The Catholic University of America, Columbus School of Law CUA Law Scholarship Repository Scholarly Articles and Other Contributions Faculty Scholarship 1998 Mandatory HIV Testing of Professional Boxers: An Unconstitutional Effort to Regulate a Sport That Needs to be Regulated Raymond C. O'Brien The Catholic University of America, Columbus School of Law Michael T. Flannery Follow this and additional works at: https://scholarship.law.edu/scholar Part of the Constitutional Law Commons, and the Entertainment, Arts, and Sports Law Commons Recommended Citation Raymond C. O'Brien & Michael T. Flannery, Mandatory HIV Testing of Professional Boxers: An Unconstitutional Effort to Regulate a Sport That Needs to be Regulated, 31 U.C. DAVIS. L. REV. 409 (1998). This Article is brought to you for free and open access by the Faculty Scholarship at CUA Law Scholarship Repository. It has been accepted for inclusion in Scholarly Articles and Other Contributions by an authorized administrator of CUA Law Scholarship Repository. For more information, please contact [email protected]. Mandatory HIV Testing of Professional Boxers: An Unconstitutional Effort to Regulate a Sport that Needs to Be Regulated Michael T. Flanneiy* & Raymond C. (YBien** TABLE OF CONTENTS INTRODUCTION ........... 411 I. BOXING: A HISTORY OF BLOOD AND VIOLENCE ....... 419 II. THE REGULATION OF BOXING .................. 424 A. The Need for Consistent Regulation .............. 424 B. Problems Associated with the Regulation of Boxing .... 429 C. The Regulation of HIV Testing .......... 437 III. THE TRANSMISSION OF HIV .................... 443 A. Groups at Risk ....... 443 1. The Promiscuous Lifestyles of Many Professional Athletes ................. 445 2. The Statistically Higher HIV Risk of Minorities in Boxing ................. 446 3. The Volume of Homosexual Professional Athletes .................. 447 B. The Statistically Insigniflcant Likelihood of Transmission During a Sporting Event ........... 448 1. Other Sports ...................... 450 2. Risks of Other Diseases ............... 452 C. A Comparison of Transmission Arenas ............ 454 1. Health Care Workers .................. 454 2. Pregnant Women .................... 456 Attorney at Law; Legal Writing Instructor, Villanova University School of Law; BA., University of Delaware; J.D., The Catholic University of America, Columbus School of Law. ** Professor of Law, The Catholic University of America, Columbus School of Law and the Georgetown University Law Center. 409 410 University of California,Davis [Vci1. 31:409 IV. CONSTITUTIONAL ISSUES: BALANCING THE INTERESTS ... 459 A. Personal Liberty and the Fourth Amendment .... ... 459 1. The Skinner Trilogy .......... 9 W Q • I ... 461 a. Skinner v. Railway Labor Executives' Ass'n ........ 462 b. Vemonia School District 47J v. Acton ... 467 c. National Treasury Employees Union v. Von Raab ....... ........ 468 2. The "Special Needs" Analysis .... ........ 471 3. Chandler v. Miller ............ ........ 473 B. Equal Protection and the Fourteenth Amendment ..... 477 1. Fear, Stigmatization, and Discrimination .... 478 2. Equal Protection Challenges by Boxers ..... 482 C. Due Process and the ADA .................. 489 V. WHAT ELSE CAN BE DONE? ................... 494 CONCLUSION ...... ................................ 500 1998] Mandatory HIV Testing of ProfessionalBoxers As the triumphant boxer left the ring to pass up the aisle, an ecstatic fight fan, male, followed closely after him, wiping all he could of the sweat from the boxer's body onto himself.' INTRODUCTION In February 1996, just six hours before his scheduled heavy- weight fight in Las Vegas, Nevada, the Nevada State Athletic Commission suspended boxer Tommy Morrison from competi- tion after he tested positive for the human immunodeficiency virus ("HIV").' Had Morrison's manager scheduled the fight to take place in California, a state that did not require HIV testing at that time,- Morrison would not have been tested and, conse- quently, would not have been suspended. He would have fought another fight, perhaps spattering blood and sweat upon his opponent, the referee, and the fans. Instead, as a result of his HIV-positive status, the Nevada State Athletic Commission banned Morrison from boxing.' Once the state verified the re- Joyce Carol Oates, On Boxing, in READING THE FIGHTS 286, 303 (1988). See Reports: Morrison Is H1V Positive; Heavyweight Boxer Is Suspended Hours Before Fight on Saturday, WASH. PosT, Feb. 12, 1996, at C1 [hereinafter Reports]. H1V-1 is a retrovirus, rec- ognized as the etiologic agent of Acquired Immune Deficiency Syndrome ("AIDS"). It is classified as a lentivirus in a subgroup of the retroviruses, and is closely related to HIV-2, another virus found to cause immune suppression, but which, to date, has been discovered mostly in Africa. See AMERiCAN FEDERATION FOR AIDS RESEARCH, 8 AIDS/HIV TREATMENT DIRECTORY 246 (1996). ' See Steve Springer & Earl Gustkey, Boxer's HIV Test Heats Up Debate Over Risk to Others, LA TIMES, Feb. 13, 1996, at I (stating that California did not require H1V testing of box- ers in February 1996). HIV testing is now required in California pursuant to section 18712(a) of the Business and Professions Code, which provides as follows: Notwithstanding any other provision of law, any person applying for a license or the renewal of a license as a professional boxer or a professional martial arts fighter shall present documentary evidence satisfactory to the commission that the applicant has been administered a test, by a laboratory in the United States that possesses a certificate under the Clinical Laboratory Improvement Act (42 U.S.C. Sec. 263a), to detect the presence of antibodies to the human immuno- deficiency virus (HIV) and to detect the presence of the antigen of virus hepa- titis type B (HBV) within 30 days prior to the date of the application and that the results of both tests are negative. CAL. Bus. & PROF. CODE § 18712(a) (West 1997) (citation omitted). ' See Springer & Gustkey, supra note 3, at 1. Although Nevada does not statutorily mandate that boxers test for HIV, its state athletic commission is statutorily permitted to mandate the tests through its own regulations. See NEV. REV. STAT. § 467.030 (1995). In fact, Nevada was one of the first states to require HIV testing. See Health and Safety of Profes- 412 University of California, Davis [Vol. 31:409 suit of his positive HIV test, Morrison's ban from boxing went into effect in Nevada. The Nevada ban also prevented Morrison from fighting in any other "non-testing" states that recognized the Nevada ban.5 In fact, Morrison's HIV status negatively affect- ed his ability to box throughout the world.6 By implementing Morrison's suspension, Nevada may have done the boxing world and society a public health service. Conversely, Nevada may have intrusively invaded the privacy of a male athlete, thereby un- leashing discrimination and paranoia. For the boxing community, Morrison's disclosure was momen- tous, even after other sports personalities made similar announce- ments - superstars like Olympic diving champion Greg Louganis,7 sional Boxing- Hearings Before the Comm. on Commene, Science, and Transp., 103d Cong. 2 (1994) (statement of Sen. Richard H. Bryan) [hereinafter Health and Safety Hearings]. Neva- da was also one of the first states to mandate drug testing for every title fight, to decrease the maximum rounds from 15 to 12, and to require 24-hour pre-fight weigh-ins. See id. Nevada does not require a boxer to be tested before every fight but only before the first fight of each calendar year. See Reports, supra note 2, at C1. Therefore, had the state not discovered the HIV virus in Morrison's body in the February 1996 mandated test, he could have fought in Nevada for another 10 months while being HIV-positive during that time. See Springer & Gustkey, supra note 3, at 1. It is important to note that once the hu- man body is infected with HIV, standard technological devices cannot identify the presence of the virus. See generally it. (describing new techniques for early detection). Several weeks after primary infection, the host may experience a brief, acute, mononucleosis-like syn- drome associated with acute infection. See Guiseppe Panateleo et al., The Immunopathogenesis of Human Immunodeficieny Virus Infection, 328 NEw ENG. J. MED. 327, 327 (1993). Seroconversion then occurs and HIV testing is verifiable. See id. The infected person re- mains free of symptoms associated with an impaired immune system for many years, but once symptoms do occur, this event signals the progression to what is called AIDS. See Cen- ters for Disease Control and Prevention, U.S. Dep't of Health and Human Services, 1993 Revised Classifcation System for HIV Infection and Expanded Surveillance Case Definition for AIDS Among Adolescents and Adults, 41 MORBIDrIY AND MORTALrrY WKLY. REP. 1, 8-10 (1992). 5 Once a boxer tests positive for HIV and that test is confirmed, this HIV-positive status affects the boxer's ability to box in other states, provided those states recognize and honor the regulations of other jurisdictions. See generally Springer & Gustkey, supra note 3, at 1 (noting worldwide suspension of boxer Tommy Morrison based on his HIV-positive status). Prior to the cancelled Las Vegas bout, Morrison's last fight was in New Jersey, which did not then require pre-fight testing for HIV. See William Gildea, Morrison Referee Gets Tested for HIV; Lane Bloodied in Leais Bout, WASH. POST, Feb. 14, 1996, at F2. In that fight,