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  1. There’s an argument to be made that teams wouldn’t refuse to “hire” a prospect because they failed the DNA test in some way, but rather that they refused to “hire” the kid because he lied about his age.

    Comment by Ben — May 31, 2012 @ 4:38 pm

  2. Yes, but the Indians have already indicated an unwillingness to hire a kid because he wouldn’t take the test, which is pretty clearly forbidden by the law. Likewise, it’s illegal for an employer to request that an employee take a DNA test. The clear implication is that their job depends on it.

    Comment by Alex Remington — May 31, 2012 @ 4:40 pm

  3. Are there any other ways to handle this issue? How can teams prevent themselves from being duped out of large amounts of money by these prospects? I agree that it’s a bit of a breach of privacy, but it’d be easier to argue against if teams had an obvious alternative. Just curious if people have ideas about this, because I don’t.

    Comment by Daniel — May 31, 2012 @ 4:41 pm

  4. How are they using the DNA test? You can’t tell someone’s age from their DNA.

    Comment by Question — May 31, 2012 @ 4:47 pm

  5. It’s against the law, perhaps, but is it really unethical? There’s very clearly a major issue here that can and has cost teams millions of dollars, and it’s the players that are lying.

    Comment by Eminor3rd — May 31, 2012 @ 4:47 pm

  6. Nice article, really interesting issue, I didn’t know any of this before, but how could you leave out any mention of The Pitcher Formerly Known as Leo Nunez?

    Comment by Corey — May 31, 2012 @ 4:51 pm

  7. I can’t see any judge applying this law to what MLB is doing. They need DNA testing because it’s the only reasonable way to determine whether or not fraud is being perpetrated. You can’t really argue it’s a requirement just because the Indians said they’d require it either. There are 29 other teams that could still sign him.

    Comment by Nitram Odarp — May 31, 2012 @ 4:53 pm

  8. The idea is to use the DNA test to establish whether they’ve falsified their identity and therefore their age. It’s a little roundabout.

    Comment by Alex Remington — May 31, 2012 @ 4:54 pm

  9. I assume comparing it to parents, siblings, etc. to make sure they’re the person whose birth certificate they’re using.

    Comment by Nitram Odarp — May 31, 2012 @ 4:54 pm

  10. I think the current practice is clearly defying the law, but couldn’t MLB come up with some other chemical/scientific way to test for age that doesn’t use genetic information? I’ve heard of hearing tests and a few other methods. While these won’t be nearly as accurate, they at least won’t be illegal: the FBI still uses the notoriously inaccurate lie-detector test to screen employees. And maybe after a few 16-year-olds falsely test as older, people will be scrambling to sign up for actually voluntary DNA tests.

    Comment by Evan — May 31, 2012 @ 4:57 pm

  11. I’m still mad at him for being autodrafted on my fantasy team.

    Comment by Alex Remington — May 31, 2012 @ 4:58 pm

  12. Are you sure? I would think they could look at cellular decay rates and tell age. Not sure how accurate it is. It wouldn’t make sense for them to do DNA testing if they can’t tell age.

    Comment by Wilj — May 31, 2012 @ 5:00 pm

  13. I think you can only be mad at yourself when someone gets autodrafted.

    Comment by Eminor3rd — May 31, 2012 @ 5:01 pm

  14. Right, but even still, if that is the current policy of the team then the Indians are an American employer which would appear to be in violation of the law. It doesn’t matter if other companies aren’t violating the law.

    I’m also not sure that DNA testing is the only reasonable way to determine whether or not fraud is being perpetrated. For one thing, the CBA drastically cut the amount of money that teams may pay to international free agents. For another, MLB could dole out harsher penalties to those who are caught perpetrating fraud: if it’s a team official, prosecute them to the fullest extent of American anti-fraud law. If it’s a Dominican buscone, refuse to ever do business with them again. Baseball is big business. Adjust the economic incentives.

    MLB already has its own investigations office that tracks down fraud cases. What emerged in the Esmailyn Gonzalez/White Sox scandal is not that there was fraud, it’s that there was fraud that was backed up by huge numbers of other people covering it up and skimming off the top.

    You don’t need DNA to unravel a coverup. All you need is RICO.

    Comment by Alex Remington — May 31, 2012 @ 5:01 pm

  15. Very nicely reviewed, A.R.

    Comment by Transmission — May 31, 2012 @ 5:01 pm

  16. I’m really mad at myself too.

    I mean, I’ve owned Leo Nunez in the past. I should know better.

    Comment by Alex Remington — May 31, 2012 @ 5:02 pm

  17. You’ve neatly elided the privacy issues of DNA testing itself. Sure, fraud exists and teams have the right to want to combat it. But that doesn’t mean that the ends necessarily justify the means.

    Comment by Alex Remington — May 31, 2012 @ 5:03 pm

  18. How exactly do they use DNA to determine age? My understanding of DNA is that the genetic code is basically the same in in every cell in your body. If DNA ages, then your DNA in your eyes would gradually diverge from the DNA in your white blood cells as you age. I’m not aware that this is the case. Maybe someone more knowledgeable could enlighten me?

    Comment by Dan — May 31, 2012 @ 5:03 pm

  19. What about a person’s identity is supposed to be private from an employer? That would be like saying you can’t check someone’s identification to make sure they’re the person they claim they are. If they attempted to use the information for other purposes I could see your point, but there is no reason for that information to be released to them (if it is then I would have an issue).

    Comment by Nitram Odarp — May 31, 2012 @ 5:06 pm

  20. Also, (from being married to a genetic counselor) interpretation of genetic test results is in an incredibly rudimentary state right now. At the present time, you cannot use genetic testing to make conclusive statements about a person’s risk for heart disease or obesity; so how in the world are MLB teams using genetic information in ways the medical community isn’t able to?

    Comment by Dan — May 31, 2012 @ 5:07 pm

  21. It’s not that simple because of how MLB is structured. The Indians aren’t the ones doing the testing, MLB is (at least that’s my understanding). The legal argument would be that the law applies to MLB, not the individual teams, and MLB isn’t keeping anyone from signing just because they don’t take the test.

    The problem with the rest of your argument is it requires that fraud already happened and it was uncovered (Is MLB supposed to pay huge amount to investigate every prospect after the fact? How is that reasonable?). And what are the chances the team is going to be able to recover the money they paid? Unless you have a reasonable alternative to how MLB could go about stopping fraud before it happens, you’re going to have a tougher time making your case in court.

    Comment by Nitram Odarp — May 31, 2012 @ 5:11 pm

  22. Use it to make sure they aren’t using someone else’s documents to lie about their age.

    Comment by Nitram Odarp — May 31, 2012 @ 5:14 pm

  23. The article actually says that they can’t use DNA to determine age. It’s used to corroborate a players claims about his relationships to parents and siblings. The spirit of GINA is that employers can’t use genetic information to determine an employee’s fitness for a job; for example you can’t refuse to hire an employee if you know that employee has tested positive for a common genetic mutation that causes a blood disorder. The law was written to (hypothetically anyways) prevent the Tampa Bay Rays from refusing to sign Rocco Baldelli because they discovered he had a mitochondrial disorder from genetic testing.

    Comment by Dan — May 31, 2012 @ 5:16 pm

  24. “(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.)”

    That should read, at most, that those professors employed by MLB are more likely to agree with MLB’s interpretation. The school has no position on the matter. And the other professors in the law school are free to publish their disagreements, if they care to, without concern for their jobs. Yay tenure.

    Also, you fail to mention whether Laurie Frey is one of the professors employed by MLB. If Frey is not employed by MLB then your parenthetical unjustifiedly undermines her expert legal opinion.

    Comment by LTG — May 31, 2012 @ 5:21 pm

  25. To take the devil’s advocate, how much about me does my employer really need to know? My employer certainly has an interest in knowing that I can do the job. But I’m not convinced that my employer has an interest in knowing who I am.

    To take an extreme case, if I were in the witness protection program, I would feel no compunction about telling my employer my new identity and refusing to disclose my old one. To take a much more plausible one, if I were a felon who got out of jail and had resolved to turn my life around, I might very well decide to change my legal name as one way of making a clean break with my old life. Does my employer need to know about crimes in the past for which I have paid my debt to society?

    An employer certainly has the right to know if I can do the job for which I’m hired. The employer has an interest in knowing about the elements of my personality that I will bring to bear in the workplace, my morale, my willingness to work on a team, my enthusiasm, my ability to get along with others. But my employer shouldn’t have the right to know things about me that have no bearing on how I do my job.

    Obviously, age fraud is a big deal because contracts with prospects are investments in the future: prospects falsify their ages because it gets them a lot more money than if they presented as their true ages. So employers are clearly justified in wanting to combat fraud.

    But DNA testing is a serious incursion on privacy, and I’m not sure it’s warranted, unless there is a scientific consensus that there is literally no other way to verify a person’s age. Otherwise, I think that this is just a case of MLB violating an American law because it knows that no one will advocate for poor Latin teenagers.

    Comment by Alex Remington — May 31, 2012 @ 5:24 pm

  26. Your basing the claim that it is against the law on the opinion of one lawyer who in no way specializes in these types of cases. I see no reason to place that much emphasis on what he says. You’re stretching things here. MLB may potentially be skirting the law. I can guarantee their lawyers have an excellent case of why the law doesn’t apply in this particular case.

    Of course your employer has the right to know if you committed felonies in the past. Are you seriously arguing that they don’t?

    Comment by Nitram Odarp — May 31, 2012 @ 5:28 pm

  27. Is it illegal? The answer is almost certainly “no”, unless the DR has its own laws on DNA testing which MLB is violating. For it to be otherwise would imply that MLB’s activities in foreign countries are subject to the union of local and US law, which is illogical, impractical, and (as far as I know) not consistent with US policy or international law.

    Is it unethical? That is a more interesting question, and I don’t have a good answer. On the one hand you have the arguments you laid out. On the other hand, it is common for highly compensated employees to not be subject to various labor laws – minimum break times, maximum hours, etc. I am not a lawyer, but I have to imagine that someone at some time has taken the view that age is not a protected class when it comes to professional athletes, even if it clearly is for front-office employees of the same organizations (otherwise teams could not factor in age when deciding what term of contract to offer Clayton Kershaw vs. Roy Halladay). And legalities aside, I don’t think anyone believes it is unethical for a sports team to discriminate in this way. So there is precedent for the concept that athletes are “special” when it comes to how they are treated.

    I don’t know what that means, honestly. Professional athletes are already subjected to a degree of control and intrusion by their employers that in almost any other context would have someone calling their lawyer (contractual restrictions on leisure activities, frequent intrusive medical examination with no expectation of privacy, limitations on how much beer and chicken can be consumed at the office – I kid). Is DNA testing really such a reach?

    Comment by mcbrown — May 31, 2012 @ 5:28 pm

  28. At the time she wrote the article she was a student, not an expert. I think it is fair to note that a number of the faculty members from whom she may have taken classes are employees of, or consultants to, a major league team.

    I reached out to the National Sports Law Institute at Marquette, to see if anyone would comment on the issue. The person I talked to declined, due to the close ties between the school and the Brewers, and suggested that, rather than talk to anyone else at the school, I should talk to Rick Karcher in Florda instead.

    From that exchange, as well as the fact that virtually all of the baseball experts on faculty work with the Brewers, I concluded that it was very likely that the school would have an educational environment which would be pro-MLB.

    Comment by Alex Remington — May 31, 2012 @ 5:29 pm

  29. Exactly. The test is only used to verify that the players are who they claim to be. If what MLB is doing violates the law, then the law was not very well written and would likely be revised soon after courts decided against MLB. The law was in no way intended to do what the author is arguing it should do.

    Comment by Nitram Odarp — May 31, 2012 @ 5:30 pm

  30. It really doesn’t seem unethical to me. If people really get tied up in the clash between ethics and law, there is surely a loophole to be found that violates neither the law nor the player’s right to a *degree* of privacy, yet protects the team’s assets. Perhaps the solution lies in an independent 3rd party administering and analyzing the results of both the DNA test and questionnaire?

    Comment by novaether — May 31, 2012 @ 5:30 pm

  31. The issue appears to revolve around intent. Major League Baseball certainly intends to employ these players in the United States (or in Canada), and so while they are temporarily employed by the teams at their Latin American academies, the clear purpose of the contract is to try to get them into the United States to play in the States.

    So United States labor laws may indeed apply.

    Comment by Alex Remington — May 31, 2012 @ 5:31 pm

  32. Alex, in this context I believe the Indians most definitely are not an American employer. They are in some contexts an American employer, but probably not when it comes to their foreign employees or employees of foreign affiliates.

    Taking baseball out of the equation, GM is a US employer with operations in China. GM must pay its US employees at least the Federally mandated minimum wage. However GM can pay its Chinese workers considerably less than Federal minimum wage, because those workers are covered by Chinese law, not US law.

    Comment by mcbrown — May 31, 2012 @ 5:33 pm

  33. Well, two lawyers — Stevens and Karcher. But no one’s an expert in these cases. No one has tried one.

    Comment by Alex Remington — May 31, 2012 @ 5:35 pm

  34. Players’ privacy certainly wasn’t respected when the results of steroid tests from the early 2000s wound up leaking. Those results were supposed to be destroyed, and the fact that they weren’t seriously damaged the credibility of claims that privacy would be kept.

    So it’s a hard promise to keep, a hard one to make, and a hard one to take seriously.

    Comment by Alex Remington — May 31, 2012 @ 5:37 pm

  35. From the EEOC website (http://www.eeoc.gov/policy/docs/extraterritorial-vii-ada.html), the first thing you ask when doing a discrimination case on activity outside the US (Title VII, the ADA, or more recently GINA) is : “Is the charging party a U. S. citizen? If not, (s)he is not protected by Title VII or the ADA, which exclude aliens working outside the United States. See Section I(A)(2), footnote 2.”

    So from first glance it does not violate GINA

    Comment by John C — May 31, 2012 @ 5:37 pm

  36. I believe US law would only apply if they were subjected to DNA testing after they were in the US and employed by a US team or its US affiliates. Extending my GM example above in a response to a different post of yours, if GM promoted a Chinese factory worker to supervisor and then transferred them to the US, GM would most certainly not be retrospectively subject to violation of US minimum wage laws simply because that former Chinese employee was now a US employee.

    On a practical level, what jurisdiction could a US court claim over the foreign testing? How would evidence be gathered? How would subpoenas be served? Would the DR’s sovereignty need to be violated along the way?

    Comment by mcbrown — May 31, 2012 @ 5:40 pm

  37. There’s no question that the whole issue turns on the notion of who constitutes an “employee.” But don’t look at the ADA, look at the GINA text itself, linked above: http://www.gpo.gov/fdsys/pkg/PLAW-110publ233/pdf/PLAW-110publ233.pdf

    GiNA refers to the Civil Right’s Act’s definition of “employee”:

    (f) The term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.

    http://www.eeoc.gov/laws/statutes/titlevii.cfm

    So, for foreign citizens employed in a foreign country, they would appear not to be considered “employees” by this description. But, as I wrote above, if the intent is for them to be employed in the United States, then that may color the interpretation.

    Comment by Alex Remington — May 31, 2012 @ 5:41 pm

  38. I think it is pretty clear from the EEOC link (thanks for that John C) that US law generally is not considered to have extraterritorial applicability, unless otherwise specifically enacted. In the case of the Civil Rights Act, if I am reading it correctly, its protections are only extended extraterritorially to US citizens. If a person in a foreign country is not a US citizen, they cannot be an employee. Thus it doesn’t matter what the intent for the future is – the players are not employees, and they are not protected.

    Again, the question of ethics is a different matter.

    Comment by mcbrown — May 31, 2012 @ 5:47 pm

  39. You didn’t quote anything from Stevens regarding MLB, so I didn’t realize it was specifically addressing their situation. Looking through it there are some flaws I see in the reasoning/wording. There also seems to be the assumption that the DNA is being kept for other tests, which would seriously impact how a court would view what baseball is doing. I’m not reading the entire paper, but it seems to be a pretty fundamental assumption for the rest of the reasoning. If MLB is using the tests of those purposes, than I think people would view this quite differently. I still think there would be a strong case that they weren’t violating the law, but I would certainly find it to be unethical.

    Comment by Nitram Odarp — May 31, 2012 @ 5:48 pm

  40. Do you have anything to support the idea that the legality revolves around intent or is that just what you think? I’m not saying it’s wrong, just curious.

    Comment by Nitram Odarp — May 31, 2012 @ 5:52 pm

  41. My question would be whether baseball players functioned more like “contractors” than “employees” and whether the law would distinguish between those two terms (IOW, does GINA apply to contractors?). I would think that the term ‘contractor’ more properly represented the relationship between a baseball player and the parent club.

    Comment by carpengui — May 31, 2012 @ 5:53 pm

  42. I’m with mcbrown on this one. I still haven’t seen anything that would lead me to believe the law actually applies to what MLB is doing.

    Comment by Nitram Odarp — May 31, 2012 @ 5:55 pm

  43. I didn’t look to just the ADA, the site I linked to is the Title VII of the Civil Rights Act (where GINA gets its employee definition from) interpretation for extraterritorial discrimination as well.

    From the same site: “The threshold question is whether the alleged discrimination occurred within or outside the United States.”

    So in order to avoid needing to be a US citizen, the minor league player would have to argue that a contract offered in another country to join an organizations academy in another country is discrimination within the US.

    Comment by John C — May 31, 2012 @ 5:56 pm

  44. Does US law apply in Venezuela/Dominica/wherever?

    Comment by Phrozen — May 31, 2012 @ 5:56 pm

  45. See discussion below:
    http://www.fangraphs.com/blogs/index.php/mlb-dna-testing-is-baseball-breaking-the-law/#comment-2757178

    Comment by Alex Remington — May 31, 2012 @ 5:59 pm

  46. Merely rejecting someone on the premise that they won’t take the test is entirely different from rejecting someone on the basis of the results. The latter is clearly illegal — employee definition aside and jurisdiction aside. The former, which is what the Indians supposedly practice, does not appear to be illegal.

    Comment by Marver — May 31, 2012 @ 6:07 pm

  47. It’s more my untutored opinion, though I believe I recall having seen something to that effect in one of the articles.

    Comment by Alex Remington — May 31, 2012 @ 6:09 pm

  48. To elaborate:

    Indians: “If a kid and his family decide to decline… we’ll pull our offer and pass.”

    Law: “prohibits most employers from using genetic information for hiring, firing, or promotion decisions, and for any decisions regarding terms of employment.”

    The Indians are not using genetic information; they are using the willingness of a player to submit to genetic testing.

    Comment by Marver — May 31, 2012 @ 6:10 pm

  49. Going one step further. If the prospect took the test and wasn’t who he said he was, the Indians would still have to offer contract, etc. However, I believe they could still pursue charges of fraud and submit the genetic information as evidence. After conviction, they could use that conviction as grounds for contractual termination.

    With that said, it seems like the proper game theory is:
    Prospect: Deny taking test and hope another team won’t require it.
    Team: Deny players who don’t take test, pursue fraud charges on those who do and fail.

    Comment by Marver — May 31, 2012 @ 6:22 pm

  50. The issue is that employers generally have the right to verify your identity before hiring you. It’s perfectly legal for US corporations to run background checks to see an employment history and criminal history. If you’re a former child molester, an elementary school has a right to know and to reject your employment on those grounds-it would also be nice for them to know if you’re a fugitive. Likewise, if you claim to be a former CEO for IBM, an employer has a right to verify whether you, in fact, previously held that position, or if you’re just full of crap. So, in that sense, the MLB isn’t violating the spirit of the law-they’re just using the available resources they have in order to verify identity in countries where records are not necessarily as reliable.

    Whether it’s in violation of the letter of the law comes down to legal definitions that very few of us are probably qualified to answer. What qualifies them as employees or potential employees? Do these same rights apply to foreign citizens? These are questions best left to legal experts.

    I don’t see an ethical violation as long as the MLB is continuing to use this test in a very narrow scope. If they begin expanding the use of testing to decline to hire people who might have genetic markers for Parkinson’s, that’s clearly unethical. While it’s unlikely that any one prospect might retain a lawyer, some attorney on his own might decide that he can win money in a class action suit and file one. If the legalities become a question, I expect we’d actually see this law redefined so it applies for the narrow scope in which the MLB is currently using it, since it’s established that employers can verify an employee’s identity through various other means.

    Comment by Bronnt — May 31, 2012 @ 6:35 pm

  51. Alright Einstein this is fangraphs not Harvard. They would not waste their time and money if it didn’t work.

    Comment by Bob Bovin — May 31, 2012 @ 6:38 pm

  52. As relates to what a clubs intent for a particular player is…

    It is obviously the teams hope that a player improves enough to be brought to the US. However, any prospect short of the Aroldis Chapman types are likely signed with the intent of playing in their home country. Anything beyond that would depend on their progress. Saying US law applies to someone who may or may not ever set foot in the US is a stretch.

    Comment by Bob — May 31, 2012 @ 6:46 pm

  53. Are you kidding? People in baseball waste their time and money all the time on things that don’t work. Like biometric necklaces.

    Comment by Alex Remington — May 31, 2012 @ 6:47 pm

  54. Section 202(b.) makes it an illegal employment practice to “request, require, or purchase genetic information with respect to an employee or a family member of the employee.” (then there are some exceptions that don’t apply to baseball) So this is the part of GINA that would be used against MLB teams.

    I think this also makes it less likely that the law applies to MLB teams since the “request” or “requirement” almost certainly takes place before the prospect enters the US, and as described above “(t)he threshold question is whether the alleged discrimination occurred within or outside the United States.”

    Comment by John C — May 31, 2012 @ 7:05 pm

  55. I’ve got a much simpler method to determine falsified identity in Latin American players. A really uncommon name is a huge red flag. Observe…

    Fausto Carmona turns out to be Roberto Hernandez
    Jairo Garcia turns out to be Santiago Casilla
    Esmailyn Gonzalez turns out to be Carlos Alvarez Lugo

    I’m waiting to find out that Fautino De Los Santos’ name is actually Jose Ramirez.

    Comment by degolas — May 31, 2012 @ 7:29 pm

  56. If you don’t take her opinion to be an expert one why are you citing it as a plausible interpretation of the statute?

    At any rate, the credential is not the expertise only a reliable indicator of it. That one is a student does not entail that one is not an expert.

    What you say in response has merit, but it should have been in the article. As it reads, it looks like an unsubstantiated accusation of undue bias.

    You might also think that, since the interpretation of law is an adversarial process (two sides with opposing interests argue over what the law says), it really makes no difference whether Laurie or the other professors are influenced by MLB directly or indirectly. If the interpretation is plausible it deserves a hearing. If not, a judge will toss it.

    Comment by LTG — May 31, 2012 @ 7:31 pm

  57. I should also clarify that it is right generally to be suspicious of relationships between university faculty and private corporations for many reasons that vary from discipline to discipline. But I think these reasons are not present for law faculty as such because it is an adversarial process. However, if law faculties became dominated by corporate interests, then we should be worried about the legal discourse affecting the outcomes of decisions.

    Comment by LTG — May 31, 2012 @ 7:38 pm

  58. It should be noted that not only are the MLB teams requiring a DNA sample the prospective player, they are also requiring one of the player’s parents (probably just mother, since non-paternity is not necessarily evidence for fraud. It is likely evidence for cuckoldry). There is no way to determine age from a DNA sample. They are surely using the test to check claimed family identity. Of course, family identity will not distinguish between siblings, so fraud is still a possibility.

    That said, despite the fact that they are requiring DNA samples from two people, they are not violating privacy in the spirit of the law. The law was written to prevent discrimination against genetic variation. The situation people were worried about was insurance companies denying coverage based upon preexisting conditions for healthy individuals that might develop some condition based upon some genetic variant. The outcome of such a practice would be genetic castes since everyone has some genetic variants that predispose conditions later in life, and some are worse than others. Further, it in a less fine grained approach, it could lead to race-based discrimination if a genetic variant that, say, insurance companies are concerned about is more common in some groups.

    Testing someone’s claims of identity has nothing to do with discrimination based upon genetic variation. The MLB teams do not care about what genetic variants these players have, they only care that they share 50% ancestry with their mothers. ID checks are neither unethical nor illegal.

    Comment by Jason H — May 31, 2012 @ 7:38 pm

  59. Like Hideki Irabu…

    Comment by BronxBomber — May 31, 2012 @ 7:56 pm

  60. I’m citing it because it’s clearly a well-sourced and well-thought out opinion on the issue. But she was not a credentialed practitioner when she wrote it: she was a student at an institution that has a very close connection to the Brewers and to Major League Baseball. That doesn’t render her opinion invalid, but it does mean that readers ought to be aware of the institution that was educating her when she wrote the piece.

    Also, I didn’t want to emphasize my communications with Marquette in the body of the piece itself because the communication was via email, not a direct interview, and generally emails do not have a presumption of being on the record while phone conversations do. I pointed it out in the comment thread because it’s more of a behind-the-scenes reason for why I wrote the piece the way I did.

    Comment by Alex Remington — May 31, 2012 @ 7:57 pm

  61. And still, they aren’t requesting the genetic data, per sa. They’re requesting submission to the action of taking a test.

    Comment by Marver — May 31, 2012 @ 8:02 pm

  62. Irabu’s a sad story. Interestingly enough, his most important legacy is the current posting system for Japanese athletes, which largely exists as a result of the machinations that brought him, Hideo Nomo, and Alfonso Soriano from Japan to the United States.

    At the time of his first major league appearance, Tom Verducci wrote that it “may have been the most anticipated debut by a Yankees rookie since Mickey Mantle.” He could never live up to the hype, and appears to have suffered from depression for years before committing suicide a year ago.

    http://sports.yahoo.com/mlb/blog/big_league_stew/post/hideki-irabu-the-pitcher-who-couldnt-adjust?urn=mlb,wp14178

    Comment by Alex Remington — May 31, 2012 @ 8:07 pm

  63. I’m not sure I see the point you’re making. They’re requesting the genetic information that proves that the player is related to the people he says he is related to.

    Comment by Alex Remington — May 31, 2012 @ 8:08 pm

  64. “That doesn’t render her opinion invalid”

    My concern is that your parenthetical licenses precisely the inference you are denying, especially in a discourse culture where opinions are commonly explained through the often concealed interests of the opiner.

    If the piece is well researched and well argued why is the information in the parenthetical relevant unless it undermines the appearance of being well researched and well argued?

    Comment by LTG — May 31, 2012 @ 8:20 pm

  65. An employment contract is something of a two-way street.

    I kind of find it sick that law in this country gives employer’s rights to information about potential employees without requiring employers to give insight into potential private information of theirs.

    You want to know if I was a felon? Let me see your internal books, bitch.

    However, in a world where money buys you smarter lawyers, maybe this is just the way it goes in a world where money matters more than simple things like rights. I’m sure people that were hired on into companies like Enron and Bear Stearns should have had information that allowed THEM to see what they were getting into. Those people were massively defrauded.

    But I’m cynical enough to realize that those arguments wouldn’t “play” in courts. I’m just unsure why they are morally different than corporations (who are people!) attempting to protect themselves from being defrauded.

    I want to protect myself from being defrauded when I join a company.

    Comment by Nick44 — May 31, 2012 @ 8:33 pm

  66. I wouldn’t have quoted her if I didn’t think that the opinion was worth engaging. But it is pretty commonplace to note where there may be conflicts of interest. The Marquette Law School has close ties to the Brewers and the Major League Baseball, and many of the people who may be her educators have those ties. That is a conflict of interest. Generally, it’s best to disclose those.

    If you like her arguments, go ahead and agree with her. As I say, she is clearly well-educated and well-informed. But I would be remiss if I quoted someone without noting a potential conflict of interest.

    Comment by Alex Remington — May 31, 2012 @ 8:51 pm

  67. I really don’t see how this can be called unethical. If a player feels he is being violated by having his age checked genetically then he doesn’t have to sign. Teams that are willing to take a risk on players who refuse to be tested can sign them, presumably for less. There’s no coercion or fraud on the part of the MLB teams.

    Comment by Thomas — May 31, 2012 @ 9:50 pm

  68. 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.

    Comment by Alex Remington — May 31, 2012 @ 9:52 pm

  69. This is related but not precisely to the point. It is not just the Civil Rights Act that applies to US citizens extraterritorially. US citizens abroad are a walking bubble of US jurisdiction. There is no statute that states this and there couldn’t be because there is no centralized, international legislature (although the international courts, at times, function as international law-making institutions). But the international norms are such that the US laws extend to US citizens wherever they are.

    Comment by LTG — May 31, 2012 @ 10:17 pm

  70. Comparing Bear Stearns and Enron shows a severe case of trying to sound smarter than you are.

    Comment by TKDC — May 31, 2012 @ 10:53 pm

  71. What if a player is adopted? What if the parents never told him?

    And in this way it’s discriminatory, because a player would probably be denied a contract on that basis – regardless of his/the parents’ reasons for taking such a test.

    I know that it wouldn’t come up in 99.9% of cases, but this is the kind of thing they’re ready for I hope.

    Comment by JJ07 — May 31, 2012 @ 10:55 pm

  72. Birth certificates have the name of birth parents, not adopted parents. If this did somehow happen, MLB would know that the parents wouldn’t have the same DNA.

    Comment by Nitram Odarp — May 31, 2012 @ 10:57 pm

  73. Excellent! You are expressing precisely the journalistic norm that needs questioning. As you say, generally a journalist should mark a potential conflict of interest. If an NGO starts touting the safety of fracking with anecdotal evidence or statistics that obscure the dangers of the process, it is relevant that they are funded by donations from energy companies. But is this generality a universality? Certainly not. If an historian finds primary source evidence that a tribe of Israel lived on the North American Continent 2000 years ago (or whenever it is supposed to be), it is not relevant that he happens to be a Mormon. It is only relevant whether the primary source evidence is good evidence. (Should the evidence turn out to be be faked, his Mormonism becomes relevant because we have independent reason to ask for an explanation of his opinion besides he honestly evaluates the evidence to indicate x.)

    It seems to me the case of Laurie Frey falls into the second type and not the first. If I judge the article of intellectual merit, then it doesn’t matter what interests lie in its vicinity.

    Now you might object that if you did not note the “potential conflict of interest” a reader might fault you for not presenting the whole picture. (This lines up with your being remiss, I think.) But the question is what is the whole picture? The whole picture cannot be all of the true propositions related to the article. There are simply too many of those that don’t matter (e.g., it was published on goldenrod paper with lucida grande font). So, it must be the ones that are relevant to understanding what is at issue in the article. Thus, it falls on you to select the relevant ones and the irrelevant ones, what is in the picture and what is not. Whatever you put in the picture will license the reader to form evaluative inferences about the subject matter. Therefore, it is not remiss to omit a potential conflict of interest if you judge that potential conflict to be irrelevant to the evaluation of the subject matter. (And you have to judge one way or the other; there is no neutral position here. If you wish not to editorialize, it is already too late.)

    All of this was to argue that it is insufficient to cite that journalistic norm in order to defend including the parenthetical because the norm is defeasible. You have to say why it applies in this case. And this in turn requires saying more than that there is a potential conflict of interest. You must also say why that potential conflict of interest might undermine the arguments presented in the article. Hermeneutics of suspicion should only be engaged when there is independent reason to suspect something is amiss.

    (Since you mentioned it, I have no care one way or the other about Frey’s article. I only care about the propriety of marking conflicts of interest in various cases. It seems to me this is done all too often in the evaluations of scholarship. As you should know already, I enjoy your articles very much. You happened to pinch a nerve.)

    Comment by LTG — May 31, 2012 @ 11:09 pm

  74. A: 72 comments
    Q: What do you get when an article written by a guy who doesn’t understand the law is discussed by a bunch of people, most of which don’t understand the law.

    However, Alex, I actually appreciate the article – it just should be framed as a moral question, not a legal one.

    Comment by TKDC — May 31, 2012 @ 11:11 pm

  75. I’m not sure how any of that is relevant as it all occurs a significant period of time after the DNA testing and signing take place. When the testing happens they aren’t U.S. citizens and the testing isn’t taking place in the U.S. What reason is there to believe that U.S. law would apply simply because these guys might in the future work for these teams in the U.S.?

    Additionally, if the player is lying about who he is, it would be illegal for him to enter the U.S. under that false identity anyway. I can’t imagine any judge looking at these facts and deciding that teams shouldn’t be able to keep themselves from being defrauded and keep foreign citizens from entering the country illegally when it’s also highly questionable if the law applies in the first place because the citizenship/location issue and the testing not actually being required by MLB (since they are the party doing the testing, not the individual teams).

    Comment by Nitram Odarp — May 31, 2012 @ 11:13 pm

  76. The post about asking to see there books is one of the funniest things I’ve read. Sure, you have every right to ASK to see their internal books. However, just as you can refuse to allow testing or have a background run, they can refuse to show your their books. The problem is the company will just decide to hire someone else if you refuse, but you can’t really do anything to the company if they refuse your request. You happen to need them a lot more than they need you.

    Comment by Nitram Odarp — May 31, 2012 @ 11:19 pm

  77. This is false, at least in the US.

    Childwelfare.gov

    Comment by JB — May 31, 2012 @ 11:20 pm

  78. I’m not sure how closely you read that. The original birth certificate doesn’t just disappear. It’s kept sealed by the state. If we were to assume this was also the case in the D.R. (and I seriously doubt it is), then it shouldn’t be hard to establish whether or not the person was adopted. Now trying them to get access to the name and convincing the birth parent to agree to testing would obviously be a major hurdle, but simply explaining why the DNA wouldn’t match for a reason other than lying about your identity wouldn’t be hard.

    Comment by Nitram Odarp — May 31, 2012 @ 11:36 pm

  79. You can’t tell age from DNA. Telomeres at the end of DNA do shorten as you age and perform numerous rounds of replication, but it happens at different rates in different people so you certainly could not be trying to differentiate between kids over such a narrow range. I am also curious how exactly they are using DNA tests for this.

    Comment by Grant — June 1, 2012 @ 12:09 am

  80. Common…let’s protect the criminals here and ban DNA tests. Sheesh, you’ve 20 year olds competing AND excelling against 16 year olds…lets reward them with millions of dollars because they are smart enough to game the system….Power to the people!

    (see:sarcasm)

    Comment by Crime Pays — June 1, 2012 @ 12:55 am

  81. It doesn’t appear that the DNA testing is foolproof, i.e., players and their “agents” are already finding ways around it. I recall reading a recent Baseball America article that said that prospects had begun using identities of younger relatives of their mother (perhaps a nephew of the mother). The DNA test can’t detect the fraud in that case.

    Comment by CJ in Austin, TX — June 1, 2012 @ 1:13 am

  82. Let’s take a look at a different kind of example. Let’s say I am a bartender and Fausto Carmona comes up and orders a drink. His ID indicates that he is of legal age, but it turns out that it’s a fake ID. Under the laws regarding underage drinking I can be fined and fired. This will likely lead to him having difficulties being hired elsewhere. This happened because someone lied about their age and broke the law.

    MLB asking for DNA tests to essentially prove the age of someone (Yes, I know that’s not how the test works) is no different than a bartender asking for ID. They are protecting themselves from losing millions of dollars to someone committing fraud. There is nothing unethical about that unless they are using it to look for genetic markers to look for potential problems down the road.

    Anyone seeking to commit fraud has, in my opinion, voided their rights to be treated ethically by the person or entity they are attempting to defraud.

    Comment by Jim — June 1, 2012 @ 1:59 am

  83. I truly could not disagree more with you, on a philosophical level. I believe that laws apply to both the innocent and guilty equally. I do not believe that anyone can or should be able to, through commission of a crime, forfeit their right to a fair trial or to ethical and fair treatment under the law.

    Comment by Alex Remington — June 1, 2012 @ 2:05 am

  84. I appreciate that you’re taking the time to respond carefully, so I will try to reply with care.

    I am not trying to equivocate. I put the parenthetical about Marquette Law in the piece because I believe that there is a strong possibility that the Marquette Sports Law faculty would be favorably disposed to an organization that is a common employer for many of them. I don’t think that that means that Frey’s arguments are irrelevant, but I think that it is worth knowing that background as you go in to read it.

    I accept that my phrasing, putting the parenthetical right after my quoting her, tends to diminish her argument. I did that in part because I tend to disagree with her, but I accept that a footnote would probably have been a better way to do it.

    That said, I agree with you that legal reasoning is often closer to hermeneutics than it is to a science based on evidence-based falsifiable hypotheses. Her opinion is just that: an opinion, grounded in logical reasoning. The cases that she cites and the interpretations that she gives of those cases originate from her mind, but as she is a law student, I think it’s fair to assume that she may have been influenced by her professors, as indeed I am influenced by my professors. Her work mostly consists in textual analysis rather than in “hard data.” Obviously, your mileage may vary and I encourage you to form your own opinion of her work, but again, I think that the financial relationship between the Brewers and many Marquette Faculty — for the legal opinions held by those faculty in their professional life — is relevant to the legal opinions that those faculty espouse in their academic life.

    Of course, even when it comes to evidence-based falsifiable hypotheses, it’s important to note who paid who. This is obviously important in the murky world of think tanks, institutes, policy shops, and so forth, but it is not irrelevant even when it comes to universities. As we know from all of the age fraud scandals, money corrupts. I am NOT saying that Frey is a shill for anyone. I am saying that I believe that the relationship between the Brewers and the Marquette sports law faculty is relevant. The reason that I am convinced that it is relevant, which I did not state in the piece but I did state in the comments, is that a faculty member advised me against trying to interview any faculty member, due to the relationship between the Brewers and Marquette. That indicates to me that the faculty is not neutral. And it makes sense: many of them are on the payroll.

    To take your example, if a historian found primary source evidence that a tribe of Israel came to New York State 2000 years ago, I would be fascinated. I would probably try to interview another leading historian to ask for a reaction and sense of context within the history profession. Suppose, then, that I tried to interview members of the history faculty at SUNY-Stony Brook, which naturally has many faculty members who have done a great deal of work on the history of New York State. Let us further suppose that there is a nationally renowned center at Stony Brook called the National Center for Religious Evaluation, where numerous history faculty members do work on the side for the American Humanist Association.

    There’s nothing wrong with their having done so. It does not necessarily prevent them from offering intellectually honest answers to my questions. But it should be disclosed.

    Comment by Alex Remington — June 1, 2012 @ 2:23 am

  85. Even if their commission of a crime makes the innocent unknowingly guilty of a crime or fraudulently costs several different entities a great deal of time and money (Not only is the team dishing out money, but any endorsement deals and stuff like that can also be predicated on the age of the prospect and expected future returns)? Fortune is supposed to favor the bold, not the criminal.

    Under the law, the MLB teams are supposed to be protected against fraud as a corporate entity, right? So in this circumstance, refusal to sign the person based on whether or not they take the test may, in your opinion, be unethical treatment of them, but the team is ensuring their own interests.

    I view this in the same light as teams having players they’ve traded for take a physical. They want to verify that they aren’t receiving damaged goods. There’s also no way for them to regain any money lost on that player. Are they going to sue these players for damages?

    Comment by Jim — June 1, 2012 @ 2:34 am

  86. Yes, to me it is very much an ethical absolute. Criminals deserve fair treatment.

    Of course, if their guilt is proven, then fair treatment includes punishment. But I believe in innocent until proven guilty. And I believe that even the guilty deserve basic rights.

    Comment by Alex Remington — June 1, 2012 @ 2:43 am

  87. I am not a trained lawyer; I’m a columnist. I don’t think that stories should only be written by professionals trained in the field. Amnesty International has asserted that MLB is breaking the law. So did the lawyer I talked to. That makes it an interesting story, and one worth writing.

    Comment by Alex Remington — June 1, 2012 @ 2:45 am

  88. It’s been fairly well established that athletes in team sports who work under a manager, coach, or directing force are employees, and those who don’t, such as golfers, boxers, and other individual sports, are contractors of the respective governing body. So baseball players = employees

    Comment by ba745 — June 1, 2012 @ 6:05 am

  89. So are we still crazy for wondering if Pujols is older?

    Comment by DodgersKingsoftheGalaxy — June 1, 2012 @ 8:03 am

  90. MLB isn’t using this DNA to determine the age of a player. Why buy these players with all their baggage when one can clone an identical player from their DNA all the while adding enhancements? Yes, this technology is still in it’s infancy. The failures far outnumber the successes. And even the successes have their problems. The Pujols model D can’t hit AL pitching. The Hamilton Model F has an alcohol problem. Hell, the entire Royals farm was contaminated with Neifi Perez DNA because a tech failed to clean a test tube properly. This has killed an entire generation of prospects. The weight problem has been fixed for Cecil Fielder’s next “son” but the speed gene is still giving them trouble.

    Comment by Bill — June 1, 2012 @ 8:31 am

  91. “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.’”

    * Most, but not all – which employers are exempt from this law?

    “…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.’”

    * If these academies are not owned by any entity from within the U.S., then that does not make a case for the execution of GINA. (Otherwise, I’m sure it would.) And, if baseball teams are paying them to play in DR, this is more of a grant than an act of employment, and yes, this would likely circumvent GINA.

    “Rick Karcher… 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.’”

    * I’m not sure if this would apply, with respect to prospective baseball players being trained in DR baseball academies, although the gray area for some would be that this testing could preclude employment by an employer of the U.S. before the fact, on the basis of possibly illegal evidence. But given the order of succession of events and jurisdictional enforcement, I think this would technically make such a law invalid, in this case.

    Comment by Adam Halverson — June 1, 2012 @ 8:45 am

  92. The DNA tests are administered only if a player has a question of identity and thus eligibility for a work visa issued through the US embassy. If there is no underlying issue of identity (i.e. both parents alive, reliable records, etc.) DNA tests are not administered to player because the US Embassy issues visas without them. However, lacking the proper documentation, verification of identity is impossible without a DNA test, resulting in a player that cannot get a visa, and thus cannot be employed by any major league team in the USA. It is not discrimination based on employment when the signings are not contingent upon the players DNA results, but rather their eligibility for legal working status in the US

    Comment by AmhFtbl — June 1, 2012 @ 8:50 am

  93. “The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision.”

    * Well, that certainly answers my first question – thanks, Alex! I suggest that this be included in the article, though.

    Comment by Adam Halverson — June 1, 2012 @ 9:02 am

  94. Well, since it is a US Federal law that is intended to apply to US Citizens, the congress clearly did not pass it with any notion that using DNA to confirm the identity of a foreign national was a big problem. In fact, I would bet good money that ICE does this exact thing all the time in immigration cases where the identity of the applicant is in question.

    There is no need to use DNA to confirm the identity of a US Citizen, even one born in Alabama, so the spirit of the law is clearly not being violated here.

    Comment by Paul — June 1, 2012 @ 9:48 am

  95. Alex,

    Where are you getting the information that a number of Marquette faculty work/consult for the Brewers? I know Bud Selig has a courtesy appointment on the faculty, but beyond that what are the formal links between the school and team?

    Comment by Jimbo — June 1, 2012 @ 9:50 am

  96. Ding! Ding! Ding! Ding! We have a winner.

    There must be millions of lines of laws and federal regs where interpreted literally, while completely ignoring the spirit of the law, we would already be living in a dystopian netherworld.

    Comment by Paul — June 1, 2012 @ 10:00 am

  97. “So did the lawyer I talked to. ”

    He said that he thinks it is, with the caveat that it’ll never be challenged in court. If the thinks it can’t be challenged in court, he really thinks its not illegal.

    The wording is pretty clear. These people aren’t US employees. They’re not US citizens. They’re not in the US.

    The law doesn’t apply to them.

    Comment by RC — June 1, 2012 @ 10:00 am

  98. “I do not believe that anyone can or should be able to, through commission of a crime, forfeit their right to a fair trial or to ethical and fair treatment under the law.”

    None of that is happening, unless you think that ID’ing someone at a bar is unethical. There’s nothing unethical about verifying someone’s ID before you give them a contract.

    IF MLB is keeping the blood/testing for othert things/etc, then thats unethical, but there’s no evidence that this is happening.

    Comment by RC — June 1, 2012 @ 10:03 am

  99. I’m not sure I see how that works unless the mother’s relative is a sibling. In that case there is only an issue if a player has an uncle on his mother’s side that is younger than he is. Otherwise you’re not going to get the 50% DNA match you would with a mother-son relationship.

    Comment by Nitram Odarp — June 1, 2012 @ 10:13 am

  100. I went to the faculty page: https://law.marquette.edu/programs-degrees/sports-law-program

    There are 14 faculty members listed, of whom three work for the Brewers and the fourth is Commissioner Bud Selig. Rick Schlesinger is the Brewers’ COO, Teddy Werner is their senior director of baseball operations, and Marti Wronski is their general counsel.

    Don’t get me wrong, they are adjunct rather than full-time faculty. But it’s clear that there is a strong relationship between the Sports Law Institute and the Brewers. (There’s also a relationship with the Bucks, whose vice president Ronald Walter is also adjunct faculty.) These relationships are clearly beneficial to the school and to the teams. But they also should be borne in mind.

    Comment by Alex Remington — June 1, 2012 @ 11:47 am

  101. I was responding to the commenter, who said that “anyone seeking to commit fraud has, in my opinion, voided their rights to be treated ethically.”

    Comment by Alex Remington — June 1, 2012 @ 11:49 am

  102. Karcher believes that the law is illegal, which is an intellectually defensible position. He also believes that these poor teenagers have no effective legal advocates.

    Are you seriously arguing that nothing is illegal so long as it is perpetrated on someone with no effective legal advocate?

    Comment by Alex Remington — June 1, 2012 @ 11:51 am

  103. Karcher also told me, in a followup, that MLB does not make the argument you’re making. MLB is NOT saying, “We are entitled to violate GINA because these are not U.S. citizens.”

    Instead, their main argument is that DNA testing is voluntary. But even voluntary testing is prohibited by GINA.

    Comment by Alex Remington — June 1, 2012 @ 11:53 am

  104. You only need one argument for why it doesn’t apply. Besides, how do we even know the extent of their argument if it’s never actually been challenged in a court of law?

    And where in the law does it specifically say that voluntary testing is prohibited?

    Comment by Nitram Odarp — June 1, 2012 @ 11:58 am

  105. I think you’re making a pretty big leap from his original analogy. In that context, someone not being allowed into a bar when presenting fake ID, or being tossed out once it’s discovered is clearly not unethical. Having the bouncers take them out back and beat the hell out of them is.

    Alex, this law has nothing to do with philosophy. In this scenario, using DNA is a very good method to verify someone’s age, where government records are unreliable and a huge bonus is plenty of incentive for friends and neighbors to lie. Your political views on the immigration issue are clearly clouding your ability to analyze a straightforward and benign issue.

    Comment by Paul — June 1, 2012 @ 12:01 pm

  106. Also, this is the law Stevens’ paper cites to back up the position that the the request itself is illegal.

    http://www.law.cornell.edu/uscode/text/42/2000ff-1

    Read (b)(2)(B)…

    “It shall be an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee except…where…the employee provides prior, knowing, voluntary, and written authorization.”

    How does that exception not apply in this case?

    Comment by Nitram Odarp — June 1, 2012 @ 12:09 pm

  107. Huh? How does immigration come into this? And when have I ever stated my views on it?

    Comment by Alex Remington — June 1, 2012 @ 12:09 pm

  108. Nitram,

    Full siblings cannot be differentiated. Therefore fraud can be committed by just claiming to be your younger brother.

    Also, the example you give is genetically distinguishable with only a modest number of genetic loci. The parent-offspring relationship, genetically, is a special one. Parents contribute EXACTLY 50% to each of the children. In all other situations when relatedness r=0.5 the expectation is 50%, but in actuality, sampling effects mean it will not actually be 50% (the probability of observing it is described by a binomial process, and is a function of the number of genetic loci observed). So, while on average full siblings are related by 50%, in actuality you are 51% or 48% or 60%, etc. related to your brother.

    Comment by Jason H — June 1, 2012 @ 12:10 pm

  109. The key phrase is “request or require.” Prohibiting requests means that it doesn’t matter whether it’s voluntary or mandatory.

    Sec. 202, part B:

    ACQUISITION OF GENETIC INFORMATION.—It shall be an
    unlawful employment practice for an employer to request, require,
    or purchase genetic information with respect to an employee or
    a family member of the employee except—
    (1) where an employer inadvertently requests or requires
    family medical history of the employee or family member of
    the employee;
    (2) where—
    (A) health or genetic services are offered by the
    employer, including such services offered as part of a
    wellness program;
    (B) the employee provides prior, knowing, voluntary,
    and written authorization;
    (C) only the employee (or family member if the family
    member is receiving genetic services) and the licensed
    health care professional or board certified genetic counselor
    involved in providing such services receive individually
    identifiable information concerning the results of such services; and
    (D) any individually identifiable genetic information
    provided under subparagraph (C) in connection with the
    services provided under subparagraph (A) is only available
    for purposes of such services and shall not be disclosed
    to the employer except in aggregate terms that do not
    disclose the identity of specific employees;
    (3) where an employer requests or requires family medical
    history from the employee to comply with the certification
    provisions of section 103 of the Family and Medical Leave
    Act of 1993 (29 U.S.C. 2613) or such requirements under State
    family and medical leave laws;
    (4) where an employer purchases documents that are
    commercially and publicly available (including newspapers,
    magazines, periodicals, and books, but not including medical
    databases or court records) that include family medical history;
    (5) where the information involved is to be used for genetic
    monitoring of the biological effects of toxic substances in the
    workplace, but only if—
    (A) the employer provides written notice of the genetic
    monitoring to the employee;
    (B)(i) the employee provides prior, knowing, voluntary,
    and written authorization; or
    (ii) the genetic monitoring is required by Federal or
    State law;
    (C) the employee is informed of individual monitoring
    results;
    (D) the monitoring is in compliance with—
    (i) any Federal genetic monitoring regulations,
    including any such regulations that may be promulgated by the Secretary of Labor pursuant to the
    Occupational Safety and Health Act of 1970 (29 U.S.C.
    651 et seq.), the Federal Mine Safety and Health Act
    of 1977 (30 U.S.C. 801 et seq.), or the Atomic Energy
    Act of 1954 (42 U.S.C. 2011 et seq.); or
    (ii) State genetic monitoring regulations, in the
    case of a State that is implementing genetic monitoring
    regulations under the authority of the Occupational
    Safety and Health Act of 1970 (29 U.S.C. 651 et seq.);
    and
    (E) the employer, excluding any licensed health care
    professional or board certified genetic counselor that is
    involved in the genetic monitoring program, receives the
    results of the monitoring only in aggregate terms that
    do not disclose the identity of specific employees; or
    (6) where the employer conducts DNA analysis for law
    enforcement purposes as a forensic laboratory or for purposes
    of human remains identification, and requests or requires
    genetic information of such employer’s employees, but only
    to the extent that such genetic information is used for analysis
    of DNA identification markers for quality control to detect
    sample contamination.

    Comment by Alex Remington — June 1, 2012 @ 12:14 pm

  110. My understanding is that “prior” authorization means that they have to have authorized testing before the request was made — at least, that seems to be one interpretation. That’s what I gleaned from the articles.

    Comment by Alex Remington — June 1, 2012 @ 12:16 pm

  111. Yes, this is the correct answer. THIS is what should be included in the post as an update. This is not genetic testing for medical purposes, it is only for identification purposes.

    In fact, it seems fairly clear from reading the law (and yes I am a lawyer, though this is not my area) that what MLB teams are doing (assuming they are only testing for matching DNA) does not violate the letter nor the spirit of the law. Thus, the whole “are they an employee?” thing is irrelevant.

    Of course, I don’t think it is a stretch to assume that some teams might use genetic information about players (in a way that would violate this law) if they thought it was helpful. I’m not a scientist, so I have no idea what help it could be.

    Comment by trained lawyer — June 1, 2012 @ 12:20 pm

  112. Can someone please specify what privacy is being violated by using a DNA test in this way? The law was not written with this situation in mind. What logical reason is there for extending it to cover this? What privacy is being violated?

    There is nothing magic about DNA. More information is available about an individual through any normal background search, or even a Google or Facebook search than you could ever get with DNA. So, why should DNA be a special case here?

    In America we use DNA to confirm identity all the time with or without consent of the individual. DNA is gathered at, say, crime scenes and considered no longer to be owned by the individual that shed it. DNA is used to confirm or deny paternity for issues of custody and child support. In all these cases DNA is used to inform identity, and not to discriminate based upon any particular genetic variant (the situation the law was concernend with).

    Comment by Jason H — June 1, 2012 @ 12:21 pm

  113. I’m sorry but that is an asinine interpretation. You think the exception only applies when an employee says it’s okay beforehand without any request from the potential employer? How in the world would they know that the employer wanted their DNA? Why would they give consent to something that wasn’t even asked for? There would be absolutely no reason to even include that provision if it was meant to be interpreted the way you’re suggesting.

    Comment by Nitram Odarp — June 1, 2012 @ 12:22 pm

  114. Not too mention the exception includes the condition that it must be voluntary. If the exception only applied before a request was made, how could the authorization not be voluntary? If no one has even requested authorization to DNA testing, then how can you give involuntary authorization? The intent of this exception should be obvious.

    Comment by Nitram Odarp — June 1, 2012 @ 12:25 pm

  115. As a human geneticist, I can support Trained Lawyer from a scientific standpoint. While teams could conceivably believe there is some useful information to be gotten from assessing the particular genotype of the prospective player, in reality, there is nothing that can currently or in the foreseeable future be gotten from a DNA sample that you wouldn’t be able to better assess by looking at the individual or watching him play. Go to the 23andMe website, for example, and check the kind of information they can give you. They are likely to tell you that you’ve got blond hair and freckles. Well, the mirror test every morning tells you that! …they can’t tell you whether you are likely to need Tommy John surgery in two years, obviously.

    Comment by Jason H — June 1, 2012 @ 12:28 pm

  116. Did he say something about full siblings? That is obviously another issue, but one that generally shouldn’t be too tough to establish with a basic investigation. If you claim to be the younger brother but clearly appear to be older than your “older” sibling, then you have a major red flag.

    Comment by Nitram Odarp — June 1, 2012 @ 12:29 pm

  117. It’s funny, I read the same thing and do not conclude the same thing. The very notion of prohibiting a request doesn’t make sense if one of the exceptions includes the player giving their consent AFTER the request is made. A request implies that consent is needed; that’s theoretically what separates a request from a requirement in the first place.

    Therefore, I would conclude that there would be no need for the explicit exception unless the exception referred to a time BEFORE the request was made. If the player, of his own free will, said to the team, “Feel free to test me!” before they ever said that they wanted to test him, THEN a request would be legal. If the player has not said that, then a request is illegal. At least, again, that’s my interpretation.

    You and I may be colored by our perceptions.

    Comment by Alex Remington — June 1, 2012 @ 12:39 pm

  118. I said that the person seeking to commit fraud has voided their right to be treated ethically by the person they are attempting to defraud. What I meant by that is that it’s not ethical for me to smash Nicolas Cage repeatedly over the head and face with a bat. However, it becomes legal, and an ethical grey area, if he has broken into my home.

    If your argument that MLB shouldn’t be allowed to do this then what means do you recommend that they use to verify the age of prospects coming from a region where falsifying data and fraud is becoming more common? Should we expect MLB or its teams to fund a comprehensive and state-of-the-art birth registry system throughout Latin America? That might be the nice and humanitarian thing to do, but expecting it is wrong, and it wouldn’t generate results for a minimum of 17 years once implemented.

    Comment by Jim — June 1, 2012 @ 12:42 pm

  119. As I said above, “DNA testing is a serious incursion on privacy, and I’m not sure it’s warranted, unless there is a scientific consensus that there is literally no other way to verify a person’s age.”

    If there’s literally no other way, then I can understand it. I don’t know enough about forensic methods to be able to judge.

    Comment by Alex Remington — June 1, 2012 @ 12:44 pm

  120. Would it be unethical to check identity using fingerprints? In the US, I have been fingerprinted as a condition of employment (teaching children). The use of DNA by MLB is much more similar to old fashioned fingerprints than it is to what the law we are discussing was actually written for.

    If you think there is an ethical issue involved with using DNA to confirm identity, you might also be concerned about many other biological ways that employers confirm identity (e.g. fingerprints, hand scans, retina scans, etc.). These things are practiced everyday in the US.

    Comment by Jason H — June 1, 2012 @ 12:48 pm

  121. Even if I accept your interpretation, you can easily argue they aren’t “requesting” the information. They can simply tell players it’s an option if they want to better prove they are who they claim to be. Then if they player “provides prior, knowing, voluntary, and written authorization,” the exception will still apply.

    I do think your interpretation is incorrect however. The whole point of these exceptions is that they are times when it is okay to request genetic information. If the person volunteers their DNA before being it’s requested, then why would the company need to subsequently request it? That whole part of the law wouldn’t seem to even apply to exception in the first place.

    Comment by Nitram Odarp — June 1, 2012 @ 12:52 pm

  122. Another very good point that would certainly be made if MLB’s practice were ever challenged.

    Comment by Nitram Odarp — June 1, 2012 @ 12:53 pm

  123. I think I found the statutory reason that MLB is not going to get into trouble. Section 210 of GINA states:

    “An employer, employment agency, labor organization, or joint labor-management committee shall not be considered to be in violation of this title based on the use, acquisition, or disclosure of medical information that is not genetic information about a manifested disease, disorder, or pathological condition of an employee or member, including a manifested disease, disorder, or pathological condition that has or may have a genetic basis.”

    This use is not “genetic information about a manifested disease, disorder, or pathological condition of an employee.” If they are able to put up a wall between the testing company and the MLB team and only release the information regarding the identification of the player I don’t think GINA applies.

    Comment by John C — June 1, 2012 @ 12:54 pm

  124. According to my interpretation, the player isn’t volunteering his information. (He probably hasn’t paid the $400 for the test just to have it. That’s a lot of money for a poor teenager.) According to my interpretation, all the player has done is indicated his willingness to be tested.

    Comment by Alex Remington — June 1, 2012 @ 12:55 pm

  125. The test shouldn’t be if there if there is literally no other way. I mean what if there was, but that way cost 1 MM for each player as opposed to $400? Would you argue that because there is a theoretically possible way to do the testing that is completely unfeasible given the cost that an actual feasible method should be banned? You have to go with a reasonable alternative test, not a literal alternative test.

    Comment by Nitram Odarp — June 1, 2012 @ 12:56 pm

  126. You’re actually going to argue that there is a difference between “volunteering” and “indicating a willingness?” Besides, if the players do pay, then it is a voluntary test that the player is paying for on his own to better prove his identity and hopefully get a larger bonus. Just because they are made aware of a way to better prove their identity doesn’t actually mean MLB is asking them to take part.

    Comment by Nitram Odarp — June 1, 2012 @ 12:59 pm

  127. I’m also curious what Karcher’s source is the argument MLB has made for why the program is legal. What reason would MLB have to tell him their arguments outside a court of law? How do we know his word is actually trustworthy? Did he offer evidence beside his own word?

    Comment by Nitram Odarp — June 1, 2012 @ 1:02 pm

  128. Yes, but the Indians have only stated that they use whether or not the test was taken, not whether or not the identity was confirmed, to make their judgment. So long as they hire regardless of the results of the test (confirmed identity/unconfirmed), they aren’t violating anything by not hiring based on the refusal to take a test.

    Additionally, I don’t think they’d be doing anything illegal by hiring unconfirmed identities, bringing those people / reporting them to authorities who take them to court on the basis of identity fraud, and then using that conviction as grounds for termination.

    Comment by Marver — June 1, 2012 @ 1:10 pm

  129. It’s not a confidential source thing. I believe that Karcher is saying that’s MLB’s argument because MLB has been careful to stress that it’s voluntary in all the prior articles I’ve seen calling the practice into question.

    From the 2009 Schmidt and Schwarz New York Times story, linked above:

    In a written statement, Major League Baseball said that it used DNA testing in the Dominican Republic “in very rare instances and only on a consensual basis to deal with the identity fraud problem that the league faces in that country.”

    From the AP article on ESPN Deportes from a couple of weeks ago, linked above (translation via Google Translate):

    “Major League Baseball does not require any individual having DNA testing as part of an investigation of age and identity. Players or their families sometimes volunteer to undergo a DNA test in an attempt to confirm the age or identity of a player, when irregularities are found in an investigation,” said MLB senior vice president for legal affairs and labor, Daniel Halem, in an email to the Associated Press.

    Comment by Alex Remington — June 1, 2012 @ 1:10 pm

  130. If that’s the case, then your assertion that MLB isn’t arguing the point we raised is dubious. Of course in public releases they’ll stress that it’s legal because it’s voluntary instead of focusing on the fact that it’s only legal because these aren’t U.S. citizens and it isn’t happening in America. The first looks pretty good from a PR perspective. The second looks terrible.

    Comment by Nitram Odarp — June 1, 2012 @ 1:13 pm

  131. No, I’m saying that tons of agents, etc, would love to jump all over this if there were actually grounds for a case.

    The very fact that Karcher equivocates indicates that he doesn’t actually think its illegal. When you say something like “I don’t think anyone would challenge it in court” you’re effectively saying “I don’t think its right, but its probably legal”.

    Comment by RC — June 1, 2012 @ 3:21 pm

  132. “As I said above, “DNA testing is a serious incursion on privacy, and I’m not sure it’s warranted, unless there is a scientific consensus that there is literally no other way to verify a person’s age.””

    What exactly about a DNA test is a “serious incursion on privacy”? Its a quick blood draw, and thats it.

    In my opinion, its way less of a privacy invasion than a detailed investigation.

    Comment by RC — June 1, 2012 @ 3:24 pm

  133. Yeah, thats pretty straight forward.

    If you’re going to write an article complaining about people violating a law, you should actually read the law.

    Typical for Remington though, tilting at windmills, assuming there’s an issue everywhere.

    Comment by RC — June 1, 2012 @ 3:27 pm

  134. It’s obvious that teams have a vested interest in insuring that these players aren’t committing fraud and that DNA testing can be an important method in doing that. It’s also clear that this is absolutely not the purpose of the law. It’s equally clear, however, that teams might have a vested interest in using DNA testing to determine whether or not these players have any sort of genetic predisposition toward something that might potentially be debilitating in some way. That would clearly be a violation of the law.

    It may be a moot point since these prospects would probably be unable to challenge this law in court should they feel that teams are violating the purpose of the law but, legally, teams should be limited to using DNA testing to help them determine prospects’ ages and should be prohibited from any use beyond that purpose. Who would enforce this and how it would be enforced is the least clear element of this discussion.

    Comment by chuckb — June 1, 2012 @ 3:53 pm

  135. Karcher offers another response: “Section 202 (2)(B) (“the employee provides prior, knowing, voluntary, and written authorization”) is not an isolated exception but only applies when (A), (C) and (D) also apply. Section 202 (2) is only an exception when (A), (B), (C) and (D) are all met. If you read (2) as one entire sentence it makes more sense.”

    The relevant section is:
    “(2) where—
    (A) health or genetic services are offered by the
    employer, including such services offered as part of a
    wellness program;
    (B) the employee provides prior, knowing, voluntary,
    and written authorization;
    (C) only the employee (or family member if the family
    member is receiving genetic services) and the licensed
    health care professional or board certified genetic counselor
    involved in providing such services receive individually
    identifiable information concerning the results of such services; and
    (D) any individually identifiable genetic information
    provided under subparagraph (C) in connection with the
    services provided under subparagraph (A) is only available
    for purposes of such services and shall not be disclosed
    to the employer except in aggregate terms that do not
    disclose the identity of specific employees;”

    Comment by Alex Remington — June 1, 2012 @ 3:59 pm

  136. I personally don’t believe this violates the law because the testing and contractual stuff occurs in a foriegn country and does not apply. However, if I’m wrong (which I may well be since I have no legal background) I wonder if MLB could create a requirement to have an independant entity/firm perform the age testing and develop contractual language with the firm that MLB will not have access to the genetic data and only the results that would verify/help verify the age? They could then determine whether the person appears to be the identity and/or age they claim by issuing a report. Then the genetic code would be protected from the “employer” and only the independant verification would take place.

    Although there are legal concerns, trying to ascertain the actual age of the player needs to be done. These are kids and they can be lead astray as they are young, poor, and very impressionable but it isn’t fair for their age/identity to be misrepresented. If this is deemed inappropriate, MLB should work with the players union to come up with a very long suspension/ban to disuade the fraud. A severe enough punishment could cause the players and their parents/representatives to think twice before creating the frad in the first place.

    Comment by Average_Casey — June 1, 2012 @ 4:14 pm

  137. Here is the link to the article I was recalling:
    http://www.baseballamerica.com/today/prospects/international-affairs/2012/2613332.html

    Among other evasions, apparently the mothers of both also exchange identities. The DNA of the father can’t be used to identify the fraud because the mother will say that the current father isn’t the real father.

    Comment by CJ in Austin, TX — June 1, 2012 @ 4:27 pm

  138. Well fair enough on that one. My bad.

    Comment by Nitram Odarp — June 1, 2012 @ 5:19 pm

  139. To be fair to Alex, it’s pretty awful that the actual lawyer he talked to missed that. I think we should probably he holding the lawyer to a higher standard than the guy who just writes for fangraphs.

    Comment by Nitram Odarp — June 1, 2012 @ 5:25 pm

  140. It should be noted that there is almost no need for such a wall. The genetic test necessary and almost certainly used by the testing company consists of typing a handful of highly polymorphic microsatellite loci. They are almost certainly using the 13 locus CODIS set. There is absolutely no medically relevant information that can be obtained from the data. The only thing close to medical relevance that can be learned from these genetic markers, besides identity and relatedness, is whether the individual is a male or female. ….I assume they already know that…

    So, while even collecting whole genome genotype data from the players would be pretty well useless for predicting anything about these players over the course of their brief careers, they aren’t even collecting this data. Instead they are collecting data that is only useful for showing relatedness and sex.

    There really is no possible privacy violation here if the teams are doing what they say they are doing.

    Comment by Jason H — June 1, 2012 @ 5:38 pm

  141. Ok, Alex, I think I agree that, since there was a way to present the information without licensing an inference that would undermine the legal opinion, it could have been included in the article as relevant to the reader who wishes to follow up your research.

    But I disagree that it is always worth noting who pays whom. There is no such thing as neutrality in interpretation. And this condemns all research. So we need different grounds on which to determine when it is relevant to mark who pays whom. I can’t give an account here of when it is relevant. But I will suggest that it is relevant when an important part of the evidence includes the institutional source of the opinion; if not not. This covers a lot of the intuitive cases, but it would not cover the example you were considering, that is, if I understood it (it seemed incomplete).

    Thanks for a stimulating conversation, anyway. As a hermeneut the issue of journalistic norms fascinates me.

    Comment by LTG — June 1, 2012 @ 9:21 pm

  142. From Karcher:

    “Regarding Section 210:

    Section 201 provides that “the term ‘genetic information’ means, with respect to any individual, information about such individual’s genetic tests.”

    Section 202 provides that an employer cannot request genetic information, which means that an employer cannot request a DNA test.

    Section 210 provides that an employer is not in violation based on the use, acquisition, or disclosure of medical information that is not genetic information about a manifested disease, disorder, or pathological condition of an employee.

    Thus, Section 210 does not permit an employer to request a DNA test for purposes of making hiring and firing decisions. Employers frequently obtain all sorts of medical information on their employees and employers must be able to obtain, use and disclose that information in a variety of contexts, e.g. provide it to insurance companies and insurance consultants, use it in the context of workers’ compensation claims, etc. Section 210 permits use and disclosure of that medical information as long as such information does not consist of genetic information about a manifested disease, disorder, or pathological condition.”

    Comment by Alex Remington — June 1, 2012 @ 10:42 pm

  143. Phrozen.. It doesnt matter if they apply to Central or South America as that isnt the issue. It does apply to the parent teams that sponsor these acadamies, scouts, and other facilities and resources. They are all based in the US (save for the Toronto BlueJays), so yes, they are covered by American Law.

    Comment by Cidron — June 1, 2012 @ 11:24 pm

  144. Not sure if its an answer, but if it wasnt a “team thing” but, a “league thing” with all teams contributing equally to it. Yes, that would have both up’s and down’s. But, if one agency ran the screening (age and name stuff) instead of 30, it might save money, or at least concentrate the efforts (instead of duplicating them)…..

    Comment by Cidron — June 1, 2012 @ 11:26 pm

  145. No, age cannot be told from DNA.. I say we do the “tree method”.. Cut them open horizontally and count the rings.. *nod* yeah, that makes sense.

    Comment by Cidron — June 1, 2012 @ 11:27 pm

  146. Two wrongs does not make a right.. To break the law (dna testing/employing based on it) to counter the crime of fraud.. And, besides, who will get hold of this dna stuff down the road. And, if it becomes commonplace, who knows what else will be that is also illegal.. You want a job at WalMart, you must dna test in addition to the drug test. You want to decline, we dont have to offer you the job then. Someone else will do the test in your place and take your job.

    Comment by Cidron — June 1, 2012 @ 11:29 pm

  147. I think it would be tough to get beyond the plain meaning of that section. Even if it was meant to mean something else, it clearly states that it must be “genetic information about a manifested disease, disorder, or pathological condition of an employee or member.” Any federal judge who is a textualist needs ambiguity in the statute before they look towards the legislative history, and there doesn’t appear to be any real ambiguity here.

    Beyond that, once you open legislative history in a case you’ll find that the main point of the law was to prevent employers from hiring people with genetic predispositions to diseases because of the increase in medical coverage that would be required. It would be an interesting case, but there are plenty of hurdles (section 210, extra-territoriality/employee-status, and the voluntary aspect MLB cites) that an international prospect would need to clear in order to win.

    Comment by John C — June 2, 2012 @ 12:20 pm

  148. The easiest solution is for teams to start signing more 18 and 19 year old players out of the DR. It’s MLB teams that created the norm that players are only valuable at the ages of 16 or 17. There is undoubtedly tons of untapped talent among 18-20 year olds, proven by the fact that players like Miguel Tejada, Leo Nunez, and Fausto Carmona had varying degrees of success in MLB. There is an absurdly strong incentive to “be 16″ in the DR and their government and hospital systems are very far away from having the type of infrastructure necessary to have the types of records we take for granted in the US. We can’t change their record keeping practices overnight, but we can be smarter about the business norms we set in a foreign country.

    At the end of the day, this problem largely exists because of poor decision making by American teams. Before we engage in illegal DNA testing, let’s try calling on the teams we root for to make smarter decisions that are also more fair to the good people in the Dominican Republic.

    Comment by Josh — June 3, 2012 @ 5:25 pm

  149. It is illegal to use genetic information, such as particular genes that make you taller or shorter, as the basis for hiring someone. Using DNA to confirm one’s identity is just the same as asking for a photo ID and social security card when applying for a new job. It’s simply a confirmation of your identity, thus why it is not illegal.

    Comment by JayBandit — June 11, 2012 @ 10:13 pm

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