substances are not part of sports the work we've done in the past has i believe produced positive changes to the existing drug testing policies of of the professional sports leagues and those policies are restoring integrity to the legacy of many sports that were severely tainted over the past two decades perve a submissive steroids gave way to designer steroids produced by entrepreneurial drug pushers and the trickle down to younger athletes not surprisingly remains an issue as hundreds of thousands of high school age and even younger athletes continue to risk their health through the use of steroids steroids have been a legitimate medical purpose and are often used to help  cure illnesses but those instances substances are for the sick and must be administered under the care of trained professional medical professionals they are not for the health the athlete who's looking for a fast track to it obtain a competitive edge that's cheating in its pure and simple that it is cheating it is also incredibly dangerous and unhealthy and whether and whether it is the blinding desire of an athlete to improve or the lure of increasingly lucrative careers in professional sports or the few who succeed it's unacceptable behavior mr chairman i fully support the committee's interest in making sure that the stronger drug policies that have been adopted are not in jeopardy of being undermined a legal case involving n f l player to focus attention on the collectively bargain agreement between the players in the league and the relationship to state law i'm interested to hear the facts of the case as it currently stands and the implications for any professional sports collectively bargain drug programs as a side note it seems a stretch to consider whether the original roots of labor law meant to protect workers from unfair and a dangerous working conditions were intended undermine a policy meant to increase the health and safety of its participants while the same time ensuring the integrity of the sport as i understand it the case is going and going and could eventually resolve the legal uncertainty depending on its outcome however because of the initial  determinations made by the courts abidal result in the case may present issues that challenge the balance of our federal approach to worker protections in the area of drug testing policies which permit states to enact laws for worker protections that may be stricter than those collectively bargained the case obviously raises doubts about whether and to what extent collectively bargain agreements drug policies in professional sports are affected by such state laws additionally those questions may have implications for testing policies for other sports including the olympic unclean at the olympic and collegiate levels in the drug policies are only as strong as the minimum that can be tested under state law the significant advances in drug testing policies achieved in the last several years which were agreed to by both players and management may be a race and that's not the result that any one of us want to see mr chairman i'm very interested to hear the perspectives of our witnesses today and i look forward to working with you on this as a result of congressional hearings public outrage and the actions of professional sports leagues and players associations progress has been made reducing steroid use by professional athletes unfortunately this recent ruling in the case of williams versus the n f l better known as the star caps case threatens to undermine this progress and we're holding this hearing to understand the implications of these rulings and to assess whether congressional intervention is required when mark mcguire rafael palmeiro and other professional baseball players appeared before the house oversight committee in two thousand and five i said we were holding the hearing because there is an absolute correlation between what happens in major league locker rooms and what happens in high school locker rooms rampant steroids abuse in the pros sends  message to our kids since that hearing at the hearing last year with roger clemens steroids by high school students has been dropping the latest survey data shows that steroid use among eighth  is at a twenty year low in part this is attributable to the example set by professional sports and their player unions as a scope of the problem became evident major league baseball the n f l and their player unions establish tougher testing policies and new codes of conduct regarding drug use these changes have not completely eliminated steroids but they have made it tougher for players to cheat and increase the consequences when they are caught the reason we're having this hearing is that the recent court decisions involving the national football league drug testing policy policy have put this progress at risk we all know the story the federal court in minnesota has ruled it has been upheld by the court of appeals that state laws governing workplace drug testing may trump the collective bargaining agreement of the n f l major league baseball and other sports leagues this is a serious problem because state laws undermine the stringent established by the sports leagues and their players association if these rulings prevail they could wreak havoc with policies designed to curb performance enhancing drug use in professional sports in fact are the rulings are taken to their logical conclusion players on one team could be allowed to use drugs that would be subject that would subject players on another team and find the n f l major league baseball and other leagues could be limited as to how and when it  test players in minnesota but not players on the other teams in the league some players could be penalized for performance enhancing drug use while others would get away scot free in short new legal interpretations could render the n f l and major league baseball's drug testing programs on its forcible loophole ridden and unacceptably weak and ineffective i believe we can and must avoid this outcome our panelist today will offer guidance on how they expect the legal issues to be resolved and how to solve the problems caused by these new legal interpretations i'm hopeful the courts will ultimately rule that the strong collectively bargain drug policy can stand against a law that would weaken the weaken them but if this is not the case then we need to find out if the collective bargaining process can solve these problems or whether  action is needed one thing is clear we should not allow the drug policies that the n f l major league baseball and other sports leagues have put in place to be rendered null and void that is an thank you mr chairman my voice is a little sore i was watching the saints go seven zero last night with some friends of my friends from atlanta's not real happy about that but in new orleans we're very happy sports are part of our culture and part of the very social fabric of our nation unfortunately we have recently seen how performance enhancing drugs can cast a cloud over athletes and jeopardize the integrity of sports professional athletes in particular bear a special responsibility whether they like it or not professional athletes are role models they have a great influence over our young people and can bring a lot of good to our local communities we have seen this firsthand in south louisiana we've seen the influence a league a team and its players can have the n has been committed to helping new orleans and the gulf coast region since hurricane katrina by the end two thousand and five the n f l has raised over had raised over twenty million dollars for hurricane relief commissioner get goodell on behalf of my constituents and those that have been helped by the n f l in our region thank you for your hard work in the n f l as commitment to our recovery i also want to thank you for selecting new orleans as the host of the super bowl in two thousand and thirteen which will mark our tenth super bowl this is yet another sign that the orleans is still a world class city that can host major events and it is another milestone in our recovery the saints organization must also be commended for the support it has shown to the city and the state it calls home following hurricane katrina the saints set up a release on the provided much needed resources to charities around  region they also made a commitment to return to new orleans after not being able to play a single game in the city during the two thousand and five season i'm proud to have the saints headquartered in my district in two thousand and six in their first game back in new orleans the same showed what a team can do for a city and for its fans the atmosphere that night september in the superdome was electric in the same start of their most successful season in franchise history until this year with the resigning victory over the falcons ironically more importantly the saints gave louisiana hope that their way of life was slowly returning to normal they galvanized our region and provide a much and provide a much needed boost and distraction from the difficult recovery process the spirit and generosity of the new orleans saints start at the top with its owner tom family still has a great impact i look forward to the testimony i would have appreciated let's have an opportunity in the energy and commerce committee to have a hearing on the health care bill because this week we are going to be taking a woman's time in the unfortunate we didn't get that opportunity but i look forward to hearing from  matter due to other pressing issues in the economy and health care reform where here the anti doping policies and the collective bargaining agreement of the major sports in this country there is no question that for millions of commitment and extensive work over the years on this issue it's really largely due to is ongoing efforts along with the work of this committee that led the major sports leagues to establish stronger policies banning the use of steroids in  it so there have to be real consequences real penalties that directly bear on the game itself and the right to participate and the right to as part of collective bargaining agreements and then overruled by the court we want to sure that policies are as strong as possible and so i really look the subcommittee in one hundred ninth congress held hearings on steroids in sports jesse caskey was the ranking member at that point we were the first in congress to hold hearings on performance enhancing drugs and that was in two thousand and three  these hearings led me to introduce legislation the drug free sports act which would have required the secretary of commerce to it issue regulations requiring random testing for steroids and other performance enhancing substances and would have called for a permanent suspension from participation in a professional sport association following two previous violations as a result i believe of my legislation that major league baseball adopted a three strikes and you're out policy today however we are examining examining an n f l case in which two players have managed to simply a suspension for testing positive for a banned masking agent with the help of the n f l players association the players have been successful so far and using the state of minnesota's more lenient workplace laws to escape a mandatory four game suspension as simply dictated by the l s collectively bargain policy and anabolic steroids this was done and agreed upon the use of steroids and other prefer hansing drugs in addition to being illegal undermines the integrity of sport and precedent for players and jeopardizes public confidence in professional sports collectively bargain uniform steroids policies are made and should be governed by federal labor laws not for the  as as models now the legal case that have highlighted and in some instances i guess may have created complications in pursuing this goal of reducing t baseball commissioner allan occasion of the use of performance enhancing substances a strategic priority for major league baseball under commissioner selig leadership drug programs have been developed deployed updated and constantly improved at both the major league and minor league level baseball's programs call for pre and post game testing for both steroids and stimulants out of competition or offseason testing is required in total we conducted thirteen thousand tests of our players in two thousand and nine baseball uses the most up to date drug testing technologies at laboratories certified by the world anti doping agency and our programs are transparent and that also sponges are announced publicly publicly and testing statistics are published annually these programs have been effective in reducing the use of performance enhancing substances we had only two steroids positives in two thousand and nine and have been equally effective in detecting players including high profile players who have persisted in the inappropriate use of such substances without exception the progress baseball has made  major league level has been accomplished in the collective bargaining process the first drug testing program was negotiated as part of our two thousand and two agreement when it became apparent that improvements needed to be made baseball and the players association took the unprecedented step of twice reopening the agreement to strengthen the drug programs the collective bargaining parties made further improvements in the two thousand and six round of negotiations and then reopened that contract to deal with the recommend mandation is made by former senator george mitchell based on our experience major league baseball believes that the substantive terms of drug testing programs should continue to be established by the collective bargaining process created and regulated by the national labor relations act the recent decision by the united court of appeals for the eighth circuit in williams versus n f l however as raised the possibility that state laws could interfere with the uniform and for baseball's collectively bargain drug program it is well settled law that section three hundred one of the n l r a preempt state claims that are in are inextricably intertwined with the consideration of the terms of labor contract prior to the eight circuit decision we assume that claims based on state laws establishing standards for drug testing programs would be preempted in the context of a collectively bargain program uniformity of enforcement is an essential element of any drug testing program in the context of professional sports the essence of sport is fair competition the use of performance enhancing drugs undermines fair competition in a nationwide sport such as professional baseball all athletes must be hel to a single standard of clean competition once major league baseball and its players association have agreed on a drug testing program individual states and local governments cannot be allowed to undermine the program with employee statutes unfortunately the problem of india consistent state and local where you lay sions is not merely hypothetical there are a number of states and municipalities that have laws related to drug testing that could create claims for players covered by our programs such claims could lead to an even enforcement of the drug policy which in turn would undermine the credibility of our program and the integrity of the competition known as major league baseball because we have always believed that claims based on state drug testing laws would be preempted we have never bargained with our players association in an attempt to deal with the problem of state claims i am a firm believer in the process of collective bargaining and the utility of that process in dealing with difficult issues having said that i doubt that the collective bargaining parties had the legal power to waive in advance state law claims of individually union members major league baseball of course recognizes the legitimate legitimate right of states to pass employee protective legislation in the area of drug testing even a cursory review of the applicable state laws however it demonstrates that such statutes were intended to deal with programs that regulate drugs of abuse in traditional workplaces such as factories and hospitals not the use of performance enhancing drugs by professional athletes given this fact it would seem that a narrowly drafted statute could solve the problem faced by professional sports without creating an interference with the progressives of the state and while preserving the primary role of collective bargaining in setting the substantive terms of drug testing programs i thank you for giving us the opportunity to be here today m i do appreciate the opportunity here again today to discuss the n f l longstanding commitment to eliminate steroids and other performance enhancing substances from sports in recent years several committees of congress reviewed our collectively bargain and type steroids policies and commended us on a strong and effective program that accomplishes three main goals first protect the health and safety of our players to uphold the integrity of competition on the field sends an important message to young people that these substances are dangerous and wrong for the last twenty years the central principle of our policy has been the player is responsible for what's in his body the player is responsible for what is in his body as gene upshaw the late head of the players association testified only last year and i quote we have strict liability for players there is no excuse for any player that says he was not aware of a banned substance in what he was taking that's his responsibility he's responsible for what goes into his body and of course this principle ensures that the program a law breaker in a fair and uniform manner throughout the league and that is essential issue today whether we can continue to have a uniform program with credibility and integrity that applies on an equal basis to all players in the past we've always testified with the full support of our players association i'm sorry to report that today for the first time our players association sits next to me but does not stand with us on this issue last season three players from the new orleans saints in two players in the minnesota vikings tested positive for a banned substance a particular substance is banned because both it can be used as a mask for steroids and because of potential adverse health effects based on the positive test each player was suspended for four games twenty five percent of our regular season five players appealed and argued that they had ingested the band substance inadvertently by using a supplement that did not list a diuretic on the label following a lengthy hearings suspensions were upheld the minnesota players then sued the n f l in state court in minneapolis arguing that the suspensions violated minnesota state law a state court judge issued an injunction that same day allowing the two players to participate in critical late season games the next day the players association to the league in federal court on behalf of all five players even though doing so expressly violated the collective bargaining agreement last may the federal judge dismissed every one of the players association's challenges and the eighth circuit court of appeals unanimously upheld that ruling in there were claims of impropriety bias in the like in the proceeding and you may hear such claims today but all those claims were fully considered and rejected by every federal judge to hear them regrettably the federal courts permitted the two minnesota players to proceed with a different set of claims under state law that is why we are here today we have bigger asli opposed the application of state law to our anti steroids program and will continue to do so the players association for nearly two decades has been our partner in developing and ministering this program has refused to support us on this issue barrier to suspending the new orleans players but considerations of fairness and uniformity led me to defer those suspensions while we address the minnesota state law issues more broadly are collectively bargain policy which was intended to  on a uniform basis to all players and all teams is now subject to individual state laws as interpreted by individual state court judges every sports organization has recognized simply impossible to operate a credible an effect program on this basis for example the minnesota players claim that they are permitted under state law to use any banned substance so long as they do so outside of the locker room if that is a law it will effectively end anti steroids programs in all sports in the state of minnesota we have always supported collectively bargain solutions in this area while we are reluctant to seek action from congress we believe that this presents the rare case in which narrow and tailored players and undermine the integrity of the game we have made that policy clearly known to players and we have zero tolerance for failure to follow and i appreciate your time of the questions and you  considered by your subcommittee i serve as the executive director of the national football players association having been elected to that position in march of this year one of my first priorities was to become fully conversant result we have always agreed to the strict liability which makes every player responsible for what he puts in his body as a result players will be under the policy even when they do not know that a product they are using contains a prohibited we test at least ten players per week per team during the season and a player is likely to be tested about time in the off season up to one year as a testament to the success of this policy there have only been five two time offenders since the policy was put in place in one thousand nine hundred three no p player in our history has ever been suspended for we have also played great emphasis on education under the policy we've developed various educational materials to warn our players about the health risks of using steroids players are encouraged to call a hotline number to check on the acceptability of various products under the policy measure that was inspired by the national football league and are you to ensure that our players have immediate access to the best information we have also created the sports nutrition label certification program which certifies to players that products of any saw that being said as a result of the start i believe that we have to make some changes to the policy but the issues with the collectively bargained program that emerge in the context  should be first addressed by working with the league through the collective bargaining process i believe in the collectively bargained process i believe in the program that chairman and the subcommittee let me conclude by saying that we appreciate this committee and this subcommittee continuing interest in the health of players at all levels we believe that the most effective way to ensure reflect awareness of these issues we are confident that we can effectively work through the process to implement these changes as we have done in the past we will together to strengthen our policy i look thereabouts thank you mr chairman ranking member don of its members of the committee thank you for the opportunity to testify today and titian to my comments now i ask that my written testimony be made part of the official record of today's proceeding as mr manford indicated we have an effective joint drug program in major league baseball has been collectively bargain it's comprehensive its science state of the art it contains elements of fundamental fairness to all involved with the program we have an independent program administrator we have year round testing both during the playing season and during the off season and of importance to collective bargaining parties have demonstrated the flexibility and the program itself calls for the flexibility for us to respond to development legal developments scientific developments and we have through the bargaining process respond to those developments to maintain the effectiveness of our program the williams decision that is the impetus for today's hearing has had no impact on the operation of the joint drug program in major league baseball the players association does not believe that the ongoing litigation in williams warrants congressional intervention that intervention would implicate long standing congressional policy longstanding supreme court precedent that accommodates state prerogative to pass laws that regulate workers in the workplace the bargain parties in major league baseball and those in many industries regularly bargain collective bargaining agreements against the backdrop of state was it something that unions and management do all the time and because of that both congress and the supreme court every tediously expressed reluctance to and i'll now quote from the allis chalmers decision of the united states supreme court to grant to collective bargaining parties the ability to contract for what is illegal under state law the williams case again does not warrant deviation from that principle as i indicated it is ongoing litigation the decision of the eighth circuit is not even necessarily the final word of the eighth circuit there is a petition for rehearing pending before the eighth circuit right now there are other possibilities for further appellate proceeding in addition if the case is ultimately remanded sent back to the state court at that point there will be a trial of the state will claim i emphasize that nothing has been decided with respect to the state while claims other than that they can be heard in addition as mr smith emphasized in some detail the williams case is not about steroids the substance involved as he indicated a star caps and over the counter weight loss supplement that turned out to contain a prescription drug that was not listed on its label and as he said this mr smith said that litigation has focused in large part on the administration of the agreement as it relates to star craft the fact that the n f l had knowledge of that star caps contains a prescription medication and a lack of disclosure of that the players and to the union these are relevant facts and weighing the league's request for congressional intervention turning to the minnesota statutes involved and it is important to note that there has been no determination at this point that those statutes even apply or affect in any way professional sports i've had the opportunity to read professor feldman is written testimony and we agree with him that in the end there may well be no conflict at all between the minnesota statute and the collective bargaining agreements that govern special athletes in the state of bargaining should be permitted to work to address any problem that might exist so in summary the players association the baseball players association i should say hopes that this committee and the congress will allow the williams litigation to play itself out fully at that point all concerned about this issue can determine whether any problem actually exists and if there is a problem all involved you make the determination as to the best solution thank you for your time  for your longstanding interest in the rights of clean athletes in the integrity of competition usada as you probably know has been recognized as the national anti doping agency for the u s olympic movement and why our current mandate does not extend to professional sports we d not work in a vacuum the elimination of doping in professional sports is equally important to the elimination of doping at all levels of sport in this country sport in america has taken on a significance that extends well beyond a form of entertainment and its purest form sport builds character self esteem more dedication and commitment to a greater cause sadly when doping is introduced it's corrosive effects the core attributes and compromises everything valuable about sport the existence of doping in professional sport last year the subcommittee conducted hearings on the mitchell report major league baseball and its players were not the only sports organization or players hurt by those revelations unfortunately the accomplishments of clean athletes at all levels of sport in this country were heard i would like to digress momentarily to the star caps problem that led to the way in recently i testified in the senate and outlined a series of legislative changes that we believe are necessary to protect athletes of all ages and other consumers from mislabeled dietary supplements in particular those supplements that contain undisclosed drugs that are dangerous to consumers like the one in this case with respect to today's issues we strongly support federal legislation that protects uniform national enforcement of a sports leagues sound anti doping program against interference from inconsistent state laws this preemption should be available for all sound sport anti doping policies not just those collectively bargained for a sports league has a national scope its anti doping program cannot be effective and less uniform and national in scope we have learned that lesson from the history of anti doping in the olympic movement from the adoption of the world anti doping code and acceptance of the world code by the u s and other governments is a ratification of unesco's international convention against doping in sport that convention commits the us to coordinate the fight against doping in sport in the reprogram measures including legislation consistent with the principles of the code as described in the code sport anti doping programs are based on three fundamental objectives to maintain a level playing field for athletes to protect the health of athletes and to preserve the spirit of sport if application or enforcement of anti doping rules can vary depending on where a particular competition takes place or where an athlete or a team is located the playing field is not even and clean athletes rights are violated there could be unique or inconsistent state regulations pertaining to conduct which constitutes a violation of anti doping rules the selection of athletes to be tested the sample collection process the laboratory analysis of samples the results management process and the imposition of discipline the problem of an uneven playing field calls by non uniform anti doping rules was the primary reason behind the adoption worldwide of the world anti before the enactment of the code the rules of international sports federations like the world governing body for soccer cannot be uniformly enforced worldwide because of the patchwork of inconsistent national anti doping rules and  federal preemption of any inconsistent state all know whether viewed from the perspective of the obligations under the unesco convention or simply from the public policy goal of eliminating doping in american sports anti dop programs that substantially comply with the basic principles of the code should also be protected from inconsistent state laws there is much less justification however for preempting state laws in favor of professional sports leagues programs that are not fair or effective to obtain the protection of federal preemption as a matter of public policy a sports anti doping program should most importantly be independent and transparent in addition to being required to satisfy the following criteria effective out of season and out of competition testing a full list of prohibited senses and methods that are prohibited implementation of best legal and scientific policies investments in education that's months into research partnerships for law enforcement to hold those accountable who manufacture really will distribute these dangerous drugs in conclusion requiring these minimal principles is consistent with the water code the sort of protocol and the recommendations you heard from senator mitchell and all us professional sports leagues implemented anti doping programs that met these criteria it would go a long way towards eliminating doping in the us and restoring public confidence in the integrity of achievement and the value of true sport as a teacher of life lessons most importantly it would be a potential problem did not hold that the suspension of the williams has violated minnesota state law circuit only held that the williams is made to challenge those suspensions in minnesota state court under minnesota state law because that independent minnesota state law was not preempted by section three a one of the eleanor that's an important point to focus on because we only have a problem if the minnesota state court then determines that the suspension of the williams is violated at minnesota state law that would be the problem if that's a problem we can focus our solution on that particular problem we don't have that problem yet if we get there then we need to recognize we only have a narrow problem we have the laws of one state potentially interfering with the n f l s performance enhancing drugs just one state i do not think it's appropriate or wise for congress to pass a federal law providing a broad exemption professional sports league just because of this narrow problem involving one state granting an exemption to any industry to protect it from state law should only be done for compelling reasons even if it's a narrow exemption because even a narrow exemption has potential for producing harmful unintended and unanticipated consequences and to put a spin on an old cliche for congress to pass a law now based on this particular problem would be like the man who uses a shotgun to get on and that is called into his house except here we're not even sure the answer then i think the more appropriate way to fix this problem this narrow problem is with a narrow solution i think the most appropriate narrow solution the first step is for the n f l to litigate this case in state court and convince the state court that this is pensions of the will and do not violate minnesota state that may seem like an obvious solution but addresses the problem head on and i think it's likely to be successful and here's why i think it's likely to be successful putting aside the merits of the claim that we're dealing with two different minnesota state statutes that was neither of those statutes were intended to apply to the performance enhancing drug policies of professional sports look at each one briefly it was designed to regulate the testing of recreational drug use by employees in minnesota and was a byproduct of the war on drugs in the one nine hundred eighty employees were coming to work under the influence of drugs that were causing accidents that were unproductive they weren't showing up at all and so private employers third instituting strict drug testing policies for their employees states responded with regulations to protect these employees and those regulations had protections in place such as ensuring that the testing procedures were not overly invasive ensuring that employees who did test positive for recreational drug use were given treatment and rehabilitation not simply punishment and terminations and as an important aside those goals are completely consistent with the goals of the league leads recreational drug testing but there's simply no indication nor any reason to believe that that was intended to regulate or limit the ability of professional sports leagues to test their athletes for performance enhancing drug use in minnesota legislature was concerned about the use of performance detract and addictive drugs by employees legislature was not concerned about the use of performance enhancing drugs were cheating by professional athletes are very different purposes i think the best argument the n f l should not apply at all even if there were technical violations and i think the n f l has a strong argument that there were no technical violations but even if there were technical violations those laws for using alcohol and tobacco work site in non working nothing to do with performance enhancing drugs of professional litigation in state court is unsuccessful the next step to seek an exemption from the minnesota state legislature the minnesota state legislature to carve out an exception from its drug testing statutes louisiana has carved out an exception from its drug testing statutes to make it clear that it does not apply to professional athletes minnesota could do the same thing in fact minnesota amended the debt when two thousand and five to allow sports leagues random drug testing for the pro athletes they did in two thousand  they wouldn't do it now if both of those solutions are unsuccessful and if the players in the league can't negotiate around it then only then do we have a problem then we have this potentially interfering with the state has said that the suspension of n f l players is not allowed because it violates minnesota law then congress should consider passing a federal but that must be a narrow exemption the risk of having a broad exemption or providing too much protection for the law is pretty clear congress right now may think it's a good idea for the n f l policy to trump state law because congress likes the current policy what happens in the next round of collective bargaining if the players agree to a different policy that congress doesn't like what if it's too lenient but if it's too strict what if it doesn't apply to list of banned substances what if it gives the commissioner the ability to increase or decrease a particular penalty as he sees fit do we want that policy protected under attack i think we have a long way to go before this is a problem that congress has to be concerned thank you view the williams decision is built on a simple premise and that that premise is erroneous in professional sports such as the n f l are not typical multi state business organizations they are hybrid business organizations neither fish nor fowl and do not easily fit within the mold anticipated by section three zero one of the l m r a and the judicial decisions interpret it the n f l and the other major american professional sports leagues are unique business operations the n f l requires its franchises to be owned by a single individual or group of individuals and to be owned locally in other words a single owner may not own more than one franchise this aspect of the business arrangement provides incentives for local teams to promote local marketing opportunities and ticket sales local ownership gives teams strong incentives to hire and retain the best players and coaches possible to enhance their chances for on field success yet the fact that teams are individually owned by local interests does not mean that at that n f l teams are competitors in a regular business sense and f l teams compete but they do not wish to drive their competitors out of business instead and f l teams rely on a high degree of cooperation in both obvious and non obvious ways teams cooperate to create uniform game rules game schedules and championship tournaments they cooperate to create and sell national and international marketing opportunities including broadcast rights digital media and national sponsorships this obvious cooperation which is currently under scrutiny by this supreme court supreme court of the united states and the american needle and trust litigation masks a deeper codependency among teens when one franchise does poorly the entire league suffers even to the extent that professional leagues have been known to take over ailing franchises rather than allow them to fail as cove ensures franchises actively help ensure the financial health and continuing viability of their competitors devising rules to assist their nominal opponents in the hiring of quality players and coaches these rules promote competitive parity and include salary caps wage scales luxury taxes and entry draft preferential draft and rave waiver rights to the least competitive teams restrictions on the ailing ability of draft picks prohibitions on one side weighted schedules so for in short the multistate location of the franchises of the sports leagues tends to mask the nearly complete dependency that teams in fact have on each other to ensure the overall success of the league in my view the n f l and other professional sports leagues are better characterized as single national farms and not as a number of independent companies that cooperate in small matters such as game schedules or rules of play yet even as a single entity sports leagues had unique needs that require special consideration under the law ordinary national businesses that have operations in several states must abide by the respective state laws for example drug testing restrictions minimum wage rules and the like but the n f l differs from the ordinary single entity because although teams are financial goal venturers they are also of course on field competitors the league relies on competition among its cooperat rs as a result whereas state law or other law strikes down a term of employment that directly or indirectly creates a competitive balance in the very continuation of the n f l as a business enterprise is threatened such decisions might make sense in the context of a single national business that happen to have local operations in multiple states but in the context of a professional sports league such applications of state law would be devastating to the chief product the league produces competitive an exciting game contests one important way that leagues ensure competitive parity is by prohibitions on player doping doping is prohibited in part doesn't allow certain players and their respective teams and unfair advantage over the other point that mr feldman made absolutely clear is also true that is not yet over it is not where anyone has ruled that our drug policy is now nolen void that has not happened  the other fact that is absolutely clear as he is taking a look at the issue as not only the executive director but still a lawyer who every now and then is consumed by problem we have gone through in the national football league months of litigation and uncertainty on this issue in additionally the players continue to play on the field during this period of time man that were not under that restriction and could have been suspended in the basis of and making sure that our policy is applied on a uniform basis i did not think it was appropriate to suspend those two  players there's competitive issues there and there's uniformity issues and i did not do that and i believe it was the right decision but it has impacted the national football league right now and our drug program and i want to try to make that very clear to this committee this is not a potential problem it's an existing problem and all of us have to deal with this now we cannot wait the last issue and a couple of points that were raised here you know that we should adhere to our collective bargaining i agree we should adhere to our collective bargaining the union when outside of our collective bargain and challenge our program not once but twice we're told by federal court that there is no merit to their claims the other issue is this isn't about steroids in this specific case this is about another drug that is prohibited on our policy because of two reasons one is it is a masking agent for performance enhancing drugs masking agent that means that potentially someone could be taking this drug to cover up the use of performance enhancing drugs and i'm not saying that happened in this case i don't know the second issue is that players were specifically warn that weight loss products can be tainted they are unregulated and products can be tainted and put in products that are prohibited by our program can be put into these products what happens unfortunately and we saw this tragically with the minnesota vikings player ironically that died on the practice field from dehydration weight loss products can be very dangerous if not properly supervised particularly when they're competing at the level that they're did offer a letter for the record so just to clarify my understanding that commissioner goodell testified that he sent you a letter in june asking you to support the league and your collectively bargain drug program against challenges under  congress has not stopped mr goodall yes well i guess i asked the question what happens if another player from minnesota is detected to have violated our policy my assumption is they would fall and go under the same claims with the w and he'd still be playing i believe that's correct second of all in the letter that i wrote today and i'm not a lawyer so i profess that upfront but it's basically ask the planet so players association th the league's position the whims of on the of click ability of state law this was after the trial judge ruled in favor of the n f l and said that we follow the procedures by the policy and it was before the federal  court made the decision on august thank you mr smith what's your response to the fact that as mr goodell had mentioned players were warned that the substance may not appear on the label of some of these products but but the warning was there that threw if you could be specific to the question and that is that you were warned that yes that some of those substances may not appear in the label but that really is not an excuse they are worn and they are warned that  what they take and put in their body they will be held responsible right right what what our policy also includes is to have a doctor who is in independent administrator make a decision about what to  do when when i found out that that independent administrator was told by a lawyer to change his decision that's probably when when i am told that and there's the potential for dangerous drugs showing up in these dietary supplements and players on notice of that and they assume the risk they take those mr good out could you respond to that plus the physicians weighing in on this and changing decision if i could if i can just go back and correct one thing on the record here are lawyers did not tell the independent doctor to change his decision they told them to enforce the program that's what they're supposed to do in the program that's first second issue about warnings even in the hearings that took place in the in the in the case with these five players one player since retired each of those players recognized that they had been warned that they were aware of the policy on supplements and that they could be tainted they were fully cognizant of all of that and in fact two players in minnesota have a specifically negotiated provision in their contract about weight loss that would result in a bonus if they made their way so they were fully aware of the fact that they were taking something the team would not approve all right thank you very much what you're saying and what he's saying but first of all in your testimony you said that you made reference to players quote players who on knowingly took star caps do you know of any players who are caps without knowing of the star caps how can responsible for what goes into their bodies whether or not the league knew it maybe the league didn't know it if the league did or didn't know it and are banned under the policy that ultimately if your earlier statement agreement by both parties is that players responsible for what goes into their body then how does that mesh with you know maybe they took it but didn't know that something bad was in it i think the difference would be and what we would consider to be not only raised in their litigation the trial court rejected them and the appeals court rejected that is not why we're here today we're here today to talk about the difference in minnesota state law versus what is going to essentially gut our performance enhancing program that's the core issue the second issue is we clear to our players at every opportunity supplements are unregulated and they can be tainted with products that are by our drug program you are responsible for to your body we do not do a product by product warning as you saw does not do product by product warning this is something that we have done collectively in our program if we want to change the program i am more than happy to sit down with our players association and try to figure out how we can strengthen our program we have done that consistently since i have been commissioner and even prior to my coming commissioner we think we're doing a good job in the national football league we do not wait for anyone else we want to because our players believe that anyone that uses drugs are really cheaters there is no room for mr congressman that quote by mr upshaw i can't remember it verbatim but if you wanted to cross out or add my name to that quote i stand by everything my guess is it that he knew that this policy was applied in an unfair way he would seek any and all avenues to make sure that it was applied in a fair way yes this is not a decision that i made this is a decision that came out of our collective bargaining arbitration system that we have collectively bargain it was agreed to roughly twenty five years ago it was agreed to multiple times as part of extensions of our collective bargaining agreement during that period of time and i would submit that probably no arbitration system is perfect but we have a collective interest in making sure that our policy is got integrity and credibility and that's how it is in force and that's how we have stood behind our program collectively with our union and i would take issue with mr smith about gene upsh process but where a league lawyer is advising the minnesota vikings on one day about this and then on the next judge one of the players that was a process that was challenge well before i became executive director where we have according to the court ruling a situation where a league formed called independent administrator sometime absolutely our program has always incorporated neutral arbitrator as a fact finder and i guess i'd put it simply like everybody this table stands united against the use of performance enhancing drugs but you can be agree obviously i mean due process is an important aspect because there are several different rights of athletes that you are dealing with through the arbitration process and we do have external arbitration processes the dispute resolution over doping cases in the olympic movement but the rights o the accused so is there is there the opportunity to have notice of the charge cross examine witnesses have a well written reasoned decision but there's also the rights of all the other clean athletes out there who have to be equally balanced in this analysis goes to independent this case would not have changed the result circuit court of appeals so it wouldn't matter in that regard but i can understand why the parties would agree to have someone inside the commissioner's office arbitrate the claims of the insider knows the story better  knows the industry better and so he can make sense to a party sometimes to have arbitration done by a non neutral non outside party whether they do that or not of course is it's up to the parties collective bargaining process the issue here though mr chairman as you properly brought out it was just a race this can't be solved by the collective bargaining process this issue was created by the n f l as exasperated by  and now they don't know how to fix it the problem is this is gotten beyond the control of the two parties to negotiate in collective bargaining that is why your committee is looking at this and that is why we believe some narrow legislation enforce the very policy that was negotiated with the n f l and the players association we have already seen ramifications of this due to the fact that the players from the new orleans saints have not been formally suspended for testing positive for the same masking agent simply because louisiana has different laws in minnesota because the n f l has not been able to carry out the suspension of these players players all their other drug testing policy because of purported inequitable treatment will not physically right now but as you point out you cannot have an effective credible program  for steroids use and have the integrity of the program if players are subject by different states to different standards cannot do it and that is the issue that is at hand today we have to have the ability to enforce a program across all fifty states allow every player in the n f l and other sports to be subject to the same fairness the same standards the same policy and if necessary the same discipline that is at the that we have a program if i'm in minnesota in my subject to the same policy and they will probably take that defense if a player in minnesota is caught whether it's in baseball or football or another sport will probably come in and try to use the state was in minnesota to protect them that is not managing and hearing to a policy on a consistent and uniform basis a real quickly let me ask you a series of questions did the players association agree to the drug policy program including the process for appeal absolutely as my place multiple times as a players association ever challenged a suspension before in our in our appeals process yes not outside the appeals process and i'm aware but do you know why they challenge us i take mr smith at his word state laws that all for employees the right to inherently damage the credibility of your program and i use an example when you're talking to your son about drinking and driving you have to give that individual you are responsible for what's in your body you may not drink beer you may of and soda but if you drink punch and there's some type of liquor in there and you're driving you have violated the law you are responsible for that and you have to recognize that a not we can certainly do that it doesn't prevent other states from changing their law and gutting the program in the same fashion so i don't i don't problem still a narrow problem we have the minnesota laws i think is to make an argument that those laws do not apply to the performance enhancing drug testing i think it's i think you can win that case in state court if you lose i think you can make a very persuasive argument that the state legislature should change the law now the commissioner just said well that's just one state of the time and then another state can pass a law to another state and pass a law while looking at the actual reality there are only two other states right now as ment five regulations whatsoever only three of those conflicts it may be the case that down the road some other states may add regulations and those regulations may conflict with the n f l but there's no reason to believe they will there's no reason to believe that any of the current state legislation is intended to deal with the n f l so there's no reason to believe that any states will come up with new legislation so i think the better fix here is the narrow fix go to the minnesota state legislature and say your laws are creating this potential problem clarifier make it clear that they're not intended to apply to the n f l that's exactly what louisiana statutes i don't see why other statutes couldn't do it somebody mentioned earlier the choices either minnesota modifies their laws or professional teams thinking about leaving the state there's no question what the minnesota legislature would do and it's not forcing them to do anything it's just a modifier to make it clear you want to protect your