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Friday, July 24, 2009
Update on MLB's Use of Genetic Testing

A brief update to my post from yesterday discussing MLB’s use of DNA testing on Latin American prospects. Jorge Arangure Jr., a senior writer for ESPN the Magazine, writes about the issue today, and notes that MLB’s Dominican operations are technically run through separate entities incorporated in the Dominican Republic.

The use of separate Dominican entities may provide MLB with an additional defense under the Genetic Information Nondiscrimination Act. Unlike the Civil Rights Act, which expressly applies to activity abroad by a foreign corporation controlled by a U.S. entity, GINA does not include such a provision. Absent an extraterritoriality provision, U.S. courts may not be willing to apply GINA to activity by a Dominican entity occurring outside of the U.S. However, it is conceivable that should the evidence reveal that MLB’s U.S. operations effectively control the Dominican entities, then a court may willing to hold the U.S. entity liable for violations resulting from the Dominican entity’s activities.

One other potential avenue for regulating MLB's use of DNA testing on Latin American prospects - should it be determined such activity is not presently within the scope of GINA - would be for Congress to amend the Act to expressly give it an extraterritorial reach similar to that of the Civil Rights Act. In a follow-up piece yesterday in the New York Times, Alan Schwarz interviewed Representative Louise M. Slaughter (D-NY), one of the initial drafters of GINA, who expressed concern over the news of MLB’s DNA testing in Latin America.

In any event, MLB’s DNA testing of Latin American prospects raises a host of interesting issues under the Genetic Information Nondiscrimination Act.


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