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Monday, September 26, 2005
Brave New World? Eddy Curry and Chicago Bulls In Disupte over DNA Test

Please Also See Update on Curry v. Bulls, 9/28/2005

Chicago Bulls center Eddy Curry, a restricted free agent who averaged 16.1 points and 5.4 rebounds last season and who was 5th in the NBA in field goal percentage, is refusing to take a DNA test as part of a one-year qualifying contract offer from the Bulls. (Garcia, "Bulls' Deal With Curry On Hold Without Test," South Bend Tribune, 9/25/2005). The Bulls want Curry--who was diagnosed last season with an irregular heartbeat and an enlarged heart, but still played in 72 games--to undergo a DNA test in order to determine whether he is afflicted with, or susceptible to developing hypertrophic cardiomyopathy ("HCM"), a condition that afflicts the heart muscle.

As a matter of background, HCM is usually an inherited disease that causes the heart to become too thick, which in turn obstructs blood flow and impairs breathing. However, among young adults, HCM often presents no symptoms and goes undetected. Moreover, routine physical examinations may not reveal HCM, and instead DNA exams are typically required. With proper medication, those with HCM can usually live normal lives, although because it is often undetected among young persons, HCM can cause death in young athletes who seem completely healthy but die during heavy exercise. In fact, HCM was the cause of death of such prominent basketball players as Reggie Lewis of the Boston Celtics and Hank Gathers of Loyola Marymount. On the other hand, Monty Williams played 9 seasons in the NBA with HCM (from 1994 to 2003).

Curry's attorney, Alan Milstein, raises several important privacy issues in regards to a DNA test of his client. He also does not want a DNA test of Curry to become a precedent for future contract negotiations between NBA teams and players:
If employers could give employees DNA tests, then they could find out if there's a propensity for illnesses like cancer, heart disease or alcoholism. They will make personnel decisions based on DNA testing . . . We are not about to waive privacy for Mr. Curry or set a precedent for any other NBA player.
Milstein's point is especially interesting in light of our discussion earlier this month on sickle cell trait and college football players: it appears that as technology becomes more capable of revealing genetic makeup, teams perceive a greater opportunity to add predictability to their contractual relationships. From a normative perspective, such predictability might be considered "socially-beneficial": it may save a player from continuing in a sport that can kill him, while enabling teams to more intelligently invest their resources.

On the other hand, Curry is a presumptively rational person: Why would he want to assent to something that may reduce his earning power from millions of dollars a year to zero, especially when he has no legal obligation to do so? Along those lines, is the HCM test really in Curry's best interests, or his family's best interests? And does Curry not have a "privacy right" in refusing the exam? And if he takes it, will it open a Pandora's box and require other NBA players--and perhaps all pro athletes--to take DNA exams?

Curry is also only 22 years old, and has watched his career blossom; acquiescence to an invasive DNA test may seem understandably untenable. As you may remember, Curry went straight from high school to the pros in the 2001 NBA Draft, as has become a near-elite center over the last four seasons. In fact, when he led the NBA in field goal percentage in the 2002-03 season, he became the first Bull to lead the NBA in a major statistical category since Michael Jordan in 1998 (scoring). Although his ability to rebound the basketball has left some to be desired, his extraordinary shooting skill places him within the group of premier NBA centers (of which their are few). In fact, Shaquille O'Neal has said, "Outside of myself, Eddy Curry may be the best center in the league."

Despite possessing an enviable mix of youth and talent, Curry has not attracted competitive offers from any other team this off-season, largely because of heart concerns (and also because he is a restricted, rather than an unrestricted free agent). So should the market--nobody else wants him, despite his youth and talent--encourage him to acquiesce to the DNA test, or is he right to philosophically and ethically oppose it? And would he encounter "stigma" among other NBA players, especially those active in the players' association, if he capitulated to the DNA test, thus setting a new contractual precedent for teams and players? Would a DNA test of pro athletes become infamously known as the "Curry Provision"?

Disclaimer of Interest: I was a member of Maurice Clarett's legal team, of which Alan Milstein--Curry's attorney--was lead counsel.


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