Ping-Pong Post: DNA Testing in Sports

Okay. We’ve been derelict in our duty. We’re sorry. Nurse and lawyer are tired. Moving, marriage, etc.

However. Life goes on. Especially during baseball season. NYT recently printed an article about the DNA tests that major league baseball has been asking for some some foreign (Latin American) prospects, attempting to verify that they are who they say they are (and not, say, a few years younger.) Here are a few of our thoughts on the issues that raises:

-There’s a federal law scheduled to take effect that prohibits employers from requiring DNA testing. My question is, what do we mean by required? Can it be encouraged, or suggested, or asked? Does refusing then become harmful? Is “on a consensual basis” really code for “if you know what’s good for you”?

From what I understand, all your nice euphemisms there amount to coercion, which you can’t do if you can’t require something. So encouraging or suggesting it… not so much. Asking people to voluntarily submit to it? That would be a gray area. I guess it would depend on what actually happened to people who refused.

-Privacy is an issue. Do professional athletes cede some privacy about their health by the nature of their jobs? Can we draw a line there? A team could reasonably want to know if a player has a chronic illness, but can they reasonably know if he may be prone to developing one in the future? The testsing that’s been used hasn’t sought to do this, but it certainly could. This is a classic slippery slope.

I don’t like it. I don’t like it at all. I mean, you can certainly choose not to hire people who don’t meet the physical requirements necessary to perform a certain job. Like play baseball. But an increased probability of not being able to do so several years in the future? That’s gotta be out of bounds.

-The tests aren’t used to reveal any real information at this point, except that a player is who he says he is, and his parents are his actual parents. It’s meant to prevent the sham that is sometimes used where a player “borrows” someone’s identity and birth certificate to appear younger and more marketable. There HAS to be a better way to beat that than DNA testing, right?

I tried really hard to think of a better way and… couldn’t. It’s not a problem for U.S. citizens, who are tracked from birth with social security numbers, etc. But remember what happened in the last Olympics with the Chinese gymnasts? If the government of their home country isn’t on board with the honesty thing, what CAN you do? Seriously? What? It’s not as though penalties would be particularly effective for people who don’t really have anything to lose.

-We tend to be upset by the idea that insurance companies could use genetic information against us. It feels wrong. It undercuts the purpose of health insurance, in a way– by not allowing vulnerable people to be covered appropriately. I think it would be unethical. So what happens to results of these tests? Are they used to determine parentage and then destroyed? Or are they read more closely, or kept? Hmmm. Does the privacy these athletes give up extend that far?

I guess that depends on what’s in their contracts? One would hope it would be destroyed, after being used for its intended purpose, but… we really don’t know, do we? Good quesiton, nurse!

-Genetic testing can bring unsavory information to light– the father is not the father, for instance. Should this be a concern?

I think this is really two questions. Parentage is one thing — that’s actually what they’re looking for! — and it would certainly be complicated if it was discovered that the claimed father was not the father. There are, as you imply, many possible explanations for such a finding that are not what MLB would be looking for. But if it is a voluntary test (and what that means is still open — see above), then I’d have to say surprises are fair game.

The other question revolves around medical information, and I think as long as the rules are clear, it will be fine.  We don’t look for huntington’s disease in the run-of-the-mill paternity test, so why would we do it here? I’m probably oversimplifying, but it seems entirely possible to only test for the particular relevant information. And as long as the lab involved is well-regulated, we should be okay. Right?

-Is it somehow exploitative to require this of foreign citizens but not of Americans?

Well… that’s tricky. I want to say no. Because what they’re doing is applying to work in America for an American organization. Unless they’re on the Blue Jays. heh. If the requirement were worded in such a way that what was needed was positive proof of identity… it seems fair to me on a practical level. There’s a reason for asking for it from one group and not another, and it has nothing to do with who they are, but rather what information is otherwise available. Does that make it inherently okay? No. But it doesn’t set off my BS alarm.

So we guess the answer here is, we don’t know. But please tread lightly.

g’night. We need our beauty sleep!

Manny Update

Thanks to Gabe Feldman of Sports Law Blog for digging up this clause from the standard player contract that rules out the possibility of the Dodgers terminating Manny under the morals clause just for using a banned substance:

“No Club may take any disciplinary or adverse action against a Player (including but not limited to a fine, suspension, or any adverse action pursuant to a Uniform Player’s Contract) because of a Player’s violation of the Program.”

As Feldman explains it, the teams have relinquished all their authority to punish players for this particular offense to the Commissioner.

Yet to be seen: Has he/will he lie about it or disgrace himself in some other related way, giving the Dodgers something they CAN fire him for, if they want to? (See Clinton, Bill.) Can he be sued by others who stand to face substantial losses as a result of his suspenion? I’m guessing at this point that neither of those is going to pan out, but we’ll wait and see.

Ping Pong Post: Manny Being… picked apart by Nurse and Lawyer

First of all:

Dear Manny,

WHY? Why are you such an idiot? I loved you so hard. I was THERE when you hit that 500th home run. I defended you when my friends called you lazy and ugly. Not because you aren’t lazy and ugly, but because you were Manny. Now? You suck.

Love,

Amy

Also, I’m glad I never bought your Jersey. Jerk.

There are two basic legal issues to look at here.

1. What did Manny actually do wrong/ how did they catch him?

2. Can anybody sue anybody else as a result of this?

Lawyer: The answer to #1 is complicated, and interesting, I think, for Nurse to address. Manny claims that the drug was for a legitimate medical use. And everyone responding says this is highly unlikely. Which, granted, it probably is. But IF Manny were telling the truth, then he still didn’t follow the rules — MLB would require that he get a Thereputic Use Exemption — IN ADVANCE of taking the drug.

Nurse: When you are asked to take a drug screen, you are responsible for knowing any medications that you are taking which were legitimately prescribed that could show up. You are given the opportunity to disclose them and provide proof that it’s legit. I have had this opportunity when I’ve been tested for work, and I would be shocked if athletes weren’t given the same chance.

Manny used used human chorionic gonadotropin. HCG is a hormone that females make during pregnancy– it’s the hormone that a pregnancy test detects . It may be prescribed for women who are having fertility problems– that’s not a difficult leap to make. It may be occasionally prescribed for men who are having fertility problems also because it helps men produce male hormones– like testosterone, although it isn’t well studied. Do we see where this is going? We get even more suspicious noting that experts say HCG is sometimes used by steroid users coming off a course while the body’s own testosterone production is shut down.

HCG is prescribed under several brand names, and indicated for infertility in women and low levels of male hormones in men. More information is available from Micromedex, a clinical drug reference widely used and trusted.

Lawyer: According to the New York Times, he didn’t actually fail a drug test. Something in his medical records (which apparently they get to see — nurse? Thoughts?) was damning enough to trigger the suspension. And from what I understand, there was something suspicious but not sufficient in a urine sample, which led them to pull the medical records, which contained the damning entries.  Baseball lets the commissioner suspend plays for “just cause”  (note, you non-legal types, that that doesn’t mean “just because,” it means  a fair and sufficient reason.) And in fact, this has been the case for most of the high-profile suspensions that have happened in the last few years.

The long and the short of it is, Manny didn’t follow the rules.

Nurse: although the urine tests were suspicious, it was the investigation following that showed Manny was prescribed HCG, and this was the cause for his suspension, according to Bud Selig. Manny says the drug was prescribed for  a“personal health issue.” This would mean some kind of hormonal or pituitary problem, but it’s pretty suspicious. I’m wondering: if they can investigate his medical records to determine what was prescribed, can they also investigate why? If I were Manny, I would certainly disclose whatever condition made it legit, so. . . maybe not so much. Sure, it’s a gross violation of privacy to dig through someone’s medical records and do it publically, but when you sign up to play pro sports, should this be part of the package?

Lawyer: For issue # 2, I really don’t know know if anyone has real legal recourse here, though this being America, I’m sure someone will try a law suit. Some possible interessting scenearios:

The Dodgers sue Manny to recover all sorts of lost revenue — interesting especially in light of their attempts to market much more heavily to Hispanic fans.

Nurse: I foud some numbers on the WSJ: Mr. Ramirez generated roughly $7.6 million in ticket sales, parking, food, drink and merchandise for the Dodgers, and average attendance jumped after his arrival. The Dodgers sold 14,000 Ramirez T-shirts, 7,000 dreadlock wigs and 500 jerseys. When he signed a new two-year, $45 million contract in March, the team spent an estimated $2 million on advertising for the season. The campaign included splashing his image onto billboards. A Dodgers spokeswoman says they will be replacing those billboard images soon.

Lawyer: Nice one, Nurse. That’s exactly the sort of thing I could imagine them suing over.

Other possibilities: Fans sue Manny or the Dodgers

Or, as Gabe Feldman suggests (is he joking or not?)  on his Sports Law Blog, fantasy baseball types sue Manny because now their fantasy teams are in the crapper. (More about that here.)

I seriously don’t know how any of this would work, and I probably never will, because sports law is not exactly on my list of must-take classes.

But I do know this: the way that tort law works in this country, it’s meant to more or less allow money-related issues and perceived unfairness to work themselves out. There’s been a lot of debate about how to enforce the drug policy in baseball and many other arenas (zero-tolerance is desirable in some ways, but also flawed, not least because the testing is imperfect.) If players could be sued for big bucks for violating the drug policy, isn’t that likely to be more effective than simply suspending them for a few games? MLB doesn’t have to make new draconian rules. Our existing legal system, applied to this situation, could get it to right itself.

One final note: though I still kind of can’t believe there’s a whole blog devoted to the rules and legal issues of fantasy sports, the folks at SportsJudge did bring up an interesting point: there is a clause in the standard player contract that basically says the player has to behave. It doesn’t specify what constitutes behaving in terms that are really any more specific than that. And if he doesn’t, the club can boot him. Does this count?