CHAPTER 103 • THE ATHLETE WITH HIV 607Sports Medicine, CDC, International Federation of
Sports Medicine, International Olympic Committee,
and the World Health Organization all do not recom-
mend mandatory screening of athletes for HIV. Any
testing that is performed (mandatory or voluntary)
should be accompanied by pre- and posttest counsel-
ing, should incorporate confidentiality measures,
should address the question of frequency of the test-
ing and should adhere to local and federal law.- The 1993 survey of NCAA institutions concerning
HIV/AIDS policies found that routine HIV testing for
athletes occurred in 4% of institutions and only two
were mandatory (McGrew et al, 1993).
•To date, none of the four major professional sports
leagues in North America have adopted mandatory
HIV testing. But, many professional athletes have
publicly called for mandatory testing including
Wayne Gretsky (NHL) and Kevin Johnson (NBA). In
the NFL, the New York Giants and the Philadelphia
Eagles tested players and personnel in 1991 and 1992
despite some of the players being unaware of the test-
ing (Johnston, 1994). - In 1988 the Nevada Boxing Commission mandated
HIV testing for all boxers fighting in Nevada and a
positive result would disqualify a boxer from fighting.
In 1996, after Tommy Morrison tested positive, New
York, New Jersey, Washington, Oregon, Arizona, and
Puerto Rico joined Nevada in requiring HIV testing
for all boxers (Feller and Flanigan, 1997).
LEGALIMPLICATIONS
- Of testing: In considering whether mandatory HIV
testing is ethical and/or legal, we must consider three
questions: (1) Does the proposed testing policy serve
an ethically acceptable purpose? (2) Is mandatory
testing necessary and effective for achieving that pur-
pose? (3) Does mandatory testing violate the individ-
ual rights of the athlete? - Ethically acceptable purpose? The protection of the
HIV-infected athlete and the protection of uninfected
athletes from transmission are ethical purposes. Using
test results for discrimination against HIV-infected
athletes is unethical. - Necessary and effective? Since HIV transmission on
the playing field has never been documented and the
risk is theoretically low, mandatory testing is not nec-
essary.
•Violation of individual rights? Mandatory testing does
violate the individual athlete’s right to privacy, but the
question for the professional athlete is if this intrusion
may be permitted under the agreement to participate
in that profession.
•Arguments in favor of permitting violations of the
right to privacy cite existing exceptions to HIV testing
without consent including criminal justice settings,
life insurance underwriting purposes, defense depart-
ment and military recruits, immigrants to the United
States, State Department foreign service personnel,
and the Federal Bureau of Prisons for prison inmates.- In terms of the professional athlete’s right to privacy,
a professional team’s standard player contract (which
is usually determined by the players’ collective bar-
gaining agreement) defines the consequences of fail-
ure to maintain physical fitness or failure to pass the
preseason medical examination to include suspension
or termination of a player’s contract. Proponents of
mandatory testing argue that an athlete’s acceptance
of a standard player contract negates any invasion of
privacy. They argue that an athlete’s privacy is no
more violated by HIV testing than by other routine
medical tests required by team and league policies.
•However, without clear affirmative answers to all
three questions, most law theorists conclude that
mandatory testing is both unethical and illegal
(Johnston, 1994). - In spite of this, professional boxers are subjected to
mandatory testing without proof of the necessity of
testing to protect the safety of the infected athlete or
other competitors (Feller and Flanigan, 1997). - The Nevada Boxing Commission’s mandatory testing
program has yet to be contested in court. - Of restriction from competition: The Americans with
Disabilities Act and the Rehabilitation Act of 1973 do
not allow discrimination against people who have
contagious diseases who are otherwise qualified to
participate. Concern regarding the potentially harmful
effects of competition on the immune system of the
HIV-positive athlete has not been viewed as legally
valid grounds for exclusion from sanctioned athletic
events (Johnson, 1992). - Some courts have ruled that without sufficient medical
reason, an HIV-positive athlete cannot be excluded
from a sport (School Board of Nassau County, Florida
vs. Arline, 480. U.S. 273[1987]).
•However, other courts (Doe vs. Dolton elementary
school district number 148, 694 F supp. 440 [1988])
have permitted schools to prohibit HIV-positive stu-
dents from school-sponsored contact sports because
of the perceived risk of transmission and another court
upheld the decision to exclude an HIV positive athlete
from contact Karate. (Montalov vs. Radcliffe, 167 F.
3d 873 [4th Cir. 1999], cert. Denied, 120 S Ct. 48
1999.) - Unfortunately, these types of decisions may set prece-
dents leading to personal tragedies such as that of pro-
fessional boxer Ruben Palacio who in 1993 won the
Featherweight World Championship Title after 12
long years in boxing. On the eve of his first title