By Adam Y. Siegel and Frank Alvarez
The NCAA’s Division I Legislative Council approved a new rule on April 13 that permits voluntary testing of student-athletes to determine if they are carriers of the rare but potentially deadly sickle-cell trait. The trait, found in approximately 8 percent of African-Americans and less than 1 percent of White Americans, has been linked to the deaths of 8 college football players over the past decade. Notably, 21 total deaths have occurred as a result of college football training regiments during the same span. During intense training or exercise, individuals with the sickle-cell trait can have the shape of their red blood cells mutate causing a “logjam” of cells, resulting in possible death. This incredible data furthers the concern that carriers of the sickle-cell trait are more prone to death during intense exercise than individuals without the trait.
The Legislative Council’s vote comes on the heels of a settlement between Rice University, Conference USA, and the parents of a deceased Rice football player, Dale Lloyd, who died after a rigorous practice. Lloyd was a carrier of the sickle trait. As part of the settlement, Rice and Conference USA agreed to act as strong advocates for testing of the sickle-cell trait and leaders in the proposal to bring comprehensive testing to the NCAA and its institutions.
The NCAA’s passage of sickle-cell testing has brought the issue of testing of genetic diseases front and center. While the National Football League has been testing for the sickle-cell trait during its scouting combine for incoming rookies, Ryan Clark, a safety for the Pittsburgh Steelers, learned the hard way that he was a carrier of the trait. After a game against the Denver Broncos, played in Denver, the sickle cell trait caused him to lose oxygen to his spleen and he had to have emergency surgery to remove it. Two years later, when Pittsburgh returned to Denver (where the altitude can create adverse effects on those with the sickle-cell trait), Clark decided not to play and risk additional harm.
Testing for the gene is particularly noteworthy not only because of the possible adverse affects the testing may have on African-Americans as opposed to other races, but because of the newly enacted Genetic Information Nondiscrimination Act or GINA, which, for employers, went into effect in November 2009. GINA makes it illegal for employers to discriminate against employees or applicants because of genetic information. GINA makes clear that an employer may never use genetic information to make an employment decision, as the information does not tell an employer anything about someone’s current ability to work.
In fact, just this past month in what appears to be the first case brought under GINA, a Fairfield, Connecticut woman filed claims with the U.S. Equal Employment Opportunity Commission and the Connecticut Commission on Human Rights and Opportunities that her employer violated GINA when it terminated her employment on March 25, 2010. According to news outlets, the woman alleges the termination of her employment was the result of informing her employer of her genetic test results that showed she carried a gene that puts her at higher risk for breast cancer. Just as this woman has brought an action under GINA for discrimination based on having a breast cancer gene, a professional athlete seemingly could bring an action against his league for failing to hire and/or terminate employment if that person tests positive for the sickle-cell gene.
As with most statutes prohibiting discrimination based on a disability, GINA provides for certain exceptions that may well allow the NFL to test for the sickle-cell genetic trait. First, and foremost, the threshold question is whether GINA would even apply to testing for the sickle-cell trait. GINA prohibits genetic testing because one’s genetic makeup is presumed to be irrelevant to one’s ability to perform the functions of his or her job. The question for professional sports leagues is whether the sickle-cell trait is relevant to an athletes’ ability to perform the functions of their sport. Additionally, GINA assumes that the genetic information provides a window into the future, not current, medical conditions. Professional sports leagues and their athletes with the sickle-cell trait are likely more concerned with the current impact the trait will have on the specific athlete, and not future risk.
Additionally, assuming GINA is applicable to sickle-cell testing, GINA permits voluntary wellness programs under certain conditions that are meant to help with assessing certain health risks. Obviously, the health risk argument on behalf of testing for the gene seems to be the most viable argument. For instance, could the NFL have mandated that Ryan Clark not play in the game in Denver had he chosen to play? Professional sports leagues have a duty to protect its athletes – just look at the new rules protecting athletes diagnosed with concussions. By giving the players the option of testing for the trait, can professional sports leagues limit any liability that may arise should a player suffer injury after choosing to not be tested?
Because of the fact that GINA has just been put into effect, all employers, including the NFL and other sports leagues, must carefully monitor any existing genetic testing policies and determine whether any particular test falls within the exceptions identified by GINA. Jackson Lewis will continue to monitor GINA and the outcomes that follow from any lawsuits that are initiated.
Adam Y. Siegel, Esquire, is a member of the Jackson Lewis Sports Compliance Group in the Los Angeles Office.
Frank P. Alvarez, Esquire is a member of the Jackson Lewis Disability, Leave and Health Management Practice Group in the White Plains, New York Office.
