MLB DNA Testing — Is Baseball Breaking the Law?

As you may know, Major League Baseball has been conducting DNA tests on prospects for several years now. What’s more, they often make the families pay for a test that costs $400. The reasons are understandable: teams want to avoid being defrauded out of millions of dollars by players who falsify their name and age.

The Nationals gave a $1.4 million signing bonus 16-year old Esmailyn Gonzalez before they found out he was 20-year old Carlos Alvarez Lugo. The Indians spent $15 million on a multi-year deal for Fausto Carmona before they found out he was three years older and his name was Roberto Hernandez. The amount of money at stake is so large that corruption is hard to avoid. Numerous officials were fired in the wake of a money-skimming scandal uncovered in 2008, including scouts from the White Sox, Yankees and Red Sox, and Nationals General Manager Jim Bowden. As Nationals president Stan Kasten said after the Gonzalez/Alvarez fraud was uncovered:

No teenager executed this fraud. There were a number of people involved in it… Falsified hospital documents. Falsified school documents. Other family members changing their identities. Bribes were paid. Really elaborate stuff.

That fraud is not just confined to a few high-profile cases. It’s widespread. According to a Cleveland Plain Dealer story from February:

Last year, MLB investigators did background checks on more than 800 players who signed professional contracts in the Dominican Republic. In about 15 percent, fraud was found. MLB statistics say fraud was discovered in over 60 percent of the players investigated in 2002.

So it’s understandable why teams would want to turn to science to find a way to fight back. But they may be breaking the law. MLB trumpets the fact that the DNA tests are “voluntary” rather than mandatory, but voluntary is a relative term. As Cleveland Indians executive John Mirabelli said in 2009, “If a kid and his family decide to decline… we’ll pull our offer and pass.”

In other words, if you refuse the blood test then you can’t get a job. That appears to violate GINA, the Genetic Information Nondiscrimination Act, signed by President Bush in 2008, which took effect between May 2009 and May 2010. According to the Department of Health and Human Services, the law “prohibits most employers from using genetic information for hiring, firing, or promotion decisions, and for any decisions regarding terms of employment.”

So, is it illegal? It depends on who you ask. In a 2011 article in the Seton Hall Law Review, Shannon Stevens writes, “The Act makes it an unlawful employment practice to fail to hire an employee because of genetic information or to request or require genetic information from an employee.” But Michael Zitelli, writing in the Sports Lawyers Journal in 2011, suspects that the word “employee” may provide a loophole, because the prospects are not U.S. citizens and because the teams are paying them to join academies in the Dominican Republic, rather than bringing them to the United States.

And Laurie Frey, a student at Marquette University Law School writing in the Marquette Sports Law Review, concludes that “MLB’s use of testing would likely not apply to GINA,” because baseball is only seeking to determine the player’s age, and not any pre-existing medical conditions, which appear to have been a greater concern for the Congress that passed GINA. (It should be noted that numerous Marquette Law faculty members are employees of the Milwaukee Brewers, and that Commissioner Bud Selig is adjunct faculty at the school. So that school may be more likely to see MLB’s interpretation of the law as valid.)

I spoke to Rick Karcher, a professor at the Florida Coastal School of Law and former prospect in the Atlanta Braves system. He agrees with Stevens’ reading of the law. “I would say that MLB is in violation of GINA,” he says. “GINA clearly states that it’s an unlawful employment practice for an employer to request or require genetic information with respect to an employee or a family member of an employee.”

But he also notes that it is unlikely that MLB’s practice would be challenged in court. If these players were already in the major leagues, then they would be covered by the Players’ Union, which would fight back vehemently against any attempt by baseball to request genetic testing. The Indians could never have tested Carmona/Hernandez after he made the majors and joined the union. But 16-year old Dominicans are not unionized, and the Players’ Union has no incentive to fight on behalf of people who may be committing fraud that could put a union member out of a job. It is unlikely that we will see a GINA test case from a Latin American prospect come before an American judge any time soon.

Nonetheless, there are serious ethical questions at play here. MLB’s money possesses a coercive power. When a baseball team offers a “voluntary” DNA test as a condition of being signed, the player knows that there is no other source of employment on the island that will pay him as much as that initial signing bonus. It’s extremely hard for a poor teenager to say no to thousands, or millions, of dollars — it’s the very definition of an offer you can’t refuse. It’s also troubling to think of Major League Baseball conducting blood tests on teenagers as a condition of employment. In this country, that is considered a major violation of privacy, and we have a law that makes it illegal. But American corporations are engaging in it.

UPDATE: As noted in the comments below, in a followup, Karcher also told me:

Many foreign players could be construed as “employees” under GINA because they (1) work at spring training facilities in the U.S., (2) work in the U.S. when they are playing for minor league clubs during the regular season, and (3) are paid here in the U.S. and in the same manner as U.S. citizens.