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Europe Data Protection Digest | Notes from the IAPP Europe Managing Director, 21 July 2017 Related reading: Tim Cook talks Apple's privacy stance, pushback to app-tracking framework



Greetings from Brussels!

The summer months are somewhat slow if you are an avid football fan like myself. For the record, I am a huge Arsenal fan, a "Gunner," and have been since I can remember. The only thing somewhat captivating soccer fans over the summer in the run up to the new season is the (dreaded) transfer market, where players are sometimes sold and bought for astronomical sums of money.

Such investments by leading clubs across England and the European continent are in effect statements of competitive intent, but, equally, they are an important risk for clubs as they seek to reap the success and financial benefits associated with the beautiful game. Football has become a massive business in recent decades, with long-term planning very much a part of its corporate governance. Recently, and not for the first time, I came across an article talking about the use of DNA testing in the sport. Football has become a battleground for sports science, and DNA testing is the latest weapon being wielded by clubs looking to gain an advantage before a football is even kicked. Barcelona FC was one of the first clubs to pioneer DNA use in football, with the club’s players having to undergo tests to determine who is more likely to suffer injuries. As a result, the club can tell if a player has greater muscle injury prevalence or a normative rate. What is unclear to me is whether players voluntarily submitted themselves to saliva swabs and what were the legal conditions (and extent) of those laboratory gene tests. More importantly, from an ethical standpoint, should football be played in the laboratory?

As is known, players are subject to extensive medicals before being bought or sold. I’d be interested to know if "swabs" are commonplace as part of medicals, and, if not, could they could become a standard practice in the sport. Is it appropriately regulated? One would imagine, if a club is willing to shell out millions of pounds or euros for a given player, they’d welcome genetical reassurance upfront that a player won’t spend half the season sitting on the bench through injury. Think about player contract extensions in this context, as well. A more important ethical question here is also to ask: What if DNA testing were to be extended to children who go through the top football academies? 

Homegrown talent is the long view at all successful European clubs.

While there are clear benefits for clubs (and players) to tailor customized fitness regimes, DNA testing as a science is still relatively speaking in its infancy. It raises important questions around data ethics, as well as individual privacy. Without sounding too "Brave New World," what if we were to apply the science to other professions? Should CEOs or other high-profile specialized executives responsible for multimillion investments be subject to DNA testing for negative health predispositions? We might not have an exact science today, but tomorrow could be a different story, and as a society, do we think such DNA identifiers are reasonable in the quest for beyond normative human "optimal performance"? One might argue there is "legitimate interest"; clearly, football is headed this way. Think of the cost of absenteeism in the workforce, which places a massive burden on health care and social security systems and, by extension, on you, the taxpayer. Is it fair and morally acceptable to bring DNA testing into the mainstream? Should you be concerned that employers might be able to find out from your genome structure that you carry the Huntington's disease gene? Can your genetic predilection for Alzheimers, cancer, depression or even substance abuse be held against you?

Genetic testing does hold the promise of a revolution in health care. With just a few swabs of saliva, diagnostics can provide an unprecedented look into a person's family (medical) history and potential health risks. With the industry in rapid growth, just how private one can expect their sensitive data to remain secure is a serious question. Extrapolate the premise, and genetic data also presents the privacy complication of family members being identifiable, as well. It stands to reason that such clinical environments need to be highly regulated; the ethical and privacy questions that follow on what information individuals receive is another matter and the topic for another day.


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