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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


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

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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