Tuesday, July 1, 2014
Guest Blogger Professor Seema Mohapatra: Genetic Testing of College and Professional Athletes-Legal? Required?
Isaiah Austin’s basketball career is over, after he was diagnosed with Marfan Syndrome, an inherited disorder that affects about one in five thousand people. Austin, the former Baylor basketball center, underwent genetic testing “in preparation for the NBA draft” and was diagnosed with the connective tissue disease. Tall, thin, and with the longest wingspan of any NBA prospect, Austin fits the profile of a person with Marfan syndrome, but arguably many professional basketball players have the look of an individual with Marfan. Although sad that Austin will not be able to fulfill his dream of playing in the NBA, he is indeed lucky he did not end up like Flo Hyman, the U.S. Olympic volleyball player who did not know she had Marfan syndrome and died on the sidelines of a match. Vigorous exercise can increase the chances that individuals with Marfan may suffer from an aortic aneurysm rupture, which is often fatal.
Austin underwent the genetic testing during the NBA Draft Combine, which is an invitation-only event which takes place before the NBA Draft. At the Draft Combine, in addition to medical testing, players are physically measured, interviewed by teams, and perform various drills and show off their skills in front of potential coaches and scouts. The three top draft picks declined their invitation to the NBA Draft Combine this year, but most players who are invited accept the chance to dazzle their would-be teams. Perhaps because he had a detached retina and is partially blind, Austin was hoping that a clean bill of genetic health may increase his chances of being drafted. If Austin had refused the genetic testing, would teams have been hesistant to draft him?The NBA would likely not be allowed under Genetic Information Nondiscrimination Act (“GINA”) to require genetic testing. Some may recall that pre-GINA, Chicago Bulls player Eddy Curry was asked by the Bulls to take a genetic test for Hypertrophic Cardiomyopathy, a heart condition that Curry was suspected of having. Hypertrophic Cardiomyopathy can be fatal, especially with intense exercise. Curry refused the testing, citing privacy concerns, even with the Bulls trying to entice him by offering an annuity of $400,000 per year for fifty years if he took and failed the genetic test. Curry was picked up by the Knicks, who did not insist on such genetic testing, and had medical clearances that allowed him to continue playing. Had the situation come to a head, though, it is likely that the Bulls’ request would be improper under GINA today (GINA was not in place during the Curry incident).
What if Isaiah Austin, after being diagnosed with Marfan, decided that he will take his chances and risk an aortic dissection and continue playing basketball? Would the NBA be discriminating against him under GINA? Unlikely. First, it is not clear that the NBA or the particular franchise would be an employer under GINA if the player had not been recruited yet. Secondly, assuming that they would be deemed an employer, the NBA or franchise would not be bound by GINA to draft such a player. GINA only protects from employment and health insurance discrimination based on genetic information. Thus, in this case, Austin has a genetic diagnosis, which would protect him under the Americans with Disabilities Act (“ADA”), not necessarily GINA. However, the ADA would not help him in that scenario either. The ADA requires employers not to discriminate against and to reasonably accommodate qualified individuals with a disability It is difficult to see how an NBA player with Marfan syndrome would be reasonably accommodated, as intense activity may lead to a fatal aortic dissection. Also, the NBA could rely on the “health and safety exception,” arguing that allowing a player with Marfan to play would be detrimental to the player’s own health and safety. So, even in Austin wanted to play and was willing to take the risk, the NBA could rely on this exception to not allow such a decision.
Currently, Baylor, and other NCAA programs, do not require that athletes be tested for Marfan Syndrome to be cleared to play. The NCAA does, however, require that Division I and Division II athletes be tested for sickle cell trait, unless a student athlete signs a waiver exempting the team and the NCAA from liability should the athlete be harmed due to their sickle cell trait. This genetic testing was prompted by lawsuits by families of student athletes, who did not know that that they carried the sickle cell trait, and died during rigorous practices and games. If a basketball player who is on a NCAA Division I team suffers an aortic dissection and dies on the field, and is later diagnosed with Marfan Syndrome, could that player’s family similarly sue the NCAA for not testing its athletes for the syndrome? Although sickle cell is far more common than Marfan, as genetic testing becomes more commonplace, arguably, the NCAA may have a duty to screen for more and more conditions.