

But Robert Plummer, an agent with wide experience in recruiting Latin American prospects, thinks the law may wind up being a non-issue for MLB because it will be impossible to prove anyone is being forced to submit their DNA. He likens the testing to off-season workouts in the NFL. "Sure they're called voluntary," he says. "But do you want to be the one guy who doesn't show up?"

Plummer says he encourages his clients to submit DNA samples to prove their identity. He says doing so helped one of them, 16-year-old Miguel Angel Sano, secure a $3.15 million signing bonus from the Twins on Sept. 29.

He also thinks that the act will be unenforceable on practical terms.

"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.'"

Kuczynski acknowledges that there is nothing the EEOC can do if a player voluntarily submits his DNA.

Another area in which the law may not have its predicited impact, Kuczynski concedes, is in college sports. "College athletes are not employees," he says. "And if there's no employment, GINA does not apply." The EEOC official says that 42 states have their own laws that may offer added protections, but it is unclear whether any of them would extend to amateur athletes. "This is still an emerging area," he notes.

The new law may have the most relevance to current employees, says Alan Milstein, a New Jersey lawyer with experience in both sports and biotechnology.

Milstein represented NBA forward Eddy Curry in a celebrated 2005 case in which the Chicago Bulls refused to extend Curry's contract unless he took a genetic test. (The team was trying to determine if he had a rare mutation that increased his chance of suffering a fatal heart attack while exerting himself.) Curry signed with the Knicks without ever having to surrender a sample. Millstein says that the new act is designed to prevent a similar situation from arising again.

"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.

Jim Kovach, a former Saints linebacker who is launching a genetic testing company for pro athletes called Athleticode, believes that the act may actually popularize genetic testing in sports.

"I think it's important for the government to make a statement that using genetics to discriminate is illegal," he says. "Sure there are a lot of grey areas. But a law like this gives people a greater comfort level about getting their DNA tested and sharing the information with their doctor. It's no good unless you share it with someone."


Shaun Assael is a senior writer for ESPN The Magazine.