MLB Confirms Use of Genetic Testing on Latin American Prospects

I would like to thank Professor McCann and the rest of the team at Sports Law Blog for inviting me to participate here.

Yesterday, the New York Times published an interesting article by Michael Schmidt and Alan Schwarz, reporting that Major League Baseball has used genetic testing to verify the identity and age of prospects from the Dominican Republic, including 16-year-old Miguel Sano (pictured). In recent years, MLB teams have discovered that a number of Latin American prospects have engaged in identity and age falsification to obtain large signing bonuses. For instance, just last week it was reported that MLB’s Department of Investigations determined that recently-signed New York Yankees prospect Damian Arredondo had falsified his age and identity. Meanwhile, in February the Washington Nationals learned that their 19-year-old prospect Esmailyn “Smiley” Gonzalez – signed by the club in 2006 for $1.4 million – was in reality 23-year-old Carlos David Alvarez Lugo.

In order to combat identify and age falsification, the New York Times reports that MLB confirms it has, “in very rare instances and only on a consensual basis,” conducted DNA tests on prospects from the Dominican Republic. While the DNA tests themselves do not verify a prospect’s age, they allow MLB to confirm a prospect’s identify by proving that he is in fact related to his parents. MLB employs bone-scanning tests to verify a prospect’s alleged age.

MLB’s use of such DNA tests carries with it implications under the Genetic Information Nondiscrimination Act of 2008, legislation which becomes effective this November. The Act – which may apply to non-United States citizens who are employees (including applicants) of a U.S. employer – forbids employers from refusing to hire, or discharging, any employee on the basis of genetic information. More significantly, the legislation also forbids employers from requesting genetic information from employees, except when “the employee provides prior, knowing, voluntary, and written authorization.”

Because the Genetic Information Nondiscrimination Act does not take effect until November, MLB should not face any liability under the Act for its prior DNA testing of Latin American prospects. Going forward, however, the Act may prevent MLB from requesting genetic information from Latin American prospects. While the Act does provide an exception for genetic information provided consensually by the employee, this exception seemingly applies only when the employee provides his or her consent prior to a request for the information by the employer. Therefore, unless a Latin American prospect volunteers to undergo DNA testing himself, prior to any request by MLB, the league will be unable to legally obtain genetic information from the prospect. Of course, prospects may in fact begin to voluntarily offer to undergo DNA testing, in order to make themselves more attractive to MLB teams. It will be interesting to watch how both sides react once the Genetic Information Nondiscrimination Act becomes effective in November.

Update (1:55pm): One potential wrinkle in applying the Genetic Information Nondiscrimination Act to MLB's DNA testing activities in the Dominican Republic which I neglected to note earlier is whether the foreign-born prospect should be considered an "employee" under the Act. Specifically, the term "employee" is defined in the Act to include anyone falling within the definition of "employee" provided by section 701(f) of the Civil Rights Act of 1964. In turn, this section of the Civil Rights Act defines "employee" without respect to U.S. citizenship, with one noteworthy exception. Specifically, "[w]ith respect to employment in a foreign country, such term includes an individual who is a citizen of the United States." Therefore, whether the Genetic Information Nondiscrimination Act applies to MLB's Dominican operations may hinge on whether the prospect is being considered for "employment in a foreign country" or for employment in the United States. If the former, then the Latin American prospect may not qualify as an "employee" under the Act. If the latter, then the Act may apply.

Whether the prospect is being considered for employment in a foreign country may be a difficult question to answer. Many MLB teams maintain Dominican baseball academies, to which their recently-signed Latin American prospects may be assigned. However, MLB teams sign these Latin American prospects - especially the high profile prospects most likely to be the subject of DNA testing - with the intent of eventually bringing them to the United States, sometimes within a year or two of their signing. Whether this intent should be sufficient to bring the Latin American prospects within the scope of the Act is unclear, but an interesting question.