"Knickel" and Dime Issues: An Unexplored Loophole in New York's Genetic Discrimination Statute and the Viability of Genetic Testing in the Sports Employment Context

Article excerpt

It is better to know some of the questions than all of the answers.--James Thurber (1894-1961) (1)

I. INTRODUCTION

It is often stated that "[s]port is a microcosm of society." (2) In some respects, this statement rings true. Athletes involved in competition, like individuals functioning in society, must make immediate decisions, must trust in others, and must follow the rules. Because of such similarities, the law often draws little distinction between what is appropriate in the realm of sports and what is appropriate for the remainder of society. However, as new complexities emerge in the modern sports era, particularly with respect to genetic testing in professional sports, it has become increasingly clear that a law designed for individuals functioning in society may be insufficient for regulation in the sports world.

The issues of genetic discrimination and sports collided in October 2005 when the Chicago Bulls, a member of the National Basketball Association (NBA), asked one of its team members, Eddy Curry, to undergo genetic testing to diagnose a suspected heart arrhythmia. (3) Curry refused, citing American constitutional privacy rights. (4) Instead of challenging Curry's position under Illinois law or the United States Constitution, the Bulls opted to trade Curry to the New York Knicks. (5) In so doing, the arena for Curry's legal battle shifted to New York, placing the State's genetic discrimination statute under possible judicial scrutiny. However, as the Bulls had done in Illinois, the Knicks also opted to avoid challenging Curry's position under existing state law. (6) Instead, Curry agreed to multiple physical evaluations that proclaimed his good health, (7) enabling the Knicks to insure his multimillion dollar contract. (8) As a result, New York's genetic discrimination statute remains untested in the sports employment context.

Suppose the Knicks had challenged Curry's right to refuse genetic testing under section 296 of New York's Executive Law, the State's genetic discrimination statute. Would the Knicks have prevailed? An exploration of the scenario purposefully avoided by the Knicks reveals that the Knicks may have prevailed under the "increased risk" exception contained in section 296(19)(b), (9) thus circumventing the policy goals of New York's genetic discrimination law and forcing Curry to be genetically tested. Although successful use of this exception may have far reaching consequences in both the sports employment context and the ordinary employment context, (10) this Comment will argue that use of the section 296(19)(b) loophole should be limited to the sports employment context.

This Comment further contends that marked differences between employment in the sports context and employment in ordinary contexts require that the statute be amended to follow two emerging international legal trends: one recognizing the need for laws uniquely tailored to the sports employment context (11) and a second allowing for limited genetic testing. (12) Acknowledging the extreme financial and organizational dependencies of sports employers on the health of athlete-employees, New York sports employers must be afforded the right to test athletes for physically-limiting genetic conditions. New York, therefore, must not only amend section 296 of its Executive Law to eliminate the use of the increased risk exception in ordinary employment contexts, but also amend section 296 to permit qualified (13) genetic testing in the sports employment context.

Support for this possibly controversial proposal is presented in the six sections of this Comment. Section I introduces genetic testing in the sports employment context. Section II then discusses the historical backdrop of the global interest in genetics and briefly revisits the currently limited federal and state protections against genetic discrimination. Section III shifts the focus to specifically address the history of genetic discrimination legislation in New York that lead to the 1996 revision of section 296. …