Dec 7, 2011
Potential Genetic Discrimination in the English Premier League
We are delighted to welcome this guest post from Aisling de Paor, a Ph.D candidate in the Centre for Disability Law and Policy at NUI Galway, and Irish Research Council for the Humanities and Social Sciences (IRCHSS) scholar. Aisling is a graduate of NUI Galway (BCL) and University College Cork (LL.M). Aisling qualified as a solicitor and specialized primarily in employment law.
It has recently been reported in the media that an unnamed English Premier League soccer club has been genetically testing its players to determine who is at a higher risk of injury, and to determine which players are likely to perform better. Genetic technology is rapidly advancing and scientists have discovered over one hundred genetic mutations linked to serious soccer related injuries such as ruptured tendons. These discoveries are also linked to genes indicating improved performance, such as better aerobic respiration giving players more stamina on the pitch.
The benefits to soccer clubs of engaging in these genetic tests are significant. Genetic testing could enable clubs to filter out potentially injury prone players before investing large amounts of capital into their development. Competition between soccer clubs is becoming increasingly apparent. Already, there have been advances in fatigue reduction and hydration management that have enabled some players to perform at greater capacities for longer periods of time. In addition, there is a strong argument on the part of soccer clubs that genetic testing would enable them to prevent players from incurring potentially career threatening injuries. Arguably, genetic testing and knowledge of a player’s genetic information may also lead to better- informed, more productive training regimes and squad selection.
Although there are certain positive implications arising from these discoveries, the use of genetic testing on soccer players and potential soccer players may result in discrimination on the basis of sensitive genetic information. Soccer clubs may use the results of genetic tests to discriminate, based on perceptions of possible future injuries. In addition to obvious concerns over genetic privacy, genetic information could also potentially affect a player’s value on the open market if the information ever became public.
These technological developments therefore give rise to a balance of competing interests. On one hand is the right to privacy of players, and the right not to be discriminated against on the basis of potential future injury. On the other hand, the ‘right to know’ (the genetic make up of players) of soccer clubs arises, and the corresponding limits that should be placed on that right.
There are also ethical issues arising. Soccer clubs may be moving towards an era that replaces scouting and player effort with genetic testing and screening. Clubs may be inclined to disregard highly skilled players with an undesirable genetic make-up (in spite of their current ability and skill), in favour of recruiting players with what they perceive to be “good genes”. Young players with a passion for the sport may also be discouraged or deterred from pursuing potentially successful careers on the basis of an unsatisfactory genetic test result.
Interest in genetic testing among soccer clubs and indeed in sport generally is inevitably going to grow. Although there are great benefits to be gained from expanding genetic discoveries, there are also corresponding economic opportunities, together with necessary legal and ethical considerations. In light of these advancing genetic technologies, and the huge potential breach of fundamental human rights, it is important to draw attention to this area and to highlight the need to ensure appropriate regulation is in place to protect the privacy of players’ genetic information and to prevent genetic discrimination.
A fundamentally flawed argument, with, I am sorry to say, a remarkable ignorance of the effect of genetics. First off, a genotype is expressed in a phenotype, in a given environment; which means that, in and of itself, a player in possession of a given advantageous genotype will not be a better player unless that phenotype is in an environment where the genotype can be expressed. Arguing that mere possession of a certain gene determines sporting ability is the genetic determinism that the article thinks is a bad thing.
Secondly, if playing a sport is uniquely dangerous for someone, they should be deterred from seeking to be a professional in that sport because it is uniquely dangerous to them and others. Those with the APOE4 allele must be regarded as being more sensitive to the effects of concussion such as CTE than others, and handled differently.
Thirdly, those who have been tested have already shown sufficient aptitude to be tested by their employers, potential or otherwise; this is not a general screening, but a test of an individual who is already good enough to be a player. Therefore, the idea that this is a matter of general concern is demonstrably false as the cohort self-selects, and voluntarily self-selects, to be in the position to be tested – to which tests they freely agree, as no-one forces them to be footballers.
Fourthly, awareness of particular sensitivity to given forms of injury or how a given player will react to training allows the management of that player to be tailored for that player to maximise the benefit and minimise the harm – as with differential concussion management strategies of those with the APOE4 allele. These are not breaches of fundamental human rights, any more than the requirement that pilots are tested for their vision, or, indeed, that sportsmen and women are tested for fitness. This is no different; it is a test to enable you to perform the job you have freely chosen. No-one makes you be a sportsman or woman; if you chose to become a professional, live with being managed professionally.
Finally, the idea that someone will be discriminated against on the basis of a tendency to future injury is a) already present as is and b) entirely reasonable. That’s why players who are transferred undergo a medical examination first – the status quo which this article ignores. The rules of a sport will not be changed for an individual. Pilots must be able to see; a player must be able to be fit to play the game. In either case, if they are not, then they cannot do their job, and can have no complaints. You do not have a right to be treated on the same footing as someone who can do the job when you cannot. Sportsmen and women don’t expect the rules to be changed to give someone who can’t perform an advantage. If you can’t play, if you’re going to be injured all the time, you can’t perform; so you lose. And that’s the essence of sport; it’s a competition.
This is, I regret to say, an example of the tendency to force all areas of law onto the Procrustean bed of a human rights analysis. It does no favours to the law generally, or indeed to human rights law specifically, to attempt to make all fit that one size.
With all due respect, I think you should consider re-reading this blog. You clearly misunderstood.