Who\'s On First by Christopher Rinaldi

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Who’s On First? What MLB’s Genetic Testing Policy To

Combat Age and Identity Fraud Reveal About the

Application of the Genetic Information Non-

Discrimination Act of 2008

Christopher Rinaldi

I. Introduction

The Dominican Republic has become a major investment for Major

League Baseball (MLB) and its individual clubs.1 The teams invest in scouting,

facilities, and baseball infrastructure in the country,2, and every year, on July 2nd,

a new wave of baseball players from the Dominican Republic become eligible to

sign with MLB teams.3 These players are some of the most prized baseball

prospects in the world.4 They are merely teenagers, usually sixteen or seventeen,

and are signed to contracts worth millions of dollars based on their future

potential.5

MLB teams are aware of their susceptibility to age falsification by players

1 Michael Schmidt, Baseball Emissary To Review Troubled Dominican Pipeline, N.Y. Times,

Mar. 11, 2010, at B13

2 Michael Schmidt, Baseball Considers Plan To Curtail Age Fraud, N.Y. Times, Feb. 10, 2010, at

B11

3Ben Badler, Investigations Delay International Signings, BaseballAmerica.com, (Jul. 21, 2009),

http://www.baseballamerica.com/today/prospects/international-affairs/2009/268577.html

4 Schmidt, supra note 2

5 Ben Badler, Alderson Bringing Changes To Dominican Republic, Baseball America.com on

DPL.com (May 27, 2010) http://www.dplbaseball.com/index.php?option=com_content

&view=article&id=123:dpl-featured-on-baseballamericacom&catid=1:latest-news

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signed from the Dominican Republic.6 Recently, MLB has started to conduct

genetic tests on Dominican free agents and members of their families.7 They use

these tests to confirm player’s ages through verifying familial relationships.8 The

tests consist of bone scans and DNA tests, which the player agrees to undergo and

which they pay for themselves.9 The player is reimbursed if the results of the test

verify he is not lying about his age or identity.10

The use of genetic testing (GT) to confirm the age and identity of players

prompted notice when the New York Times wrote articles on the practice in July

of 2009.11

The articles focused on the heralded sixteen-year-old Dominican

prospect, Miguel Sano, who was asked to undergo GT, along with members of his

family12

Sano was eventually signed to a large contract by the Minnesota Twins

after the tests confirmed his sixteen-year-old age.13

6 Schmidt, supra note 2

7 Schmidt, supra note 2. In addition to GT, baseball is considering implementing a finger printing

policy that will result in a database of Dominican baseball players. Each will be individually

distinguished by fingerprints which are considered being acquired when players are as young as 12

years old.

8 Michael Schmidt, DNA Testing of Prospects Continues Under New Rules, N.Y. Times, Oct. 10,

2010, at SP8.

9 Michael Schmidt and Alan Schwarz, Baseball's Use of DNA Raises Questions, N.Y. Times, Jul.

22, 2009, at A1

10 Schmidt and Schwarz, supra note 9

11 Id.

12 Id.

13 Sano was given a $3.15 million signing bonus, the highest ever given to a position player out of

Latin America. The Oakland Athletics gave pitcher Michael Ynoa a $4.25 million bonus when he

signed with them last year. Ben Badler, Miguel Sano Agrees To Terms With Twins, Baseball

America.com, (Sept. 29, 2009). http://www.baseballamerica.com/blog/prospects/?p=6658

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MLB has continued to pursue its efforts to fight age and identity fraud

through GT. In 2010 they began a “pilot” program.14

The top forty Dominican

prospects were required to register with MLB.15

The registration requires the

player to consent to an initial age and identity investigation, by private

investigators. The player may be asked to undergo genetic tests if the initial

investigation is inconclusive, but they are not officially required to take a test at

any point. 16

In 2011 MLB hopes to expand this registration program to all

Dominican prospects.17

MLB’s GT policy raises questions of legal policy concerning GT of

employees, or employee candidates, by employers.18

Genetic information

revealing advantageous genes or the presence of genes highlighting increased

probabilities of injury or sickness is a concern of testing in an employment

scenario, generally.19

The discrimination that may result is the harm that is

sought to be averted.20

For professional athletes this fear is amplified; the whole

of their capabilities are measured solely by their physical capabilities, makeup,

14

Badler, supra note 5

15 Id. If the player fails to register with MLB they are subject to a one year suspension. According

to MLB, there is no punishment if the players fails to take a DNA test, other than the suspicion it

may arouse in the player’s potential suitors.

16 Id.

17 Id.

18 Schmidt and Schwarz, supra note 9

19 Genetic Information Nondiscrimination Act of 2008, PUB. L. NO. 110-233, 110th Cong., 122

Stat. 881 at §2(4) (2008)

20 Id.

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and potential21

--- which are all things that may be revealed through an athlete’s

genetic makeup.22

In this case, MLB’s use of GT is a reasonable allowance under GINA. The

Dominican Republic’s poor documentation of its citizens has made MLB

susceptible to age and identity fraud from players born in the Dominican

Republic.23

The players tested are poised to be offered millions of dollars based

on their skills, and the projected advancement of those skills in light of their age.24

MLB’s GT policy not only protects teams from making poor investments, but

they ensure that baseball operates at its most competitive level, with the highest

quality players and product on the field.25

Moreover, the genetic tests by MLB do

not discriminate against the player.26

They merely seek to confirm the player’s

assertions about his age and identity.27

While keeping that in mind, MLB’s

testing policy highlights limitations within GINA’s framework, as applied

generally.

This paper will try to define the impact of GINA in the context of MLB’s

21

Shaun Assael, Cheating Is So 1999, ESPN The Magazine, Oct. 19, 2009. Accessed on ESPN

Insider at ESPN.com, http://insider.espn.go.com/espn/insider/news/story?id=4536951

22 Id.

23 Schmidt, supra note 1

24 Badler, supra note 5

25 The Supreme Court has recognized that the essential function of professional sports associations

is to promote competition and has regarded this as a relevant factor in determining how the law

applies to professional sports associations, in the realm of Anti-Trust law. NCAA v. Board of

Regents of University of Oklahoma, et al, 468 U.S. 85, 101-102. (1984).

26 Badler, supra note 5

27 Id.

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aggressive attempts to fight age and identity fraud among Dominican free agents

through the administration of GT. It will also explore the considerations at the

intersection of genetics and athletics. Finally, this paper will address some of the

legal issues that GINA presents, through the analysis of MLB’s testing policy and

comparing GINA to the law passed by the German Parliament, regulating GT.

The German law was recently passed, but includes a few notable differences.28

I

argue that the German law provides stronger protections to employee applicants

through broader regulation of post-acquisition use of genetic material.29

Part II of the paper will explore the practice of GT by MLB in the

Dominican Republic and the role of genetics in sports. Part III will explore the

background of GINA and its prohibitions, in addition to Germany’s law

regulating GT, and Part IV will explore the status of MLB’s GT policy in light of

GINA, along with how its policy helps highlight some of the statute’s

shortcomings.

II. Genetic Testing – How is it used in baseball? How could it be

used in baseball?

GT has the potential to reveal many things about certain athletes compared to

other athletes and everyday people.30

GT could reveal traits indicating stronger

muscles or it may reveal an athlete’s susceptibility to injury or certain diseases.31

28 See Part IV of this paper

29 See Part IV of this paper

30Assael, supra note 21

31Id. For example, studies have shown that AA variations of the COL1A1 gene produces more

collagen, which protects ligaments. A study showed carriers of that variation of the gene have an

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Some businesses are selling parents on the proposition that GT can predict

whether or not their children are more genetically geared towards power sports,

speed sports, a hybrid of the two, or none at all.32

The sport of baseball is no stranger to searching for perfection in genetics.

Nothing may be more illustrative of this then the controversy that occurred when

former Red Sox outfielder, the great Ted Williams, was cryogenically frozen by

his son after he passed away.33

Reports suggested that a market may have been

surfacing for his DNA and some scientists suggested that Williams’ DNA may

hold the key to his incredible hand eye coordination.34

The sport of soccer is proactively looking to find athletic prowess through

genetics.35

They focus on the ACTN3 gene, but the science that UK soccer clubs

are concerned with also shows other possible genetic predictors of athletic

85% risk reduction of suffering an ACL injury. The MMP3 gene has been linked to Achilles

tendon injuries by some studies. The gene APOE has certain variations that studies have held may

predispose an individual to neurological damage.

32 Studies have honed in on the ACTN3 gene as a predictor of athletic success. The R variant of

the ACTN3 gene instructs the body to produce protein for the fast-twitch muscles. The RR variant

is thought to be the most effective for power and speed sports. The X variant of the ACTN3 gene

is thought to suggest a lower ability to produce protein to feed fast twitch muscles, but the XX

variant is thought to help support endurance in fast switch muscles. Juliet Macur, Born to Run?

Little Ones Get Test for Sports Gene, N.Y. Times, Nov. 30, 2008, at A1

33 Tom Farrey, Awaiting another chip off Ted Williams’ old DNA?, ESPN.com, (Last Accessed,

Nov. 21 2010), http://a.espncdn.com/gen/s/2002/0709/1403734.html. Williams, a Boston Red Sox

great and Hall of Fame baseball player, is known as one of the greatest hitters of all-time and put

up record numbers despite giving two years in the prime of his career to military service in World

War II. He is the last player to have a .400 batting average in a season and will always be

remembered for his perfect swing and incredible vision. See, Paul C. Smith, A Tribute To Ted

Williams, MLB.com (Last Accessed: Nov. 21, 2010).

http://mlb.mlb.com/mlb/news/tributes/mlb_obit_ted_williams.jsp?content=obituary

34 Macur, supra note 32

35 Matt Scott and Paul Kelso, One Club Wants To Use A Genetic Test to Spot the New Ronaldo. Is

this football’s future?, The Guardian, April 26, 2008, at p. 3 of the Main Section.

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success.36

UK Sport, which regulates the drug testing in Britain, is powerless to

stop the practice because it is not prohibited by the World Anti-Doping Agency.37

While genetics may be revealing in some aspects in professional sports

and amateur sports, many studies have focused on what they have found to be a

few important genes lending themselves towards athleticism.38

This fails to take

into account that there may be a multitude of genes that contribute to

athleticism.39

Also, outliers in the genetic studies serve to highlight that genes

may play a part in defining an individual’s level of athleticism, but they show the

inability of genetic science to account for other factors.40

Environment and

personal choice are a part of the puzzle that makes the elite athlete.41

Nothing may

exemplify this more then noting that the son who froze Ted Williams never

seemed to make use of what some may claim to be his superior genetic makeup

for baseball.42

Therefore, the true value of GT may be overstated, as it only

reveals a small part of the bigger picture that makes up the athlete.

Moreover, results of genetic tests can be discriminatory when they are

36 Id. Studies claim that the PPARdelta gene enhances slow-twitch muscles growth and the IGF-1

gene will lead to more human growth. Scientists also believe they have identified genes that

enhance the production of erythopoiten, which effects red blood cell production.

37 Id.

38 Macur, supra note 32.

39 Id.

40 Id.

41 Id.

42 Farrey, supra note 33

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done to test for disease or disposition towards disease.43

The NCAA recently

attempted to employ mandatory DNA tests for all of their athletes in an attempt to

screen athletes for sickle cell anemia, a disease predominantly found in the

African-American community.44

Tests for sickle cell anemia are bound to

discriminate against African-Americans due to the nature of the disease.45

Simultaneously, the health and safety of the student athletes may be improved if

the genetic tests are administered; the players find that they have sickle cell

anemia, and take the necessary steps to cope with the problem.46

Overall, genetic tests may provide information that helps athletes manage

their health risks, but they may also screen individuals out of athletics--- not by

what their performance says about them, but by what their genetics suggest about

their possibility of performance or health risks.47

The place of GT in sports is

limited. In the end, the best pace to measure athletic ability is not in a laboratory,

43 Rob Stein, Sickle Cell Testing of Athletes Stirs Discrimination Fears, (Sept., 20 2010)

http://www.washingtonpost.com/wp-dyn/content/article/2010/09/19/AR2010091904417.html;

Claire Andre and Manuel Velasquez, Read My Genes: Genetic Screening In The Workplace,

WashingtonPost.com, (Accessed: Dec. 10, 2010)

http://www.scu.edu/ethics/publications/iie/v4n2/genes.html

44 Katie Thomas and Brett Zarda, In N.C.A.A., Question Of Bias Over a Test for Genetic Trait,

N.Y. Times, April 12, 2010, at D1

45 Id.

46 In 2005 the Chicago Bulls of the National Basketball Association (NBA) requested that

basketball player Eddy Curry undergo GT in order to determine if he had a heart condition, before

they offered him a contract extension. He refused to undergo such testing, but eventually, Curry

would play for the New York Knicks, who did not require him to undergo a genetic test. At the

same time, concerns about his personal health remained as he continued playing and was unaware

of whether he had a possibly fatal heart condition, or not. Dean Krishna, DNA Testing For Eddy

Curry? Creating A New Constitutional Protection, 9 U Pa. J. Const. L. 1105, 1005-1106 (2007).

47 Assael, supra note 21

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but on the field of competition.

GT may be used to enhance that competition, opposed to being

used in a discriminatory manner. Age fraud has been committed in the highest

levels of sports competition. In 2008, many experts were skeptical as to the true

age of some members of the Chinese Olympic gymnasts.48

Recently, members of

the 2000 Chinese Olympic gymnastic team were found to have lied about their

age, and they were stripped of their medals.49

Unlike MLB, these cases involved

girls falsifying their ages to be older, not younger.50

MLB began to endeavor into the use of genetic tests in 2009.51

Prior to

this, individual baseball clubs would investigate potential signees in the

Dominican Republic by hiring independent contractors to verify their age and

identity.52

This process became unreliable and MLB stepped in.53

MLB created a department of investigation.54

This department has

established relationships with a series of independent investigators.55

The

48 Jere Longman and Juliet Macur, Records Say Chinese Gymnasts May Be Under Age,

NYTimes.com (Jul. 27, 2008)

http://www.nytimes.com/2008/07/27/sports/olympics/27gymnasts.html

49 Juliet Macur, Medal od Underage Chinese Gymnasts Revoked, N.Y. Times, February 26, 2010,

at D5.

50 Id. Longman and Macur, supra note 48.

51 Apparently, some individual teams consummated the practice of GT prior to 2009. Schmidt and

Schwarz, supra note 9

52 Badler, supra note 5

53 Id.

54 Id.

55 Id.

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department works with these investigators, usually having them each make their

own reports on a player’s age and identity.56

Investigations of some players

demand two or three separate and independent investigations. Some are

determined to need more than human investigation though--- they need genetic

investigation.57

The skepticism of MLB teams to believe in the stated age Dominican

prospects, such as Miguel Sano, is due to deep-seeded problems that exist in

Major League Baseball, and the sport of baseball generally. In 2001, a Little

League pitcher from the Bronx gained national attention.58

The Dominican

teenager, Danny Almonte, was playing in the Little League World Series in 2001

after he moved to the United States in 2000.59

His team nearly rode Almonte’s

pitching arm to the LLWS finals, but were stopped just short.60

His dominant

performance was the talk of the event though.61

Soon after, it was discovered that

Danny was really 14 years old, while the whole time his father claimed Almonte

was 12 years old, supported by a false birth certificare manufactured in the

Dominican Republic.62

56

Id.

57 Id.

58 Ian Thompson and Luis Fernando Llosa, One For The Ages, SI.com, (Aug. 27, 2001),

http://sportsillustrated.cnn.com/features/cover/news/2001/08/27/llwseries/

59 Id.

60 Id.

61 Id.

62 Id. Almonte’s father was able to re-register Danny’s birth in the Dominican Republic, just

weeks before his son moved to the United States. This re-registration produced a new birth

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MLB teams have been stung with a rash of players claiming to be younger

than they actually are.63

Ironically, the problem of age falsification came to light

in the context of the Los Angeles Dodgers signing of Dominican third baseman

Adrian Beltre.64

Dominican players are eligible to become Major League free

agents at 16.65

The Dodgers were found to falsify Beltre’s age to be older then he

actually was, adjusting it from 15 to 16.66

The league punished the Dodgers, as

here they were beneficiaries of age falsification.67

But, MLB teams have become

the victims of age falsification throughout the past decade, as the teams are not

responsible for the falsification, but, instead, the players are.68

certificate resulting in Danny’s stated age being two years younger than the first birth certificate

contained within Dominican records.

63 Schmidt and Schwarz, supra note 9. Miguel Tejada, a former American League Most Valuable

Player, played eleven years in MLB, with three different teams, before it was found that he lied

about his age, claiming he was two years younger then he said he was when he originally signed.

64

Murray Chass, BASEBALL; Dodgers Get To Keep Beltre, But Are Penalized, NYTimes.com

(Dec. 22, 1999) http://www.nytimes.com/1999/12/22/sports/baseball-dodgers-get-to-keep-beltre-

but-are-penalized.html 65

Id.

66 Id.

67 Id.

68 Top prospect Eladio Moronta was suspended for a year after misrepresenting his age in 2008.

See Ben Badler, MLB Lifts Moronta Suspension, BaseballAmerica.com (Sept. 29, 2009)

http://www.baseballamerica.com/today/prospects/international-affairs/2009/268923.html; Top

pitching prospect Rafael DePaula also admitted to misrepresenting his age and identity. Ben

Badler, DePaula Admits New Age, Identity, BaseballAmerica.com (June 28, 2010)

http://www.baseballamerica.com/today/prospects/international-affairs/2010/2610258.html;

Arizona Diamondback pitching prospect “Adriano Rosario” lied about his identity and age, which

was off by three years. Tom Farrey, Boras confirms player used false identity, ESPN.com (May

18, 2004) http://sports.espn.go.com/mlb/news/story?id=1803614; The Cleveland Indians signed a

shortstop prospect, “Jose Osoria”,17, who was really “Wally Bryan”, aged 20, see Schmidt and

Schwarz, supra note 9; The Washington Nationals were shocked to find out that “Esmailyn

Gonzalez” was four years older than they believed after they signed him to a contract with a $1.4

million signing bonus. Chico Harlan, Nationals Learn ‘Teen’ Prospect Is Not Who He Said He

Was, (Feb. 19, 2009) http://www.washingtonpost.com/wp-dyn/content/article/2009/02/18/

AR2009021803773. html?sid=ST2009021803988; The Yankees rescinded on a contract offer to

Damian Arredondo after a MLB investigation found he was lying about his age and identity. See

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III. The Genetic Information Non-discrimination Act of 2008 –

The Federal Law Governing Genetic Testing by Employers

There was no federal law governing GT of employees by employers until

2008.69

GT laws were governed state to state.70

These state laws were varying

and ineffective.71

Moreover, other states did not have laws pertaining to the

subject of employer genetic tests.72

The Genetic Information Nondiscrimination Act (GINA) was passed by

Congress in May of 2008.73

Generally, the law prohibits GT, and certain uses of

genetic information, by employers and health insurers.74

The law does not

supersede state laws in the same field; it supplements them and creates a

minimum level of compliance which states must ensure employers adhere to.75

State laws may impose more stringent regulations than GINA.76

Congress has multiple concerns that they intended GINA to address.77

Badler supra note 3.

69

Danyelle Wright, Wright on Genetic Information Discrimination Act of 2008 (GINA), 2009

Emerging Issues 4538, available at LexisNexis Emerging Issues Analysis, p.1-2.

70 Genetic Information Nondiscrimination Act of 2008, §2(5)

71 Id.

72 Id.

73 Genetic Information Nondiscrimination Act of 2008

74 Wright, supra note 69

75 Genetic Information Nondiscrimination Act of 2008 §2(5)

76 Genetic Information Nondiscrimination Act of 2008 §209(a)(1)

77 Genetic Information Nondiscrimination Act of 2008 § 2

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The first is the fear that advances in genetic science may be used “to discriminate

in health insurance and employment.”78

Second, Congress is concerned that a lack

of a federal safety net in this arena would leave the door open to the possibility of

the enactment of state sterilization laws, in light of their historical use and

existence.79

Third, Congress fears that genetic tests may be discriminatory when

they pertain to finding certain disorders prevalent in certain minority groups.80

The most prominent example is that of sickle cell anemia’s prevalence within the

African-American minority.81

Fourth, and most relevant to this paper, is

Congress’s concern with “genetic discrimination in the workplace” which would

“include the use of pre-employment screening.82

Fifth, and finally, Congress

feared that the varying standards and application of state laws would hinder

advances in the use and development of genetic science by leaving actors in the

community unsure about their abilities and liabilities to administer GT.83

To ensure these goals, GINA provides three general prohibitions on

employers.84

First, employers cannot discriminate against an employee or classify

an employee based on genetic information.85

Discrimination would consist of a

78

Genetic Information Nondiscrimination Act of 2008 § 2(1)

79 Genetic Information Nondiscrimination Act of 2008§ 2(2)

80 Genetic Information Nondiscrimination Act of 2008§ 2(3)

81 Id.

82 Genetic Information Nondiscrimination Act of 2008§ 2(4)

83 Genetic Information Nondiscrimination Act of 2008§ 2(5)

84Genetic Information Nondiscrimination Act of 2008

85 Genetic Information Nondiscrimination Act of 2008§202(a)

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failure to hire an employee based on their genetic information,86

, along with any

failures to provide an employee fair compensation or access to equal working

conditions due to their genetic information.87

Secondly, employers may not

request, require, or purchase genetic information of an employee or of an

employee’s family member, except under limited circumstances.88

Thirdly,

employers cannot disclose the genetic information of the employee.89

GINA imports the definition of “employees” from the 1964 Civil Rights

Act90

, defining it as any individuals “employed by an employer” 91

The term

“employee” is expanded to include applicants for employee positions.92

“The

family members of such employees, extending to blood relations of the fourth-

degree, fall under some of GINA’s prohibitions as well.93

Germany has recently passed a law similar to GINA, which constitutes the

law governing GT in many contexts, including in the workplace.94

The law was

passed in light of concerns spawned by the growing use of mandatory genetic

86

Id.

87 Id.

88 Genetic Information Nondiscrimination Act of 2008 §202(b)

89 Genetic Information Nondiscrimination Act of 2008 §206(b)

90 Genetic Information Nondiscrimination Act of 2008 §201(2)(A)(i)

91 42 U.S.C. 2000e(f).

92 Genetic Information Nondiscrimination Act of 2008, §201(2)(A)(i)

93 Genetic Information Nondiscrimination Act of 2008 §201(3)(A), (B)

94 GesetzubergenetisheUntersuchungebeiMenschen-Gendiagnostikgesetz [GenDG] [Human

Genetic Examination Act], Apr. 24, 2009, BGBl. I S. 2529, 3672, (Ger.). translated in

http://www.eurogentest.org/uploads/1247230263295/GenDG_German_English.pdf, (last

accessed, Nov. 18 2010, 6:54pm)

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tests for employee applicants in Germany.95

The German statute is similar to

GINA but has sections focusing on the post-acquisition use of legally obtained

genetic information, which GINA does not.96

In the context of medical GT, it

requires that the proper authority destroy the sample when it is either no longer

useful or the individual revokes their consent for its use.97

It also creates an

affirmative responsibility for the holder of the genetic information to ensure that

every measure is taken to prevent its use for purposes other than those stated.98

In

the employment context, the employer cannot “demand any results or data from

any previously conducted genetic examinations or analyses or use or receive the

results of any genetic examinations or analyses.”99

In comparison, GINA’s only

post-acquisition prohibition disallows the use of any genetic information obtained

by an employer, legally, to be used in violation of the discrimination provisions of

Title II through future analysis.100

IV. Legal Issues of Genetic Testing Under GINA

95 Dr. Philippa Brice, Call for restrictions on worklace GT in Germany, (Sept. 7, 2005)

http://www.phgfoundation.org/news/1949. The issue garnered popular attention in Germany

when a teacher was refused employment when she refused to undergo GT to screen for her

susceptibility to Huntington’s disease.

96 GesetzubergenetisheUntersuchungebeiMenschen-Gendiagnostikgesetz [GenDG] [Human

Genetic Examination Act], Apr. 24, 2009, BGBl. I S. 2529, 3672, §§ 13, 19 ,(Ger.)., see Genetic

Information Nondiscrimination Act of 2008, §§206(b), 202(c).

97 GesetzubergenetisheUntersuchungebeiMenschen-Gendiagnostikgesetz [GenDG] [Human

Genetic Examination Act], Apr. 24, 2009, BGBl. I S. 2529, 3672, §13 ,(Ger.).,

98 Id.

99 GesetzubergenetisheUntersuchungebeiMenschen-Gendiagnostikgesetz [GenDG] [Human

Genetic Examination Act], Apr. 24, 2009, BGBl. I S. 2529, 3672, §19 ,(Ger.).,

100 Genetic Information Nondiscrimination Act of 2008 §202(c)

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MLB has designed a system of GT that is legal under GINA. When GINA

is applied to MLB’s policy it helps provide a roadmap for what employers may

legally require of their employees concerning GT. It also highlights some of the

weaknesses of GINA’s framework in protecting employees and ensuring its stated

ends.

Employment discrimination cases focus on where the act of discrimination

occurred in order to determine whether the alien is within the jurisdiction of a

civil rights claim.101

The act of discrimination must occur in the United States if a

statute does not apply extra-territorially.102

Federal statutes have extra-territorial

application only if Congress clearly intended such application.103

Congress did not

signal any intent to apply GINA extra-territorially; it did the opposite. It states its

goal to set out a “national and uniform basic standard” applying to GT by health

insurers or employers.104

The Dominican prospects are employee applicants,

covered under GINA105

, but the tests take place in the Dominican Republic.106

Therefore, MLB’s GT policy is outside the scope of GINA’s territorial

jurisdiction.

The testing is also outside of GINA’s substantive jurisdiction. GINA's

101

Theus v. Pioneer Hi-Bred International, 738 F. Supp 1252, 1253 (1990).

102 Id. at 1255 (1990).

103 EEOC v. Arab American Oil Co., 499 US 244, 248 (1991)

104 Genetic Information Nondiscrimination Act of 2008 §2(5). (italics added)

105 They would be “employee applicants”. Genetic Information Nondiscrimination Act of 2008,

§201(2)(A)(i)

106 Schmidt and Schwarz, supra note 9.

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prohibitions lie on discrimination based on "genetic information" or a request to

provide such information.107

Therefore, the prohibition does not lie on GT.108

The

term "genetic information," as defined in GINA, has a significant exclusion.109

“Genetic information” does not include “information about the sex or age of any

individual.”110

Therefore, the prohibition does not lie on GT. Instead, GINA

prohibits certain genetic information extracted from the test.111

The purpose of MLB's GT policy of Dominican prospects is to ascertain

information with regard to the prospect's age.112

Therefore, the information being

processed and tested for isn't "genetic," as defined by the statute, and the tests are

outside the scope of the statute.113

MLB's GT program also reveals GINA's ineffectiveness in curing what it

attempts to. Congress cites Norman- Bloodsaw v. Lawrence Berkeley Laboratory

as an example of what GINA hopes to protect against.114

In Norman-Bloodsaw,

the plaintiffs, employees, were subject to blood and urine testing by their

107

Genetic Information Nondiscrimination Act of 2008 §202(a)

108Id. The language of the statute focuses on the information derived, not the test itself.

109 Genetic Information Nondiscrimination Act of 2008 §201(4)(C)

110 Id.

111 Genetic Information Nondiscrimination Act of 2008, §202(a)

112 Genetic Information Nondiscrimination Act of 2008 §201(4)(C). An employer may collect

information pertaining to an employee’s age through GT because that information is not genetic

information.

113 Id. .

114 Genetic Information Nondiscrimination Act of 2008 § 2(4)

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employer.115

The plaintiffs consented to the testing but were unaware as to the

true extent of the tests and what would be screened for.116

GINA does not prevent

this concern from arising. It allows for MLB, or any other employer, to gather

genetic samples so long as those samples are tested for certain purposes.117

It

ignores the possibility that the genetic material can be analyzed and tested in

many ways and used for many purposes.118

The exclusion of information confirming sex or age of an individual

leaves a glaring weakness in the statute. It allows employers to achieve the same

result as the facts in the Norman-Bloodsaw case: they can obtain genetic material

from employees for a stated purpose, while testing it for prohibited purposes.119

The German statute does not include a significant exclusion in their

definition of “genetic sample”120

and “genetic data”121

Instead, the statute focuses

115

Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260, 1265 (1998).

116 Id at 1265.

117 Genetic Information Nondiscrimination Act of 2008 §201(4)(C). see note 113.

118 Amy Foster, Note & Comment, Critical Dilemmas in GT: Why Regulations to Protect the

Confidentiality of Genetic Information Should Be Expanded, 62 Baylor L. Rev. 537, 549-550.

(2010).

119 Id. Andre and Velasquez, supra note 40. Genetic screening can provide health benefits for

employers and employees. Many jobs that involve exposure to certain materials can expose

certain employees to higher health risks than other if they are predisposed to certain disorders.

There is a balance that must be struck, much like the issue of testing for sickle cell anemia to

protect and athlete, opposed to using such a test to screen them out of sports.

120 GesetzubergenetisheUntersuchungebeiMenschen-Gendiagnostikgesetz [GenDG] [Human

Genetic Examination Act], Apr. 24, 2009, BGBl. I S. 2529, 3672, §3 ,(Ger.). “’genetic sample’

means any biological material which has been selected for use in any genetic analyses or upon

which such analyses have been conducted”

121 Id. “’genetic data’ means any data in regard to any genetic characteristics gained via genetic

examination or via a genetic analyses conducted in the framework of a genetic of a genetic

examination.” A “genetic characteristic” is defined as “genetic information inherited upon

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its concern with GT itself, as well as the proceeding analysis of the genetic

material that is being tested.122

GINA’s protections of the employee would be

much stronger if they adopted a definition of “genetic information” that was more

means based, then ends based, as the German one is. At the same time, adopting

the definition is not required for GINA to create a satisfactory regulatory scheme.

What GINA truly lacks is a protection of subsequent use of genetic information

following a permissible genetic test.

GINA fails to address what the usage or storage of the genetic material is

limited to.123

MLB can feasibly collect a database of this information, and extract

information beyond the ages of these Dominican players.124

This information may

be used to search for a player’s susceptibility to disease or injury,125

, or it may be

used to create a genetic profile of the ideal baseball player.126

GINA only

prohibits the future use of legally obtained genetic information if the use will

result in the employment discrimination prohibited by the statute.127

Therefore, a

collection of Dominican player’s DNA would be legal if not used to discriminate

against the player whose DNA it is. The German provision would not allow this,

fertilization or otherwise gained before birth.”

122 Id. See the entire section for a comprehensive list of definitions.

123 GINA only addresses the issue by limiting an employer’s ability to use the material in the

future to discriminate against the employee. Genetic Information Nondiscrimination Act of 2008 §

206(c).

124 Schmidt and Schwarz, supra note 9.

125 Id.

126 see Scott and Kelso, supra note 40 and Farrey, supra note 33.

127 Genetic Information Nondiscrimination Act of 2008 § 206(c).

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as it prohibits any future analysis of the legally obtained genetic information.128

The German’s rule concerning use and storage of genetic tests in the

medical context would be useful if applied universally.129

It deems that when a

medical provider ascertains the allowable information from their genetic tests,

there is no reason for them to hold on to that information, or the possibility of

future access to that information, any further.130

The same rule should apply to

employers.

In the context of MLB, the destruction of the Dominican prospect’s

genetic samples and information, after ascertaining their age, will ensure MLB’s

faithfulness to their stated and legitimate purpose of avoiding age and identity

fraud and enhancing the level of competition, which would therefore justify the

genetic tests requested of Dominican players and their families.131

The provision

helps provides a stronger legal protection against the misuse of genetic

information.132

The same logic applies to genetic tests that purport to protect the

athlete’s health interest. Once the athlete is notified of his health risk the party

responsible for the test has no legitimate need to access or use the genetic

information beyond informing the athlete at risk.

128

GesetzubergenetisheUntersuchungebeiMenschen-Gendiagnostikgesetz [GenDG] [Human

Genetic Examination Act], Apr. 24, 2009, BGBl. I S. 2529, 3672, §§ 13, 19 ,(Ger.).

129 GesetzubergenetisheUntersuchungebeiMenschen-Gendiagnostikgesetz [GenDG] [Human

Genetic Examination Act], Apr. 24, 2009, BGBl. I S. 2529, 3672, §13 ,(Ger.).

130 Id.

131 Schmidt and Schwarz, supra note 9.

132 Foster, supra note 118

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GINA will need to explore adding similar legal mechanisms to guard

against impermissible use of genetic information or GT if it is to meet its

objectives. At the least a prohibition on the future use of genetic information

(whether for discriminatory purposes or not) would provide some sort of legal

protection for the employee, although that future use would likely be hard to

prove.133

V. Conclusion

GINA represents the United States’ Congress’s first piece of legislation

regulating GT,134

, and countries like Germany are attempting to follow suit.135

Lawmakers and policy analysts should pay attention to how other countries

attempt to foster the responsible use of genetic tests in society. They should adapt

their regulations to create a policy on GT that addresses all the possible misuses

of GT, while regulating GT in a way that will allow it to be used in a manner

where its benefits will flourish.

MLB’s GT policy serves as an illustration of how GT can benefit society.

MLB and its individual teams invest significant money in these Dominican

baseball players, as well as in the country’s baseball infrastructure.136

The GT

policy of MLB serves as a tool to detect age and identity fraud and ensures the

133

Foster, supra note 118

134 Wright, supra note 69.

135 GesetzubergenetisheUntersuchungebeiMenschen-Gendiagnostikgesetz [GenDG] [Human

Genetic Examination Act], Apr. 24, 2009, BGBl. I S. 2529, 3672, (Ger.).

136 Schmidt, supra notes 1 and 2.

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quality and integrity of the baseball product that takes to MLB fields.137

The

testing policy is likely legal under GINA and, in this case, GINA affords the right

result. On its face, there is no discrimination or misuse of information.138

Rather,

MLB’s sole purpose is to avoid age and identity fraud.139

At the same time, MLB’s policy highlights some of the possible evils of

GT in the employment context. It raises some serious questions about GINA’s

effectiveness in preventing employer discrimination against employees based on

genetic information. It fails to regulate the use and storage of genetic information

and material by employers.140

It opens up the door to employer’s using genetic

information beyond its stated and permissible uses, which ripens the environment

for impermissible genetic discrimination of employees, without anyone’s

knowledge.141

In the context of athletics, it may allow for professional sport

entities to build a genetic makeup representing a “super athlete”142

While this

may sound palatable to some,143

, it may also serve as a basis to screen individuals

137

Badler, supra note 5; Schmidt, supra note 1.

138 Schmidt and Schwarz, supra note 9. Although, MLB has refused to comment on its storage

policy for the genetic samples obtained from Dominican players.

139 Schmidt, supra note 8.

140 Genetic Information Nondiscrimination Act of 2008 § 206(c). GINA fails to address post-

acquisition uses of legally obtained genetic material; Schmidt and Schwarz, supra note 9; Foster,

supra note 118.

141 Genetic Information Nondiscrimination Act of 2008 supra note 131 at §206(c); Foster, supra

note 108

142 see Scott and Kelso, supra note 40 and Farrey, supra note 33.

143 Assael, supra note 21; Macur, supra note 32

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out of athletics.144

Moreover, it may not be a sound basis for that exclusion.145

It

also fails to take into account the intangibles that many believe make an athlete.146

In addition, GINA’s definition of “genetic information,” excluding information

about sex and age of individual, may allow employers to discriminate against

employees based upon information that only could have been acquired through

GT, which is used beyond its stated purpose.147

Overtime, these issues must be

addressed, both in the context of MLB, and also wherever GT may occur within

the employment relationship.

144

Macur, supra note 32

145 Id.

146 Id.

147 Genetic Information Nondiscrimination Act of 2008 §201(4)(C); Norman-Bloodsaw v.

Lawrence Berkeley Laboratory, 135 F.3d 1260 (1998); Schmidt and Schwarz, supra note 9;

Foster, supra note 118.

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Addendum To Final Draft -- Law Update

The EEOC has recently passed regulations that interpret GINA.148 These

regulations have closed the gap in the law, which I centered my paper around. In the

paper I identified two weaknesses: the first was the under-inclusive definition of genetic

information and the second was the under-inclusive regulation of the post-acquisition use

of legally obtained genetic information.

The regulations address the first weakness. First, they still exclude information

about sex and age from the definition of genetic information, but only if such information

is not derived from a genetic test. 149

Additionally, a genetic test is defined to include

those tests which seek to determine information about ancestry,150

, and those that aim to

verify familial relationships.151

As specifically applied to MLB's testing policy, it does not affect the result

because GINA is not extra-territorial and the MLB policy is fine, so long as it is not done

in the United States. But, before these regulations, MLB, hypothetically, would not have

fallen under GINA's prohibitions even if testing within the United States. This was due to

the definition of genetic information excluding information pertaining to one's age or sex.

148 29 CFR 1635

149 26 CFR 1635.3(c)(2). Genetic information does not include information about the sex or age of

the individual, the sex or age of family members, or information about the race or ethnicity of the

individual or family members that is not derived from a genetic test.

150 26 CFR 1635.3(c)(3)(vii).

151 26 CFR 1635.3(c)(3)(viii).

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Therefore, the EEOC should be applauded for regulating GINA in a way that

advances its aims and objectives. It narrows the legitimate purposes for which an

employer can collect genetic information from employees. This is very important since

genetic materials are easily stored and can be easily tested, without the notice or consent

of an employee.