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17 ESLJ 1 (2019)
Exploring the Regulation of Genetic Testing in Sport

handle is hein.journals/entersport17 and id is 29 raw text is: NTR E Patel, S and Varley, I. 2019. Exploring the Regulation of Genetic IT LW L Testing in Sport. Entertainment and Sports Law Journal, 17: 5, pp.1-13. DOI: https://doi.org/10.16997/eslj.223 ARTICLE Exploring the Regulation of Genetic Testing in Sport Seema Patel and Ian Varley Nottingham Trent University, GB Corresponding author: Seema Patel (seema.patel02@ntu.ac.uk) This article investigates the legal implications of the use of genetic testing in sport, that is, the analysis of human DNA to detect particular genetic traits and variations, or susceptibility to conditions. As sci- ence makes significant strides in the understanding of our genetic information, the search for the genetic components which separate winners and losers in sport follows. Although the practice of genetic testing in sport is not currently commonplace, there are some examples of genetic information being used by sports clubs and governing bodies to make decisions about an athlete's capability to perform. This arti- cle examines how this practice could disproportionately interfere with an individual's human rights and result in genetic discrimination if information is used for selection and employment purposes. It reviews some of the hard and soft law measures that regulate genetic testing at an international, regional and domestic level. The position of sport within this regulatory framework is uncertain, given the unique way in which sports regulation functions and interacts with the law. Nevertheless, the article concludes that the tendency of the law to treat discrimination in sport differently to other areas of society could leave athletes vulnerable. Whilst genetic information may be useful for understanding genetic traits and their relationship with athletic performance, going beyond this to select athletes on the basis of genetics is discouraged and the interests of sport should be fairly balanced against the human rights of the athlete. Keywords: Genetic testing; discrimination; human rights; sport regulation; sports law Introduction In 2003 the Human Genome Project achieved its primary goal of completing the sequencing of the human genome. This represented a new age in the understanding of the human body and, as a result of the findings, a greater interpreta- tion of how an individual's genotype can explain particular traits and conditions is anticipated. Information about our genetic make-up, individual susceptibility to certain diseases, responses to certain drugs or nutrients are readily avail- able through the process of genetic testing. There is no consensus definition of genetic testing, but it broadly involves an analysis of human DNA to detect particular genetic traits and variations, or susceptibility to conditions. This genetic revolution in medical practice is leading to better healthcare provisions, improved patient choice, increased research and effective treatment for disease in the future (Gostin and Hodge 1999). Genetic test services are now even offered by many companies directly to the consumer (DTC) post-2012. Genetic testing is becoming increasingly popular and accessible to consumers who may be curious about their genetic information for health or ancestral reasons. That said, there is often incongruence between scientific capabilities and ethical boundaries (McNamee et al. 2009: 341). Genetic testing raises a number of ethical and legal concerns around genetic discrimination, privacy and consent in employment and in insurance. There is a potential conflict between the progression of science to further human knowledge and improve health, and the protection of human rights and autonomy These issues are gradually being explored in the literature, as attention focuses on the effective regulation of the use of genetic testing and genetic information (Quinn et al. 2015). The competing issues surrounding genetic testing manifest themselves in the context of sport where advances in medicine, science and technology are at the forefront of understanding human athletic ability Capturing and analys- ing biometric or biomechanical athlete data forms a key aspect of sport practice (Osborne 2017). Sports' demand for excellence in athletic performance and competition continues to grow, and as science evolves, so too has the search for what makes an athlete elite and the innate genetic components which may separate winners and losers. The use of genetic testing in sport is not well documented. However, the authors recently explored the current use of genetic test- ing in UK elite sport, and found that genetic testing related to sports performance and injury susceptibility does take place although it is not commonly conducted (Varley et al. 2018). The study reveals that there seems to be a willingness amongst elite athletes and athlete support staff for genetic information to be used to improve sport performance and reduce the risk of injury Some athlete and support staff opinions in the study favoured the use of genetic testing for

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