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Copyright (c) 2012 University of Virginia School of Law 
Virginia Sports & Entertainment Law Journal

Article: Sidelining GINA: The Impact of Personal Genomics and Collective Bargaining in Professional Sports

Fall, 2012

Virginia Sports & Entertainment Law Journal

12 Va. Sports & Ent. L.J. 81


Jennifer K. Wagner, J.D., Ph.D. 1 2


Since this journal last addressed legal issues regarding the integration of genetic testing in professional sports in 2006, 3 the Genetic Information Nondiscrimination Act of 2008 ("GINA") became law, with Title II prohibiting employment discrimination on the basis of genetic information; 4 the Supreme Court of the United States issued its controversial, landmark decision in 14 Penn Plaza v. Pyett on collective bargaining agreements and waivers of statutorily-derived nondiscrimination rights; 5 and concerns surrounding the use, attempted use, or possibility of use of DNA testing in youth, collegiate, and professional sports contexts repeatedly made headlines in the popular media. 6 A few legal scholars have begun to acknowledge the importance of this unsettled, emerging area of the law, though the attention granted thus far has been focused predominately on league-imposed or team-initiated testing. 7 Moreover, the technological costs of personal genomics have declined in recent years 8 and personal genomics services - including some tailored for sports applications - have become more accessible to individuals outside traditional research and clinical settings. 9 In light of these developments, it is necessary to revisit the legal issue of genetic nondiscrimination rights in professional sports contexts.

This article begins by highlighting ways in which genetic testing has already been applied in sports contexts and describing the sports-related personal genomics services currently available. Next this article reviews the employment nondiscrimination rights created by Title II of GINA and addresses the question of how such provisions apply to the professional sports ...
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