Posted Thursday, July 23, 2009, at 9:51 AM
Should baseball teams be prohibited from DNA-testing prospective players?
Here's the background, provided by the New York Times :
Confronted with cases of identity and age falsification by Latin American baseball prospects, Major League Baseball is conducting genetic testing on some promising young players and their parents. Many experts in genetics consider such testing a violation of personal privacy. Federal legislation, signed into law last year and scheduled to take effect Nov. 21, prohibits companies based in the United States from asking an employee, a potential employee or a family member of an employee for a sample of their DNA.
It looks to me as though the tests should be allowed in this case, but with certain conditions.
1. You can test for contractual identity fraud, not necessarily for medical conditions. According to the Times ,
Major League Baseball said that it used DNA testing in the Dominican Republic "in very rare instances and only on a consensual basis to deal with the identity fraud problem that the league faces in that country." The statement added that the results of the tests were not used for any other purpose. ... The DNA test does not reveal an age, but it can reveal whether the player is the son of his claimed parents. Players have been known to find families willing to lend a younger child's birth certificate so that a player can appear younger.
2. There has to be a prior evidentiary basis for suspecting fraud. In this case, there is. "Dozens of Latin American prospects in recent years have been caught purporting to be younger than they actually were as a way to make themselves more enticing to major league teams," says the Times . Several years ago, "more than 300 players in the major and minor leagues were found to have falsified their birthdates, according to Baseball America."
3. Less invasive verification methods must be tried first. Baseball investigators "look into whether prospects are being truthful about their identities and ages," the Times reports. "If those findings are inconclusive, the player is invited to clear up the concerns by providing a DNA sample from himself and his parents, according to [a league] official." And DNA isn't the only way to check your story against your body: "Some players have also had bone scans to be used in determining age range."
4. All testing and records must be controlled by an independent party. Here's where the league has to change its policy. When queried by the Times , "[a] spokesman for Major League Baseball declined to say how many players had been tested and whether the results were stored or destroyed." Furthermore, in at least one case , a prospective player says he "provided samples of his blood, urine and feces to Major League Baseball investigators so they could assess his DNA and any possible use of performance-enhancing drugs."
These practices won't cut it. DNA tests for identity fraud should be permitted precisely because they aren't tests for predicting future health. The two practices have to be kept separate. To guarantee this, any DNA sample or records that can be used to make inferences about health must be either destroyed or retained by an agent who is not under the control of the employer. The point isn't that employers are never entitled to information about health conditions. The point is that such information, if permitted, must be sought and approved separately.
It won't surprise me if these issues end up in the Supreme Court within the next few years. And it won't surprise me if the ruling includes these four conditions.