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THE DRUG FREE SPORTS ACT OF 2005

HEARINGS

BEFORE THE

SUBCOMMITTEE ON

COMMERCE, TRADE, AND CONSUMER PROTECTION

OF THE

COMMITTEE ON ENERGY AND

COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

H.R. 1862

MAY 18 and 19, 2005

Serial No. 109–15

Printed for the use of the Committee on Energy and Commerce

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

COMMITTEE ON ENERGY AND COMMERCE

JOE BARTON, Texas, Chairman

RALPH M. HALL, Texas

MICHAEL BILIRAKIS, Florida

Vice Chairman

FRED UPTON, Michigan

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

NATHAN DEAL, Georgia

ED WHITFIELD, Kentucky

CHARLIE NORWOOD, Georgia

BARBARA CUBIN, Wyoming

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi, Vice Chairman

VITO FOSSELLA, New York

ROY BLUNT, Missouri

STEVE BUYER, Indiana

GEORGE RADANOVICH, California

CHARLES F. BASS, New Hampshire

JOSEPH R. PITTS, Pennsylvania

MARY BONO, California

GREG WALDEN, Oregon

LEE TERRY, Nebraska

MIKE FERGUSON, New Jersey

MIKE ROGERS, Michigan

C.L. ‘‘BUTCH’’ OTTER, Idaho

SUE MYRICK, North Carolina

JOHN SULLIVAN, Oklahoma

TIM MURPHY, Pennsylvania

MICHAEL C. BURGESS, Texas

MARSHA BLACKBURN, Tennessee

JOHN D. DINGELL, Michigan

Ranking Member

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

LOIS CAPPS, California

MIKE DOYLE, Pennsylvania

TOM ALLEN, Maine

JIM DAVIS, Florida

JAN SCHAKOWSKY, Illinois

HILDA L. SOLIS, California

CHARLES A. GONZALEZ, Texas

JAY INSLEE, Washington

TAMMY BALDWIN, Wisconsin

MIKE ROSS, Arkansas

BUD ALBRIGHT, Staff Director

DAVID CAVICKE, Deputy Staff Director and General Counsel

REID P.F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON COMMERCE, TRADE, AND CONSUMER PROTECTION

CLIFF STEARNS, Florida, Chairman

FRED UPTON, Michigan

NATHAN DEAL, Georgia

BARBARA CUBIN, Wyoming

GEORGE RADANOVICH, California

CHARLES F. BASS, New Hampshire

JOSEPH R. PITTS, Pennsylvania

MARY BONO, California

LEE TERRY, Nebraska

MIKE FERGUSON, New Jersey

MIKE ROGERS, Michigan

C.L. ‘‘BUTCH’’ OTTER, Idaho

SUE MYRICK, North Carolina

TIM MURPHY, Pennsylvania

MARSHA BLACKBURN, Tennessee

JOE BARTON, Texas,

(Ex Officio)

JAN SCHAKOWSKY, Illinois

Ranking Member

MIKE ROSS, Arkansas

EDWARD J. MARKEY, Massachusetts

EDOLPHUS TOWNS, New York

SHERROD BROWN, Ohio

BOBBY L. RUSH, Illinois

GENE GREEN, Texas

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

JIM DAVIS, Florida

CHARLES A. GONZALEZ, Texas

TAMMY BALDWIN, Wisconsin

JOHN D. DINGELL, Michigan,

(Ex Officio)

(II)

C O N T E N T S

Page

Hearings held:

May 18, 2005 ..................................................................................................... 1

May 19, 2005 ..................................................................................................... 93

Testimony of:

Bettman, Gary, Commissioner, National Hockey League ............................. 37

Fehr, Donald M., Executive Director, Major League Baseball Players

Association ..................................................................................................... 31

Foose, Robert, Executive Director, Major League Soccer Players Union ..... 23

Garber, Donald P., Commissioner, Major League Soccer .............................. 18

Goodenow, Robert W., Executive Director, National Hockey League Players Association .............................................................................................. 43

Hunter, G. William, Executive Director, National Basketball Players Association ......................................................................................................... 74

Selig, Allan H. ‘‘Bud’’, Commissioner, Major League Baseball ..................... 27

Shorter, Frank, former Chairman, United States Anti-doping Agency ....... 13

Stern, David J., Commissioner, National Basketball Association ................ 71

Tagliabue, Paul, Commissioner, National Football League, accompanied

by Harold Henderson, Executive Vice President, Labor Relations, National Football League .................................................................................. 94

Upshaw, Gene, National Director, National Football League Players Association ............................................................................................................ 103

(III)

(1)

THE DRUG FREE SPORTS ACT OF 2005

WEDNESDAY, MAY 18, 2005

HOUSE OF REPRESENTATIVES,

COMMITTEE ON ENERGY AND COMMERCE,

SUBCOMMITTEE ON COMMERCE, TRADE,

AND CONSUMER PROTECTION,

Washington, DC.

The subcommittee met, pursuant to notice, at 10 a.m., in room

2123 of the Rayburn House Office Building, Hon. Cliff Stearns

(chairman) presiding.

Members present: Representatives Stearns, Upton, Cubin,

Radanovich, Bass, Pitts, Bono, Terry, Ferguson, Rogers, Otter,

Myrick, Murphy, Blackburn, Barton (ex officio), Schakowsky, Markey, Towns, Rush, Green, Baldwin.

Mr. STEARNS. Good morning.

Illegal steroids and performance-enhancing drug use in sports,

particularly in professional sports, is a complex and far-reaching

issue that this subcommittee has been involved with for some time.

I would like to sincerely thank the witnesses before us today at

our second hearing this year on this important issue as well as for

their comments about H.R. 1862, the Drug Free Sports Act, which

was recently introduced by both Democrats and Republicans.

My colleagues, during the 2004 State of the Union address, the

President of the United States said, ‘‘Athletics play such an important role in our society, but unfortunately some in professional

sports are not setting much of an example. The use of performanceenhancing drugs, like steroids, in baseball, football, and other

sports is dangerous, and it sends the wrong message: that there

are shortcuts to accomplishments, and that performance is more

important than character. So today, I call on team owners, union

representatives, coaches, and players to take the lead to send the

right signal, to get tough, and to get rid of steroids now.’’

Unfortunately, the President’s urgent call still remains completely unfulfilled.

At our March hearing, we learned how urgent things are, including how destructive many of these substances can be on the human

body and mind, particularly for young people misguided by attitudes that place winning above all else.

Today, I would like to focus the committee on the simple notion

that sport, at its core, is about honesty, integrity, and innate

human ability. Illegal steroid use is a desecration of those values.

It is cheating, pure and simple. It cheats our sports, it cheats honest and hard-working athletes, and it cheats all of us as fans. And

whether athlete, league official, or a Member of Congress, we are

2

all here today as fans who want to protect the sports that we care

so very much about.

As those directly responsible for the integrity and legacy of professional sports in America, the commissioners, the player representatives, and the governing body officials here today will provide us their candid and honest views on this proposed piece of legislation. And with those views, we also expect action to eliminate

this problem.

But let us be clear. This is not an opportunity to direct blame

and to try and embarrass anyone. This is simply an opportunity to

dissect the elements of the steroid problem affecting the business

of professional sports and, frankly, to implement the best solution

for the leagues, the players, and the fans.

I, along with many of my colleagues, believe the best solution includes a comprehensive and uniform drug-testing rules, procedures,

and penalties for all professional sports. This should include a harmonization of drug testing if we are committed to building a unified front from the professional sport leagues to deal with this complex issue going forward today.

Desperate policies tailor-formed by each league are at a risk of

being overwhelmed by newer, more sophisticated threats, like designer steroids, gene doping, and more creative drug masking techniques.

In this regard, my colleagues, the elite professional leagues collectively must provide coherent and consistent leadership to all

those that they influence, including the high school players, the college athletes, and especially the fans. And although this has been

a difficult time, I am very encouraged by the recent progress that

has been made by the league and the players in this regard.

Even so, I am not convinced that an effective solution to this

problem can be found in a system that allows those with a vested

interest in the performance of the players and leagues to simply police themselves. This complex and large-scale problem demands a

more harmonized approach, greater transparency, and significant

independent, third-party involvement if the players, if the management and fans can be confident that their game is clean.

These necessary elements are not byproducts of a simple compromise. They are standards that have been institutionalized and

out of the reach of the vested interests of the organizations who are

involved.

Our legislation H.R. 1862, the Drug Free Sports Act, is modeled

after the United States Anti-Doping Agency, or USADA, standards,

which have been embraced by the U.S. Olympic Committee and

many professional sports organizations worldwide as a benchmark

for anti-doping programs.

H.R. 1862 requires the following minimum criteria for any program: random testing of each athlete, at least once a year: testing

for substances on the prohibited substance list issued by the World

Anti-Doping Agency; testing by an unaffiliated, independent party;

penalties that include a 2-year suspension on the first offense, and

a lifetime ban for a second offense; an athlete’s right to appeal a

positive test within 30 days. In addition, the Secretary of Commerce may exempt sports that have drug testing programs in existence that meet or exceed the minimum requirements.

3

Our bill creates a careful balance between effective detection and

strong deterrence to ensure that a professional league represents

the best in athletics and the best in drug testing.

Requiring amateur athletes in college or Olympic competition to

adhere to stricter standards for drug testing than they would face

in many of the professional leagues, I believe, sends the wrong

message to our young people. Such inconsistencies only serve to

perpetuate the idea that the more successful you are, the less the

law and fair play matter today.

Sport, both amateur and professional, belongs to all of us here

in America. Our professional leagues should adhere to the goal

standard of drug testing, the standard that has been outlined in

H.R. 1862, the Drug Free Sports Act.

So today, we need strong, decisive action by our professional

leagues before the arms race of illegal steroids and a better-sportsthrough-chemistry attitude replace hard work, dedication, and honesty as the keys to success for our athletes and, of course, for our

children.

I again want to thank our witnesses for being here today, our

distinguished panel, and I look forward to their testimony.

With that, I recognize Ranking Member Schakowsky.

Ms. SCHAKOWSKY. Thank you, Mr. Chairman.

And I, too, welcome and thank our witnesses for being here

today.

As we discovered at our last hearing on steroids, professional

sports leagues have very different policies on the use of performance-enhancing drugs. Some leagues have strict standards resulting from collective bargaining agreements. Others seem content to

let the threat of a bad reputation serve as the punishment in their

drug policy.

Because the lenient end of the policy range seemed to be a de

facto condoning of steroid abuse, you, Mr. Chairman, decided to

provide a minimum standard to which the leagues would adhere by

drafting H.R. 1862, the Drug Free Sports Act. Although there are

some serious policy questions that need to be answered, I look forward to working with you to craft a bill that provides a strong but

sensible policy.

The Drug Free Sports Act would establish a baseline policy for

performance-enhancing drugs to which professional sports leagues

must adhere unless they adopt a stronger policy on their own. This

policy is intended to be largely indistinguishable from what Olympians are currently required to follow and would be based off the

World Anti-Doping Agency’s, WADA, list of prohibited substances.

I believe H.R. 1862 needs clarification to ensure that the medical

and physiological exceptions of the WADA list are also in the

standards for the professional teams. There should be no question

about whether an athlete with diabetes would be punished because

of using insulin, a drug which is prohibited on the WADA list, unless it is needed for medical reason. We also need to contend with

the fact that the WADA list differentiates between drugs that are

prohibited in and out of competition and how to address this in the

bill.

I am concerned that the bill is not clear about what determines

whether a league’s policy is considered stronger or weaker than the

4

policy in the bill. Since there are a number of variables in each policy, including frequency of testing, lists of prohibited drugs, and

penalties for positive test results, there are a multitude of potential

combinations, and no one distinguishable fact of which to base the

determination.

While I believe that many of the issues I raise are drafting

issues, there are still a number of substantial policy questions we

need to address in order to ensure that the Drug Free Sports Act

sets a well-reasoned and reasonable standard for professional athletes.

Although the Drug Free Sports Act contends strictly with performance-enhancing drugs and professional sports leagues, I believe that taking a strong stance against the use of performanceenhancing drugs and professional sports will benefit our junior

high, high school, and college athletes who may turn to harmful

drugs to stay competitive. As you may recall, a survey by the University of Michigan found that 54 percent more high school seniors

took steroids in 2003 than did in 1996.

As I stated in March, I believe that one of the reasons there was

an increase in steroid abuse in young athletes is because there is

a ripple effect through the athletic world. Young athletes are seeing

professional athletes make millions of dollars off of their juiced-up

abilities, and they know that the use is rewarded. These young athletes are taking steroids to meet physical performance standards

that would be impossible without artificial augmentation. They are,

like their heroes, trying to be superhuman and destroying themselves in the process.

Student athletes also are putting themselves at great risk by

using steroids. Steroids stunt growth and increase the likelihood of

ligament and tendon injury, not to mention heart attacks, liver failure, and other permanent and irreversible problems. Our young

athletes are doing this because they know that when ‘‘play ball’’ is

called out, the field today is not level, and they want to be in the

game.

I believe that if professional athletes recognize and adopt standards that promote safe and healthy sportsmanship, whether

through standards set forth in the bill or strong collective bargaining agreements, we will be more likely to see the same on high

school and collegiate levels.

Again, Chairman Stearns, I appreciate your holding this hearing

today. I look forward to working with you to address the outstanding drafting issues in H.R. 1862 as we move the bill toward

subcommittee markup. I am hopeful that these hearings and the

testimony from our witnesses will provide us with valuable guidance as we continue to carefully examine the subject. I am optimistic that we will proceed cautiously and address these concerns

before moving the legislation through the committee.

Thank you.

Mr. STEARNS. I thank the gentlelady.

The distinguished chairman of the full committee, Mr. Barton

from Texas.

Chairman BARTON. Thank you, Mr. Chairman.

The purpose of this hearing is to examine H.R. 1862, the Drug

Free Sports Act. I want to commend the sponsor and the co-sponVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 21640.TXT HCOM1 PsN: HCOM1
5

sors for their efforts to bring this legislation forward to provide a

uniform drug-testing policy for professional sports.

I want to thank this distinguished group of witnesses today for

participating and being with us in a voluntary fashion and sharing

their views. It is important that we have a full and open debate

on the legislation as it moves forward. It is the Energy and Commerce Committee that has principle jurisdiction on this issue. This

committee will use that jurisdiction in a responsible way to address

this issue in a responsible legislative fashion.

Nobody thinks that athletes should use illegal steroids. Nearly

everybody believes that athletes can and should be role models, so

why in the world did we ever get into a situation where steroids

apparently were swallowed like M&Ms and adults winked at each

other when baseball players started growing arms as big as tree

trunks. However it happened. I am glad that it finally seems to be

changing, and I want to personally thank Mr. Selig for his leadership in helping to make that change.

I am pleased that some of the professional sports leagues have

addressed the issue and made improvements to their existing policies in recent months. Major League Baseball and its Players Association have reopened their existing collective bargaining agreement. The National Football League and the National Football

League Players Association have likewise made improvements.

Major League Soccer recently adopted its policy that includes testing for the substances prohibited by the World Anti-Doping Agency.

I applaud these improvements, but I still have to ask: ‘‘Is that

enough?’’ The U.S. Government has signed on to the international

standard developed by the World Anti-Doping Agency and supports

it with funding. We see fit to apply these standards to amateur and

professional athletes that compete in the Olympics. Unfortunately,

many professional sports leagues have not yet adopted the same

standard because the Olympics do not govern their professional

competition.

To confuse things further, many of our professional athletes who

participate in the Olympics, including the NBA and the NHL stars,

abide by different standards at different times, depending on where

they are playing. Additionally, baseball players follow the same

standard for the Olympics, although Major League players do not

play on our national Olympic team.

What message are we sending when we ask amateurs to do more

than our professionals? It is a shame that we have come to this

point. The overwhelming majority of athletes do not use performance-enhancing substances and are great role models. But the fact

remains that these substances are increasingly used by high school

students, and I am very, very worried about that trend.

I am committed, as chairman of this committee, to seeing that

we stop sending mixed messages to our kids and our athletes,

whether they are playing on the sandlot or in the stadium. Cleaning up our professional sports will be a first step to achieving this

goal. I think this is important legislation, and after a series of

hearings this week, it is my intention to work with subcommittee

Chairman Stearns to move toward a legislative markup in the very

near future.

6

This is just a first step. We also need to work with our colleagues

and our high schools and their associations to create national

model legislation for the State level for both the college level and

the high school level in terms of steroid abuse.

Mr. Chairman, I thank you for holding this hearing. It is very

important, and this will result in legislation in the very near future.

With that, I yield back.

Mr. STEARNS. I thank the chairman.

Mr. Rush.

Mr. RUSH. Thank you, Mr. Chairman, for recognizing me. And I

also want to thank you for holding this hearing and for the legislation you have introduced.

I am pleased to see that hearings on this issue are now finally

taking place in the actual committee that has jurisdiction on this

matter and that you have drafted a bill, which we all can deliberate.

Having said that, Mr. Chairman, while I support the spirit of

your bill, I must express some reservations on its substance.

I want illegal performance-enhancing drugs eliminated from professional sports as much as anyone. But I also want to be sure that

players are treated equitably and fairly. Of the four players suspended from Major League Baseball and the 63 players expelled

from the Minor Leagues, the overwhelming majority of them are

Latino or African American. I think we need to be careful before

we punish players with particularly harsh penalties that may be

unduly and inadvertently burdensome on young athletes of color.

Most of the banned substances in question have only been illegal

for several months, by act of Congress. Most of these newly banned

substances are precursors to steroids, and they were widely available to the general public on a legal, commercial basis only a short

time ago. Many of these substances could be still on the shelves of

your local fitness store or your local gym. Much of the stuff could

be in the hands of trainers, or even friends.

The fact that so many Latino and African American ball players

are testing positive for steroid use may be simply because they are

unaware that the substances are, in fact, illegal. Either the substances are readily available and legal in Latin America, or the

Caribbean, mostly Spanish-speaking countries, where the ball players train during the winter, or the stuff is available in the gyms,

say in a drink form, and is given to the players without their

knowledge that they are drinking a banned substance.

I could come up with all sorts of scenarios in which a player

unwillingly takes a banned substance. But the bottom line is that

because the professional leagues have yet to formally implement an

educational outreach policy to inform all players of the new testing

policies in all relevant parts of the world and to all economic backgrounds, a 2-year ban for a first-time offense seems too harsh. For

these young players, such a punishment can be devastating to their

nation careers, and we shouldn’t be unreasonably punitive for behavior that is not intentional.

I would also note that unlike other major sports, all of the baseball players who have been publicly revealed as testing positive for

steroids are relatively obscure players, not the big names we are

7

always hearing about. For whatever reason this is the case, the

fact remains that a 2-year suspension would have an overly harsh

affect on these players who are young and struggling to make it in

professional sports.

With that said, I think we need a strong punishment and deterrent to dissuade young ball players from taking illegal performance-enhancing drugs, but I don’t think we ought to ruin a kid’s

career for one mistake. I think a 2-year suspension might be just

that: a punishment that ruins a kid’s career, not one that achieves

a credible deterrent. Moreover, the fact that all sports leagues do

not use blood testing, which is a more stringent and accurate test

for performance-enhancement drugs, exacerbates the desperate impact of a drug testing policy. The wealthy, superstar athletes are

able to exploit the flaws of a urine test by employing world-class

trainers and using expensive, high-tech substances and masking

agents. On the other hand, the up-and-coming athlete does not

have that kind of wealth at his or her disposal and can not exploit

the holes in the testing.

Thus, I think we need to have the most accurate test possible to

cut down on the—Mr. Chairman, could I have an extra 30 seconds?

Mr. STEARNS. With unanimous consent, so ordered.

Mr. RUSH. And some Major League Baseball steroids policies are

currently too loose and lenient, and I want to commend Commissioner Selig for stepping up to the plate and advocating stricter

rules and harsher penalties. But I also feel, Mr. Chairman, that

your bill’s penalties go too far in the opposite direction. It is my

hope that we can come up with a credible medium that accomplishes the goal of deterrence without being overly and blindly punitive.

With that, Mr. Chairman, I yield back.

Mr. STEARNS. I thank my colleague.

Mr. Upton.

Mr. UPTON. Well, thank you, Mr. Chairman, and I thank you as

well for your perseverance of getting this hearing moving, and I applaud Chairman Barton as well as you in terms of looking at this

legislation moving forward. I have a full statement for the record

that I will ask unanimous consent to put in.

Mr. STEARNS. So ordered.

Mr. UPTON. Gentlemen, I appreciate all of you being here. And

as I said in the last hearing, I am one of those guys that goes out

a little before 6 o’clock every morning with my dog to get my paper,

and often it is the sports section that I look at first.

And I have to say that when we had the hearing in March, I was

very disappointed, particularly in MLB, because that particular

day of the hearing, both the Players Union as well as the Commissioner’s office was trying to put a damper on participation in our

hearing that day. That day we had a great hearing as we learned

quite a bit about the issue. We heard about Taylor Hooten. We

learned that literally half a million high school kids are on steroids.

We heard from the NFL and the NCAA, and I think they have

a terrific testing program: every athlete every year unannounced,

heavy suspensions when they are caught. After the hearing, I

talked to a good friend of mine, Bill Martin, the Athletic Director

for the University of Michigan, my Home State, who was the acting

8

President of the USOC for some time, and I shared with him my

thoughts. He shared with me some very constructive ideas that I

look to pursue as this legislation moves forward. I am a dad with

two kids, two kids that play sports. And the message from pro athletes is prevalent, not only with both my son and my daughter, but

with their friends as well. I applaud what MLB has announced this

week with the movement that they have made. We are a Nation

of laws, and as sports fans, and the players, too, we want that competition to be fair, and they want it to be by the rules. And there

is no excuse for those sports that don’t follow that set of rules that

should be the same for every athlete, a man or a woman.

And the Commissioners, you all, have a very big responsibility to

your sport, for not only the legions that have passed before, but obviously to set the standard for those athletes that follow. You have

a responsibility to your sport and, frankly, to the Nation, knowing

the impact that it has, literally, on hundreds of thousands, if not

millions, of Americans to look out for their best interests for that

particular sport.

Mr. Selig, again, you have come a long way since the hearing

that we have had last March. I welcomed reading the testimony

last night when I got home and the correspondence that you have

had with the Players Union, and I would hope that that continues

in a good spirit and we can come to a conclusion that, in fact, will

set a standard for all sports and for all families, and for all Americans.

And Mr. Chairman, I yield back my time.

Mr. STEARNS. I thank the gentleman.

Mr. Towns, the gentleman from New York.

Mr. TOWNS. Thank you very much, Mr. Chairman.

Let me begin by thanking you for holding this hearing. I feel that

we are starting to take productive steps toward a new beginning

in drug oversight for our professional leagues. And I hope that we

don’t have to come together like this too many more times.

I participated in the Government Reform Committee hearing on

baseball and steroids only a few weeks ago. I was encouraged to

hear the concerns of my colleagues and the equally concerned responses from Commissioner Selig and the other members of his

team. I want to commend the Commissioner for listening to our requests and responding as quickly as he did. We thank you for that.

Baseball’s new three strikes and you are out program is a giant

step in the right direction. The softer penalty plan and its ability

to ban amphetamines is exactly what the league needs.

Further, its tough penalties will undoubtedly force players to seriously rethink a journey into steroid use, as their careers could be

severely derailed. If their bad decisions are discovered, last I feel

the independent administration of the program will allow the

league to implement the new rules quickly and report its findings

to us as soon as possible. As the Commissioner and his colleagues

know, we will be watching and waiting.

As I have stated in previous remarks before this committee and

in the Government Reform hearing room as well, my primary concern is the effect of steroid use on our pro leagues will have on our

children. They idolize our pro athletes, and they listen very carefully to every word they say and to every swing and to every pass

9

and to every shot they take. We can not allow the stupid decision

of a few misguided, greedy pros to permanently harm a child’s

health, or worse, send them to an early grave, as was the heartbreaking case with young Taylor Hooten, who took his own life

after a long bout with steroid-induced depression.

Commissioner, please, please enforce this new policy. It is what

the league needs, and I will say a prayer for its success.

Thank you so much. I am delighted to have you here.

On that note, I yield back.

Mr. STEARNS. I thank the gentleman.

Mr. Terry.

[No response.]

Mr. STEARNS. Mr. Terry waives.

Mr. Green.

Mr. GREEN. Thank you, Mr. Chairman.

I have a full statement I would like to put in the record, but I

am just going to briefly say that, one, I am glad all of our commissioners are here from professional sports. I am a proud co-sponsor

of this bill, mostly out of frustration. Because coming from the

State of Texas where we love our athletes, whether it is high school

or college or professionals, and like my colleague that is a Cubs

fan, I look at the Washington Post every morning and see that the

Astros are digging their way out, and they won last night.

But I guess the frustration is the message being sent. And when

I find out that ten Texas high school players are taking steroids,

that is what bothers me, because I know what steroids can do.

When some of us have an illness, whether it is for pain, they give

us steroids for a brief period of time. Even when you get poison ivy,

you have a strict regimen of the steroids to cure that, and yet we

are seeing what is happening and that message that is being sent

by professional athletes. And we love somebody that runs for the

touchdown or hits those home runs, but we also want to make sure

that next generation and that we don’t have a number of young

men and women today, not just young men, who have problems

with their health in their 30’s and 40’s because of what they did

in high school.

And Mr. Chairman, that is why I am glad we have the hearing

on the bill, and I look forward to the witnesses. And again, there

has been leadership from some of our professional sports, and I

would like to see that continue. And again, we need to send the

right message to those young people who are our next generation.

Thank you, Mr. Chairman.

Mr. STEARNS. I thank my colleague.

Ms. Blackburn.

Ms. BLACKBURN. I will waive and reserve my time for questions.

Mr. STEARNS. The gentlelady waives and reserves.

The gentleman from New Hampshire, Mr. Bass.

Mr. BASS. Thank you, Mr. Chairman.

You know, in Congress, we face a lot of what I would call intractable problems, problems that can’t be solved easily. In fact, we

usually end up just coping with them from year after year, and

that is the way the system is set up. In my opinion, the problem

that we face today with use of performance-enhancing drugs, or

abuse of them, is a problem that can be addressed, and it is approVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 21640.TXT HCOM1 PsN: HCOM1
10

priately addressed by Federal policy. The 500,000 school kids that

my friend from Michigan, Mr. Upton, refers to as being known to

take performance-enhancing drugs, do so not because they read

about it somewhere or they thought it would work. It is because

they see their idols, their people that they would like to be, the future for themselves. They see those individuals participating in this

process, making themselves into sort of superhuman beings, like

kids would like to be, and appearing to get away with it.

And the problem is that there isn’t any sufficient coordination

within the professional athletic community to make sure that this

process stops. So I commend the chairman, and I am proud to be

an original co-sponsor of the legislation that we are considering

here in this committee, which would direct the Secretary of Commerce to establish uniform drug testing standards and in so doing,

would establish very severe penalties, not only for players, but also

for sporting organizations that are in non-compliance.

I think this is a legislative initiative that should be at the top

of the priority list for this committee, which, as others have noted,

actually has jurisdiction over this issue, and that it should be an

issue that we send to the floor as quickly as possible, because we

can solve this problem, and we can do it soon.

With that, Mr. Chairman, I yield back.

Mr. STEARNS. I thank the gentlemen.

Mr. Ferguson.

Mr. FERGUSON. Thank you, Mr. Chairman, and thank you for

holding this hearing on an issue that is calling into concern the integrity of professional sports in our country.

But an even scarier proposition is that these gross lapses of integrity are the motivation for thousands and certainly millions of

young people, amateur athletes who are dangerously breaking the

rules to become like their professional sports heroes. And this is

why we are here today: to make sure that the commissioners and

respective heads of the professional sports players unions are ready

to get serious and tough on steroids testing, or if it is necessary for

Congress to act to implement a national policy to show our young

athletes that steroids will not be tolerated.

Now some leagues have been more stringent with their testing

programs than others, but we have seen even in the past week two

examples of NFL players who have pushed the envelope and even

actively subverted the testing regime of their league. Bill

Romanowski, a 16-year-veteran most recently with the Oakland

Raiders, was quoted as saying: ‘‘As soon as they found out that

something could be tested for, I stopped taking it. I didn’t want

that embarrassment, but I have pushed that envelope ethically and

morally, because if I could take something that would help me perform better and it wasn’t on the list, I was going to take it.’’

Just yesterday, in this Committee’s Oversight and Investigation

Subcommittee, we had a hearing on the subversion of drug testing

in the workplace where it was discussed that Minnesota Vikings

runningback, Ontario Smith, was caught with the now infamous

‘‘Wizzinator’’, which is designed to mislead drug testers. These are

some egregious examples, but they are not uncommon. Also, there

are a majority of athletes in professional sports that do not take

11

performance-enhancing drugs, and they want stronger testing to

discourage those who do.

Jim Tomeg quoted on ESPN.com said, ‘‘As players, we want the

fans to know we do care about their opinion and hold them in high

regard. The fans are a big part of what we do and what we are

about, and we want them to know that we do want stricter penalties if someone gets caught. It would be a better game if we

would do it that way.’’

I say to the heads of the players unions here today: do what the

majority of your players likely want you to do. Help clear their

names. Agree to tougher testing, because Congress is here and willing to act if you can’t do the right thing on your own.

Mr. Fehr, I thank you for being here, and I thank the rest of our

witnesses for being here today.

Mr. Selig has put on to the table a new, very strong proposal,

and most of us here will hope that you will do the right thing and

agree to that proposal. Sports, I speak, I am sure, for all of us up

here, and baseball is particularly close to my heart. I have been a

fan for my whole life. And now I am at the age, and our son is at

the age, where I am beginning to pass on my love of the game

along to him. He is 6 years old. I coach his tee-ball team. He has

got a picture of David Ortez on his wall. When our family goes to

his tee-ball games, the parents at the games, like me and my wife

and others, don’t care as much about what some players are doing

and taking to destroy their bodies. That is a shame. But it is not

the primary thing that we are concerned about. We do care that

some of those players are our kids’ role models and that what they

do will indirectly and directly affect what our kids do.

Please work hard to get tougher testing for the sake of the integrity of your sport, for the safety of your players, and frankly, most

importantly, for the safety of young people in America today.

Thank you, Mr. Chairman.

I yield back.

Mr. STEARNS. I thank you.

The gentlelady from California, Ms. Bono.

Ms. BONO. Thank you, Mr. Chairman.

I will waive other than welcoming our witnesses here today and

to say that I look forward to your testimony.

Thank you.

Mr. STEARNS. Mr. Otter.

Mr. OTTER. Thank you, Mr. Chairman.

And let me join with everybody on the panel in welcoming the

witnesses here today. And I would like to thank you, Mr. Chairman, and the ranking member, for holding this hearing. I think it

is terribly important.

I would like to broaden the perspective of this committee just a

little bit in our discussion on the use of illegal drugs. And I have

listened to all of the issues raised concerning steroid use by the

professional and the amateur athletes. I have heard that steroid

use is cheating and that Congress should protect the sanctity of

these sports and their records. I have also heard that Congress has

no role to play here.

12

While I understand these opinions, it is my belief that the proper

role of government is to keep its citizens free. And citizens hooked

on illegal drugs are not free.

I also believe that we tend to overlook the fundamental fact that

illegal steroid use is illegal and that the laws of this land supersede

the testing polices of athletic organizations. It is a laudable goal

and not disingenuous to ask professional sports leagues to set an

example for society by stringently testing their employees for illegal drug use.

However, I do not believe we can ask them to make a greater

contribution to this effort than we ourselves are willing to make.

We can’t just pick on the headlines and focus on only those drugs

that get the headlines and then pass laws against them. If we pass

legislation to create a uniform Federal drug policy, it can not focus,

indeed, Mr. Chairman, it should not focus solely on the illegal steroid use, but it must reflect our Nation’s drug control policy.

So if we pass legislation to create a uniform drug testing policy,

let it reflect the laws of the land and the consequences of breaking

those laws. And if we pass legislation to create a uniform Federal

drug testing policy, all should be prepared to meet that standard.

And let us, as Members of Congress, and the bureaucracy that we

set in this town at every level, be the first amongst the many to

stand in line. If it is the role of the Federal Government to set a

standard for drug testing, then let us also set the example.

Thank you, Mr. Chairman.

And I yield back my time.

Mr. STEARNS. I thank the gentleman.

The gentleman from Michigan, Mr. Rogers.

[No response.]

Mr. STEARNS. He waives.

The gentleman, Mr. Pitts.

Mr. PITTS. I will submit my remarks, Mr. Chairman.

Mr. STEARNS. The gentleman waives and submits.

Mr. STEARNS. Mr. Radanovich.

[No response.]

Mr. STEARNS. No. With that, I think we are finished with our

opening statements.

[Additional statement submitted for the record follows:]

PREPARED STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TENNESSEE

I thank you Mr. Chairman for holding this important hearing today and I thank

you for introducing H.R. 1862, the Drug Free Sports Act.

I am not one who prefers government involving itself with private business. In

contrast, I actually prefer that private business self-regulate and government get involved only when a failure to do so causes public harm.

As a result of the steroid controversy stemming from the BALCO investigation,

Major League Baseball Player’s Association’s ongoing reluctance to strengthen their

steroid policies, and the widespread rumors and confirmed use of steroids by our nation’s professional athletes, it has come to my attention that the only motivation

that will cause a serious approach to this issue is Federal legislation.

My primary concern is for our nation’s youth. A recent University of Michigan

Study has shown that steroid use among high-school seniors jumped 54 percent

from 1996 to 2003. This is a startling statistic and one to which professional athletes and players associations hold a portion of responsibility. If the message to our

nation’s youth is that penalties should be small and testing infrequent, this only

serves to exacerbate the problem.

13

So I state again, although I don’t prefer government intervention, as a combined

result of a lack of private responsibility, and the need to address this issue, I am

a cosponsor of this legislation. Until I am satisfied that the industry is stepping up

its efforts, I will continue to work very hard with Chairman Stearns and Chairman

Barton to get it passed out of Committee and through the House of Representatives.

Mr. STEARNS. Let me welcome the first panel. And let me say for

my colleagues, we do have three panels. The first panel will be this

morning. We will take a lunch break after the first panel. And the

second panel we will have in the afternoon. And the third panel is

tomorrow. And we did this because we wanted to make sure that

we could accommodate all of the commissioners and all of the people that wanted to testify but they had conflicts of interest.

And so I want my colleagues to realize that the subcommittee

has been very flexible in this matter. And also, I want to thank the

witnesses on all three panels for their accommodation and willingness to show based upon this flexibility.

With that, we will have our first panel.

We have Mr. Frank Shorter, the former Chairman of the United

States Anti-Doping Agency; Mr. Donald Garber, the Commissioner

for Major League Soccer; Mr. Robert Foose, Executive Director of

the Major League Soccer Players Union; Mr. Bud Selig, Commissioner of the Major League Baseball; Donald Fehr, Executive Director of the Major League Baseball Players Association; Mr. Gary

Bettman, Commissioner, National Hockey League; and Mr. Robert

Goodenow, Executive Director of the National Hockey League Players Association.

Good morning, gentlemen, and I welcome you.

And Mr. Shorter, we will start with you with your opening statement. Welcome.

STATEMENTS OF FRANK SHORTER, FORMER CHAIRMAN,

UNITED STATES ANTI-DOPING AGENCY; DONALD P. GARBER,

COMMISSIONER, MAJOR LEAGUE SOCCER; ROBERT FOOSE,

EXECUTIVE DIRECTOR, MAJOR LEAGUE SOCCER PLAYERS

UNION; ALLAN H. ‘‘BUD’’ SELIG, COMMISSIONER, MAJOR

LEAGUE BASEBALL; DONALD M. FEHR, EXECUTIVE DIRECTOR, MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION;

GARY BETTMAN, COMMISSIONER, NATIONAL HOCKEY

LEAGUE; AND ROBERT W. GOODENOW, EXECUTIVE DIRECTOR, NATIONAL HOCKEY LEAGUE PLAYERS ASSOCIATION

Mr. SHORTER. Thank you, Mr. Chairman.

Mr. Chairman, members of the committee, good morning. My

name is Frank Shorter, and I want to thank the committee for its

interest in this important subject and for the invitation to testify.

Today, I am here as an athlete who competed in international

Olympic sport for more than 10 years. I am also here as the former

Chairman of the United States Anti-Doping Agency, USADA. Accordingly, my comments are from the perspective of an athlete who

values an effective anti-doping program and as someone who truly

understands the challenges inherent in creating and operating such

a program.

We value sport in our society because it builds character and promotes teamwork, dedication, and commitment. It requires honesty,

respect for the rules and for our fellow competitors. It leaves a legacy of health that can last a lifetime. Sport brings communities toVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6602 21640.TXT HCOM1 PsN: HCOM1
14

gether. It creates role models for our kids, and it inspires dreams.

These are all reasons why sport occupies such a special place in our

schools and in our society at large. When athletes enhance their

performance by doping, it is cheating of the worst kind, and it undermines all of these important values of sport. When an athlete

is successful through doping, it sends a clear message to all athletes: the new price of achieving your dreams is compromising your

integrity and risking your health. Athletes who perform outstanding feats through doping makes sport nothing more than another circus unworthy of any place in our schools or our social fabric.

All sports organizations, amateur and professional, must be truly

committed to the same goal: the complete eradication of doping in

sports. We owe it to the clean athletes competing today and the

young athletes just beginning to chase their dreams to ensure that

success in sports does not require the use of drugs.

I can tell you what it feels like to have your dream compromised

by the drug use of another. In 1972, I won the gold medal for the

United States in the marathon at the Olympics in Munich. Four

years later, I ran an even better and faster race but finished second

at the Olympics in Montreal. I lost that race to an East German.

At that time, we all suspected, and it was later confirmed, that in

1976, East Germans were benefiting from a state-sponsored doping

program. I knew I could have improved my chance of winning by

taking steroids, but I never even considered it. I chose to compete

clean, and as a result, I finished second.

In discussing anti-doping programs, I hear the term ‘‘athlete’s

rights’’ used frequently. To me, the greatest right an athlete has is

to compete in clean sport on a level playing field. The question we

all need to ask is: ‘‘What is the best way to protect the rights of

clean athletes and remove the long shadow that steroids, and other

drugs, have cast over sport in the United States?’’

In the Olympic movement, both throughout the world and in the

United States, the quest to eradicate doping has recently led to two

significant shifts in the way anti-doping programs are operated.

The first shift has been toward harmonization of anti-doping rules,

including penalties across all sports. The second significant change

has been the effort to externalize anti-doping programs and shift

the responsibility for testing and adjudicating away from the

sports, and instead, place that responsibility with an independent

and transparent agency.

At the world level, this paradigm shift resulted in the creation

of the World Anti-Doping Agency, WADA, as the independent agency charged with the anti-doping responsibilities formerly performed

by the International Olympic Committee. The effort to harmonize

anti-doping rules across sport led to the creation of a uniform document, the World Anti-Doping Code, which was based largely on the

USADA model. While it is not often that most of the world can

come together and agree on something, that is exactly what this

uniform standard represents. All Olympic sports organizations

throughout the world and most governments, including the United

States, have agreed to these principles and endorsed this model as

the most effective framework for the fight against doping in sports.

15

Formerly, each international federation was responsible for creating its own anti-doping rules. The result was a wide variety of

penalty and testing provisions that had little continuity across

sports. Now that each sport has adopted the Olympic model, all

athletes in the Olympic movement operate under the same rules

and face the same consequences if they cheat. According, all Olympic athletes, from the top track athletes and cyclists, who are fulltime professionals, to the best curlers, handball players, or sailors

in the world, are all subject to the same anti-doping rules, procedures, and penalties.

The Olympic standards effectively balance athletes’ rights to a

fair system, with the need for effective penalties designed to hold

all athletes accountable for their decisions.

First, the Olympic model is fair to athletes. For example, it ensures that athletes who have a valid medical need for a substance

that is otherwise prohibited, can obtain a therapeutic use exemption, called a ‘‘TUE’’, in advance of a competition. Accordingly,

where an athlete can prove that he or she would experience a significant impairment to health if the medication is withheld, that

there are no reasonable alternatives, and that the medication will

not produce an additional enhancement to the athlete’s performance, an athlete will receive advance permission to continue taking

that medication.

While athletes are taking medication for a legitimate reason are

protected, the standards greatly improve the chances of stopping

an athlete who considers doping or is doping and holds that athlete

accountable through a fair adjudication system. Importantly, the

Olympic model provides for both in-competition testing and out-ofcompetition, no advance notice testing. Comprehensive out-of-competition testing is fundamental to an effective anti-doping program

because steroids are often taken well in advance of competition.

The Olympic standards also provide for substantial penalties for

those athletes who do cheat. A first offense for taking a steroid results in a 2-year suspension. A second violation results in a lifetime

ban. Unfortunately, in today’s society where the rewards of success

in sport are great, the penalty for doping must be strong enough

to be an effective deterrent.

Another important feature of the Olympic model is a standardized list of prohibited substances. An international committee of experts is specifically tasked with reviewing and updating the list of

prohibited substances. We have all learned through the on-going

BALCO investigation, those who are trying to cheat the system are

constantly innovating in their effort to obtain an unfair advantage

over competitors. Accordingly, the list of prohibited substances

must be both broad in nature and constantly revised in order to be

effective.

For all of these reasons, if a sports organization is truly committed to fighting doping in sports, I think the first step is to adopt

testing and enforcement standards similar to that of the Olympic

movement. I believe the second important action would be to place

the responsibility for doping in the hands of an independent and

transparent agency, as the United States Olympic Committee did

when it created USADA.

16

In the 1990’s, the world did not view the United States as being

committed to preventing doping among its Olympic athletes. The

system of self-regulation by the various sports led to perceptions of

conflict and allegations of attempts to hide doping behavior

amongst United States athletes. The USOC also recognized that

the effectiveness of anti-doping efforts would be improved through

centralization of resources and harmonization of regulations and

procedures. Accordingly, USADA was formed in the year 2000.

USADA has been recognized by Congress as the independent, national anti-doping agency for Olympic and paralympic sport in the

United States. USADA’s mission is to protect and preserve the

health of athletes, the integrity of competition, and the well being

of sport through the elimination of doping.

I served as the Chairman of USADA from 2000 to 2003. During

that period, I was able to see firsthand the benefits of externalizing

the responsibility for drug testing and adjudication. As an independent agency, USADA has no conflict of interest. Its function is

to protect the rights of clean athletes by conducting its testing and

adjudication programs with integrity and transparency to stop

those athletes who dope and then hold them accountable for their

decision to use these drugs.

Mr. STEARNS. Mr. Shorter, I will probably have to ask you to sum

up.

Mr. SHORTER. Okay.

There is still more that can be done in the Olympic movement.

USADA needs more resources, more testing to combat this threat.

Education is so important. But I really hope that the continued exposure of this problem through this committee and through the bill

USADA can act as a model and also provide any help that the committee might need and be involved in any program that the professional sports would want to implement to basically, in short, shorten their learning curve. We all went through this in the Olympic

movement in the 1990’s. We have gone through the process very

similar to what is being gone through now. We are here to provide

support, education, and as I said, to shorten their learning curve,

should they choose to use us.

Thank you.

[The prepared statement of Frank Shorter follows:]

PREPARED STATEMENT OF FRANK SHORTER

Mr. Chairman, members of the Committee, good morning my name is Frank

Shorter. I want to thank the Committee for its interest in this important subject

and for the invitation to testify. Today, I am here as an athlete who competed in

international Olympic sport for more than ten years. I am also here as the former

Chairman of the United States Anti-Doping Agency (USADA). Accordingly, my comments are from the perspective of an athlete who values an effective anti-doping

program and as someone who truly understands the challenges inherent in creating

and operating such a program.

We value sport in our society because it builds character and promotes teamwork,

dedication and commitment. Sport requires honesty and respect for the rules and

fellow competitors. It leaves a legacy of health that can last a lifetime. Sport brings

communities together, it creates role models for our kids and it inspires dreams.

These are all reasons why sport occupies a special place in our schools and in our

society at large. When athletes enhance their performance by doping, it is cheating

of the worst kind and it undermines all of these important values of sport. When

an athlete is successful through doping it sends a clear message to all athletes; the

new price of achieving your dreams is compromising your integrity and risking your

health. Athletes who perform outstanding physical feats through doping make sport

17

nothing more than another circus act unworthy of any place in our schools or our

social fabric.

All sports organizations, amateur or professional, must be truly committed to the

same goal; the compete eradication of doping in sports. We owe it to the clean athletes competing today and the young athletes just beginning to chase their dreams

to ensure that success in sports does not require the use of drugs.

I can tell you what it feels like to have your dream compromised by the drug use

of another. In 1972 I won the gold medal for the United States in the marathon

at the Olympics in Munich. Four years later, I ran an even better race but finished

second at the Olympics in Montreal. I lost that race to an East German. At the time

we all expected, and later it was confirmed, that in 1976 the East Germans were

benefiting from a state sponsored doping program. I knew I could have improved

my chance of winning by taking steroids, but I never even considered it, I chose to

compete clean and as a result, I finished second.

In discussing anti-doping programs I hear the term ‘‘athlete’s rights’’ used frequently. To me the greatest right an athlete has is the right to compete in clean

sport on a level playing field. The question we all need to ask is: what is the best

way to protect the rights of clean athletes and remove the long shadow that steroids

and other drugs have cast over sport in the United States?

In the Olympic movement, both throughout the world and in the United States,

the quest to eradicate doping has recently led to two significant shifts in the way

anti-doping programs are operated. The first shift has been towards harmonization

of anti-doping rules, including penalties, across all sports. The second significant

change has been the effort to externalize anti-doping programs and shift the responsibility for testing and adjudicating away from the sports and instead place that responsibility with an independent and transparent agency.

At the world level, this paradigm shift resulted in the creation of the World AntiDoping Agency (WADA), as the independent agency charged with the anti-doping

responsibilities formally performed by the International Olympic Committee. The effort to harmonize anti-doping rules across sport led to the creation of a uniform document the World Anti-Doping Code, which was based largely based on the USADA

model. While it is not often that most of the world can come together and agree on

something that is exactly what this uniform standard represents. All Olympic sports

organizations throughout the world and most governments, including the United

States government, have agreed to these principles and endorsed this model as the

most effective framework for the fight against doping in sports.

Formerly, each international federation was responsible for creating its own antidoping rules. The result was a wide variety of penalty and testing provisions that

had little continuity across sports. Now that each sport has adopted the Olympic

model, all athletes in the Olympic movement operate under the same rules and face

the same consequences if they decide to cheat. Accordingly, all Olympic athletes,

from the top track athletes and cyclists, who are full time professionals, to the best

curlers, handball players, or sailors in the world, are all subject to the same antidoping rules, procedures and penalties.

The Olympic standards effectively balance athletes’ rights to a fair system, with

the need for effective penalties designed to hold all athletes accountable for their

decisions. First, the Olympic model is fair to athletes. For example, it ensures that

athletes, who have a valid medical need for a substance that is otherwise prohibited,

can obtain a therapeutic use exemption or ‘‘TUE’’ in advance of a competition. Accordingly, where an athlete can prove that he or she would experience a significant

impairment to health if the medication is withheld, that there are no reasonable alternatives and that the medication will not produce an additional enhancement to

the athlete’s performance, an athlete will receive advance permission to continue

taking that medication.

While athletes who are taking medication for a legitimate reason are protected,

the standards greatly improve the chances of stopping an athlete who considers

doping or who is doping and holds that athlete accountable through a fair adjudication system. Importantly, the Olympic model provides for both in-competition testing and out-of-competition, no advance notice testing. Comprehensive out-of-competition testing is fundamental to an effective anti-doping program because steroids

are often taken well in advance of competition.

The Olympic standards also provide for substantial penalties for those athletes

who do cheat. A first offense for taking a steroid results in a two-year suspension.

A second violation results in a lifetime ban. Unfortunately, in today’s society where

the rewards of success in sport are great, the penalty for doping must be strong

enough to be an effective deterrent.

Another important feature of the Olympic model is a standardized list of prohibited substances. An international committee of experts is specifically tasked with reVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 21640.TXT HCOM1 PsN: HCOM1
18

viewing and updating the list of prohibited substances. As we have all learned

through the on-going BALCO investigation, those who are trying to cheat the system are constantly innovating in their effort to obtain an unfair advantage over

their competitors. Accordingly the list of prohibited substances must be both broad

in nature and constantly revised in order to be effective.

For all of these reasons, if a sports organization is truly committed to fighting

doping in sports, I think the first step is to adopt testing and enforcement standards

similar to that of the Olympic movement. I believe the second important action

should be to place the responsibility for doping in the hands of an independent and

transparent agency, as the United States Olympic Committee (USOC) did when it

created USADA.

In the 1990s, the world did not view the United States as being committed to preventing doping among its Olympic athletes. The system of self-regulation by the various sports led to perceptions of conflict and allegations of attempts to hide doping

behavior among United States’ athletes. The USOC also recognized that the effectiveness of anti-doping efforts would be improved through centralization of resources

and harmonization of regulations and procedures. Accordingly, USADA was formed

in 2000. USADA has been recognized by Congress as the independent, national antidoping agency for Olympic and Paralympic sport in the United States. USADA’s

mission is to protect and preserve the health of athletes, the integrity of competition

and the well-being of sport through the elimination of doping.

I served as the Chairman of USADA from 2000 through 2003. During that period

I was able to see first hand the benefits of externalizing the responsibility for drugtesting and adjudication. As an independent agency USADA has no conflict of interest. Its function is to protect the rights of clean athletes by conducting its testing

and adjudication programs with integrity and transparency to stop those athletes

who dope and then hold them accountable for their decision to use drugs for performance enhancement. While no system is perfect, it is clear that the creation of

USADA has had a significant impact on the fight against doping among United

States Olympic athletes. Now, that USADA has been operating for nearly five years

as an independent Agency, the United States is considered the world leader in its

commitment and in its testing, education and adjudication systems. There is now

simply no doubt that in the Olympic movement the United States is doing everything within its power to eliminate doping by United States athletes.

There is still more that can be done in the Olympic movement. For example,

USADA needs additional resources for research and testing to combat an ever-increasing sophistication among those committed to cheating. The battle against

doping will also never be won without a continual and substantial commitment of

resources towards educating the next generation of athletes of the physical and

moral consequences of doping.

My hope is that the increasing exposure the problem of doping in sports is receiving through the effort of this Committee and others will result in an increased commitment of resources to the fight against drugs in sport. I also hope that there will

soon come a time, where every American sports organization, amateur or professional, will be in a position to say that it is doing everything within its power to

eliminate doping in sports. Thank you.

Mr. STEARNS. Thank you.

Mr. SHORTER. And I am sorry I went over.

Mr. STEARNS. Mr. Garber, welcome.

STATEMENT OF DONALD P. GARBER

Mr. GARBER. Good morning, Mr. Chairman and members of the

committee. My name is Don Garber, and I am the Commissioner

of Major League Soccer.

I would like to thank each of you for giving me the opportunity

to speak on such an important issue affecting sports and society.

When Major League Soccer was founded 10 years ago, we created

a league for a new America, a league for the exploding Hispanic

and ethnic populations in our country and the tens of millions

youth soccer players throughout our Nation’s communities. We

knew then, and we know now, that we had the opportunity to take

a strong stand against drug abuse, so we created one of the most

comprehensive and strict programs in all of sports.

19

With soccer enjoying the highest participation levels among kids

in our countries from youth programs to high schools and as the

fastest growing sport at the collegiate level, our players have to

serve as role models. They have to be held to a higher standard

both on and off the field. The future of our league and the future

of our sport depend on it.

Major League Soccer condemns the use of performance-enhancing drugs and welcomes the various investigations by Congress.

Doping violates the ethics of sport, sets a poor example for our

fans, especially our young fans, and poses as significant health

risks to our athletes. In a business whose product is fair competition, there is no room for behavior that undermines that which is

fundamental, the notion that players and teams are playing by the

same set of rules.

With serious focus on the issue, the ongoing review of our policy,

a partnership with our union and a commitment by our players, I

am proud to say that MLS has been free of steroid abuse. We have

been successful for three reasons. First, the league established a

‘‘zero tolerance’’ policy against illegal drug use at our inception in

1996. Second, we formally banned the use of performance-enhancing drugs in 1999. Third, our players share our commitment and

believe there is no room for performance-enhancing drug substances, or any drug use, in our league.

Since our inception, MLS has had the independent ability to create and enforce a policy that is strict, that is soccer-specific, and

that is regularly updated. As a result, our program has proven to

be successful, as shown by our exemplary testing record.

During our recent collective bargaining process, MLS maintained

its commitment to this strict program, and that commitment was

embraced by our players, and they enforced this policy. Under the

policy agreed to by our players, we adopt the WADA list of banned

substances. We conduct year-round testing without prior notice.

Each player is tested at least once with no limit on tests. We work

with an independent agency. We provide a mechanism for appeal.

And we have discipline up to and including termination for firsttime offense.

Now although the idea of creating universal drug testing standards for all U.S. professional sports is commendable, MLS believes

that this issue is more appropriately managed through a leaguespecific program created in collaboration with our players and

agreed to in collective bargaining. In controlling our own policy, we

can continue to tailor it to meet the specific needs of the sport of

soccer and our unique player pool. In addition to both parties having a hand in creating the policy, we believe it will be more effective and more readily embraced.

With respect to the specifics of the Drug Free Sports Act, as you

will see from our written statement, our policy is mostly consistent

with the proposed content of the act. Our policy does differ from

the proposal in one very important aspect. As stated, we have the

discretion to discipline a player up to and including termination of

his contract for a first offense. We do not have a minimum suspension of 2 years, as proposed by the legislation. While we understand the appeal of the disciplinary certainty provided by a minimum sanction, we believe that a player is more likely to be deVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6602 21640.TXT HCOM1 PsN: HCOM1
20

terred from violations if he knows that a first violation can result

in termination of his contract. It is not difficult to imagine a player

that the risk of receiving a minimum sanction is worth the violation.

We also believe that disciplinary discretion is important, because

mandatory minimum standards may create unjust results given

the presence of very real mitigating circumstances. In some cases,

a 2-year suspension might be too harsh. For example, we do not believe it is appropriate to impose the same suspension on a player

who knowingly uses performance-enhancing substances as a player

who unknowingly ingested a tainted nutritional supplement, just

as an example. We believe that factors such as these are critical

in determining the appropriate level of discipline.

And although MLS retain discretion, I think it is important to

state that the league will not advocate its responsibility to impose

the necessary and appropriate discipline nor will discretion be used

to treat star players differently than any other player.

Every professional sports league shares the belief that pro athletes have a special relationship with their fans. They are revered,

they are respected, and they are emulated in ways that are unmatched in our society. As a result, it is our strong belief, one

shared with our players, that we together have a responsibility and

an obligation to be held to a higher standard, to lead by example.

However, we believe that a policy agreed to between leagues and

their players, tailored to address the specific needs and concerns of

each sport, will simply be more effective in creating a drug-free

sport. And one only needs to look at the success of MLS’s policy to

see the merits of this approach.

Working together with our players, we have created a strict and

rigorous drug program that ensures the place of our players as role

models and citizen athletes and MLS’s position as the league for

a new America.

Ladies and gentlemen, thank you for your time.

[The prepared statement of Donald P. Garber follows:]

PREPARED STATEMENT OF DONALD P. GARBER, COMMISSIONER, MAJOR LEAGUE

SOCCER

Chairman Stearns and Members of the Committee: Major League Soccer (‘‘MLS’’)

condemns the use of performance-enhancing substances and supports the various

Congressional investigations into the use of steroids and related substances in professional sports. Doping violates the ethics of sport, sets a poor example for fans,

particularly young fans, and poses significant health risks to the athletes. The recent scrutiny given to the subject has caused the leagues and player unions to review their policies, and has focused attention on the dangers of steroid use for both

professional and young athletes alike.

Soccer throughout the world is not immune from doping. Given the physical rigors

of the sport, there would no doubt be competitive advantages for a player to illegally

enhance his size, strength, speed, endurance and recuperative abilities. In fact,

there have been several cases in international soccer during the last decade where

star players, and in one case a team, was found guilty of utilizing performance-enhancing drugs.

MLS, however, has been free of doping due to our focus on the issue, the ongoing

review of our policies, our partnership with our Union and the commitment by our

players. MLS also attributes its success to the creation of a ‘‘zero tolerance’’ policy

at the League’s inception in 1996. This initial policy stemmed from MLS’ desire to

ensure the integrity of our game and the safety of our athletes, to present a positive

image to the American sports fan and to hold its players up as positive role models

to the nation’s youth.

21

While the policy has expanded from a focus on drug testing to a more comprehensive substance abuse and behavioral health program that includes education, prevention, and, when necessary, treatment, MLS has always had the ability to create

and enforce a policy that is one of the strictest in professional sports. As a result,

the League has an exemplary testing record.

Earlier this year, MLS concluded its first Collective Bargaining Agreement with

its players. During the collective bargaining process, MLS maintained its commitment to a strict policy that provides the League with complete discretion to discipline players who use performance-enhancing substances. In ratifying the CBA,

the players affirmed this policy. Our current policy:

• adopts the WADA list of banned substances; • subjects players to testing year round; • subjects players to random testing upon no notice; • subjects each player to testing at least once a year; • has no limit on the number of times a player may be tested; • provides for discipline up to and including termination for a first-time offense—

MLS is the only major league in which a player’s employment may be terminated for a first offense.

Although the idea of creating universal drug testing standards for all U.S. professional sports is commendable, MLS believes that this issue is more appropriately

managed through a league-specific program created in collaboration with the players during the collective bargaining process. Through discourse and negotiation between those parties most engaged in the sport, we believe that MLS has created,

and will continue to maintain, a very effective and focused doping policy that has

led to its demonstrably successful record in this area.

In controlling its own policy, MLS can continue to tailor the policy to meet the

specific needs of the sport of soccer and its unique player pool. In addition, if both

the League and players have a hand in creating the policy, we believe it will be

more effective as it will be more readily embraced than a policy mandated by a third

party.

MLS also believes that a single government-mandated policy cannot adequately

govern or address the unique and distinct qualities of the different professional

leagues. These differences are significant and include, among others: league structure, economic status, labor relations, player demographics, length of the season and

physical demands particular to each sport. Importantly, soccer is an internationally

regulated sport. Subjecting the sport to a ‘‘one-size-fits-all’’ policy, could lead to a

variety of unintended consequences.

THE DRUG FREE SPORTS ACT

MLS believes that the goal of the Drug Free Sports Act (‘‘Act’’) is noble and applauds the idea of restoring the integrity and trust between the players and fans

that has been damaged by recent scandals. It is important to note that MLS’ policy

is aligned with many of the key elements of the Act. However, as previously stated,

it is our strong belief that a sport-specific program will be more effective than a generalized program that attempts to encompass every sport. Nonetheless, we are

pleased to assist the Committee by providing feedback on the proposed legislation.

Timing and Frequency of Random Testing

The Act requires each athlete to be subject to a minimum of one test each year

to be conducted randomly with no notice provided to the athlete.

The MLS testing program currently exceeds this requirement. MLS tests every

player at least once with no notice and otherwise subjects its players to unlimited,

random testing year-round.

MLS doubts that a single test will be a sufficient deterrent unless the threat of

future testing exists. This was an issue in our CBA discussions and we applaud our

Union for supporting more substantial testing.

Applicable Substances

The Act sets the WADA International Standard Prohibited List as the applicable

standard. As previously stated, MLS has already adopted the WADA Prohibited List

as its prohibited list.

Soccer perhaps more than any other team sport is truly international. MLS players compete in numerous international competitions including the Olympics and

FIFA World Cup and are already subject to strict international doping standards.

More than twenty-five percent (25%) of the League’s players are part of the player

pools for various national teams. With such a large percentage of MLS’ player pool

already subject to the WADA Prohibited List for international competition, MLS believed that it should hold its players to the same standard in domestic competition.

22

In addition, the WADA Prohibited List is the strictest standard in sports. By

adopting it, MLS is taking the strongest possible stance against doping and attempting to protect its player pool from the dangers associated with all performance-enhancing substances.

Method of Testing and Analysis

The Act requires that testing and analysis be administered by an independent

party not affiliated with the professional sports association.

The MLS program is administered by doctors from Assessment Intervention Resources (‘‘AIR’’) who have expertise in the fields of addictionology, behavioral health,

and drug testing. Pursuant to the collective bargaining agreement, both the League

and MLS Players Union must approve the program doctors.

Although AIR consults with the League on general program parameters and costs,

the doctors are independent contractors and their decisions are free from League influence. MLS believes this is the most appropriate structure.

Penalties: Suspension

The Act proposes a minimum suspension of two years for a first positive test and

a permanent suspension for a second positive test.

Currently, MLS has the right to impose discipline up to and including termination

for a first offense for a performance-enhancing drug violation. MLS is the only major

U.S. professional sports league that has the right to terminate a player for a first

offense.

While we understand the appeal of certainty, during the negotiation of the CBA,

MLS considered, and rejected, the inclusion of a minimum sanction for violations

of the policy. MLS believes that a player is more likely to be deterred from violations if he knows that even a first violation can result in a termination of his contract. The inclusion of a minimum sanction in the policy could result in a player

judging that the risk of receiving the minimum sanction is worth the violation.

MLS also believes that disciplinary discretion is important because mandatory

minimum standards may create unjust results. No one can foresee the unique circumstances of each individual case. Depending on the length of the minimum suspension, there could be a situation in which the minimum is too harsh. The penal

code treats individuals who commit similar crimes differently based on intent and

premeditation. Flexibility is necessary in imposing discipline in order to ensure that

a player who knowingly uses performance-enhancing substances is treated more

harshly than a player who unknowingly ingests a tainted nutritional supplement.

Although MLS retains discretion, the League will not abdicate its responsibility

to impose appropriate discipline. Nor will discretion be used to treat star players

differently than other players. We serve as the guardians of the sport of soccer in

the U.S. We take this responsibility very seriously. We established a strong program

at inception and continue to improve it to ensure that our athletes are held to the

highest possible standard. We have taken a leadership position in this area and will

continue to lead responsibly in the future. We are justifiably proud of our record.

Penalties: Disclosure

The Act requires disclosure to the public of the name of any player having a positive test result.

MLS will disclose the name of any player that has a verified positive test result

for a performance-enhancing substance.

Appeals Process

The Act states that any athlete who tests positive has the opportunity for a

prompt hearing and a right to appeal before its professional sports association.

MLS currently provides players a right to appeal a positive test. We believe that

an accused party’s right to a fair hearing is fundamental. The key to this provision

to ensure fairness is that the hearing be conducted by the individual league and not

a third party unconnected to the sport.

Summary

Every professional sports league shares the belief that professional athletes have

a special relationship with their fans. They are revered, respected and emulated in

ways unmatched in our society. As a result, it is our strong belief—one shared with

our players—that we together have a responsibility and an obligation to be held to

a higher standard of behavior on and off the field. We need to ‘‘lead by example’’

and take a stand against steroid abuse to ensure that our young fans and future

players will always be competing in a drug-free environment.

MLS acknowledges the urge to establish universal standards for all sports

leagues, however, we believe that specialized programs—collaboratively created and

23

agreed to between leagues and their players—tailored to address the specific needs

and concerns of each sport, will be more effective in creating drug-free sports.

One only needs to look at MLS’ success to see the validity of this approach. Working together with our players, MLS has created a strict and rigorous drug testing

and discipline program that establishes our players as role models, and ‘‘citizen athletes.’’

Mr. STEARNS. Thank you.

Mr. Foose, welcome.

STATEMENT OF ROBERT FOOSE

Mr. FOOSE. Thank you, Mr. Chairman and members of the subcommittee.

My name is Bob Foose, and I am the Executive Director of the

Major League Soccer Players Union. The union appreciates the opportunity to appear before this subcommittee and to express its

views on the Drug Free Sports Act.

Our union is the newest in professional sports. Formed in April

of 2003, we recently completed negotiations with MLS on the first

collective bargaining agreement in the history of the league.

Like all labor negotiations, at times ours were contentious. One

subject on which it was easy for the players and management to

agree, however, was drug testing. Our players are extremely proud

of the fact that MLS is a league that has not had problems with

performance-enhancing drugs, and the players want to keep it that

way. MLS players are among the most talented and the fittest athletes in the world. Steroids and other performance-enhancing drugs

simply have no place in the game.

They are also keenly aware that soccer is the most popular youth

sport in the United States. MLS players take great pride in being

role models for the millions of children who play soccer every day

in our country.

Because of the breadth of competitions across international lines,

the world of soccer differs fundamentally from that of other team

sports with respect to drug testing. The significant number of MLS

players are part of senior and youth national teams for their respective countries, and many of our players have been or will in

the future be members of their Olympic teams.

When competing for these teams, players are subject to random

testing for performance-enhancing drugs and strict penalties by the

world governing body for soccer, known as FIFA as well as the

International Olympic Committee. Both of these organizations test

using the World Anti-Doping Agency’s list of prohibited substances.

MLS players are also subject to drug testing by MLS. The program adopted in our CBA is run by an independent outside entity

jointly approved by the union and the league. Testing includes random testing, for-cause testing, and return-to-duty testing. Players

are tested both for performance-enhancing and recreational drugs

of abuse. Significantly, our program also uses the WADA list of

prohibited substances. If a player tests positive for a performanceenhancing substance, the Commissioner of MLS has the authority

to impose discipline up to and including the termination of that

player’s contract. Moreover, such a player also has no confidentiality protection. Ours, therefore, is one of the most stringent policies in professional sports.

24

As a union, we accepted such a policy because our players are

clean and they want to protect the integrity of the sport often referred to as ‘‘the beautiful game’’. Our players believe strongly in

the power of the collective bargaining process. Indeed, our union is

a prime example of that power. It has only been by organizing a

labor union and engaging in collective bargaining that MLS players

today, for the first time in the 10-year history of the league, have

improved their terms and conditions of employment.

Collective bargaining works, and when it is allowed to work,

labor and management can devise creative solutions to the problems and issues in their particular workplaces. In our case, collective bargaining has resulted in the drug policy designed to keep

MLS free from the problems caused by the use of performance-enhancing drugs. We are opposed to governmental amendment of our

CBA. For that reason, we oppose H.R. 1862 in its current form.

Leaving aside that philosophically we do not believe that Congress should override the provisions of collective bargaining agreements, I would like to comment briefly on a couple areas of the proposed bill.

The bill calls for a mandatory 2-year suspension for any positive

test, with no exceptions. Although our CBA allows for termination

for a positive test, discretion is also given to impose lesser penalties. This discretion is consistent with WADA’s anti-doping code,

which allows less than a 2-year suspension under certain circumstances, such as where the athlete bears no significant fault or

negligence. We believe that a 2-year ban for any positive test is too

harsh, particularly when it does not allow for any mitigating factors.

Moreover, we do not believe that a one-size-fits-all penalty covering all sports is appropriate. The lengths of players’ careers in

professional sports differ greatly from sport to sport. In many circumstances, a 2-year ban could effectively end an MLS player’s career, and it certainly would have a greater impact than in other

sports in which the length of a playing career is longer.

Similarly, the penalties imposed under H.R. 1862 for noncompliance would have dramatically different impacts on the various

sports leagues covered by the bill. As a union, we want MLS to

prosper. It is simply not fair to impose a penalty on MLS that

would have a much more significant impact than one imposed on

other leagues.

Let me close by inviting all of you to an MLS game. The defending MLS Cup Champion, D.C. United, play their home games within the shadow of the Capitol, at RFK stadium. When you go to the

game, you will see talented, committed, and amazingly fit athletes

who do not use performance-enhancing drugs. Those athletes, now

through their union and working with the league, have done a tremendous job of keeping performance-enhancing drugs out of the

game. The MLS Players Union is committed to continuing that effort.

On behalf of all MLS players, I thank you for the opportunity to

testify today.

[The prepared statement of Robert Foose follows:]

25

PREPARED STATEMENT OF BOB FOOSE, EXECUTIVE DIRECTOR, MAJOR LEAGUE

SOCCER PLAYERS UNION

Mr. Chairman and members of the Subcommittee: My name is Bob Foose, and I

am the Executive Director of the Major League Soccer Players Union (‘‘MLS Players

Union’’), the labor organization representing players in Major League Soccer

(‘‘MLS’’). The MLS Players Union appreciates the opportunity to appear before this

Subcommittee and to express its views on H.R. 1862, the Drug Free Sports Act.

Our union is the newest in professional sports. Formed in April of 2003, we recently completed negotiations with MLS on the first collective bargaining agreement

in the history of the league. Those negotiations were lengthy. Because we were bargaining a first agreement, we covered everything from direct deposit of paychecks

to the first retirement plan ever to cover players in the league—and most everything

in between.

Like all labor negotiations, at times ours were difficult and contentious. One subject on which it was easy for the players and management to agree, however, was

on the use of performance enhancing drugs. Our players are extremely proud of the

fact that MLS is a league without performance enhancing drugs, and the players

want to keep it that way.

It takes a tremendous amount of talent to play professional soccer. Major League

Soccer players are among the fittest athletes in the world, and steroids and other

performance enhancing drugs simply have no place in the game. As stated in our

collectively bargained drug policy, ‘‘the use of performance enhancing substances

violates the ethics, integrity and image’’ of professional soccer. We are also keenly

aware that youth soccer is the most popular youth sport in the United States. Major

League Soccer players take great pride in being role models for the millions of children who play soccer every day in our country.

Before I describe our collective bargaining agreement and drug policy, I would like

to explain briefly how the world of soccer differs fundamentally from that of other

sports, and how, as a result, MLS players are subject to testing for the use of performance enhancing substances on many levels. First, many members of our union

are in the player pool for their respective National Teams. These are the teams that

are currently representing their countries in competition to qualify for the 2006

World Cup. In addition, members of our union also compete for other National

Teams in youth tournaments, such as the World Youth Championship this summer

in the Netherlands, for players under the age of 20, and the U-17 World Championship this fall in Peru, for players under the age of 17.

These National Teams, which are separate from MLS, compete in tournaments

sanctioned by the world governing body for soccer, known as the Federation Internationale of Football Associations, or FIFA. In competing in FIFA tournaments and

exhibition games, players are subject to random testing for the use of performance

enhancing drugs, and are tested for the World Anti-Doping Agency (‘‘WADA’’) list

of prohibited substances. Any player who tests positive is subject to significant discipline under the FIFA Disciplinary Code, including a minimum six-month suspension for a first-time offense. Many of the members of our union also have been, and

will in the future be, members of the U.S. and other Olympic Teams. Members of

those teams are subject to strict International Olympic Committee and WADA testing requirements.

MLS players, of course, are also subject to drug testing by MLS. This year is the

tenth season of MLS, and the first one in which players in the league are covered

by a collective bargaining agreement. Even before the negotiation of this agreement,

MLS players had been subject to a stringent drug testing program, in which all

players were randomly tested at least once per year, at any time during the year.

Players were tested both for the use of performance enhancing drugs and recreational drugs of abuse.

After the union was organized, one of our first steps was to poll the players on

their priorities for a first collective bargaining agreement. That poll included questions regarding whether players wanted to negotiate changes to the league’s drug

policy. The players, however, understood the need to continue a stringent drug policy, as we work with the league to grow the sport of soccer in the United States.

In negotiations, therefore, while we fought hard over 18 months on terms such as

an increased minimum salary, employer-paid health insurance and a pension plan

for all players, the players accepted management’s proposal to maintain a strict policy with respect to the use of performance enhancing substances.

The drug testing program adopted in our agreement is run by an independent outside entity, jointly approved by the union and the league. Testing includes: (a) random testing, in which players are tested at least once each year; (b) for-cause testing

in which players may be tested when they exhibit behavior indicating the use of a

26

prohibited substance; and (c) return to duty testing, following a failed drug test and/

or completion of treatment for substance abuse. Players are tested both for performance enhancing and recreational drugs of abuse. Significantly, the drug testing program in MLS uses the WADA list of prohibited substances.

If a player tests positive for a performance enhancing substance, the Commissioner of MLS has the authority to impose discipline up to and including the termination of that player’s contract. Moreover, there is no confidentiality protection for

a player who tests positive for a performance enhancing substance. Ours, therefore,

is a strict policy, and is one of the most stringent in professional sports. As a union,

we accepted such a policy because our players are clean, and they want to protect

the integrity of the sport often referred to as ‘‘the beautiful game.’’

Thus, Major League Soccer has in place a strict drug policy that has helped keep

the league free of the problems caused by the use of performance enhancing drugs.

The players believe strongly in the power of the collective bargaining process. Indeed, our union is a prime example of that power. For the first several years of the

league, the players were involved in a lawsuit against MLS in an effort to improve

their economic well-being. That effort, however, proved unsuccessful. It was only by

organizing a labor union and engaging in collective bargaining, that MLS players

today for the first time have improved their terms and conditions of employment.

Through collective bargaining, players have raised the minimum league salary, implemented the first retirement plan for players in league history, and provided for

a neutral grievance and arbitration procedure in which disputes can be aired and

resolved. And, the players and the league have agreed on a system that will continue to combat and prevent the use of performance enhancing drugs in soccer.

Collective bargaining works, and when it is allowed to work, labor and management can devise creative solutions to the problems and issues in their particular

workplaces. Under the National Labor Relations Act, drug testing of current employees is a mandatory subject of bargaining, subject to good faith negotiation between the parties. As described, we have just negotiated a first agreement in which

we covered all subjects, including drug testing. The result is that MLS has a strict

policy that we think will keep performance enhancing substances out of the league.

We are, however, opposed to governmental amendment of our agreement. For that

reason, we oppose H.R. 1862 in its current form.

Leaving aside that philosophically we do not believe that Congress should override the provisions of collective bargaining agreements, I would like to comment

briefly on the proposed bill.

The bill calls for a mandatory two-year suspension for any positive test, with no

exceptions. Although our agreement allows for termination for a positive test, discretion is also given to impose lesser penalties. This discretion is consistent with

WADA’s anti-doping code, which allows less than a two-year suspension under certain circumstances, such as where the athlete bears no significant fault or negligence. We believe that a two-year ban for any positive test is too harsh, particularly when it does not allow for any mitigating factors.

Moreover, we do not believe that a one-size fits all penalty covering all sports is

appropriate. The lengths of players’ careers in professional sports differ greatly from

sport to sport. Although soccer players’ careers may not be as short as those of football players, they are shorter than those in other sports such as baseball. In many

circumstances, a two-year ban can effectively end an MLS’s player’s career, and it

certainly would have a greater impact than in other sports in which the length of

a playing career is longer.

Similarly, the penalties imposed under H.R. 1862 for noncompliance would have

dramatically different impacts on the various sports leagues covered by the bill. I

think I can speak for both the union and the league when I say that we are striving

for the day when a $5,000,000 fine will have the same impact on MLS that it has

on more wealthy leagues. However, the fact is that such a day has not yet arrived.

As a union, we want MLS to prosper. It is simply not fair to impose a penalty on

MLS that would have a much more significant impact than one imposed on other

leagues.

Let me close by inviting all of you to an MLS game. The defending MLS Cup

champions, D.C. United, play their home games within the shadow of the Capitol,

at RFK stadium. When you go to the game, you will see talented, committed and

amazingly fit athletes, who do not use performance enhancing drugs. Those athletes,

now through their union, and working with the league, have done a tremendous job

of keeping performance enhancing drugs out of the game. The MLS Players Union

is committed to continuing that effort.

On behalf of all MLS players, I thank you for the opportunity to testify today.

Mr. STEARNS. I thank you.

27

Mr. Selig, welcome.

STATEMENT OF ALLAN H. ‘‘BUD’’ SELIG

Mr. SELIG. Good morning.

As you know, I have the distinct privilege of serving as the ninth

Commissioner of Baseball. The first, and most important, point

that I would like to make this morning is that the eradication of

performance-enhancing substances from all of professional baseball

is my top priority. Moreover, I can assure you that this is a priority

that is shared by the owners of all 30 Major League Clubs. In fact,

just last wee at a Major League meeting in New York, all 30 owners endorsed a resolution supporting my ongoing efforts to rid our

game of steroids and other performance-enhancing substances.

In previous hearings before various Committees in the House of

Representatives and in the Senate, I have detailed the efforts undertaken by Major League Baseball, dating to the late 1990’s, to

deal with the issue of performance-enhancing substances. In the

minor leagues where our players are not unionized and we are free

to act unilaterally, I promulgated an industry-wide policy in 2001

and have since amended that policy on a number of occasions to

make it stronger and more effective. At the Major League level, the

process is more complicated because drug testing is a mandatory

subject of collective bargaining. Nonetheless and notwithstanding

this fact, we have worked with the Major League Baseball Players

Association to strengthen the Major League policy in each of the

past three seasons.

At this point, however, the history of our efforts is not the most

important topic. While we have made important strides in dealing

with the issue of performance-enhancing substances, it is clear to

me that our fans and their elected representatives here in Congress

expect more to restore their faith in the integrity of our rules and

in the performance of our players. As a result, today I will focus

on our next steps in the continuing battle to eliminate the use of

performance-enhancing substances from Major League Baseball.

First, I have decided that Major League Baseball’s Minor League

Drug Policy will be amended effective for the 2006 season. Most

important, the penalties under the policy will be significantly increased. First-time offenders will be suspended for 50 games. Second-time offenders will be suspended for 100 games. And thirdtime offenders will be permanently banned from the game. I firmly

believe that this ‘‘three strikes and you are out’’ approach will create a level of deterrence sufficient to convince our players not to

risk their health through the use of steroids and other drugs.

In addition, amphetamines, which have been banned as ‘‘drugs

of abuse’’ in the minor league program for a number of years, will

now be classified as performance-enhancing substances under this

program. The change in the classification of amphetamines means

that amphetamine users will be immediately suspended for a firsttime positive test rather than receiving treatment and counseling.

While amphetamines are not the same as steroids and their use

can raise difficult questions, particularly in the area of addiction,

these substances do have performance-enhancing characteristics.

Because of this fact, those who use amphetamines should be disciplined for any positive test.

28

As I am sure you are well aware, I have had conversations with

Don Fehr of the Players Association about the issue of performance-enhancing substances in recent weeks. In a recent letter to

Mr. Fehr, I shared with him my view that the issue of performance-enhancing substances has raised questions about the integrity

of our great game.

In the letter, I suggested a number of changes to the Major

League Drug Policy, including the following.

Discipline. As in the minor leagues, the Major League Drug Policy should follow the ‘‘three strikes and you are out’’ approach.

First-time offenders should be suspended 50 games. Second-time offenders should be suspended for 100 games. Third-time offenders

should be banned from the game for life.

Amphetamines should be banned under our program in the same

manner as other performance-enhancing substances.

Frequency of testing. In order to restore the public confidence in

our game, the frequency of testing in the Major League program

should be increased.

Independence of administration. Major League Baseball and the

Players Association should agree on a single, independent administrator who should be responsible for all aspects of the program

from the scheduling of tests to the collection of urine through the

analyzing test results. Only at the point of discipline should officials from Major League Baseball and the Players Association become involved in the process.

Finally, I told Mr. Fehr that I considered it imperative that we

act quickly to make these changes to restore the faith of our fans

in the integrity of our players’ performance on the field and to

refocus the attention on that performance and away from the halls

of Congress and testing labs.

I am certain that our players do want performance-enhancing

substances out of the game, and many have so stated publicly. Perhaps Tino Martinez of the New York Yankees said it best: ‘‘Whatever they want to do to get this out of the fans’ heads and clean

up this game, I am all for it.’’

The use of performance-enhancing substances calls into question

not only the integrity of the Commissioner’s Office, the Players Association, and the Clubs, but the integrity of each and every player.

Such substances create an uneven playing field to the advantage

of those who elect to cheat. The use of such substances also raises

important health concerns. Over the past 3 years, the players and

their bargaining representative have been very responsive to our

desire to implement stronger policies in this area. Mr. Fehr has indicated a willingness to discuss the issues raised in my letter, and

I am hopeful that the Players Association will once again prove

willing to address the concerns that have been articulated by Congress and our fans. From our perspective, and I suspect from the

perspective of many in Congress, the ability of baseball to police

itself is preferable to legislation. If we can not do it, and I really

hope that we can, I understand why legislation would be considered by Congress.

As important as it is for Major League Baseball to address the

issue of performance-enhancing substances to restore the integrity

of the game, it is equally important for us to send a message to the

29

young people in America that the use of performance-enhancing

substances is wrong and dangerous. In our effort to fulfill our obligation in this area, Major League Baseball has entered into an innovative arrangement with the Partnership for a Drug-Free America. Over the past 18 months, we have worked with the Partnership to develop comprehensive attitudinal and usage data on performance-enhancing substances. Based on this research, the Partnership is in the process of developing a campaign directed at

young people and young athletes that will involve advertising on

television, in print, and on radio as well as educational material.

We are focused on developing the right message and finding the

right messengers. In this regard, we are considering the direct involvement of high school coaches in our educational efforts. Most

important, our commitment to this effort will be ongoing in the

sense that the Partnership will be doing research on the effectiveness of the program so it can be refined in response to new developments.

I am pleased to inform you that we have been in detailed discussions with the Taylor Hooten Foundation about an ongoing relationship with Major League Baseball. I believe that the Foundation

is doing great work on this issue of steroid awareness and hope

that our support will help the Foundation to continue to fulfill this

mission.

As I hope the foregoing makes clear, Major League Baseball has

demonstrated and continues to demonstrate a willingness to deal

with the issue of performance-enhancing substances without the

need for Federal legislation. At the same time, however, I would

not resist Federal legislation if Congress continues to believe that

a uniform standard for all sports is necessary. I made this commitment in my testimony before the House Committee on Government

Reform on March 17, 2005, and I reiterate that commitment today.

I would like to stress, however, that I believe that there are important differences among the various professional sports and between

professional sports and the Olympics that may make private regulation more effective and appropriate.

If Federal legislation is the path that Congress chooses to follow,

the legislation that has been introduced by Congressman Stearns

in conceptually in accord with my views on the topic of performance-enhancing substances. In order to have an effective program,

there must be a comprehensive list of banned substances, fair,

independent, and accurate tests must be administered regularly to

the athletes, and serious discipline must be imposed on those who

test positive.

To conclude, I want to reiterate that my top priority is to eradicate the use of performance-enhancing substances in professional

baseball. In pursuit of that goal, I will continue to pursue a very

aggressive, collectively bargained policy with the Major League

Players Association. At the same time, I will continue to be the

supporter of an appropriately tailored, uniform Federal standard.

I hope that we will have the opportunity to work with Congress in

developing that standard.

[The prepared statement of Allan H. ‘‘Bud’’ Selig follows:]

30

PREPARED STATEMENT OF ALLAN H. SELIG, COMMISSIONER OF BASEBALL

Good morning. As you know, I have the distinct privilege of serving as the Ninth

Commissioner of Baseball. The first and most important point that I would like to

make this morning is that the eradication of performance enhancing substances

from all of professional Baseball is my top priority. Moreover, I can assure you that

this is a priority that is shared by the owners of all 30 Major League Clubs. In fact,

just last week at a Major League meeting in New York, all 30 owners endorsed a

resolution supporting my on-going efforts to rid our game of steroids and other performance enhancing substances.

In previous hearings before various Committees in the House of Representatives

and in the Senate, I have detailed the efforts undertaken by Major League Baseball,

dating to the late 1990’s, to deal with the issue of performance enhancing substances. In the minor leagues, where we are free to act unilaterally, I promulgated

an industry-wide policy in 2001 and have since amended that policy on a number

of occasions to make it stronger and more effective. At the Major League level, the

process is more complicated because drug testing is a mandatory subject of collective

bargaining. Notwithstanding this fact, we have worked with the Major League Baseball Players Association (‘‘MLBPA’’) to strengthen the Major League policy each of

the past three seasons.

At this point, however, the history of our efforts is not the most important topic.

While we have made important strides in dealing with the issue of performance enhancing substances, it is clear to me that our fans and their elected representatives

here in Congress expect more to restore their faith in the integrity of our rules and

the performance of our players. As a result, today I will focus on our next steps in

the continuing battle to eliminate the use of performance enhancing substances

from Major League Baseball.

First, I have decided that the Major League Baseball’s Minor League Drug Policy

will be amended effective for the 2006 season. Most important, the penalties under

the policy will be significantly increased. First time offenders will be suspended for

fifty games. Second time offenders will be suspended for one hundred games. And,

third time offenders will be permanently banned from the game. I firmly believe

that this ‘‘three strikes and you’re out’’ approach will create a level of deterrence

sufficient to convince our players not to risk their health through the use of steroids

and other drugs. In addition, amphetamines, which have been banned as ‘‘drugs of

abuse’’ in the minor league program for a number of years, will now be classified

as performance enhancing substances under this program. The change in the classification of amphetamines means that amphetamine users will be immediately suspended for a first-time positive test rather than receiving treatment and counseling.

While amphetamines are not the same as steroids and their use can raise difficult

questions, particularly in the area of addiction, these substances do have performance enhancing characteristics. Because of this fact, those who use amphetamines

should be disciplined for any positive test.

As I am sure you are aware, I have had conversations with Donald Fehr of the

MLBPA about the issue of performance enhancing substances in recent weeks. In

a recent letter from me to Mr. Fehr, I shared with Mr. Fehr my view that the issue

of performance enhancing substances has raised questions about the integrity of our

great game.

In the letter, I suggested a number of changes to the Major League Drug Policy

including the following:

1. Discipline. As in the minor leagues, the Major League Drug Policy should follow

the ‘‘three strikes and you’re out’’ approach. First-time offenders should be suspended fifty games. Second-time offenders should be suspended for one hundred

games. Third-time offenders should be banned from the game for life.

2. Amphetamines. Amphetamines should be banned under our program in the

same manner as other performance enhancing substances.

3. Frequency of Testing. In order to restore the public confidence in our game, the

frequency of testing in the Major League program should be increased.

4. Independence of Administration. Major League Baseball and the MLBPA should

agree on a single, independent administrator who should be responsible for all aspects of the program from the scheduling of tests, to the collection of urine, through

the analyzation of tests results. Only at the point of discipline should officials from

Major League Baseball and the MLBPA become involved in the process.

Finally, I told Mr. Fehr that I considered it imperative that we act quickly to

make these changes to restore the faith of our fans in the integrity of our players’

performance on the field and to refocus attention on that performance and away

from the halls of Congress and the testing labs.

31

I am certain that our players want performance enhancing substances out of the

game and many have so stated publicly. Perhaps Tino Martinez of the New York

Yankees said it best: ‘‘Whatever they want to do to get this out of the fans’ heads

and clean up this game, I’m all for it.’’

The use of performance enhancing substances calls into question not only the integrity of the Commissioner’s Office, the Players Association and the Clubs, but also

the integrity of each and every player. Such substances create an uneven playing

field to the advantage of those who elect to cheat. The use of such substances also

raises important health concerns. Over the past three years, the players and their

bargaining representative have been responsive to our desire to implement stronger

polices in this area. Mr. Fehr has indicated a willingness to discuss the issues raised

in my letter and I am hopeful that the MLBPA will once again prove willing to address the concerns that have been articulated by Congress and our fans. From our

perspective, and I suspect from the perspective of many in Congress, the ability of

Baseball to police itself is preferable to legislation. If we cannot do it, and I hope

we can, I understand why legislation would be considered by Congress.

As important as it is for Major League Baseball to address the issue of performance enhancing substances to restore the integrity of the game, it is equally important for us to send a message to young people in America that the use of performance enhancing substances is wrong and dangerous. In an effort to fulfill our obligations in this area, Major League Baseball has entered into an innovative arrangement with the Partnership for a Drug-Free America. Over the past eighteen months,

we have worked with the Partnership to develop comprehensive attitudinal and

usage data on performance enhancing substances. Based on this research, the Partnership is in the process of developing a campaign directed at young people and

young athletes that will involve advertising on television, in print and on radio, as

well as educational materials. We are focused on developing the right message and

finding the right messengers. In this regard, we are considering the direct involvement of high school coaches in our educational efforts. Most important, our commitment to this effort will be on-going in the sense that the Partnership will be doing

research on the effectiveness of the program so it can be refined in response to new

developments.

I am also pleased to inform you that we have been in detailed discussions with

the Taylor Hooten Foundation about an on-going relationship with Major League

Baseball. I believe that the Foundation is doing great work on this issue of steroid

awareness and hope that our support will help the Foundation continue to fulfill its

mission.

As I hope the foregoing makes clear, Major League Baseball has demonstrated

and continues to demonstrate a willingness to deal with the issue of performance

enhancing substances without the need for federal legislation. At the same time,

however, I would not resist federal legislation if Congress continues to believe that

a uniform standard for all sports is necessary. I made this commitment in my testimony before the House Committee on Government Reform on March 17, 2005 and

I reiterate that commitment today. I would like to stress, however, that I believe

that there are important differences among the various professional sports and between professional sports and the Olympics that may make private regulation more

effective and appropriate.

If federal legislation is the path that Congress chooses to follow, the Drug Free

Sports Act that has been introduced by Congressmen Stearns is conceptually in accord with my views on the topic of performance enhancing substances. In order to

have an effective program, there must be a comprehensive list of banned substances,

fair, independent and accurate tests must be administered regularly to the athletes,

and serious discipline must be imposed on those who test positive.

To conclude, I want to reiterate that my top priority is to eradicate the use of performance enhancing substances in Professional Baseball. In pursuit of that goal, I

will continue to pursue a more aggressive, collectively bargained policy with the

MLBPA. At the same time, I will continue to be a supporter of an appropriately tailored, uniform federal standard. I hope that we will have the opportunity to work

with Congress in developing that standard.

Mr. STEARNS. I thank you.

Mr. Fehr, welcome.

STATEMENT OF DONALD M. FEHR

Mr. FEHR. Thank you, Mr. Chairman, Ranking Member

Schakowsky, Chairman Barton, and other members of the committee and of the subcommittee.

32

I appear today in response to the invitation to testify with respect to H.R. 1862. And I was struck, listening to a number of the

opening comments that were made before any of the witnesses

were asked to deliver their remarks, that there were a number of

things that not only do we agree with, the vast majority, but I suspect are well worth repeating.

The first is that this is a complex and far-reaching issue. The

second is that we ought to be dealing with illegal steroid use. Third

is that the overwhelming majority of professional athletes in baseball, and I am sure in all other professional sports, don’t use and

don’t want to use. Fourth, dealing with such issues in sports is

probably only the first step. And last, to pick up on a comment that

Mr. Stearns made, in my testimony before Government Reform 2

months ago yesterday, I referenced the issue of gene doping, and

I would just like to commend Mr. Stearns for mentioning that here

today. That is the issue that is on the horizon, and that is an issue

which potentially will arise even before the child is old enough to

know about it. And I am pleased to see that you are paying attention to that issue going forward.

With that, let me take just the few brief minutes I have now to

address the subject of H.R. 1862 and what we do in baseball.

First of all, let me restate the position I have articulated before

various committees of the Congress for several years now, beginning, I believe, with the Senate Commerce in 2002. Simply put,

neither players, nor the Players Association, condone or support

the use by players, or by anyone else, of any unlawful substances,

nor do we condone or support the unlawful use by players or by

anyone else of any otherwise legal substance. The use of any illegal

substance or the illegal use of any legal substance is wrong. And

clearly, the unlawful use of steroids has no place in the game. And

one need not be a physician to appreciate that steroids are powerful drugs that people should not fool around with, particularly children and females, as the medical research makes it absolutely clear

that illegal steroid use can be especially harmful for them.

Having said that, we have addressed, as Commissioner Selig indicated, the issue of illegal steroid use in collective bargaining over

the past years, and we think we have done so with significant effect. The evidence we have of the program so far was that the incidents of use dropped precipitously in 2004. The number of confirmed positives fell to about 1 percent of tests. We nevertheless enhanced the program for this year. And the evidence we have so far,

and I acknowledge it is only so far this year, does not suggest that

this trend is moving in the other direction.

And I want to make clear that there is no dispute about this.

Commissioner Selig has made clear repeatedly, and including last

week, that he believes our current program is working.

How does it work?

Every player is tested at least once for illegal steroids. The tests

are all random. They are unannounced. Nobody knows when they

will be. There are a repeated number of random tests throughout

the year and during the off-season, and every player is potentially

subject to having his name pulled every time random tests are administered. For a first positive, there is a 10-day suspension. We

did not have that previously. Heavier penalties for repeat offenses,

33

which obviously we hope we don’t have. In addition to that, the individual is publicly identified. That is, in our judgment, meaning

the judgment of Players, an extraordinarily powerful deterrent between the two.

I would point out, also, that where an individual tests positive

once, he is subject to what we have termed a treatment program,

and that will include, in the ordinary course, for-cause testing for

that individual on a frequent basis, quite apart from the tests

which are conducted for everyone. Both the collection of the test

samples, which is done by Comprehensive Drug Testing, Inc., and

confirmed, I believe, brought to Major League Baseball by Commissioner Uberoch more than 20 years ago, and the analysis of those

samples, which is done by the WADA certified lab in Montreal, are

done completely by independent experts whose reputation and business depend entirely on conducting themselves in an above-board

and appropriate manner, and we believe that they have.

What we have done is obviously a product of good faith collective

bargaining, which is what the law of the land suggests is the appropriate method Congress has repeatedly endorsed as the appropriate method to determine the terms and conditions of employment.

The reason why Congress has done that is the belief that solutions devised by the parties in the relationship are likely to work

better and be more effective and be more adaptive than those imposed by any outside party, including the Congress. For that reason, I think it will come as no surprise to the members of the committee that we do not believe the proposed legislation should be enacted. We believe that collective bargaining has been and remains

the appropriate forum to deal with such matters, even matters as

controversial and potentially volatile as random suspicionless, excuse me, employee drug testing as we have here.

I agree with some of the other witnesses that the notion that a

one-size-fits-all approach is probably not the best one. And in addition to that, it is unclear from the legislation itself how the list of

substances would be determined.

When we get to a WADA list, I would point out that that would

mean that no one within the community of those affected in baseball would have any role. We are not a part of WADA. We are not

a part of the Olympic movement. We don’t serve on the committees.

It is an important notion, excuse me, that the people involved in

the process have some role in putting it together.

In addition to that, let me refer to a comment I made at the beginning. We believe strongly that whatever proscriptions are in

place ought to be for illegal drugs. People playing Major League

Baseball are nevertheless American, and if the Congress of the

United States and the appropriate Federal and State agencies believe that product X is fully safe and available for purchase by

Americans in pharmacies and health food stores and wherever else

it might be, we don’t believe that someone should be prohibited

from purchasing or using such a substance merely because he has

a job as a professional athlete.

Turning to the penalties. In our belief, a mandatory 2-year penalty for a first-time positive is too severe. The purpose and goal of

the program is, and in our judgment, ought to be to deter use of

34

illegal substances. We believe that a far less significant penalty, especially for a first offense, especially those that it may be inadvertent or unknowing or that may involve young individuals who

lack certain sophistication, is not necessary to achieve the goal that

we are all interested in achieving. As a practical matter in baseball, while not true for everyone, perhaps, for the vast majority of

individuals, it is my belief that a 2-year penalty is effectively career

ending.

Moreover, as the Olympics have demonstrated for us, the severity of the penalty in and of itself is no guarantee that there will

not be attempts to violate the rules. Were that so, we would not

have seen positive test results in the Olympics.

Very briefly, let me turn to the appeals process, which is reflected in the bill.

This appears quite problematic, it is confusing, and it is uncertain. It is unclear whether the individual would have the matters

determined by a neutral judge, jury, or arbitrator. It is unclear

whether any notion of traditional due process rights would be involved when we have contracts involved here. It is even unclear

whether there would be a right to counsel. Thirty days is, very

probably, far too short a time period in which these hearings need

to be conducted, especially if significant scientific or other expert

testimony or the process for witnesses needs to be involved.

Mr. STEARNS. Mr. Fehr, I will just have you sum up, if you don’t

mind.

Mr. FEHR. Thank you.

One final point, Mr. Chairman, we do feel that there are potentially constitutional issues involved in the legislation as drafted,

particularly Fourth Amendment issues. The question rises as to

whether or not searches ought to be required by Federal law, the

premises of which is that there will not be, and need not be, individualized probable caused. I have been accused in the past of

clinging to sort of antiquated notions of fair play in constitutional

due process by people who believe sometimes that we are slow to

get to things. We think that you ought to be very careful in such

areas.

Finally, we look forward to the discussions with the Commissioner that he has previously referenced and to the discussions that

I will be having with my constituency over the course of this season

in that regard.

Thank you.

[The prepared statement of Donald M. Fehr follows:]

PREPARED STATEMENT OF DONALD M. FEHR, EXECUTIVE DIRECTOR, MAJOR LEAGUE

BASEBALL PLAYERS ASSOCIATION

Mr. Chairman and Members of the Committee: My name is Donald M. Fehr, and

I serve as the Executive Director of the Major League Baseball Players Association.

I appear today in response to the invitation of the Chairman to testify with respect

to HR 1862, the Drug Free Sports Act of 2005.

I appreciate the Committee’s interest in and concern about the unlawful use of

steroids, which led to this hearing. Let me begin by stating the position of the Major

League Baseball Players Association (‘‘MLBPA’’), which I have previously articulated before several committees of the Congress. Simply put, the Players Association

neither condones nor supports the use by players, or by anyone else, of any unlawful

substance, nor do we support or condone the unlawful use by players, or by anyone

else, of any legal substance. I cannot put it more plainly: the use of any illegal substance or the illegal use of any legal substance is wrong.

35

Lest there be any question, I should add that we are committed to dispelling any

notion that the route to becoming a Major League athlete somehow includes taking

illegal performance-enhancing substances like steroids. Playing Major League Baseball requires talent, drive, intelligence, determination, and grit. The unlawful use

of steroids has no place in the game. One need not be a physician to appreciate that

steroids are powerful drugs with which no one should fool around. This is particularly true for children and young adults, as the medical research makes clear that

illegal steroid use can be especially harmful to them.

The players want to rid their game of the use of illegal performance-enhancing

substances, and the agreements we have reached with the owners have served and

will continue to serve that goal. In the 2002 negotiations, the MLBPA reached a

steroid testing agreement with the Major League Clubs, and then, over the last winter, the MLBPA and the owners agreed to modify and enhance that agreement effective for this season. The evidence we have of the operation of the program in 2004,

and of the enhanced program so far this year, suggests that we were correct; it is

working well. The number of confirmed positives fell to about 1% in 2004, and the

results we have so far this year also suggest that the enhanced program is effectively deterring steroid use.

Briefly, our current testing program operates in the following manner. Under the

agreement effective this season, every player will be tested once for illegal steroids

on a random and unannounced basis and, in addition, players at random will be

chosen for additional unannounced testing. Every player is potentially subject to

being tested whenever random tests are conducted, including during the off-season,

no matter how many times he has previously been tested. No player will know in

advance when any test will be administered.

For a first positive, a player faces a 10-day suspension without pay, and is publicly identified as having violated the testing regimen. The penalties for subsequent

positive tests are significantly stronger. The loss of ten or so games that the player

will never get back is quite meaningful to a Major League player, but perhaps more

significant are the consequences resulting from public identification. No player

wants to be identified as having violated the rules. (Note also that a player who

tests positive is, in addition, subject to a treatment program designed by our Health

Policy Advisory Committee. This treatment program can include individualized random testing for any such player, in addition to the testing to which all players are

subject.)

Both the collection of test samples (done by Comprehensive Drug Testing, Inc.)

and the analysis of those samples (done by the WADA certified laboratory in Montreal) are conducted by independent contractors, whose business and reputation depend entirely on conducting themselves in a completely above-board and appropriate

manner. The impression that somehow our testing program is not or was not handled by outside entities, which possess both the requisite independence and expertise, is simply incorrect.

In short, we have negotiated a program that we firmly believe will work. Moreover, the evidence so far is that it is working. In addition, with our recent midterm

amendments we have significantly strengthened the policy, demonstrating a clear

capability and willingness to modify our program as needed. Indeed, on March 17th

of this year, Commissioner Selig hailed our new agreement, saying that the program

was as good as any in professional sports. And, what we have done was a product

of good faith collective bargaining, just as Congress has always intended.

Under the National Labor Relations Act, the negotiation of terms and conditions

of employment is committed to good faith collective bargaining between employers

and the organizations selected by and representing employees. Needless to say, the

agreement reached in September 2002, and now amended, is a product of that process. We continue to believe that collective bargaining is the appropriate forum for

consideration and resolution of these issues. One of the premises of our labor laws

is that solutions devised by the parties in the workplace are more likely to be workable and enduring, precisely because they are forged by those parties, rather than

by others outside that relationship, no matter how well intentioned they may be.

Accordingly, it should come as no surprise that the Players Association does not

believe the proposed legislation should be enacted. As Congress has repeatedly

noted, collective bargaining is the appropriate forum in which to deal with matters

affecting terms and conditions of employment, even matters as controversial and politically volatile as random suspicionless employee drug testing in the absence of significant concerns about public safety. We believe the program we have implemented

in Major League Baseball will work, and will be seen to have worked, if given the

opportunity. Our program provides players with the assurance that the testing will

be thorough, fair, and accurate, while also making it clear that the unlawful use

of steroids is neither tolerated nor excused in the Major Leagues.

36

Further, we do not agree with the underlying presumption of the legislation—that

a single federally mandated and operated drug testing program, in which the covered substances would be chosen by an international body free of any input from

or responsibility to the individuals and the entities it will regulate, is the most effective or appropriate means to eliminate illegal performance enhancing drugs in professional sports in the United States. In fact, such an approach may create even

more problems than it solves.

For example, there appears to be some confusion over how the legislation should

be read. Some claim it would require testing for all substances banned by the World

Anti-Doping Agency (WADA), as well as any additional substance which the Secretary of Commerce determines is performance-enhancing and for which testing is

reasonable and practicable. Others have asserted the opposite—the covered list

would be limited to those substances banned by WADA that the Secretary of Commerce also determines are performance enhancing.

Obviously, how this provision is interpreted will have a significant impact on the

scope of the legislation. If the former description is accurate, the legislation would

delegate significant authority over American professional sports to an international

body, WADA, which is under no obligation even to consider the views or concerns

of the leagues or players in the United States, the impact of its decisions on these

persons or entities, or the differences between competition in professional and Olympic sports.

Moreover, the legislation contains no provision which makes it clear that players

may use substances which the United States Congress has determined are safe and

effective for sale and use by all adult Americans and are readily available for purchase without a doctor’s prescription. Professional athletes should not be punished

for the appropriate use of legal substances. The Association has never contended

that players should be above the law; conversely, they should not be placed below

it. In addition to being patently unfair, no public policy basis has been advanced

for penalizing professional athletes for the use of legal substances.

Turning to the penalties set forth in the bill, we respectfully submit that those

proposed punishments are far too severe. The goal of our program is—and should

be—to deter use of illegal substances, and we have agreed that mandatory suspensions for first offenders are necessary for that purpose. However, a two-year suspension for a first offense would, as a practical matter, end the player’s career in the

vast majority of circumstances. Penalties of that magnitude are simply not necessary to deter use and appear to punish only for the sake of punishing. Moreover,

as the Olympics have demonstrated, the severity of the penalty, by itself, does not

guarantee the result; if it did, we would see no positive tests in the Olympics.

Our players are extremely diverse. Some are far more educated when they arrive

in the league than others, and there is no uniformity as to their legal sophistication

or the operative medical rules among their respective countries of origin. In addition, some substances which are illegal in the United States or by WADA rule are

legal in other countries. Given these circumstances, there is always the possibility

of error or mistake. Ending an individual’s career as a result of a single mistake

or a poor decision is neither fair to the players involved nor necessary to persuade

the public that Major League Baseball and its players are committed to ridding the

sport of illegal performance enhancing substances.

The portion of the legislation creating an appeals process is also problematic and

confusing. For example, it is unclear whether an athlete will have the right to have

his or her fate determined by a neutral judge, jury or arbitrator, whether traditional

due process standards will apply, or whether there is even a right to counsel. The

legislation also mandates that the entire appeals process—from notification of an

appeal to final adjudication—be completed within 30 days, far too little time in

cases where there may be factual or scientific issues in controversy. Again, we respectfully submit that additional thought needs to be given as to how this process

would work, before Congress passes a law that could deprive an athlete of the right

to engage in his chosen profession.

Elsewhere, the legislation is specific in some circumstances but vague in others.

For example, it contains a mandate regarding both timing and the frequency of random testing. We believe that such matters are not susceptible to a ‘‘one size fits all’’

approach and are best left to those with knowledge of the workings of a particular

sport. In fact, the testing regime we have established for Major League Baseball is

more effective, frequent, and random than the proposed regime in the bill.

Similarly, the bill also calls for ‘‘tests to be administered by an independent party

not affiliated with’’ the professional league. No credible evidence has been brought

forward to question the integrity of the administration of any drug testing program

currently in force in any professional sport. The NFL and its union apparently have

chosen to administer its program in-house, in the main. In baseball, as noted, the

37

parties have retained reputable independent contractors for collection and analysis.

Absent any actual evidence of abuse, each sport should be permitted to determine

how best to effectuate its program.

Finally, the legislation raises troubling constitutional questions. Suspicionless

drug testing, mandated by the federal government, can run afoul of the general

Fourth Amendment requirement that searches must be based on individualized suspicion of wrongdoing. The reasons asserted to justify deviation from this principle

in the context of professional sports may fall short under the Supreme Court’s reasoning in Chandler v. Miller, 520 U.S. 305 (1997). There, the court held that a Georgia statute requiring candidates for state office to submit to drug testing was unconstitutional. Among other things, the Court determined that the stated intention of

having candidates set a good example was not sufficient to justify the inherent invasion of privacy. The bill also raises additional constitutional concerns that will have

to be addressed.

In conclusion, today, in baseball, our players are tested throughout the year on

an unannounced, random basis, at a level in excess of the standard called for in the

bill. They are tested for all the substances that the United States has determined

to be illegal steroids and steroid precursors. The tests are administered by independent, qualified experts. The evidence so far indicates that our penalties are sufficient to deter initial use and repeat offenses without destroying careers. This result

was achieved without the creation of a new federal agency or authority, or the resulting problems that will arise from the imposition of the one-size-fits-all approach

called for in the legislation. Instead, it was achieved, as it should be, through collective bargaining, utilizing the medical and scientific expertise of the federal government to determine what substances should be covered.

The Players Association shares the Committee’s goal in making sure that baseball, like other sports, whether it is played at the professional or amateur level, is

free of all illegal performance enhancing drugs. We want the fans, and especially

the children, the Major Leaguers of the future, to know that we are determined to

achieve that goal.

Mr. STEARNS. I thank the gentleman.

Mr. Bettman, welcome.

STATEMENT OF GARY BETTMAN

Mr. BETTMAN. Thank you, Chairman Stearns, Ranking Member

Schakowsky, members of the subcommittee.

My name is Gary Bettman, and I am the Commissioner of the

National Hockey League.

The NHL believes the public is entitled to have confidence in the

integrity in competition in our sport and in all professional sports.

The League also believes its fans should be able to watch our exceptional athletes perform in an environment free from the influence of performance-enhancing drugs. According, the NHL appreciates the opportunity to cooperate in any way it can in the effort

to eliminate the use of performance-enhancing drugs in professional and amateur athletics.

A brief review of the 10-year history of the NHL Players Association Substance Abuse and Behavioral Health program and our experience to date in the testing of NHL players for the use of performance-enhancing drugs may be instructive to the subcommittee

as such experience and history form the basis for the NHL’s specific comments regarding H.R. 1862.

Under the NHL and NHLPA program, a player suspected of having a substance abuse problem, which could include a problem associated with the use of performance-enhancing drugs, can be referred for participation in the program. The program expressly provides that, as part of the treatment and follow-up care, players

may be required to undergo substance testing as determined by the

doctors who administer the program. Such testing may take place

both in season and during the off-season.

38

As a historical matter, the NHL players who have been referred

to the program have had problems associated with drug and/or alcohol abuse as opposed to the use of performance-enhancing substances.

Also during the last 10 years, the League has been extensively

involved in the development and administration of drug-testing

programs in connection with international competitions in which

NHL players participate, including the Olympics. When participating in such international play, NHL players are held to and

abide by the strict international standards of the World AntiDoping Agency, which have been adopted by the world governing

body for hockey, which is known as the International Ice Hockey

Federation.

Of the nearly 1,000 NHL players who have participated in those

international competitions and were subject to drug testing in connection therewith, we are aware of only three positive tests for the

performance-enhancing drugs. Of the three, one player tested positive for a drug that is also used for asthma as an inhaler and

which may be used as a therapeutic use exception. A second player

tested positive for a substance that is designated as an allowable

narcotic, i.e. a prescribed painkiller, and the third player established the mistaken use defense in connection with his use of overthe-counter nutritional supplements.

These statistics lend support to our belief that as a general matter, performance-enhancing drugs have not been an issue in the

NHL. Notwithstanding this fact, and in recognition of the public

concern regarding the use of performance-enhancing drugs in professional sports, generally the NHL and the Players Association

recognize the need for a comprehensive drug testing and doping

control policy that will ensure the prevention of performance-enhancing drugs in our sport.

In conjunction with the new collective bargaining agreement,

which we hope to have shortly, the NHL and the NHLPA anticipate an effective and meaningful new program that will feature, in

addition to enhanced educational efforts, frequent and random nonotice testing coupled with the immediate and mandatory discipline for the use of performance-enhancing drugs.

Regarding H.R. 1862, the Drug Free Sports Act of 2005, the NHL

is supportive of a program featuring mandatory testing and discipline imposed in connection with an athlete’s use of performanceenhancing drugs. Given the commitment the NHL shares with the

NHLPA to implement such a mandatory and effective program, we

do not see the need for the proposed legislation as it would relate

to the NHL. However, should Congress decide to proceed along the

lines that this proposed legislation would contemplate, we have in

our statement made specific comments most particularly relating to

mandatory testing, Section 3, and the provision regarding exemptions, Section 4.

Section 3(1) provides for each athlete to be tested a minimum of

once each year. We recommend, with respect to NHL players, that

each athlete be tested a minimum of two times per season. Section

3(1) further provides that tests should be conducted at random

throughout the entire year. We would recommend team-wide testVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6602 21640.TXT HCOM1 PsN: HCOM1
39

ing in season on a no-notice basis and random testing individually

in the off-season.

Section 3(3) of the legislation provides the tests should be administered by an independent party not affiliated with the Professional

Sports Association, and we agree.

Section 3(4) provides that a positive test should result in the imposition of a suspension and public disclosure, subject to the determination made pursuant to an appeal. We agree that there should

be public disclosure, an appropriate appeal process, and we also

think that there should be pre-notification for the player and that

he should be offered counseling and treatment.

Section 3(4) provides a minimum 2-year suspension for an athlete who tests positive and for the permanent suspension of an athlete who tests positive more than once. We agree that significant

punishment for players who test positive should be in accordance

with progressive discipline, but we would like to discuss further the

appropriateness of a first-time, 2-year offense, because that could

be career-ending, as was indicated by other witnesses.

Section 4 provides that the Secretary may exempt from the regulations promulgated pursuant to Section 3 any sports association

that has previously adopted and implemented policies and procedures for testing athletes. We would suggest that subsequently

adopted policies, as long as they meet the requirements, should

also result in an exemption.

The NHL believes that every professional athlete serves as a role

model, and with that status comes a corresponding responsibility

to engage in conduct that will bring honor to the player, his team,

and the sport in which he earns his livelihood. For these reasons,

we fully support the proposed requirement that the NHL and other

professional sports leagues conduct mandatory testing on athletes

for performance-enhancing drugs.

Thank you for inviting us here today and for hearing our opinion

on the legislation.

[The prepared statement of Gary Bettman follows:]

PREPARED STATEMENT OF GARY BETTMAN, COMMISSIONER, NATIONAL HOCKEY

LEAGUE

On behalf of the National Hockey League (‘‘NHL’’), and in response to the request

of the Subcommittee on Commerce, Trade and Consumer Protection (hereinafter the

‘‘Subcommittee’’), this shall constitute my written statement regarding H.R. 1862,

the Drug Free Sports Act of 2005. At the outset, I would like to say that the NHL

appreciates being afforded the opportunity to provide the Subcommittee with our

comments and feedback regarding the proposed legislation, and undertakes to cooperate in any way it can in the effort to eliminate the use of performance-enhancing drugs in professional and amateur athletics.

The NHL’s views on H.R. 1862, the Drug Free Sports Act of 2005, are based upon

the NHL’s practical experience over the past ten years in administering the NHL/

NHLPA Substance Abuse and Behavioral Health Program (the ‘‘NHL/NHLPA Program’’ or the ‘‘Program’’), as well as the NHL’s extensive role in the development

and administration of drug testing programs in connection with various international competitions involving NHL players over the past several years. A brief

history of the NHL/NHLPA Program and our experience to date in the testing of

NHL players for the use of performance-enhancing drugs may be instructive for the

Subcommittee.

NHL/NHLPA SUBSTANCE ABUSE AND BEHAVIORAL HEALTH PROGRAM

In 1995, and in conjunction with the parties’ agreement on the now recently expired collective bargaining agreement (‘‘CBA’’), the NHL and the National Hockey

40

1The League and the NHLPA retained Dr. Dave Lewis of Visions Residential Treatment Program, California, and Dr. Brian Shaw of Toronto Hospital and the Hospital for Sick Children,

to direct and oversee the Program. Drs. Lewis and Shaw have extensive experience in treating

substance abuse, including among professional athletes, and have served as the Program Doctors since the inception of the Program in 1995. 2Our belief that steroid use is not desired by or prevalent among skilled hockey players is

seemingly confirmed by the fact that there have been only eight positive results in the approximately 3,100 tests of NHL and non-NHL players administered at the World Hockey Championships (conducted by the International Ice Hockey Federation (‘‘IIHF’’)) since 1993/94.

League Players’ Association (the ‘‘NHLPA’’) jointly negotiated, created, and agreed

to implement the NHL/NHLPA Program (Attachment 1 hereto). The Program was

designed to be a ‘‘comprehensive effort to address substance abuse among NHL

players and their families, to treat those with a substance abuse problem in a confidential, fair and effective way, and to deter such abuse in the future.’’ (Attachment

1, Section 1) In order to accomplish these goals, the Program contemplates and has

employed extensive education, counseling, inpatient and outpatient treatment, follow-up care, and where appropriate, punitive sanctions, up to and including permanent suspension from play.

Pursuant to the terms of the Program, players who are suspected of having a substance abuse problem, which could include a problem associated with the use of performance-enhancing drugs, can be referred for participation in the NHL/NHLPA

Program. (Players can also refer themselves into the Program.) A player who has

been referred to the Program is evaluated by the Program Doctors 1, who then determine what, if any, treatment is required for the player. The Program expressly provides that:

as part of treatment and follow-up care, players may be required to undergo

periodic substance testing at a frequency and on a schedule to be determined

by the doctors. Such testing may take place both in-season and during the offseason. (Attachment 1, Section 3D)

The Program also incorporates an important educational component, which mandates that the Program Doctors:

meet with the players on each team at least once each year to review issues

relating to substance abuse....The education program will include instruction

on the risks of alcohol and drug use, how a player can help teammates who may

have a substance abuse problem, how to deal with high risk situations involving

alcohol and drugs, and how a player and his family can obtain assistance under

this program.

(Attachment I, Section 3) This provision reflects the comprehensive nature of the

Program, and the belief of the NHL and the NHLPA that education regarding

drugs, including performance-enhancing drugs, is one of the most effective tools in

preventing substance abuse. Pursuant to our mandate, and in response to the issues

that have surfaced in professional sports generally over the past several years, the

Program Doctors developed educational materials specifically relating to the dangers

of steroid use and presented these materials to the players on at least four different

occasions in the recent past. A representative sample of the educational materials

prepared and presented to the players regarding the use of steroids is provided as

Attachment II.

As a historical matter, the players who have been treated under the Program

have exhibited problems associated with alcohol and/or ‘‘recreational’’ drug use,

rather than steroid (or steroid precursor) or performance-enhancing use. The experience of our Program in this regard is not surprising when one considers that primary of the alleged benefits of steroid use—significant large muscle development—

generally is not consistent with playing hockey at the highest levels of the sport,

and the resulting bulkiness attributable to steroid use simply is not a desired characteristic of skilled NHL players.2 Nevertheless, in the event NHL players were to

exhibit symptoms associated with abuse of performance-enhancing drugs, the Program, even as currently designed and written, is broad enough in scope to provide

treatment (and if appropriate, discipline) for such players and the Program Doctors

are empowered to intervene on that person in any manner they feel is appropriate.

In addition, the Program Doctors have, over the ten years they have administered

the Program, developed relationships and gained the trust of those who are in the

best position to know what players may be using—i.e., Team Physicians and Team

Athletic Trainers. In the event the Program Doctors were to suspect an emerging

problem among NHL players with the use of performance-enhancing drugs, or were

to otherwise be advised of such concerns by the Team Physicians or Team Athletic

Trainers, pursuant to the express terms of the Program, the Program Doctors are

empowered to develop even more focused and extensive educational and training

41

3 In connection with international competitions in which NHL players have participated over

the past ten years, the Program Doctors, along with the USOC, administered the pre-competition drug testing for the Olympics, and the IIHF and the IOC administered the in-competition

testing. The Program Doctors administered the out-of-competition and in-competition testing for

the World Cup of Hockey. The IIHF also administered the in-competition testing for the World

Championships. With respect to the tests administered by the IIHF, the IOC and the USOC,

it is our understanding that no NHL player had a positive test result for performance-enhancing

drugs; however, we do not have access to specific data or testing results.

programs relating to the risks and other concerns associated with performance-enhancing drugs. Moreover, heightened awareness at the Club level would no doubt

translate to performance-enhancing drug-related referrals to the Program.

DRUG TESTING OF NHL PLAYERS IN INTERNATIONAL HOCKEY COMPETITIONS

The frequent and consistent participation of NHL players in international competitions, and the drug testing NHL players undergo in connection therewith, objectively supports our view that the use of performance-enhancing drugs by NHL players is negligible, to the extent it exists at all. Over the past ten years, NHL players

have represented their nations of origin annually in connection with the IIHF World

Championships, twice in Olympic competitions in 1998 and 2002, and just this past

year in the 2004 World Cup of Hockey, which the NHL and the NHLPA organized

and sponsored. In connection with such international play, the NHL and its players

are held to and abide by the strict international standards of the World Anti-Doping

Agency (‘‘WADA’’), which have been adopted by the IIHF.

In the past ten years, of the nearly 1,000 NHL players who have participated in

the IIHF World Championships, the Olympics, and World Cup of Hockey competitions, and were subject to drug testing in connection therewith, we are aware of only

three positive tests for performance-enhancing drugs.3 Of the three, one of the players tested positive for salbutamol, a drug that is also used for asthma as a Proventil

inhaler, and which may be used with a Therapeutic Use Exemption. A second player

tested positive for tramadol, a substance that is designated as an ‘‘allowed narcotic’’

(i.e. a prescribed painkiller). The third player established a ‘‘mistaken use’’ defense

in connection with his use of over-the-counter nutritional supplements.

NHL/NHLPA INTENTIONS REGARDING FUTURE TESTING FOR PERFORMANCE-ENHANCING

DRUGS

Despite our conviction that, as a general matter, performance-enhancing drugs

are not an issue in the NHL, the NHL and its Players’ Association recognize the

need for a modernized drug testing and doping control policy that will be specifically

directed to the prevention of performance-enhancing drugs in our sport. Fans in particular, and the public at large, are entitled—and deserve—to have confidence that

our games are being played in a steroid-free environment. Accordingly, on a goingforward basis, and in conjunction with a new CBA, the NHL and the NHLPA anticipate putting into place a new Program that will feature, in addition to enhanced

and focused educational efforts, frequent and random no-notice testing coupled with

immediate and mandatory discipline for the proven use of performance-enhancing

drugs. Although the precise details of the new Program directed specifically toward

the prevention of performance-enhancing drug use have not yet been finalized, on

the basis of our communications to date, the NHL is satisfied that the NHLPA

shares our desire and commitment to design and implement a Program to deal effectively and meaningfully with these serious issues.

H.R. 1862, THE DRUG FREE SPORTS ACT OF 2005

The National Hockey League has reviewed the proposed Drug Free Sports Act of

2005 and, as stated above, is supportive of a program featuring mandatory testing

and discipline imposed in connection with an athlete’s use of performance-enhancing

drugs. The NHL remains of the belief that, given the commitment the NHL shares

with the NHLPA to implement a mandatory and effective Program to eradicate the

use of all performance-enhancing drugs from our game, we do not see a need for

the proposed legislation as it would relate to the NHL. However, should Congress

decide to proceed in this area and legislate along the lines that this proposed legislation would contemplate, the NHL’s specific comments regarding the provisions of

the proposed legislation are directed toward the rules requiring mandatory testing

for athletes (Section 3), and the provision regarding exemptions (Section 4), and are

as follows:

• Section 3(1) of the proposed legislation provides for ‘‘each athlete [to be] tested

a minimum of once each year that such athlete is participating in the activities

42

4See 49 C.F.R. § 40.137 (2003) (Department of Transportation Procedures for Transportation

Workplace Drug Testing Programs).

organized by the professional sports association.’’ It is our recommendation, at

least with respect to NHL players, that each athlete be tested a minimum of

two (2) times per season. • Section 3(1) further provides that the ‘‘tests shall be conducted at random

throughout the entire year and the athlete shall not be notified in advance of

the test.’’ With respect to NHL players, we would recommend that each team’s

entire roster of players be tested at the same time during the NHL season, on

a no-notice basis. (As a technical matter, no-notice team-wide testing would not

be considered ‘‘random’’.) The players could also be subject to random testing

during the off-season. • Section 3(2) provides that each athlete shall be tested for the substances:

(A) determined by the World Anti-Doping Agency to be prohibited substances;

and

(B) determined by the Secretary to be performance-enhancing substances for

which testing is reasonable and practicable.

As you may know, the World Anti-Doping Agency has two separate lists of prohibited substances: an out-of-competition list and an in-competition list. The in-competition list tests for many categories of drugs that are not identified on the outof-competition list, including marijuana and stimulants that the NHL believes

should be included in a drug-testing program for NHL players. For this reason, the

NHL favors application of the in-competition list for NHL players.

With respect to Section 3(2)(B), we look forward to obtaining a better understanding from the Secretary as to what the provision is intended to cover so that

we can provide further comments, if any. • Section 3(3) of the proposed legislation provides that ‘‘tests shall be administered by an independent party not affiliated with the professional sports association.’’ We agree, and in fact, our Program currently operates in accordance with this

approach, as has the testing performed in connection with the participation of NHL

athletes in international competitions, as described above. • Section 3(4) of the proposed legislation provides that a positive test shall result

in the imposition of a suspension and public disclosure of the test result, subject to

the determination made pursuant to an appeal. The NHL agrees that it would be

appropriate to issue a suspension and publicly disclose the name of an athlete who

has tested positive for the use of a performance-enhancing drug, but believe that

prior to such suspension and disclosure—and even in the event an appeal is not

filed—it would be prudent to implement a process that would require a medical review officer to contact the player who tested positive to determine whether there

is an legitimate medical explanation 4 for the player’s use of the banned substance.

If so, and the player has a proper medical prescription authorizing the use of the

substance, the positive test results should be considered cancelled and penalties

should not be imposed. If, however, a legitimate medical explanation for the player’s

use of the banned substance does not exist, it would then be appropriate to impose

a suspension and make the positive test results public, in addition to providing

counseling and treatment. • Section 3(4)(A) of the proposed legislation provides for a minimum suspension

of two (2) years for an athlete who tests positive, and for the permanent suspension

for an athlete who tests positive more than once. The NHL agrees that a player who

tests positive for performance-enhancing drugs should be subject to a significant

punishment, and further agrees that progressive discipline should be imposed for a

player who tests positive more than once. We would, however, like to further discuss

with the Subcommittee the merits associated with the specific proposal to impose

a two-year ban for a first-time offender and a lifetime ban for a second-time offender. We do, however, agree, that at some point in time a lifetime ban would be

an appropriate sanction for a repeat offender. • Section 3(5) of the proposed legislation provides for an internal appeals process. We agree this is a necessary component of any mandatory drug testing program. • Section 4 of the proposed legislation provides that the Secretary may exempt

from the regulations promulgated pursuant to section 3 any professional sports association that has previously adopted and implemented policies and procedure for

testing athletes for prohibited substances that meet or exceed the requirements of

such regulations.

The NHL notes that it may also be appropriate to issue an exemption for subsequently adopted policies, as long as they meet or exceed the requirements of the regulations.

43

The public is entitled to have confidence in the integrity of competition in the

game of hockey and in all professional sports, and to watch the exceptional athletes

of today compete on a level playing field, free of the influence of performance-enhancing drugs. Every professional athlete serves as a role model, and with that

comes a corresponding responsibility to engage exclusively in conduct that will bring

honor to himself, his team, or the game in which he earns his livelihood. For these

reasons, we support the requirement that the NHL and the other professional sports

leagues conduct mandatory testing on athletes for performance-enhancing drugs.

Mr. STEARNS. I thank the gentleman.

Mr. Goodenow.

STATEMENT OF ROBERT W. GOODENOW

Mr. GOODENOW. Thank you.

Mr. Chairman, members of the committee, my name is Robert

Goodenow, and I serve as Executive Director and General Counsel

of the National Hockey League Players Association.

I appreciate the opportunity to provide this committee——

Mr. STEARNS. Mr. Goodenow, would you hold for 1 second? I

think what we are going to do, for the members, is I think we will

listen to his, and then we will take a break to go vote. And how

many votes are there? There are possibly two votes, and so we

come—I think what we will do is go to questions and see if we can

get moving so you folks wouldn’t have to stay through lunch. So we

will all, the members, come back after we vote, and then we will

continue with questions.

So continue your opening statement.

Mr. GOODENOW. Thank you.

As I said, I appreciate the opportunity to provide this committee

with our perspective on the proposed legislation, H.R. 1862.

Given that this is the first opportunity to appear before your

committee, I thought it would be useful for me to spend a few minutes providing a background on how we have addressed substance

abuse and the use of steroids and other performance-enhancing

drugs in our sport. And I will then provide some comments on your

proposed legislation.

However, before I address those two matters, I want to be clear

and emphatically state to the committee that the NHLPA membership, the officials in our organization, myself included, are strongly

opposed to the use of improper and unlawful performance-enhancing substances by anyone in our sport.

There are three main reasons for this position.

First, the NHLPA is keenly concerned in protecting its members’

personal health. Second, the NHLPA members want to protect the

competitive integrity and fairness of their sport. And third, because

NHLPA members are seen by young aspiring hockey players and

fans around the world as important role models, they want to leave

no doubt about their opposition to performance-enhancing substances and the possibility of their use of such substances.

Back in 1995, NHLPA and the League implemented, as Gary referenced, a Substance Abuse and Behavioral Health Program, and

the program was broadly designed to address any potential substance abuse by NHL players and their families and to treat those

problems in a confidential, firm, and effective way. And the program has incorporated education, counseling, inpatient, outpatient

treatment and testing, follow-up care, and where appropriate, puniVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6602 21640.TXT HCOM1 PsN: HCOM1
44

tive sanctions up to and including permanent suspension from

play.

To further your committee’s goal today to obtain information

through testimony in an efficient manner, I will avoid further describing the details of the programs pertinent design and operation

of the past 10 years. I will attest that the submission by the

League is accurate for all purposes.

Our program has worked with for what it was designed for. Both

the NHLPA and the League are pleased with its operation and results. However, over the past 10 years, and in particular in recent

years, the focus on the use of performance-enhancing drugs in sport

has dramatically changed.

Since the current version of our program does not include mandatory random steroid testing, our program and our sport, when

contrasted against other professional and international sports

groups, could be seen by some as void of the appropriate current

testing protocols. I acknowledge that we have work to do, work that

we will do, in order to bring our program up to appropriate current

standards.

We have been addressing the use of steroids. Gary has commented about the impact of testing on the international scene by

hundreds of our members. We are very proud of the fact that hockey has not had a problem, but that is not to stay that further steps

shouldn’t be taken to clarify and make very well known to the public and everyone involved in our sport that our sport is, in fact,

clean.

We have been fortunate to date without having any use of performance-enhancing drugs, but we understand in a going-forward

basis and in connection with any new collective agreement that we

are able to negotiate, we will be putting into place a program that

will feature, in addition to enhanced and focused educational efforts, appropriate, mandatory random testing with discipline for

the use of any performance-enhancing drug. Given the fact that we

are over 8 months into the Owners’ most recent lockout, which has

cost the sport the loss of an entire season, we are still without a

new collective agreement, the details of any new drug testing program have yet to be finalized. But I want to assure this committee

that we have a strong commitment to deal effectively and meaningfully with these important issues, and I understand you are looking

or a gold standard. I can assure you that the results of our negotiations will meet any one standard at any time.

I would like to address a couple of issues with the proposed legislation.

My initial comment, which is given with the greatest of respect

to the good intentions behind the proposed legislation, is that this

is an area that is best left to the professional sports leagues and

players associations to address through collective bargaining so

that the specific and different circumstances of each sport can be

taken into account. As I noted earlier, while we are currently focused on many issues in our collective bargaining, I am fully confident we will be able to agree on the terms of an appropriate and

effective program uniquely tailored to the sport of hockey.

Specifically, Section 3(2) of the proposed legislation outlines how

prohibited substances should be determined. The list of prohibited

45

substances should be developed on a basis that is relevant to the

particular sport and not simply by adopting the list formulated by

WADA for Olympic competitions. Some of the substances prohibited on the WADA list are not performance-enhancing and should

therefore not be tested for in this legislation. Further, the WADA

list bans substances for different sports and doesn’t distinguish between the different sports, so any reference to a WADA list would

have to be more specific.

Very importantly, Section 3(4) contemplates a penalty of a minimum 2-year suspension, and you have heard panelists here comment on that. Unlike the Olympics, which take place every 4 years

and are mainly a forum for amateur athletes, the National Hockey

League represents a career opportunity that can only be obtained

after many years of hard work and a substantial amount of good

fortune. A penalty of 2 years for a first offense is extraordinary and

an unreasonably long punishment. A 2-year suspension would seriously undermine any hockey player’s ability to resume his career,

and you could, therefore, in effect, be taking away the livelihood of

an individual on a first offense.

We agree that meaningful punishment should be a part of any

future program, however, we believe a lesser suspension——

Mr. STEARNS. Mr. Goodenow, I need you to sum up. We are about

6 minutes from the floor. We have to go vote, so I want to show

you courtesy. If you could, just sum up.

Mr. GOODENOW. We believe the initial suspension should be less

than that.

Also, in the area of due process in an athlete’s ability to appeal,

we believe that the enforcement provisions should afford thorough

due process opportunities. The legislation should provide for a

strict liability offense. There should be therapeutic use exemptions,

and I have other points that you can read in my submission.

Just to close, then, Mr. Chairman, I want to again share with

you the NHLPA’s members’ sentiment that they want to do their

part to maintain the public’s confidence that our sport is free of the

use of performance-enhancing drugs, and we are pleased to be here

before you today to answer any questions.

Thank you.

[The prepared statement of Robert W. Goodenow follows:]

PREPARED STATEMENT OF ROBERT W. GOODENOW, EXECUTIVE DIRECTOR, NATIONAL

HOCKEY LEAGUE PLAYERS’ ASSOCIATION

Mr. Chairman and Members of the Committee: My name is Robert W. Goodenow,

and I serve as the Executive Director and General Counsel of the National Hockey

League Players’ Association. I appreciate the opportunity to provide this Committee

with our perspective on the proposed H.R. 1862 Drug Free Sports Act of 2005.

Given that this is my first opportunity to appear before your Committee, I

thought it would be useful for me to spend a few minutes providing some background on how we have addressed substance abuse and the use of steroids and

other performance enhancing drugs in our sport. I will then provide my comments

on your proposed legislation.

However, before I address those two matters I want to clearly and emphatically

state to the Committee that the NHLPA membership, and officials in our organization including myself, are strongly opposed to the use of improper or unlawful performance enhancing substances by anyone in our sport. There are three main reasons for this position. First, the NHLPA is keenly concerned with protecting its

members’ personal health. Second, NHLPA members want to protect the competitive integrity and fairness of their sport. Third, because NHLPA members are seen

by young aspiring hockey players and fans around the world as important role modVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 21640.TXT HCOM1 PsN: HCOM1
46

els, they want to leave no doubt about their opposition to performance enhancing

substances and the possibility of their use of such substances.

NHLPA/NHL SUBSTANCE ABUSE AND BEHAVIOURAL HEALTH PROGRAM

In 1995, and in conjunction with our last Collective Bargaining Agreement

(‘‘CBA’’), the NHLPA and NHL jointly implemented the ‘‘NHL/NHLPA Substance

Abuse and Behavioral Health Program (‘‘Program’’). The Program was broadly designed to address any potential substance abuse among NHL players and their families and to treat those problems in a confidential, fair and effective way. The Program incorporates education, counseling, inpatient and outpatient treatment and

testing, follow-up care and, where appropriate, punitive sanctions, up to and including permanent suspension from play.

To further the Committee’s goal today to obtain information through testimony in

an efficient manner I will avoid further describing details of the Program’s purposes,

design and operation over the past 10 years. Instead I will refer you to the League’s

submission on the Program’s background because I understand the information they

have submitted to be accurate.

Our Program has worked very well for the purposes it was designed for. Both the

NHLPA and NHL have been pleased with its operation and results. However, over

the past 10 years, and in particular in recent years, the focus on the use of performance enhancing drugs in sport has dramatically changed.

Since the current version of our Program does not include random mandatory

steroid testing, our Program and our sport could be seen by some as ‘‘void’’ of the

appropriate current testing protocols when contrasted against other professional and

international sport groups. I acknowledge that we have work to do, work that we

will do, in order to bring our Program up to current levels. I will provide you with

the following two points to assist your perspective in understanding our sport’s past

approach on this issue:

1.) We have been addressing the issue of steroids. Our Program Doctors have developed and presented educational materials to the players specifically highlighting

the dangers of steroid use in at least 4 of the last 7 years. Our Program Doctors

have confirmed to us that there is virtually no steroid use in hockey which is not

surprising when one considers that the alleged benefits of such steroid use (enhanced bulk muscle mass) do not benefit elite hockey players. The purported benefits of steroid use are simply not applicable to skilled NHL players. This viewpoint

is strongly supported by the fact that, despite the absence of a regular or mandatory

testing program for performance enhancing drugs during an NHL season, we are

not aware of a single instance over the 10 years the Program has been in effect in

which an NHL player has tested positive for performance enhancing drugs during

any of the many International Ice Hockey competitions our players have participated in where there has been mandatory testing.

Specifically, in the past 10 years, hundreds of NHL players have participated in

the International Ice Hockey Federation World Championships, the 1998 and 2002

Olympics and the 2004 World Cup of Hockey Competition. These NHL players were

subject to the drug testing protocols in connection with their participation in these

events. These protocols utilized a substance list and testing procedures equivalent

to the current WADA Code. We are aware of only 3 positive tests for performance

enhancing drugs. Of these 3, one of the players tested positive for Salbutamol, a

drug that was being used for asthma as a Proventil inhaler and may be used with

a therapeutic use exemption. A second player tested positive for Tramadol, a substance which is designated as an ‘‘allowed narcotic.’’ The third player established

a ‘‘mistake in use defense’’ in connection with his use of over the counter nutritional

supplements.

2.) In short, we have been fortunate to have no issue to date with any use of performance enhancing drugs by hockey players. Having said that, our Association and

the NHL do recognize the need to include a new drug testing policy that is specifically directed at performance enhancing drugs. On a going forward basis, and in

connection with any new Collective Bargaining Agreement which we are able to negotiate, we will be putting into place a program that will feature, in addition to enhanced and focused educational efforts, appropriate random testing coupled with

mandatory discipline for the use of any performance enhancing drugs. Given the

fact that we are over eight months into the Owners’ most recent lockout, which has

cost the sport the loss of an entire season, and are still without a new collective

agreement, the details of any new drug testing program have yet to be finalized.

I can give this Committee my complete assurance that our new Program will have

a strong commitment to deal effectively and meaningfully with these very important

issues. We fully recognize the importance of an effective Program. The players I repVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6621 21640.TXT HCOM1 PsN: HCOM1
47

resent see no place for the use of performance enhancing substances in our sport

and are sensitive to their position as role models to many aspiring hockey players

and fans around the world.

COMMENTS ON H.R. 1862, THE DRUG FREE SPORTS ACT OF 2005

My overriding initial comment, which is given with the greatest of respect to the

good intentions behind this proposed Legislation, is that this is an area that is best

left for the individual sports leagues and player associations to address through collective bargaining so that the specific and different circumstances of each sport can

be taken into account. As I noted earlier, while we are currently focused on many

issues in our CBA negotiations, I am fully confident that we will be able to agree

on the terms of an appropriate and effective program uniquely tailored to the sport

of hockey.

Now, with respect to the specifics of proposed Act, H.R. 1862, the Drug Free

Sports Act of 2005, I would make the following comments:

Section 3(1) provides for random and no-notice testing. While any program we develop would contemplate random and no-notice testing, the scheduling challenges

faced by a professional hockey player and his team would have to be taken into account. For example, it can oftentimes take several hours to provide a urine sample

after a player has become dehydrated following completion of a hockey game. Travel

requirements to upcoming games will often require that players leave an arena

within one hour of completing a game to board a flight to their next city. There

should therefore be flexibility and practical parameters to testing protocols, such as

no testing on any game days to avoid any disruption that could occur to the entire

team’s schedule if a player were dehydrated and unable to provide an appropriate

sample for several hours.

Section 3(2) outlines how prohibited substances should be determined. The list of

prohibited substances should be developed on a basis that is relevant to the particular sport and not simply by adopting the list formulated by the World Anti

Doping Agency (‘‘WADA’’) for Olympic competitions. Some of the substances prohibited on the WADA lists are not performance enhancing and should therefore not be

tested for in this Legislation. Further, the WADA list bans different substances for

different sports and doesn’t distinguish between the different sports, so any reference to the WADA list would have to be more specific.

Section 3(4) contemplates a penalty of a minimum 2 year suspension. The penalty

of 2 years for a first offence is an extraordinary and unreasonably long punishment.

Unlike the Olympics, which take place every 4 years, and are mainly a forum for

amateur athletes, the National Hockey League represents a career opportunity that

can only be obtained after many years of hard work and a substantial amount of

good fortune. A 2 year suspension would seriously undermine any hockey player’s

ability to resume his career and you could therefore, in effect, be taking away the

livelihood of an individual on a first offence. We agree that meaningful punishment

should be part of any future program. However, we believe a lesser suspension for

first-time offenders, coupled with the negative public coverage such an individual

will receive, would have a significant effect on his future behavior and the behavior

of all players. There should be a range of penalties that takes into account whether

the athlete used a legal or illegal performance enhancing substance, with a more

severe penalty for any use of an illegal substance

The appeal process contemplated in Section 3(5) should be to an independent arbitrator and not to the League. All enforcement provisions should include appropriate

due process protections. In this regard, this legislation should not provide for a

strict liability offence. Regulations would have to be in place to ensure that the athlete was afforded adequate opportunity to advance a mistake in use defense or any

other appropriate defense, particularly where the regulations governing labeling on

nutritional supplements do not ensure that banned substances cannot be found in

certain supplements, even when its listed ingredients are carefully scrutinized by

the athlete before taking it. Furthermore, there should be specific provisions for

therapeutic use exemptions.

To close I want to again share the NHLPA members’ sentiment that they want

to do their part to maintain the public’s confidence that our sport is free of the use

of performance enhancing drugs.

Thank you for inviting us to appear today.

Mr. STEARNS. I thank the gentleman.

We will reconvene right after our two votes. The subcommittee

is in recess.

[Brief recess.]

48

Mr. STEARNS. We will reconvene, and we will start with questions. And we finished the first panel, and so I will start with questioning.

You know, just sort of a general comment as we start, we had

Commissioner Selig mention Tino Martinez of New York, and when

he said, ‘‘Whatever they want to do to get this out of the fans’

heads and clean up this game, I am all for it,’’ then of course you

had the President of the United States in the year 2004, in his

State of the Union Address, say: ‘‘Tonight, I call on team owners,

union representatives, coaches, and players to take the lead, to

send the right signal, to get tough and get rid of steroids now.’’

So we have the baseball players, we have the President of the

United States, and from what I hear from all of you today, you all

agree that we should get steroids out of professional sports. So that

is the easy part.

Now how do we do this? Obviously the bill I have is not going

to be agreed upon by everybody. I understand, Mr. Goodenow, how

you feel about it, and Mr. Foose, how you felt about it. One of the

sticking points appears to be the collective bargaining issue. And

Mr. Foose, you said that Congress should not interfere with collective bargaining, I think those were your words, if I am not correct.

Now obviously you know that steroid possession is a criminal offense. You know that, because of the Drug Abuse Act of 1988. It

seems to me Congress has a compelling interest in ensuring the integrity of competition and in compliance with Federal criminal law.

And you would agree with that?

Mr. FOOSE. Yes, I agree.

Mr. STEARNS. Now all security professionals are tested for drug

use, and those rules have the force of Federal law. So are you suggesting by your statement that Congress should allow collective

bargaining to be shielded from illegal activity?

Mr. FOOSE. No.

Mr. STEARNS. Well, I think you need to explain, because I think

we have established that we have a compelling reason to have the

laws obeyed, and yet you sort of indicated that the collective bargaining is such—that we should not, as Members of Congress,

interfere with that. And that is what the crux of, I felt, your argument is, so you might want to explain that.

Mr. FOOSE. Well, I think in this case, we have a collectively bargained agreement that does not, where there is no violation of law,

and in our case, the collectively bargained agreement, we think, is

a very good policy and has been successful in keeping performanceenhancing drugs out of our game, so we don’t believe that this is

a situation where Congress should reach in and override substantive provisions of our CBA. You know. I guess I——

Mr. STEARNS. But you are saying now that Congress could interfere if they felt——

Mr. FOOSE. If there were illegal activity, I——

Mr. STEARNS. Do you think there has been any illegal activity in

professional sports dealing with steroids in the last 2 or 3 years?

Mr. FOOSE. I don’t know the answer to that.

Mr. STEARNS. Okay. Mr. Fehr, you know, the comment he made

about Congress should not get involved with collective bargaining,

we should not interfere, and this, obviously, one of the Democrats

49

has indicated that is a concern, and so I would like you to address

that. Don’t you think we have a right, when we think there is

criminal activity, to be involved?

I just need you to turn your microphone on.

Mr. FEHR. Thank you.

Let me respond in a couple of ways.

First of all, players are certainly not above the law, as I indicated, neither should they be below it. Prosecution of individuals

involved in illegal and illicit drug use, possession, sale, transfer

should be the same for professional athletes as it is for everybody

else. The question is whether or not, when it comes to activity at

the workplace and relationships at work, those things ought to be

determined apart from whatever the criminal law does by the people that are involved in bargaining them, and that is what the

labor law is designed to do. And we think that it has worked, and

we think that it will work.

Having said that, you know, obviously, subject to constitutional

limitations, it is up to the Congress to determine what the most appropriate way to proceed is.

Mr. STEARNS. Let me ask the same question I asked to Mr.

Foose. The last 4 or 5 years, do you think there have been steroids

in baseball?

Mr. FEHR. Oh, of course.

Mr. STEARNS. Okay.

Mr. FEHR. The testing has so indicated.

Mr. STEARNS. Okay. Do you think your policy to detect these

steroids has been rigorous and sound and forceful in the last 3 or

4 years?

Mr. FEHR. I believe that——

Mr. STEARNS. Just yes or no.

Mr. FEHR. [continuing] what we began in 2003 and then again

in 2004, yes, it has, and the data indicates it. The first testing was

in 2004 with penalty.

Mr. STEARNS. I mean, I am just saying, you know, I am not a

professional in this area of testing for steroids, but I think most of

us would agree that nothing would have happened unless Congress

had stepped up to the plate and said, ‘‘We are going to do something unless you do something.’’ So now we seem to be moving, but

it seems like we have this collective bargaining chip that has been

thrown out there that Congress has no right to interfere, and then

I think this Fourth Amendment has also been brought up as a possibility that we don’t have the right because you are secure in your

homes.

So Mr. Shorter, I would ask you a question. These folks have

said that they want to use the Fourth Amendment to say that we

have no right to ask for random testing of these professional athletes and that they should not have to comply because of the

Fourth Amendment right. What is your opinion on that?

Just turn your speaker on.

Mr. SHORTER. There are professional athletes already, as has

been mentioned here, in professional hockey and professional basketball, when they decide they want to compete in the Olympic

games for the year before, they are subject to testing by USADA

and then internationally. And so these professional athletes, who

50

have been in the Olympics, have already been part of the program,

and there haven’t really been objections. So USADA has dealt with

pro athletes already. I mean, they have been part of the process already.

Mr. STEARNS. And we have——

Mr. SHORTER. And there haven’t been any complaints about, you

know, intrusion and violation, because I think what you forget here

again is that you are protecting the rights of clean athletes. And

I will tell you, when a clean athlete gets a knock on the door, they

are smiling.

Mr. STEARNS. Yes.

Mr. SHORTER. And they are saying, ‘‘Come on in.’’

Mr. STEARNS. And in professional tennis, we do it without any

problems.

Mr. SHORTER. Yes.

Mr. STEARNS. I have never heard them complain about collective

bargaining or complain about the Fourth Amendment.

Mr. SHORTER. And professional cycling. All of the professional cyclists who are American who are competing overseas are subject to

the international WADA testing requirements.

Mr. STEARNS. Okay.

Mr. FEHR. Mr. Chairman?

Mr. STEARNS. Yes.

Mr. FEHR. Mr. Chairman, may I just make a brief remark?

Mr. STEARNS. Sure. Sure.

Mr. FEHR. I want to make sure everybody understands what my

position is.

With respect to matters that employees agree to individually and

collected bargaining or otherwise, you don’t have Fourth Amendment issues. My law school training tells me that that issue arises

when the government either insists upon or conducts a search.

That is where it applies. And the point of my comment was not to

suggest that I necessarily know the answer with respect to the legislation, but to indicate that it is an issue out there which needs

to be carefully looked at.

Mr. STEARNS. But you admit that it has been carefully looked at

in other professional sports adequately?

Mr. FEHR. No, I don’t think so, and the reason why is I am not

aware that in the other professional sports——

Mr. STEARNS. Like in tennis or in other cases you think that it

is still up in the air, in your mind?

Mr. FEHR. No, I must not be being clear. Let me try once again.

In the other sports, I am not aware that that testing is mandated

by the Federal Government. It is the insistence upon a search by

the government without cause, which raises the Fourth Amendment issue.

Mr. STEARNS. My time has expired.

Ranking Member Schakowsky.

Ms. SCHAKOWSKY. Thank you.

This is clearly a tricky issue, the question of whether or not at

all the Federal Government ought to intervene if it is a one-sizefits-all if we have to make exceptions for different sports on different things and where those are. But I want to make a couple

of comments.

51

One is, Mr. Selig, I know that you stepped up and made some

very strong suggestions on how Major League Baseball ought to

perform, and I appreciate that. But you also in your testimony, you

talked about it being equally important for us to send a message

to young people in America, and you talk about the partnership

with Partnership for a Drug Free America, so I just want to say

this, that all of the high-production value TV ads, all of the materials that are produced, in my view, will come to nothing if we

don’t set the example. And I know you weren’t talking about either/

or, but if we don’t stop the use of steroids and other drugs, performance-enhancing drugs in professional sports, then kids, not

just high school and collegiate athletes, but we are hearing about

it now in junior high school, are going to do that. So the most important thing, if we have to choose, it is certainly to clean up the

sports themselves.

And I just wanted to make that point.

Did you want to comment on that?

Mr. SELIG. I would like to.

Ms. SCHAKOWSKY. Okay.

Mr. SELIG. I agree with you. No. 1, they are not an either/or. We

are going to do both. There is question that not only do I agree

with you, but I believe in the last 3 or 4 months, and I said this

last week at the owners meetings and I would say it again here

today, that this is an integrity issue. Do I believe our program is

working? Yes, I do. I said that, and Mr. Fehr is right in characterizing that.

But we have issues that now transcend that. We have public confidence. We have integrity. And there should be no doubt left in

anyone’s mind that we have rid our sport of steroids. And to do

that, we have to toughen the penalties and do all of these other

things. The reason for all of the other programs, like the Partnership for a Drug Free America and all of the other programs, is to

at least continue the educational process in our schools and with

high school coaches. And we are working with the Taylor Hooten

Foundation just to educate people. But you are right; we lead by

example, and the example is to have the very toughest program we

can, which eliminates steroids from our sport.

Ms. SCHAKOWSKY. Thank you. I just think the worst of the options would be do as I say, not as I do, and as you said, we lead

by example, and I couldn’t agree with you more.

Mr. SELIG. I agree with you.

Ms. SCHAKOWSKY. Mr. Fehr, you were talking about how the

players are citizens and entitled to the same rights, but you do acknowledge that we distinguish. For example, someone who is over

18 years old can go to Las Vegas and bet on baseball, but a baseball can’t. And that is fair, in your view, right?

Mr. FEHR. That is something which is determined by the private

parties involved in bargaining. Whether that should be an issue addressed by the government is a separate issue. But certainly, players have agreed to that.

Ms. SCHAKOWSKY. So distinguishing, though, between the behavior of players and the rest of citizens’ rights, it is certainly within

the realm of possibility and in fact applicable.

52

Mr. FEHR. I am sorry for interrupting. And players do that frequently, yes.

Ms. SCHAKOWSKY. Right. And so it seems to me that, as a matter

of principle to say that what is right for the rest of us has to be

right for baseball players I think is not a principle we necessarily

need to follow.

But let me ask all of you——

Mr. FEHR. Can I——

Ms. SCHAKOWSKY. Oh, go ahead.

Mr. FEHR. I am sorry. I think that in any industry, and certainly

in baseball, the parties are free, and in baseball we do pay attention to the differences that relate to the sport and have a raft of

agreements that govern conduct relating to that sport that wouldn’t

necessarily appear otherwise. And parties are free to do that. I

think they do that pretty well, as I have previously indicated.

I think there is a separate question and that goes like this. It

is one thing to say we are involved in the sport and we govern ourselves by having these rules. It is quite something else to say that

a governmental entity prescribes one set of rules for one adult person and a different set of rules for another person where the safety

issues and all of the rest of it would appear to be similar. And that

is an issue, which I think bears a fair amount of scrutiny. I am not

sitting here telling you that I have all of the answers. I do mean

to tell you that I think it is an issue that needs to be paid attention

to.

Ms. SCHAKOWSKY. Let me ask you about the issue and go onesize-fits-all. And just to hear back from you where the problems

arise. Are they in the size of the penalties? Are they in the manner

of testing? I am concerned about that. I don’t necessarily want to

go there, but some testing to be better than others and more effective in finding the use of drugs. What are the problems with a onesize-fits-all that we might want to be thinking about?

Mr. GARBER. Well, I will take a lead here. Each sport has its different governing bodies, has its different idiosyncrasies, has its different relation——

Ms. SCHAKOWSKY. As specific as possible, because we have a——

Mr. GARBER. AS it relates to Major League Soccer, it is our

strong belief that our decision and our agreement with our union

to have the right to terminate a contract is a stronger deterrent

against a player’s decision to make that decision to use steroids

than to have that minimum of 2 years. A player could make that

decision that I will take the risk of losing 2 years. We believe by

having that maximum of a contract termination, it is a stronger deterrent. It also, by the way, gives us the ability to look at a very

young player pool and to look at each individual situation and

make a decision that is just. And there are going to be cases where

that minimum of 2 years is just too severe based on mistakes that

are made, inadvertent use that is made, lack of intent, tainted nutritional supplements, et cetera. So we believe the flexibility is

more effective, and in fact, that flexibility has proved, in our case,

to be very successful.

Ms. SCHAKOWSKY. Mr. Shorter, I wonder if you would answer

that as well. Maybe you don’t think there is a problem at all, and

I——

53

Mr. SHORTER. I don’t think there is a problem with the one-sizefits-all, because the whole Olympic movement is a myriad of sports.

The other thing that comes to mind immediately to me is, having

had 30 years experience in the performance-enhancing drug area,

having shared the locker room, and one point I would like to make,

you know, is the clean athletes have always known about the performance-enhancing drugs. Until about the year 2000, there was no

place for them to go. But it has been out there, so we have all been

educated as athletes over the years. And part of that education for

me is to realize that performance-enhancing involves not too many

drugs at any one time. In other words, the drugs that are being

used in all of these sports are the same drugs. And cheating with

them is cheating. It doesn’t matter what sport you are in. Basically,

it is steroids, human growth hormone, which you can—if you can

afford it, gets you by a steroid test, because those tests are just

now coming online, the blood enhancement drug, the stimulants,

but there isn’t much more out there, really, at any one time. The

pool of drugs being used by the cheats is not that broad. So to say,

‘‘Well, we have to have a specific program for a specific sport,’’ to

me, doesn’t seem to make sense.

With regard to the fairness of adjudication, I would like to say

that I think there is a misunderstanding with the idea of strict liability. Strict liability to USADA and WADA does not mean an immediate 2-year ban, because there is an initial probable cause

meeting held by experts to see if you are even going to have a hearing. At that hearing, there are mitigating circumstances in which

there is a history of penalties being reduced. And then through the

appeals, the arbitration process, the athlete has the further chance

to have that penalty mitigated.

So you can’t confuse strict liability, which means for that event

in which you tested positive, you are disqualified. But it does not

mean that you might not necessarily get a warning or that if, for

instance, you can prove that your drink was spiked by a competitor, you will have no penalty. So that misconception should be

cleaned up. So in other words, the fear that the penalty would be

too severe if it is 2 years hasn’t proven to have been the case internationally.

Ms. SCHAKOWSKY. Because the process leading up to that decision, you are saying?

Mr. SHORTER. Yes, because after the positive test and it gets into

that process, the hearing and appeals allow for mitigation of the

penalty. The rules allow for it.

Mr. STEARNS. The gentlelady’s time has expired.

Mr. Terry.

Mr. TERRY. Thank you, Mr. Chairman.

And I didn’t make an opening statement, but thank you for doing

this bill.

There is no doubt in my mind, however, Mr. Chairman, that you

wouldn’t have felt the need to draft 1862 or hold this hearing if it

was not for Major League Baseball and the decade of doping that

we have just hopefully completed. There is no doubt in my mind,

as a baseball fan, and by the way Mr. Selig and Mr. Fehr, my first

son’s name is Nolan and my second son’s name is Ryan, just to establish my love of Major League Baseball.

54

Mr. FEHR. We will pass that along.

Mr. TERRY. Thank you. And that the integrity of the game, as

Mr. Selig has mentioned, has been questioned. As a matter of fact,

I fall in the category of most baseball fans that feel that Major

League home run records should have an asterisk next to it. And

I also feel that there has been maybe some criticism on Mr. Selig

for not being hard enough to try and establish a ban of steroids

and penalties sooner, and certainly criticism of the Players Union

for resisting it for so many years. Most of us think that the only

way that you can clear the Major League Baseball fans’ minds of

the last decade and suspicions that any performance that is grand

in baseball today may be backed up by performance-enhancing

drugs. The only way to maybe clear our minds or give us confidence is by a harder stance, harsher penalties.

So I am frustrated that again it is the Players Union that is resisting this. In fact, when some of the players, I don’t know if it

is a majority or just a couple vocal folks, that support this. So I

would urge you and Major League Baseball to clean it up. Adopt

the harsher standards soon, and perhaps we wouldn’t need to go

through this particular hearing or adopt this particular legislation.

I want to know, though, Mr. Fehr, I have been told that even the

Players Union has gone so far to resist putting amphetamines onto

the list of banned substances, even though that is a very controlled

substance. Is that accurate that the Players Union has resisted

putting amphetamines on the list?

Mr. FEHR. I can give you the history of it very succinctly. It has

not been on traditionally. As you know, there have been rumors

and comment about that going back 25 or 30 years before I even

got to baseball. We dealt with steroids in 2002. Again, this last

time, the owners have indicated that when this agreement expires,

they want to talk about amphetamines. We have indicated that we

are prepared to do that. The Commissioner has indicated that he

would like to talk about it now. I have advised the players of that.

And among other things, we will be discussing that with them over

the course of the next several weeks.

Mr. TERRY. All right. I think that answers my question that this

will be an issue dealt with through collective bargaining, but I will

just tell you these type of drugs that are supposedly legal for Major

League players to use but are a controlled substance just further

undermines the confidence in the game by us fans. So I would encourage you to resolve those issues as quickly as possible so we

don’t have to take it up and pass a national policy in place of what

you fail to do.

I am curious. I am going to just go from Frank down at the far

end, a couple of yes or no questions. I am curious whether 1862,

our Chairman’s bill here, is it more restrictive or less restrictive or

about the same as the current drug policy for the organization that

you represent.

Frank, will you start?

Mr. SHORTER. It is equal to, but not as well delineated, because

it is not in its final form. So I am not hedging on the answer, I

am saying the theory. And as Mr. Stearns, the chairman, pointed

out at the start, the USADA model tended to be the model used,

the outline, I would say, to be used. And so I would say it is the

55

equal in theory and in hope, but not in practice, because the advantage of having the WADA code and the testing procedures and everything else that we had is that we have dealt with a lot of problems and a lot of the loopholes that have to be closed in order to

have something that covers all areas. So the answer is yes, as an

outline.

Mr. TERRY. All right. Fair enough. And realize there will be a lot

of regulations to fill in the gaps.

But Mr. Garber?

Mr. GARBER. Equal to.

Mr. TERRY. Next?

Mr. FOOSE. I would agree.

Mr. TERRY. Equal to in Major League Soccer.

Mr. Selig?

Mr. SELIG. The——

Mr. TERRY. I think we know the answer, but——

Mr. SELIG. Yes, you do know the answer. It is clearly much more

restrictive and even more restrictive than the proposal that is on

the table that I have just made.

Mr. TERRY. Very good.

Mr. FEHR. In most respects, it is more restrictive; in some, it is

not. For example, the testing, what we already have is considerably

more frequent.

Mr. BETTMAN. It is more comprehensive than what we have had

in the past, and it is probably in line with where we anticipate

being when we have a new collective bargaining agreement.

Mr. GOODENOW. It is clearly more restrictive than the one we

have lived under, and it is, as I said in my comments, stronger in

a couple of areas than I would agree to, frankly, as being appropriate for our sport going forward.

Mr. SHORTER. Mr. Chairman, I will have to revise my yes. Mr.

Chairman, I have to revise my yes in that the frequency of testing.

It calls for one, and part of the effectiveness of USADA is the athletes, particularly the cheaters, never know how many times,

where, when, how, and so in numbers of tests, USADA’s testing is

more——

Mr. STEARNS. If the gentleman would just yield for a clarification.

Mr. TERRY. Yes.

Mr. STEARNS. I think the bill is saying that at least one. It can

be more than one or two.

Mr. SHORTER. Oh, well, that is okay then.

Mr. STEARNS. So it says at least one.

Mr. SHORTER. Okay.

Mr. TERRY. Very good. And I will yield back my time except with

the last comment to Mr. Bettman and Goodenow. The chairman

and I will be available for you two after this hearing to resolve the

NHL labor dispute.

Mr. BETTMAN. On behalf of Bob and I, we appreciate the generous offer and note that if it were that easy, it probably would be

done.

Mr. TERRY. Granted. I yield back.

Mr. STEARNS. I thank the gentleman.

Mr. Rush.

56

Mr. RUSH. Thank you, Mr. Chairman.

My first question is addressed to both Mr. Selig and Mr. Fehr.

In my opening statement, I voiced my concern over the fact that

all of the players who baseball has publicly disclosed as violating

the new policy are relatively obscure players and the vast majority

of them are Latino or African American. Do you have an opinion

or an explanation for why this is so, both of you?

Mr. FEHR. I can give you an impression that I have. I don’t know

that we have enough data yet to have the opinion which is grounded more firmly than that. The impression is two-fold.

First of all, I think the program is working, and that is why you

don’t see, you know, many more players, and that is why you don’t

see established players. I think second, we have always been concerned that when you get into testing for substances, which are

freely available, sometimes legally, sometimes not otherwise, in the

countries from which a lot of our players come and spend the winter where the manufacturing standards are not there, the labeling

requirements aren’t there, that there is possibility for confusion

and mistake. And one of the things that we have to do, we have

talked about it internally, is to make sure that our educational efforts for the Latin American players, in particular, are upgraded to

the point where whatever the cause is it isn’t for lack of information.

Mr. SELIG. Congressman, there has been, over the last 6 or 8

months, and maybe even longer than that, an educational process

both by the Players Association and by the clubs in terms of spring

training, in terms of videos. Agreements are done in both Spanish

and English, so there has been a very conscientious attempt, and

I note with some interest that some of the Hispanic players have

said that they don’t really believe there is a valid excuse. I don’t

have enough data, either, but I would tell you there have been ongoing educational programs so that I would hope, at this point, that

anybody who is taking these things really has been told and has

been told, really, time and time again.

Mr. RUSH. Mr. Selig, I have a question for you and additional

question that others may comment on as well.

I believe that tough penalties should result from tough testings.

And my understanding is that one of the real flaws in the current

steroid testing, frankly in all of the professional sports, is that

urine sampling does not adequately pick up all of the performanceenhancing substances, particularly, as was mentioned earlier,

human growth hormones. And according to Dr. Gary Waddler, a

New York University professor and a member of the World AntiDoping Agency, only a blood test can detect human growth hormones, and this is why the Olympics require blood testing in addition to urine sampling.

Why don’t baseball and the other major sports use blood tests?

Mr. SELIG. It is my understanding, and I have heard Dr. Waddler say that, but I think given the fact that we are using the best

labs that there are, one in Montreal and one in UCLA, and the fact

that we believe that we have stayed ahead of the curve, and I

would also say that I have been told by experts in the field that

that is a bit of a fallacy that the blood test is not foolproof at this

point in time, and so I think that as we get more sophisticated in

57

this area, there is a feeling that there will be a urine test that

hopefully in a short period of time, whatever that short period of

time, that we will detect that, and I think that is where we are

headed in this direction. It isn’t that we don’t want to be there, but

I think it is a question of staying ahead of the curve and that the

blood test is not foolproof, and I think that is one of the great reasons they are not using it. And hopefully, as I said, they are in the

process of developing a urine test, which will pick that up.

Mr. FEHR. If I could just add to that.

It is my understanding that the urine testing for all of the

steroids is about as good as it gets. Second, with respect to human

growth hormone, we have been advised by the people at the Olympic lab in Montreal specifically, because we asked after the March

17 hearing before Government Reform again to make sure we were

right, that there is no generally accepted test for human growth

hormone. There was an experimental test done with a limited

amount of material that a research had developed at the Olympics

last year that they hoped to have available testing some time later

this year, and we have committed to look at it, and as soon as

there is a reliable test, to implement it as part of our program.

Mr. STEARNS. I thank the gentleman.

Ms. Blackburn.

Ms. BLACKBURN. Thank you, Mr. Chairman. And I thank the

panelists for being with us and for staying with us this morning.

Mr. Shorter, I just want to say thank you to you. I appreciate

the role model that you have been. I have a son who is a runner

and a husband who is a runner, and I remember the 1976 Olympics very well.

Mr. SHORTER. Thank you.

Ms. BLACKBURN. And I certainly shared some of the pain that

came through that as we watched.

Let me ask you this. Sitting here today, and you have got commissioners and union representatives that are sitting next to you.

Do you think they are ever going to coordinate to create anything

that is even close to the WADA rules without Congress forcing

them to do so?

Mr. SHORTER. I honestly don’t know. I am just very appreciative

of the fact that USADA was invited to be here, because one of our

goals when we started in 2000 was to set up a truly independent

entity with no conflict of interest and to hopefully get to this point

where it could be an example of success, because at the international level, as I said in my opening remarks, in the 1990’s, the

United States was viewed by the world sporting community as possibly the worst of offenders. Now this program works, and it is

there to be used by others, if they so choose.

Ms. BLACKBURN. Okay. Now let me ask you one other quick

thing.

Professional athletes that participate in the Olympics, like the

1992 Dream Team, are they subjected to the same testing procedures and penalties as amateur athletes?

Mr. SHORTER. Yes, for that 1-year period.

Ms. BLACKBURN. They are. Okay.

Mr. SHORTER. They have to agree to be subject to the testing.

58

Ms. BLACKBURN. All right. For that 1-year period. Thank you for

that.

Mr. Fehr, you have got an interesting background. For a guy out

of the Midwest, I guess you have played some baseball in your day.

Mr. FEHR. Oh, I tried, but——

Ms. BLACKBURN. What position did you play?

Mr. FEHR. [continuing] that was the reason I went to law school

rather than become a baseball player.

Ms. BLACKBURN. All right. What position did you play?

Mr. FEHR. Usually first base on the theory that that was the

most harmless one.

Ms. BLACKBURN. Okay. Left-hander?

Mr. FEHR. No.

Ms. BLACKBURN. No. All right. Okay. You have got four kids.

Mr. FEHR. I do.

Ms. BLACKBURN. All right. When you talk to them about drug

use, how do you square your position with the Players Association

and with the role model that you would like to see your children

have?

Mr. FEHR. I tell my kids what I tell the players when it comes

to personal advice, which is you don’t take anything under any circumstances that a doctor does not prescribe for you to take.

Ms. BLACKBURN. So you separate the two?

Mr. FEHR. What I say is that there are agreements, there are

issues that have to do with the propriety of searches under certain

circumstances and what level of discipline is appropriate——

Ms. BLACKBURN. Yes.

Mr. FEHR. [continuing] and that has to be worked out in that

fashion. What I tell players personally, if a player says, you know,

‘‘What do you think about those things?’’ is the same thing that I

told my children. But just as our children, when they become

adults, make their own decisions, all adults do.

Ms. BLACKBURN. Well, you know, as a parent, sometimes those

of us who have children that are watching the game, we can’t separate those two like that.

Let me ask you this. You spent 7 years advising the Olympic

Committee, is that correct, working with the Olympic Committee

from 1996 to 2003?

Mr. FEHR. I think that is right. I am not sure if the dates are——

Ms. BLACKBURN. Yes. Did you agree with their drug-testing policy?

Mr. FEHR. I took no part or participation in any drug testing or

substance abuse——

Ms. BLACKBURN. So you separated those two, also?

Mr. FEHR. No, I did, because——

Ms. BLACKBURN. Okay.

Mr. FEHR. [continuing] I represented people that may have a conflicted interest, and I did not believe it was appropriate for me to

do so.

Ms. BLACKBURN. Okay. All right. Let me ask you about this.

There is an article from the San Jose Mercury News, a Victor Chai

article. Are you familiar with that one? And it is on their website.

And it references a comment that Bob Costas made where he felt

that you were spectacularly misguided in regards to your approach

59

on the steroid issue, and he seems to elude that if you had addressed the issue appropriately that there would be no Congressional investigations on steroids in baseball or in any of the other

professional sports. And as referenced by the letter sent by Mr.

Selig and several articles that I have read, many players have

stepped up and said that they want increased penalties for steroid

offenses. I think they just want to get this over with. And players

that are clean, as Mr. Shorter said, you know, they just open the

door and say, ‘‘Come on in.’’ They have got nothing to hide.

So it seems that you might be one of the few people in the world

that thinks that baseball’s current penalties are tough enough. So

I have to ask you, are you spectacularly misguided in your approach to this issue and to the legislation?

Mr. FEHR. I have not seen the comments of the article to which

you refer.

Ms. BLACKBURN. I have them with me. I will be happy to supply

it to you.

Mr. FEHR. And I don’t, as a matter of practice, comment on what

media personalities say.

In answer to your question, the reason I believe our program is

working is the same reason the Commissioner does, and that is

that the data indicates that it does. The incidents of use fell precipitously once the program was put in. If by your question you

mean to suggest that if the program had been put in at an earlier

time might we have seen those results earlier, I think it is, in hindsight, it is likely that we would have.

Ms. BLACKBURN. Okay. Okay. Then if you are not misguided, is

it the Major League players who are pushing you to keep the penalties where they are or is it you that is pushing to keep these penalties where they are?

Mr. FEHR. In my job, first of all, what I am is a representative,

and my job is to attempt to forge a political consensus internal

within the union on any issues which are the subject of collective

bargaining. This has been an issue which was divisive. There have

been many players, for example, that have voiced the opinion that,

you know, if somebody can get a warrant, let them get a warrant.

There have been others that have gone the other way. And what

we did to break that situation was to agree on the year of survey

testing in 2003, which produced the penalties that we have in 2004

and the results we see now.

Ms. BLACKBURN. Okay.

Mr. FEHR. I expect that that dialog will continue.

Ms. BLACKBURN. Well, my hope is that the dialog will continue

and that action will be following very quickly and that the issue

is not going to linger. And the hope is that you will seriously respond to Mr. Selig’s concerns into the reform options that are listed

in the April 25 letter.

And Mr. Chairman, if those items are not submitted into the

record, I would like to submit those to the record, the letter of April

25 from Mr. Selig to Mr. Fehr and then Mr. Fehr’s response that

followed shortly after that.

Mr. STEARNS. By unanimous consent, so ordered.

Ms. BLACKBURN. One other quick question before my time does

expire. The World Baseball Classic that is going to be in March

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2006, and I have read that you have agreed to accept the WADA

standards for the World Baseball Classic. And if you oppose those

standards being used for Major League Baseball, then why did you

accept them for that event?

Mr. FEHR. The short answer is that with respect to that event,

first of all, your belief is accurate. They will be in effect. And that

was done in conjunction with the International Baseball Federation, which gave its sanction to allow people from various places

around the world to compete without consequences to their ability

to participate in other international competitions. That was done

outside of the ordinary collective bargaining process. It is a voluntary event. No players are obligated to participate.

Ms. BLACKBURN. I thank our witnesses.

Mr. Chairman, I yield back.

Mr. STEARNS. I thank the gentlelady.

Let us see. Mr. Towns, no. Mr. Bass, no. Mr. Ferguson, no. Ms.

Cubin.

Ms. CUBIN. I will pass.

Mr. STEARNS. The gentlelady passes.

Mr. Murphy.

Mr. MURPHY. Thank you, Mr. Chairman.

I want to follow up on some comments that were made about—

Mr. Fehr, you were talking about you might tell something different to your children than to players because they are adults.

I have spent my career as a psychologist working with kids and

many a child who has drug problems. What would you tell your

children that is different than telling adults, when it comes to

using drugs?

Mr. FEHR. I did not suggest that what I would tell my children

is different than what I would tell adults. In fact, what I meant to

say, and hopefully I did say, is that if a player asks me for personal

advice as to what his rights are, which is distinct, I tell him the

same thing that I tell my kids: ‘‘You don’t do anything a doctor

doesn’t tell you to do with good and sufficient reason.’’ What I did

say is that adults make their own decisions.

Mr. MURPHY. Well, that is two different things. Do you give your

kids five chances if they say they want to experiment with drugs?

Mr. FEHR. I don’t throw them out of the house, but the answer

is it has never come up in my house.

Mr. MURPHY. Please answer the question. Would you give them

five chances if they wanted to experiment with a dangerous, deadly

drug?

Mr. FEHR. No.

Mr. MURPHY. Then that is a different response, isn’t it? You tell

your children something and you tell adults something different,

because I thought the Players Association liked five strikes.

Mr. FEHR. What the Players Association negotiated is what is

fairly standard in employer/employee agreements.

Mr. MURPHY. So if your kid came back to you and said, ‘‘But dad,

can I negotiate something that is fairly standard?’’ Or would you

say there are clear lines here on what is what should be done when

it comes to experimenting with dangerous drugs?

Mr. FEHR. I would not permit my kids, if I had anything to say

about it, to experiment.

61

Mr. MURPHY. Well, then I go to the next step here, and that is

that clearly baseball, as part of the business, that it tries to get

children to come to the games. Millions of dollars are spent every

year on souvenirs, handouts at games to give to kids to get them

there. We want kids to enjoy baseball, to look up to players. And

then I come back to this point, too, with a different message going

to kids versus adults, and that is for all of you who have kids. If

you found that your kids were hanging out with people who were

using dangerous drugs, would you tell them to stay away or would

you say, ‘‘I will give you five chances.’’

Mr. FEHR. The question is to me? You tell them to stay away.

Mr. MURPHY. To you, sir, yes, sir.

Mr. FEHR. Yes, you tell them to stay away.

Mr. MURPHY. So but yet, we say, ‘‘I want you to stay away, but

I want you to admire and spend money on and get baseball cards

of them and buy their bats with their signature on or the gloves

and look up to the people that we are going to give five chances.’’

How do you reconcile that?

Mr. FEHR. Congressman, two things, I guess, I would say.

First of all, I don’t believe that anyone who is identified as a

steroid user is likely to be one of those people that people are going

to emulate. I think it is going to be quite the opposite.

Mr. MURPHY. Well, we don’t know that yet.

Mr. FEHR. That is correct. We don’t. We have to see. Just as we

don’t know if I am right or if I am wrong that the program will

effectively deter use. We have to see that, too.

Mr. MURPHY. I guess what I——

Mr. FEHR. Second—I am sorry.

Mr. MURPHY. Go ahead. No, go ahead.

Mr. FEHR. I am sorry.

I have lost my train of thought. I apologize.

Mr. MURPHY. I am sorry I interrupted you.

I guess my concern is this in that when I have counseled parents

on issues with kids with drugs and alcohol, even such things as

parents coming up with this ludicrous reasoning and saying, it is

prom time this time of year, ‘‘We don’t want our kids to drive when

drinking.’’ So parents say that they will have alcohol at their house

and ask the kids to turn in their keys, but the message still comes

across that it is okay to drink and the parents will just supervise.

Well, it is a mixed message that comes through, and clearly we are

concerned about that, because it does send another mixed message.

I just want to bring up one more thing, because I am also getting

a sense here that among professional sports and maybe the players, they don’t think the government should be involved in this. Am

I correct on that?

Mr. FEHR. I think the players’ view can best be expressed that

they ought to be subject to the law to the same extent everybody

else is, no question about that. If someone else would be in trouble

with the law in similar circumstances, terms and conditions of employment should be negotiated in the way that they traditionally

are.

Having said that, let me make one thing absolutely clear. As I

indicated that I would do at the hearing a couple of months ago

and have in the past, players are aware of these proceedings. They

62

are aware of the views of yourself and the other members on the

panel. They are aware of the questions, and if they weren’t otherwise following it, we make sure they are aware. And they understand that it would not make a lot of sense to ignore what is going

on here.

Mr. MURPHY. Well, Mr. Chairman, along those lines, I mean, for

those who are concerned if government should be involved at all,

I was looking up some numbers here and found State and local

governments, and the Federal Government, too, have given some

$20 billion for building stadiums and arenas for professional sports.

And I never heard the Players Associations from any group saying,

‘‘No, we don’t want any government involvement.’’ I never heard

any owners saying, ‘‘We don’t want government involvement.’’ I

never heard any sports announcements. I mean, the general idea

was, ‘‘We think it is a good thing. Send lots of money.’’

I would hope that would be something the committee could also

look into. And I know you brought up the point, too, about jurisdiction in terms of violating the law, but it also seems to me that

there are two standards here that are being asked for. ‘‘Give us the

money to build the stadiums, but don’t watch what we do in the

stadiums.’’

Thank you, Mr. Chairman.

Mr. STEARNS. I thank the gentleman.

The full Chairman of the Committee, Mr. Barton from Texas.

Chairman BARTON. Well, thank you, Mr. Chairman.

Just on the point that we just had, in my District, I have the

Texas Rangers ballpark at Arlington that the voters of Arlington

voted a sales tax, which was paid off early. And these same voters

just voted another sales tax for a new stadium for the Dallas Cowboys, which is the NFL, which we are going to have later today.

So I think your point on that is well taken.

Again, I want to thank each of you gentlemen for attending voluntarily. We didn’t have to subpoena anybody, and I want the

record to show that it is appreciated that each of you came voluntarily. And we intend to work with you. We are going to have a legislative hearing on Congressman Stearns’ bill, and we do intend to

mark it up, which means amended and then reported out, and we

do intend to take it to the floor and then pass it on the floor, and

we then intend to work with the Senate so that we go to conference

and actually set a Federal law. And I know some of you have got

some questions about that, and I understand that.

My first question is to Mr. Shorter. First of all, we appreciate all

of the enjoyment and the inspiration that you have given our Nation over the years.

Mr. SHORTER. Thank you.

Chairman BARTON. I have been a big fan of yours. I have never

had the pleasure to meet you, but you and I are of the similar generation, so I am glad to see somebody here with a little gray in

their hair like me, except you have had a much better athletic career.

My question to you, sir: do you think that the standards that are

applicable to the Olympics and to some of the other international

sports can be made applicable to the major professional sports in

this country?

63

Mr. SHORTER. Yes, I do, because I think we really have come to

a point where you can’t promote a sport and police it. I think I

have heard that mentioned here before. And if you bear with that

standard all of the way along, you have to look for models as you

try to create a solution that create that situation, which is an entity that is totally independent, transparent, and has no conflict, and

the policing in a good way, which is promoting the rights of the

clean athletes to a level playing field. I mean, that is what we have

all mentioned here. And the standards are not that complicated.

You know, you have a uniform updated list of prohibited substances, which isn’t as complicated as people might think, because

it is really more a question of staying up with what is out there.

And I eluded before to where the clean athletes participate as

much as anyone in this, as evidenced by the THG BALCO scandal

where we got the syringe with the THG, retro-engineered it, and

found out. That is the process at work. When you have a truly

independent entity at work, the clean athletes feel they can go

there to help.

The other is to have the deterrent and effective sanctions, and

I think there has been adequate talk about that. And then the testing standards, both for how you test the athletes, in other words

the selection process for testing, isn’t totally random. The WADA

code, for example, does have an outline of just how you approach

the testing so that it is somewhere in between target testing and

totally random to be more effective. And I would submit that if you

don’t have a truly independent policing mechanism, there is always

the tendency to not follow that in terms of your testing. So you can

talk about out-of-competition testing, but there is more to it than

that.

And then the point being that it truly does have to be out-of-competition. And so if there is an area for discussion, it might be just

in all of the professional sports, for example, what is out-of-competition and what is in-competition, because the baseball is a very

long time. And that is a lot of in-competition. So you have to determine that.

So it is possible, and I guess the point I am making, in sum, is

there is a model. It is totally independent. It has no conflict of interest. And it is there for, you know, your benefit to examine and

for the people at USADA to answer everyone’s questions.

Chairman BARTON. Okay. My last question, this is to the players

representatives. We have players representatives from Major

League Baseball, from soccer, and from the National Hockey

League. I tried to listen, even though I wasn’t in the room, I was

in my Chairman’s office, and we had a TV set that I tried to listen

to each of your given testimony, and I have scanned it and read

it. The gist of your testimony, I think, is that you all would rather

there not be a national bill, but you are willing to accept that there

might be a bill, and your primary opposition, other than the Major

League Baseball’s constitutional question, the players rep, Mr.

Fehr, is that the 2-year ban is too long. Is that fair? The sanctions

part of the bill needs some work. Would that be a fair assessment

of the general tone of the players representatives’ testimony? Anybody?

Mr. FEHR. I will respond first, Mr. Chairman.

64

I don’t think you could summarize it down that finely. I think

that we have a lot of issues with the appeals process and otherwise, but let me just make, you know, this commitment to you as

this process moves forward. We will tell you exactly what we think,

where we think the problems are, and you will exercise the best

judgment you have. That is what all of you do. That is what you

are here for.

Chairman BARTON. Well, I mean, in a perfect world, I would

rather this be done at the collective bargaining level, if you have

got that relationship, or done in a voluntary discussion with the

players in your specific sports, but as Mr. Shorter has, I think, fairly eloquently pointed out, we don’t live in a perfect world, and

sometimes you have to do things, set standards independently and

are verified independently. And in this case, I think there really

needs to be a Federal standard. I think we have gone too long, basically, asking the marketplace to do it for whatever reason, where

it just hasn’t been able to do it as well as it should be done. So

we are going to try to set up a Federal standard that does it.

But having said that, as Chairman, I am very open to a dialog

on what is best. And so I would encourage you and your staffs to

work with Congressman Stearns and other members of the committee so that we get it right. You know. The one thing that is not

negotiable, at least from my perspective, is that we are not going

to do anything. You know, I am really going to try to get a Federal

bill.

I thank the gentleman from the Hockey Association.

Mr. GOODENOW. Just a brief comment to your question.

It is very clear that what we are hearing here today is that the

ability for us to self-police is in doubt, and the momentum of the

issue and the circumstances are driving this committee to take the

approach that you have said it is going to take. We understand

that, and we hear that.

Specifically to your point about the 2-year suspension. I think

that that is something that I would encourage people on your committee and researchers prior to markups, et cetera, to spend time

with people like myself to get a little more in-depth explanation of

some of our philosophies. Given the unique circumstances that can

arise on a sport-by-sport basis, but just in the general fairness

point of view, you know from our statements that we are not trying

to avoid the strictest of scrutiny, WADA standards, the state-of-theart, if you will, approaches to dealing with some of these issues,

but we do believe, and I believe very strongly, that, you know, we

need to take a little closer look to some of the difficulties that can

arise, as I said, in a first offense situation to eliminate a person’s

ability to have a career in a sport, which I think would be a great

likelihood if the penalty were 2 years. I think it would be extraordinary, you know, and not fair. But I understand the approach the

committee wants to take, and I appreciate the fact that the committee is inviting further dialog on those types of issues, and I

would encourage that.

Chairman BARTON. Does our soccer representative wish to comment, because my time is expired, but I am giving you a chance?

Mr. FOOSE. I would just add that for soccer, we feel very good

about our policy. We feel very good about our players. So while we

65

philosophically have issues with the notion of a Congressional act,

we would welcome the opportunity to continue to talk about what

is in that act and continue to applaud our players and the work

that they have done in this area.

Chairman BARTON. All right. And I guess my final comment, Mr.

Chairman.

I hope we have a hockey season next year. You know, there is

a hockey team in Texas. It is called the Dallas Stars. They are

pretty good, and it would be good to get them back on the ice. So

we are not just football and baseball and basketball in Texas. We

do have a little hockey, too.

Mr. GOODENOW. We appreciate the thought, and we share the

sentiment.

Chairman BARTON. Okay. Thank you, Mr. Chairman.

Mr. STEARNS. Thank you, Mr. Chairman.

The gentleman from Michigan, Mr. Upton.

Mr. UPTON. Well, thank you, Mr. Chairman, and I regret that I

had to be gone for a little while. I missed some of the flow of the

questions and answers, so I hope that I am not repetitive, but I do

have a number of questions.

And I guess my first one, Mr. Selig, is to you. At least from my

standpoint, I truly, as I said in my opening statement, appreciated

the movement that you have made from where we were before,

which frankly, a lot of thought was way too weak and not even necessarily what was indicated back then to where you are today and

was announced across the country. And a quick question, though,

as I went through your testimony and listened, you indicated that,

at least for the minor leagues, you are going to impose this standard, in essence ‘‘three strikes and you are out’’, 50, 100, and lifetime for 2006. Was there a reason you couldn’t do it for 2005?

Mr. SELIG. The season had already started, and I didn’t think it

was quite fair, frankly, to once a season started and people had

done whatever they were doing in terms of process, we have 160-

plus minor league teams spread out all over, and just as a matter

of pragmatism, I just felt it was not fair, that we ought to give everybody enough notice so that we had an element of fairness. But

it will be in for the 2006 season.

Mr. UPTON. And do you need to get a Players Union contract or

some change in the contract for what you imposed for 2006, or is

it automatic?

Mr. SELIG. For the plan that I have out, that is exactly right.

That is a subject of collective bargaining, and it is out there right

now. And as I said before, while I am confident today in telling you

that I think the program is working, I think there are integrity

issues that have now transcended that as well as public confidence,

so I am very determined to get the plan that I have proposed put

into practice.

Mr. UPTON. Now Mr. Fehr, as we listened to the testimony from

the soccer and other sports, both union as well as management, it

seemed like it was fairly clear. There is no room for mischievous

actions. We are proud of the record. Mr. Foose talked about that,

very proud of the record by the Association in terms of what they

have. They have a lot tougher penalty than what I call a measly

10 games, which is the current policy now. I have reviewed the corVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6602 21640.TXT HCOM1 PsN: HCOM1
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respondence between Mr. Selig. I think my colleague, Ms.

Blackburn, put it into the record, but the letter from the Commissioner to you and your response back dated May 1 and April 25.

And in the letter from the Commissioner, he indicated that Jim

Tomey says, ‘‘I am disappointed with Major League Baseball and

the Players Association for not implementing a plan that is completely solid. We need to prove to the fans that there is no question

baseball should be clean and is clean, and we are not sending the

right message with this policy. We are continuing to beat around

the bush. MLB should set a higher standard, like the Olympic athletes. We are the best of the best. Why shouldn’t we be accountable

for things? I think we should.’’

You know, as I indicated, I am a big sports fan. I have had the

opportunity to be with a number of players throughout my tenure,

and I cheered for them since I was a little guy. They are outstanding people. I knew some of them in college. Corey Patterson,

and I am a big Cubs fan. Corey Patterson, a bunch of different

folks hat are out there, seem like they want to have the right stand

on these issues, and when you see someone like Jim Tomey, when

you see some of the stars that play soccer in MLS, and again they

are heroes to our kids, it seems like they are all on the same page,

but you all seem to be the ones that are saying, ‘‘No, 10 games.’’

I mean, that is not even a 16th of the season. I mean, you know,

when I listen to my Chairman Barton talk about the need for legislation, I think, at least on this dais, among Republicans and Democrats, that we will move this bill, particularly if you all stay stuck

at 10. If we don’t see some movement, we will do it. And John

McClain is a good friend, and I know him fairly well, and I know

he was very disappointed where things went from last year to

where we are now. I haven’t talked to him since this announcement

came out, but I will bet he is on board with the ‘‘three strikes and

you are out’’ policy.

And I just want to know, Mr. Fehr, what is the problem with

going along with what at least some of the players are saying as

well as what the players in other professional leagues have said

and done, knowing that it is their decision in many cases whether

or not they are going to take one of these substances? They know

what they are playing with. They are playing not only with their

financial future but their name, their own integrity, the impact on

the profession itself. And they have got to be knowing what they

are doing. And 10 games, in essence a week, if you have got a couple double-headers, is the same as a stubbed toe or, you know,

coughing and getting some back spasms and you miss 2 weeks of

the season. I mean, this isn’t even that.

Mr. FEHR. With all due respect, it is not that. There is a lot of

public opprobrium that comes with it, and I think the comments

from the individuals identified this year suggest that.

Let me respond very briefly. First of all, I don’t discuss comments players make. They are entitled to say whatever they want.

I talk to them privately, and in many, and perhaps most, cases

when things like this come up, I do, but it has never been my role

to discuss those conversations, so I don’t.

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Mr. UPTON. Yes, let me just say, too, I have not talked to Corey

Patterson about this issue. I just talked to him and met him

and——

Mr. FEHR. Yes, I understand.

Mr. UPTON. [continuing] he seems like he is a fine young man.

He played for the Lugnuts in Lansing.

Mr. FEHR. And we can all agree on that.

Second, Players Association took a step after a lot of divisive internal discussion in 2002 that produced an agreement which had

a dramatic effect in reducing steroid use in 2004. Then even though

the contract ran through 2006, it was re-negotiated again last winter to have a first-time penalty, which was the request of the Senate Commerce Committee to have a first-time penalty. We think

that will even have a bigger effect. The matter has proceeded.

There have been some other developments over the course of this

year. We have the Commissioner’s letter. As I have indicated in response to previous questions, the players know about that. I will

be discussing it with the players. We believe, essentially, in retail

politics, which means every player on every team has an opportunity to converse not only with staff but leads with the players on

his team and hopefully on others, and we will be a position to discuss the Commissioner’s ideas with him.

I don’t know if you were here when I made this comment before,

but in case you weren’t, sometimes there is a perception that players don’t appreciate the opinions of people on the dais, as you have

suggested. We make certain that they understand.

Mr. UPTON. Let me just say one thing in conclusion.

I have learned that I guess some 70 minor league players have

been identified as taking steroids this season. That is a new figure

that I got. Seventy minor leaguers this year, which the season is

rather fresh, and which I suspect is a dramatic increase from

where you were last year. Is that right? I don’t remember.

Mr. SELIG. Well, it is still early, so I don’t want to make any

judgment.

Mr. UPTON. No, but at least at this point in the season, 70, I

would think, was a dramatic incline from where we were a year

ago.

Mr. SELIG. More than I would have thought.

Mr. UPTON. And I think in large part because of the policy that

you have, which is more in line with where the other professional

leagues are. I mean, we heard from the NFL last month that every

player every year is tested multiple times, tough suspensions, and

that has been on the books since 1987. And yet here we are, and

you come up with a better system than you had a few months ago

with a better system out here further, and we are already at 70,

so that, to me, shows that we have not had decline. It is a problem.

It is not not a problem.

And I yield back. I know my time is up.

Mr. STEARNS. I thank the gentleman.

The gentlelady from California, Ms. Bono.

Ms. BONO. Thank you, Mr. Chairman, and thank all of you for

sticking with us this long. I also want to say to Mr. Shorter, it is

truly an honor to have you here. The 1972 Olympics was a big year

in my life. I actually fell in love with a gymnast at the time and

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fell in love with gymnastics. And that changed my life, I think, forever. So again, it is a pleasure to have you here.

Mr. SHORTER. Thank you. Thank you.

Ms. BONO. But it is hard I think when you are this long in questioning to be unique, and I think most of my questions have been

answered.

I just need, perhaps, some clarification and have questions for

Mr. Fehr about your written and verbal testimony. You said the

legislation contains no provision, which makes it clear that players

may use substances which the U.S. Congress has determined are

safe and effective for sale and use by all adult Americans and are

readily available for purchase without a doctor’s prescription. Can

you tell me what drugs you were talking about specifically that are

in question?

Mr. FEHR. Until recently, and it may still be the case in some

circumstances, for example the WADA list prohibited over-thecounter cold remedies——

Ms. BONO. Ephedrine.

Mr. FEHR. [continuing] and allergy remedies.

Ms. BONO. So pseudoephedrine, ephedrine——

Mr. FEHR. That was one. I am not sure that that was all, but

that was one.

But the point I was making was one which was not specifically

directed at the nature of the substance. It was directed at a different point, which is if something is legally available in the United

States and the appropriate governmental authorities, you know,

Congressional, Federal, executive, State, and local, have decided

that it is and adults can use it, it is a fundamental philosophical

question as to whether we say to a professional athlete, ‘‘You can’t

make that decision when everyone else can.’’ That is the question.

And it sort of begs the question as to whether it is dangerous, because if it is dangerous, it ought to be banned for everybody.

Ms. BONO. Except there is a difference, is there not? When you

are talking about ephedrine and pseudoephedrine, I mean, these

are all stimulants, even caffeine to some degree. They are stimulants. So those people who are taking them, generally speaking,

might be any of us in the room where our heart rate is reasonable.

If you put these in an athlete, their heart rate is way up. I don’t

know what it might be on the baseball field, but certainly higher

if you add a stimulant. I just have great concerns. I did before

baseball. I remember when the Orioles pitcher, Steve Belcher, died

and have had tremendous concern about this since then. So you are

saying it is okay to take ephedrine and pseudoephedrine and these

stimulants——

Mr. FEHR. No.

Ms. BONO. Okay. I am sorry. Would you clarify for me?

Mr. FEHR. I don’t mean to interrupt. I have not said it is okay

in the sense that Don Fehr is recommending it or that nobody

ought to think twice about it, that there aren’t significant decisions

that ought to be made. As I indicated previously, you don’t take

anything, in my judgment, that you don’t need for an appropriate

medical reason. What I said is a fundamentally different question,

and that is is it appropriate for governmental agencies to say that

if you are a professional athlete, you can’t do what someone else

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who is exactly your twin in all other respects, including a recreational athlete who may run six times a week for 2 or 3 hours

at a time and may have the same circumstances. It is not a question as to whether it makes sense for him to do it, whether he

should, whether a doctor would recommend it, whether you or I

would, whether there are dangers there. There are dangers in all

kinds of over-the-counter medications. That is why we have the

side effects list.

Mr. STEARNS. Will the gentlelady yield just for a question?

Ms. BONO. What if I said no?

Mr. STEARNS. All right.

Ms. BONO. Yes, Mr. Chairman, of course. I am not that foolish.

Mr. STEARNS. Mr. Fehr, I can go out and buy a corked bat and

I can use it like I want to, but I can’t use a corked bat if I am a

professional player. So following your reasoning, people who are in

your union should be able to use a corked bat.

Mr. FEHR. No, I would put it——

Mr. STEARNS. Well, that is the kind of reasoning you are using,

and basically what the gentlelady is saying that she thinks these

drugs shouldn’t be used, and you are saying the government

shouldn’t step in and no one should step in and tell you not to use

those drugs, but you say to your players they can’t use a corked

bat, but the players can go out and buy it for their sons just to play

around.

Mr. FEHR. Maybe I am being inarticulate today. I will try one

more time in the parameters of the question that you asked to

make it a little different.

If players agree on rules of the game that include no corked bats,

those can be fully enforced within the game, and I have no problem

with that, whether it is done individually or in collective bargaining where there is a union or however it is done. If you would

raise a different question and say the Federal Government ought

to pass a law about it, then I would say that that may raise different issues.

Mr. STEARNS. But we have passed a law, the Drug Abuse Act in

1988. It is against the law to use steroids. We have passed a law.

It is a criminal offense.

Mr. FEHR. Right.

Mr. STEARNS. It is a felony of 5 years in jail if you distribute it.

Mr. FEHR. Right. And players are no different under the law

than anybody else, and they are subject to prosecution to exactly

the same extent anybody else should be.

Mr. STEARNS. I yield back. Thank you for the time.

Ms. BONO. Mr. Selig, would you care to comment on this? Please

do, sir.

Mr. SELIG. Well, in this regard, I have said that even thought I

think our program is working, I will reiterate again that all of this

has brought integrity issues, and it is my job, as the Commissioner

of baseball, that anything that impugns our integrity in one form

or another we must deal with and deal with directly, and that is

why I, frankly, believe that harsher penalties, more independence

in the testing, all of the things that I have asked for I labored long

and hard trying to put that together, because the thing that has

become clear to me that while we can convince ourselves that this

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program is working, and I want to say again it is, that is not the

issue any more. The issue is this sport and all its players who deserve better and all its clubs that deserve better. And therefore, the

only way that I am now convinced that we really can take care of

this issue is to make the penalties tougher. I happen to believe that

50 and 100 and life are the appropriate ones for baseball. I think

each sport has its own indigenous characteristics as to what is an

appropriate penalty. I would agree with a lot that has been said

today, and that is why I think that the 50 and the 100 and life are

most appropriate. But this is an issue that needs to be dealt with

quickly.

Ms. BONO. Thank you. Again, Mr. Fehr, I don’t know how your

negotiations are going to go, but I hope that you seriously look at

the use of these stimulants. I hate to see these young people die.

And I think you evaded the question a little bit about what you tell

children, and I just would like your quick answer. Are high school

students encouraged to use them? I know the answer. I just want

to hear you say yes. They are all being forced and encouraged by

their parents, ‘‘You need that scholarship. You need to be a better

athlete than the rest of the kids.’’ How prevalent is it in high

schools? I know of a story of a young baseball player at Palm

Springs High School who was on steroids and, while swinging a

bat, his muscles were so overdeveloped compared to his bone, he

literally pulled his pelvis apart by the strength of his muscles compared to his bones.

Mr. FEHR. I don’t know what the extent of the use is in high

schools. I am perfectly prepared to accept that it is significant and

something that needs to be paid attention to. One of the side effects

with adolescents is precisely the one that you just mentioned. It

screws up the growth cycle, for lack of a better way to put it. I

don’t have the medical training to put it——

Ms. BONO. Screws up makes sense. We understand that.

Mr. FEHR. [continuing] more precisely than that. And so it is a

significant issue that needs to be paid attention to. No question.

Ms. BONO. Thank you very much.

Mr. Chairman, thank you for bringing this forward. I yield back.

Mr. STEARNS. And I thank the gentlelady.

We have finished our questions, so for all intents and purposes,

we are all done, and I am going to let the panel go.

We are going to reconvene for the second panel at 2:30 in this

room. I want to thank all of you for your patience during the voting. And we hope to move forward here. And you have done

yeomen’s service here, so thank you.

The subcommittee is temporarily in recess.

[Brief recess.]

Mr. STEARNS. The subcommittee will reconvene for panel No. 2,

and we welcome David Stern, the Commissioner of the National

Basketball Association, and Billy Hunter, the Executive Director of

the National Basketball Players Association. And Mr. Hunter, I understand you played for the Redskins, so welcome back to Washington DC, so to speak.

And Commissioner Stern, I thank you very much. I know how

busy you are this morning dealing with Columbia University and

your being chair of the Board of Directors. I appreciate your willVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00074 Fmt 6633 Sfmt 6602 21640.TXT HCOM1 PsN: HCOM1
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ingness to come down this afternoon. And the good news is, you

won’t hear all of the members’ opening statements that drone on

for quite some time. So this will not be as long as we had this

morning, which was, I think, approaching 4 hours.

So your time will be short, but it will be appreciated, and it will

be duly noted. There was a lot of press here, so I think it is important that the NBA also participate and you give us your views.

So it is customary to let you have an opening statement, and we

will let you start, Commissioner Stern, and then we will go to Mr.

Hunter. So the floor is yours. You just have to turn on the mike

there in front of you a little bit, and just move it a little closer to

you. And we welcome you here and your opening statement.

STATEMENTS OF DAVID J. STERN, COMMISSIONER, NATIONAL

BASKETBALL ASSOCIATION; AND G. WILLIAM HUNTER, EXECUTIVE DIRECTOR, NATIONAL BASKETBALL PLAYERS ASSOCIATION

Mr. STERN. Thank you, Chairman Stearns, and I would like to

thank the members of the subcommittee for the opportunity to appear and give testimony on House Resolution 1862, the Drug Free

Sports Act.

The NBA was the first league to have a drug policy, or shall I

say, an anti-drug policy in 1983, which at that time focused predominantly on drugs of abuse. But in 1999, we added steroids and

other performance-enhancing substances.

Now there is a broad list of banned substances that have been

added because of the mechanism that we have agreed to with our

Players Association for adding new drugs, and among the drugs

that have been added over time, have been Andro, ephedrine, and

designer steroids.

Our testing policy currently is that veterans are tested in training camp and rookies are tested randomly four times a year. Our

current penalties are 5 games for a first offense, 10 for a second,

25 for a third, and an indefinite suspension for the fourth. We are

currently engaged in collective bargaining talks. I guess I could say

we are engaged. At least there is a broad framework for having discussions in collective bargaining. And we have proposed, through

the union, a broader list of drugs, four random tests for veterans

in season, one test out of season, and a penalty phase that reads,

basically, 10 games for the first offense, 25 games for the second

offense, and dismissal for the third offense.

Specifically, on H.R. 1862, I would only make the following specific suggestions from the NBA.

First, that the penalty that is proposed, a first offense being 2

years, should be looked at carefully in light of the fact that all of

the penalties are absolute. There is absolute liability. So even if a

player has, you know, taken a nutritional supplement that was

tainted, inappropriately tainted and he is, nevertheless, subject to

the penalty, and therefore we think that you may want to take another look at 2 years for the first offense.

The number of tests proposed in H.R. 1862, which is one, we

think you may want to take a look at that with respect to possibly

strengthening it and making it more than one.

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The independent third party conducting the program, I think

that is fine. I would only just say to you that we use retired law

enforcement officers and I sit here before you today and say that

their integrity, in our view, is beyond question. We have an independent panel of advisors who add drugs to the list. We have an

independent drug counselor who advises us, and we send the results to an independent lab. So I would just give that to you for

your consideration.

We feel we have a strong program, and it will get much stronger,

much, much stronger. But if Congress sees fit to legislate here, I

can pledge to you that we will meet or exceed any standard that

you set. And so we welcome your attention to this subject, and we

think these hearings are a very good idea to draw the attention of

the country to this subject.

Thank you very much.

[The prepared statement of David J. Stern follows:]

PREPARED STATEMENT OF DAVID J. STERN, COMMISSIONER, NATIONAL BASKETBALL

ASSOCIATION

Chairman Stearns and Members of the Subcommittee: On behalf of the National

Basketball Association (‘‘NBA’’), I appreciate the opportunity to testify before the

Committee regarding H.R. 1862, the ‘‘Drug Free Sports Act.’’

The NBA supports the efforts of this Subcommittee and the Congress to confront

and address the issue of steroids and performance-enhancing substances in professional sports. These drugs undermine the fundamental integrity of all athletic competition; they pose serious health risks to the players involved; and their use in

major league sports sends a harmful and potentially destructive message to countless young fans who emulate professional athletes. Steroids and performance-enhancing drugs have no place in the NBA.

In 1999, the NBA and the National Basketball Players Association (‘‘Players Association’’) agreed through collective bargaining to include steroids and performanceenhancing substances in our pre-existing drug testing program. Since that time—

again, through agreement with the Players Association—we have made improvements to the program by adding new performance-enhancing substances to our list

of banned drugs, and by implementing and expanding an ongoing program to educate players about the dangers of these substances.

I should point out that the NBA, in 1999, had no evidence of even minimal use

of steroids or performance-enhancing drugs by NBA players. Nor are we aware of

any such evidence today. But we believed then—and still believe today—that a

strong and effective testing policy is the best way to ensure that these substances

never enter the culture of the NBA, and to demonstrate to our fans the collective

commitment of NBA teams and players to fair and legitimate competition.

Currently, the NBA and the Players Association are engaged in active negotiations for a new labor contract, to succeed the one that is scheduled to expire on June

30th of this year. In those negotiations, the NBA has already made proposals to the

Players Association that would significantly strengthen our steroids and performance-enhancing drug program, and the NBA is committed to obtaining those improvements as part of the new agreement. These proposals include increasing the

number of random tests for all players to 4 times per season, adding 1 random test

for players during the off-season, broadening our already-substantial list of banned

steroids and performance-enhancers to include all those declared illegal by Congress

and many that are prohibited by WADA, and toughening the penalties for violators.

It is my belief that the NBA can maintain a sound drug testing policy for steroids

and performance-enhancing substances through collective bargaining with the Players Association. Indeed, a policy that is the product of agreement between management and labor will always be superior to one that is imposed from the outside, as

the parties to the agreement will be invested in its success. Nevertheless, if this

Subcommittee and the Congress feels that legislation must be enacted in this area,

we offer the following observations on the specific proposal contained in the Drug

Free Sports Act.

First, while the provisions of the bill set forth certain baseline standards regarding testing, substances, and penalties, the particulars of those standards are left up

to the Secretary of Commerce, to be issued 9 months after the bill becomes law.

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Without knowing the specifics of the regulations, of course, it is not possible for us

to react fully to the proposal, or to anticipate its effect on the NBA.

Second, as noted above, the NBA would prefer to manage our own drug testing

program, rather than having this task performed by some ‘‘third party.’’ The NBA

has been testing its players for drugs since 1983. We have substantial experience

in this area, are highly knowledgeable about the schedules and habits of our players, and are confident in the integrity of our processes and methods. Moreover, because the Players Association, along with the NBA, jointly created our anti-drug

program, NBA players have confidence in its legitimacy and impartiality, and that

trust is critical to making the program run smoothly. We assume, under these circumstances, that the NBA would obtain—under Section 4 of the Act—an exemption

from the requirement that our testing be administered by an outside party.

If Congress did require that a third party administer the NBA’s drug testing program, we would want the ability to monitor the testing and have input into the testing protocols in order to ensure that these processes were being conducted in accordance with the highest standards of integrity and fairness to NBA players. It appears

that some consideration has been given to this idea in Section 3(5), which provides

that the professional sports association—and not the third party administrator—

would hear and decide any appeal filed by a player to an adverse testing determination. This is a step in the right direction, but more would be needed to satisfy the

NBA and its players that a third-party drug testing program is being administered

properly and fairly.

Third, while we believe it is important to prohibit a broad list of steroids and performance-enhancing substances, we do not believe that the WADA list of banned

substances is appropriate for the NBA. The sport of basketball emphasizes a specialized set of physical abilities—particularly quickness, agility, and basketball skill—

that are distinct from those required in a number of other sports. Accordingly, illicit

substances that could assist athletes in strength sports (such as weightlifting or

football), power sports (such as baseball), or endurance sports (such as cycling or

marathon running) are not likely to be of benefit to NBA players. The Subcommittee

might want to reconsider whether it is sensible to test NBA players for these substances, or for the NBA to be required to incur the cost of such unnecessary testing.

Fourth, while stiff penalties are necessary for the legitimacy of any anti-drug program, we believe the Subcommittee should consider tempering the penalties mandated by the Drug Free Sports Act. Under the usual ‘‘strict liability’’ standard that

is applicable to drug testing policies (including the NBA’s current policy), a player

can commit a violation unknowingly by, for example, ingesting a tainted nutritional

supplement that is legally sold over the counter. Under those circumstances, a twoyear ban (if the violation was the player’s first) or a lifetime ban (if the violation

was the player’s second) would appear to be too harsh. Indeed, even the WADA

Code does not provide for strict adherence to the penalties proposed in the bill, and

instead makes clear (in Section 10.5 of the Code) that special circumstances—such

as a contaminated supplement—should be taken into account and could result in a

reduced (or even no) penalty. Fundamental fairness to athletes whose livelihoods

are at stake should require no less.

The NBA believes that the penalties we have proposed to the Players Association

in our current round of collective bargaining are fair and appropriate for our sport.

Under that proposal, a first-time offender of the steroids and performance-enhancing

drugs policy would be suspended from his team for 10 games. In the NBA, where

the average player now earns approximately $4.5 million per season, a ten-game

suspension would result, on average, in a financial penalty to the player of

$500,000. The player’s suspension would also be publicly announced, which would

do significant damage to the player’s reputation and off-the-court financial prospects.

The NBA’s proposed penalty for a second offense—a suspension of 25 games—

would result in an average financial penalty of $1.25 million, and could significantly

affect a player’s ability to obtain any performance-based bonuses in his contract or

prove his value for purposes of obtaining a subsequent contract. If a player were

to receive a third ‘‘strike,’’ he would be dismissed and disqualified from the NBA.

In this instance, as we have done in other areas of our drug program, we would

allow for the possibility of reinstatement after two years in exceptional circumstances—but only if the player could satisfy the NBA and the Players Association that reinstatement is warranted. In practical effect, as has been the case with

other NBA players who have been dismissed and disqualified from the NBA under

our drugs of abuse program, this punishment would often result in the player never

again being employed in the NBA.

The foregoing penalties, we submit, are strict enough to punish violators appropriately, deter the use of steroids and performance-enhancing drugs in the NBA,

74

and provide fair opportunities for players to conform their conduct appropriately.

Moreover, these are penalties that the NBA believes it can agree upon with the

Players Association at the bargaining table. If Congress requires penalties that are

stiffer than these, it could well result in greater opposition from the Players Association in other areas of the program, such as the number of times each season that

a player will be required to submit to a test.

Finally, Section 5 of the Act sets forth penalties that would apply only to professional sports leagues if they fail to implement drug testing programs that meet or

exceed the applicable minimum standards. We assume, therefore, that the bill

would allow a sports league simply to impose such a program without bargaining

its provisions with the players’ union or otherwise complying with the federal labor

laws. If that is not the case (and it would be helpful if the Act were made clear

on this point), we would suggest that the penalties be made applicable to both management and labor, thereby providing incentives for both parties to reach an agreement in collective bargaining that meets the proposed federal standard.

In summary, the NBA believes it can maintain a strong and effective drug testing

policy for steroids and performance-enhancing substances, and we expect to have

just such a program in place when we conclude our new collective bargaining agreement. If Congress nonetheless sees fit to establish minimum standards for such a

program, we suggest that they be flexible enough to account for characteristics that

distinguish one professional sport from another, and reasonable with respect to penalties. In all events, we appreciate the Subcommittee’s effort and attention to this

important matter, and look forward to providing any additional information or assistance as necessary.

I thank the Subcommittee for considering the views of the NBA on this significant

piece of legislation.

Mr. STEARNS. I thank you.

Mr. Hunter.

STATEMENT OF G. WILLIAM HUNTER

Mr. HUNTER. Mr. Chairman and members of the subcommittee,

I am the Executive Director of the NBA Players, as well as the

WNBA Players Association. I appear today in response to the May

12, 2005 invitation extended by Chairman Stearns.

I appreciate the subcommittee’s interest in and concern about the

use of steroids by professional athletes and others, particularly

young adults and children, as evidenced by legislation H.R. 1862

introduced by several members on this subcommittee.

I would like to begin by clearly stating the position of the National Basketball Players Association. As a former State prosecutor

and United States Attorney, I have participated in the prosecution

of numerous drug cases and have a keen understanding of and insight into the use of drugs of abuse. While we strongly believe that

the use of steroids and other performance-enhancing drugs are virtually non-existent in the NBA, we are committed to ensuring that

the use of such drugs does not become an issue of concern.

To that end, in the 1999 collective bargaining agreement between

the NBPA and the NBA in our anti-drug program a steroid testing

protocol that provides for random testing of all incoming players

four times during their rookie seasons and to test veterans once

during the training camp period. Since testing for steroids and

other performance-enhancing drugs was instituted in 1999, there

have been approximately 4,200 tests conducted with only 23 initial

laboratory-positive tests, less than 1 percent. Of the 23 tests that

were initially laboratory positive, only three satisfied the additional

steps that are required to be confirmed as positive under our antidrug program either because, one, the player was terminated from

employment prior to confirmation of his test result, or two, because

the medical director found a reasonable medical explanation for the

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test result. The three players who had confirmed-positive tests

were immediately suspended.

Additionally, all players are subject to reasonable cause testing.

If either the NBA or the NBPA has information that gives it reasonable cause to believe that a player is using, in possession of, or

distributing steroids, then they may present such information to an

independent expert who is empowered to immediately decide

whether reasonable cause exists to test the player. If reasonable

cause is found, the player is subject to being tested up to four times

during a 6-week period following the order to test. The testing during this period may be administered at any time without any prior

notice to the player.

It is vitally important in the efforts to control the usage of

steroids and other performance-enhancing drugs that the list of

banned substances for which players are tested remains current.

Accordingly, in our program that is updated regularly by our Prohibited Substances Committee, comprised of three independent

drug-testing experts and a representative from both the NBA and

the NBPA. The committee will ban a substance that is either declared illegal by the Federal Government or found to be harmful

to players and improperly performance-enhancing. Under our antidrug program, at least 17 substances have been added to the list

of prohibited substances since 1999.

While our anti-drug program has always had a strong emphasis

on education and treatment rather than punishment with a standard of progressive discipline for violators, the anti-drug program

does provide for substantial penalties for those who are caught

using steroids and other performance-enhancing drugs. A first-time

offender is automatically suspended for five games and is required

to enter education, treatment, and a counseling program established by the program’s medical director.

For a second offense, the player is suspended for ten games and

required to reenter the program. For a third offense, the player is

suspended for 25 games, nearly a third of the 82-game NBA season, and is again required to enter the program and submit himself

to treatment and counseling.

Further, any player who fails to comply with the treatment program as prescribed by the medical director by engaging in behavior

that demonstrates either a mindful disregard of his treatment responsibilities or by testing positive for steroids suffers additional

penalties up to and including indefinite suspension.

Another key component of our anti-drug policy is our emphasis

on education, treatment, and counseling. During each season, every

NBA is required to attend and participate in a meeting where the

dangers of steroids and performance-enhancing drugs drug use are

discussed by drug counselors. Also, all rookie players are required

to attend a week-long rookie transition program administered by

the NBA and the NBPA jointly before the start of their first NBA

season during which numerous topics are discussed in detail, including the dangers of using steroids and performance-enhancing

drugs. Finally, the program’s medical director supervises a national

network of medical professionals located in every NBA city available to provide counseling and treatment to all players.

76

With the additional scrutiny that the use of steroids and other

performance-enhancing drugs has received in society, in particular

in professional sports such as baseball, football, track and field

since our groundbreaking agreement was reached in 1999, there

has been discussions that our agreement requires modification.

While I am reluctant to discuss the specifics of these discussions

in great detail due to the sensitive, evolving, and complicated nature of collective bargaining negotiations, I represent to you that I

have had numerous discussions with Commissioner Stern and the

NBA about making significant changes in our next CBA to deal

with the growing societal problem of the use of steroids and other

performance-enhancing drugs. We want to send a strong and unequivocal message to society in general and our young fans in particular that we do not condone, support, or accept the use of performance-enhancing drugs in our sport. To that end, we have indicated the willingness to significantly increase both the frequency of

testing that our players undergo as well as the penalties imposed

upon the violators.

We continue to believe that collective bargaining is the most appropriate forum for the resolution of these issues and are confident

that the changes that are currently under consideration will address in a meaningful way the concerns of the subcommittee, as

embodied in the pending legislation. Congress has long given deference to parties operating under collective bargaining agreements

to develop their own solutions to problems, properly recognizing

that the parties bound by a collective bargaining agreement have

a long-standing relationship with unique problems and problemsolving methods that are often difficult to comprehend by those

outside the relationship. While we fully believe in and support the

subcommittee’s and Congress’s goal of eliminating the use of

steroids and performance-enhancing drugs in sports, we believe

this goal is best accomplished by the leagues and players working

together to accomplish this universal objective. We think that the

players, supported by the leagues, are best able to demonstrate to

everyone, especially our young fans that the only way to become a

professional athlete is by cultivating and nurturing their talent, determination, and desire and by working harder than everyone else.

I want to thank the subcommittee for the opportunity to appear

before you today.

[The prepared statement of G. William Hunter follows:]

PREPARED STATEMENT OF G. WILLIAM HUNTER, EXECUTIVE DIRECTOR, NATIONAL

BASKETBALL PLAYERS ASSOCIATION

Mr. Chairman and Members of the Subcommittee: My name is G. William Hunter

and I am the Executive Director of the National Basketball Players Association, the

labor union that represents all NBA players in collective bargaining. I appear today

in response to the May 12, 2005 invitation of Chairman Stearns to testify.

I appreciate the Subcommittee’s interest in and concern about the use of steroids

by professional athletes and others, particularly young adults and children, as evidenced by the legislation, H.R. 1862, introduced by several members of this Subcommittee. I would like to begin by clearly stating the position of the NBPA. As a

former state prosecutor and United States Attorney, I have participated in the prosecution of numerous drug cases and have a keen understanding of and insight into

drug use and abuse. While we strongly believe that the use of steroids and other

performance enhancing drugs are virtually non-existent in the NBA, we are committed to ensuring that the use of such drugs does not ever become an issue of concern.

77

To that end, in the 1999 Collective Bargaining Agreement between the NBPA and

NBA we introduced in our Anti-Drug Program a steroid testing protocol that provides for random testing of all incoming players four (4) times during their rookie

seasons and tests veteran players once during the training camp period. Since testing for steroids and other performance enhancing drugs was instituted in 1999 there

have been approximately 4200 tests conducted, with only 23 initial laboratory positive tests (less than one (1) percent). Of the 23 tests that were initially laboratory

positives, only 3 satisfied the additional steps that are required for a sample to be

confirmed as positive under our Anti Drug Program, either because the player was

terminated from employment prior to confirmation of his test result or because the

Medical Director found a reasonable medical explanation for the test result. The

three (3) players who had confirmed positive tests were immediately suspended.

Additionally, all players are subject to reasonable cause testing. If either the NBA

or the NBPA has information that gives it reasonable cause to believe that a player

is using, in possession of, or distributing steroids, then they may present such information to an Independent Expert, who is empowered to immediately decide whether

reasonable cause exists to test the player. If reasonable cause is found, the player

is subject to being tested up to four (4) times during a six week period following

the order to test. The testing during this period may be administered at any time,

without any prior notice to the player.

It is vitally important in the efforts to control the usage of steroids and other performance enhancing drugs that the list of banned substances for which players are

tested remains current. Accordingly, in our Program that list is updated regularly

by our Prohibited Substances Committee, comprised of three independent drug testing experts and a representative from both the NBPA and NBA. The Committee will

ban a substance that is either declared illegal by the Federal Government or found

to be harmful to players and improperly performance enhancing. Under our AntiDrug Program at least seventeen (17) substances have been added to the list of prohibited substances since 1999.

While our Anti-Drug Program has always had a strong emphasis on education

and treatment rather than punishment, with a standard of progressive discipline for

violators, the Anti Drug Program does provide for substantial penalties for those

who are caught using steroids and other performance enhancing drugs. A first time

offender is automatically suspended for five (5) games and is required to enter an

education, treatment and counseling program established by the Program’s Medical

Director. For a second offense the player is suspended for ten (10) games and required to reenter the education, treatment and counseling program. For a third offense, the player is suspended for twenty five (25) games (nearly a third of the 82

game NBA season) and is again required to enter the education, treatment and

counseling program. Further, any player who fails to comply with the treatment

program, as prescribed by the Medical Director, by engaging in behavior that demonstrates either a mindful disregard of his treatment responsibilities or by testing

positive for steroids, suffers additional penalties, up to and including an indefinite

suspension.

Another key component of our Anti-Drug Policy is our emphasis on education,

treatment and counseling. During each season, every NBA player is required to attend and participate in a meeting where the dangers of steroid and performance enhancing drug use are discussed by drug counselors. Also, all rookie players are required to attend a week long Rookie Transition Program, before the start of their

first NBA season, during which numerous topics are addressed in detail, including

the dangers of using steroids and performance enhancing drugs. Finally, the program’s Medical Director supervises a national network of medical professionals, located in every NBA city, available to provide counseling and treatment to players.

With the additional scrutiny that the use of steroids and other performance enhancing drugs has received in society, and particularly in professional sports, such

as baseball, football and track and field, since our ground breaking agreement was

reached in 1999, there has been discussion that our agreement requires modification. While I am reluctant to discuss the specifics of these discussions in great detail

due to the sensitive, evolving, and complicated nature of collective bargaining negotiations, I represent to you that I have had numerous discussions with Commissioner Stern and the NBA about making significant changes in our next CBA to

deal with the growing societal problem of the use of steroids and other performance

enhancing drugs. We want to send a strong and unequivocal message to society in

general and our young fans in particular that we do not condone, support or accept

the use of performance enhancing drugs in our sport. To that end, we have indicated

a willingness to significantly increase both the frequency of testing that our players

undergo, and increase the penalties imposed upon the violators.

78

We continue to believe that collective bargaining is the most appropriate forum

for the resolution of these issues and are confident that the changes that are currently under consideration will address in a meaningful way the concerns of the

Subcommittee, as embodied in the pending legislation, H.R. 1862. Congress has long

given deference to parties operating under collective bargaining agreements to develop their own solutions to problems, properly recognizing that the parties bound

by a collective bargaining agreement have a longstanding relationship with unique

problems and problem solving methods that are often difficult to comprehend by

those outside the relationship. While we fully believe in and support the Subcommittees’ and Congress’ goal of eliminating the use of steroids and performance enhancing drugs in sports, we believe this goal is best accomplished by the leagues and

players working together to accomplish this universal objective. We think that the

players, supported by the leagues, are best able to demonstrate to everyone, especially our young fans that the only way to become a professional athlete is by cultivating and nurturing their talent, determination, and desire and by working harder

than everyone else.

I want to thank the Subcommittee for the opportunity to appear before you today.

Mr. STEARNS. Mr. Hunter, thank you.

And I think we will go to questions, and I will start.

Mr. Stern, I appreciate your comments about the penalties. We

might look at those. And you also mentioned the testing. The way

the bill is set up is that it is at least one random testing. It could

be more. But I appreciate you actually telling us how you think we

could improve the bill.

You know, I just mentioned in the other hearing, the last sentence dealing with when the President of the United States spoke

in 2004 in his State of the Union Address, early on in his speech,

he talked about steroids, and he concluded in his conversation on

steroids when he said: ‘‘So tonight I call on team owners, union

representatives, coaches, and players to take the lead to send the

right signal, to get tough, and to get rid of all steroids now.’’ So the

President was prescient in a way, because he talked about this

some time ago. We have had players, both on and off the field, say

that they would like to see this straightened out.

So Mr. Hunter, when we come to you and we look at your policy,

it appears that rookies are tested during training camp and veterans can be tested during training camp. So I guess the question

I have for you is why do you treat the veterans differently than

rookies regarding the frequency and timing of the tests?

Mr. HUNTER. Well, I think simply because we have concluded,

after negotiations with the NBA years ago, that once a player becomes a veteran, he is much more tuned to what is expected of

him, so what we do is we try to program the rookies when they

come in so they understand what their obligations and responsibilities are so that when they make the transition from college to the

pros, we put them through the program. Veterans then understand,

you know, what they are going to be confronting after that first

year.

Mr. STEARNS. So after the first year, veterans don’t get tested?

Mr. HUNTER. No, veterans get tested in training camp, then we

have——

Mr. STEARNS. But only in the training camp.

Mr. HUNTER. [continuing] what is called reasonable cause.

Mr. STEARNS. Yes, only in the training camp, though.

Mr. HUNTER. They get tested in the training camp, and if it is

detected, if it is discovered that they are using any kind of drug,

then——

79

Mr. STEARNS. But most of these could, during the training

camps, not take steroids and then under your policy, they could

take them later on. And you——

Mr. HUNTER. Well, I don’t know when you say under my policy.

It is a joint policy of the NBA and the NBPA.

Mr. STEARNS. Right. I stand corrected. Under the joint policy.

The way you have set it up, veterans could be tested during the

training, but there is not random testing, and it is only in a certain

period that they are tested. So my question is to you, particularly

for veterans who are trying to achieve and establish a legacy, they

could be taking steroids the other part of the year and you would

never test and you would never know. Isn’t that possible?

Mr. HUNTER. Well, no, it is always possible, but I would think

that it is incumbent upon, you know, other teams, other coaches,

other individuals, if they suspect that a player might be taking

some steroids——

Mr. STEARNS. So you are saying that you are depending upon the

honor system of the NBA players to control whether players take

steroids or not?

Mr. HUNTER. Well, I think that has a lot to do with it, but I

would also say that I think, as Commissioner Stern indicated early

on, the original policy was adopted in 1983. It was then modified

some time in the 1990’s, at which time the NBA was always well

ahead. We were on the cutting-edge of drug policies for professional

sports.

Mr. STEARNS. But you see, my point is if you are depending upon

the honor system of the NBA players and you are testing them only

in a discreet part of the year during their training, then you are

leaving out all of the other time. Do you think that policy would

work with the Olympics? Do you think it would work with the

NCAA?

Mr. HUNTER. Well, I think what——

Mr. STEARNS. Obviously not, because they have random testing,

and it is throughout the whole year, and you also see it——

Mr. HUNTER. But I think what has happened——

Mr. STEARNS. And baseball is doing the same thing.

Mr. HUNTER. Yes, but I think what has happened is we have

gone through an evolution. You know, when the policy was adopted

years ago, we didn’t have a problem. We were on the forefront of

the issue in that we did adopt a policy——

Mr. STEARNS. Mr. Hunter, I suspect that you don’t know that you

don’t have a problem if you don’t test.

Mr. HUNTER. Well, I think we do know that we don’t have a

problem. I think that the statistics indicate that we don’t have a

problem.

Mr. STEARNS. Okay. Commissioner Stern, let me ask you this.

When an NBA player goes to play in the Dream Team in the Olympics, that NBA player is willing to be subject to the World AntiDoping Agency.

Mr. STERN. That is correct, Congressman.

Mr. STEARNS. So here we have these top-flight athletes going to

be under the umbrella of the Olympics. Then why wouldn’t it make

sense for the NBA to be under Olympic testing standards instead

of——

80

Mr. STERN. Well, I——

Mr. STEARNS. I mean, you are willing to do it when you go play

in the Olympics, but you won’t adopt their standards——

Mr. STERN. Well, I didn’t say to you that we wouldn’t adopt

them.

Mr. STEARNS. No, I understand, but you are not now doing it.

Mr. STERN. Well, I would say to you that our drug program, or

anti-drug program, is a work-in-progress. In 1983, it was one thing,

and in 1999, it was another. And I would say to you that what Mr.

Hunter said, I just want to correct one thing. It is not about an

honor system. There is testing of veterans upon a showing of reasonable cause.

Mr. STEARNS. But who determines a reasonable cause?

Mr. STERN. An independent expert.

Mr. STEARNS. Who is this expert?

Mr. STERN. It is somebody selected under the collective bargaining agreement.

Mr. STEARNS. So the players——

Mr. STERN. It is a law enforcement person.

Mr. STEARNS. So the players select somebody——

Mr. STERN. No, the players and the owners select somebody who

could be a retired judge or somebody in whom we have confidence,

really, for the protection of the players, to issue a search warrant,

in effect.

Mr. STEARNS. And that person walks around regularly all year

round and inspects?

Mr. STERN. No. No, that person——

Mr. STEARNS. Well, how do you know he is getting any

cooperative——

Mr. STERN. That person is like a privately selected judge, who,

if we have reason to believe that a player——

Mr. STEARNS. How would you have reason to believe if you don’t

test? Intuition?

Mr. STERN. Well, no. I——

Mr. STEARNS. Tell me, how would you have reason to believe if

you don’t test?

Mr. HUNTER. By performance. Generally, what happens——

Mr. STEARNS. You can tell by performance of an athlete?

Mr. HUNTER. Yes, I think you can. I think clearly that when you

deal with professional athletes, if you are a professional athlete,

and with you all within that community, I assure you that there

will be players, rumors occur. There is gossip around the league.

Someone would say invariably——

Mr. STEARNS. So Mr. Hunter——

Mr. HUNTER. [continuing] ‘‘My man may be on something.’’

Mr. STEARNS. Okay. So Mr. Hunter, I could show you a year’s

worth of NBA games, and you could tell——

Mr. HUNTER. No, I didn’t say me. I said that——

Mr. STEARNS. This person, this select person that Commissioner

Stern said, that person could look at those films and determine

whether he was on steroids or not?

Mr. HUNTER. No, I think you are misunderstanding what he is

saying. What we are saying is we have an independent, arbiter mediator. Someone presents the evidence or the information to this inVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00084 Fmt 6633 Sfmt 6602 21640.TXT HCOM1 PsN: HCOM1
81

dividual. He then makes a determination if probable cause exists

and then tests the player. The player is then randomly tested.

Mr. STEARNS. Okay.

Mr. HUNTER. So someone has to collect the evidence on the

player——

Mr. STERN. Right, but Congressman, that is a sideline, just to

make sure that you understood our policy. The broader question,

we, the NBA, don’t have a problem with a program approaching

the WADA——

Mr. STEARNS. No, and that——

Mr. STERN. We absolutely hear——

Mr. STEARNS. I heard you in the beginning.

Mr. STERN. And it is not an issue for us. I think that there may

be an issue. I think there are some unnecessary drugs tested for,

but we don’t have any issue with a WADA-like——

Mr. STEARNS. Commissioner, and I appreciate that. You were

saying early on there are parts of the bill that you support, and I

appreciate that. And Commissioner Selig has come out in support

of the bill, and that might be because of frustration. Can I assume

that you would support this bill if we looked at the areas that you

were concerned about, namely penalties and we had established

the testing procedures? Could I assume that you would endorse

this bill?

Mr. STERN. Yes.

Mr. STEARNS. You know, not down to the ‘‘i’’s and ‘‘t’’s, but the

concept. You are endorsing the bill today.

Mr. STERN. Yes, you know, obviously I support the bill concept

subject to, obviously, there are regulations that are——

Mr. STEARNS. A few changes.

Mr. STERN. [continuing] going to be issued under it, and I have

to see them.

Mr. STEARNS. Yes.

Mr. STERN. But let me say to you, as I said in my opening statement, that we fully expect whatever negotiated policy we come up

with through this collective bargaining procedure to start our next

season with a drug program that is far more comprehensive than

set forth in the bill.

Mr. STEARNS. Much more rigorous.

Mr. STERN. So we support Congress’s involvement here, and we

support this legislation, subject to the issues that I have raised.

Mr. STEARNS. I will take that as an endorsement.

Mr. STERN. Yes.

Mr. STEARNS. Okay.

Mr. STERN. Well, I am an attorney, so I want to——

Mr. STEARNS. All right. Well, I am going to conclude. My time

is over. But I just want to state, for the record, that 1999 is when

you put in the program. There were 23 initial positive tests in the

whole history of the NBA steroid policy. Only three satisfied the

additional steps of a positive test. I don’t know what those additional steps are. We can get into that later, but you know, the

whole idea was that a reasonable medical explanation that was excusing all of these other 20 people because during that height from

1999 to 2005, to think there were only three positive tests would

indicate, Mr. Hunter, that this was not a comprehensive, rigorous

82

program, because I think all of us agree that there are steroids in

professional sports. And the way you test, I am not sure you are

getting to the bottom line.

Mr. HUNTER. I don’t share that agreement.

Mr. STEARNS. Okay. Okay. We will let it go.

My time is up.

Mr. STERN. No, and just let the record show that I am with Mr.

Hunter on that.

Mr. STEARNS. All right.

Mr. STERN. Our testing process, we split the sample. The rights

of the players are protected. The second sample has to come up,

and then, if the player hasn’t already been excluded by the league,

our medical director does that. So I don’t want to have a guilt by

non-association——

Mr. STEARNS. No, I know. No. But I mean, just the statistics are

a little bit over 6 years to see 23 initial positive tests and only 3

satisfy a real positive test. I mean, just considering everything, it

is just a little difficult to comprehend that out of 6 years, out of

all of these players, these rookies and these veterans, that. You

know, I guess the question is what is a positive test with the NBA

even after you test. I mean, Mr. Hunter said I am a little concerned

about your testing procedures. It is not random. It is only during

the training period. But I say, even withstanding that, I question

even the reasonableness of your positive tests, is what I mean. And

I will give you another chance.

Mr. HUNTER. But why is it so difficult to assume that basketball

players may not need to use steroids?

Mr. STEARNS. I think it is reasonable to assume that if you don’t

test, you won’t find out. And I will leave it at that.

The gentleman from Massachusetts is recognized.

Mr. MARKEY. Thank you, Mr. Chairman, very much.

Just so I can get an idea of the parameters of this, under the existing policy, how many players in the course of last season, how

many veterans, were tested after the season began?

Mr. HUNTER. Everybody in the league was tested. Veterans——

Mr. MARKEY. After the season began?

Mr. HUNTER. No, in training camp.

Mr. MARKEY. No, no, after the season——

Mr. HUNTER. No, once the season began, there were no veterans

tested.

Mr. MARKEY. Right. So the point is, what I think I heard is that

you have a standard of gossip, rumor, innuendo that could trigger

a test——

Mr. STERN. Or fact.

Mr. MARKEY. [continuing] or fact, in the course of a season.

Mr. HUNTER. Correct.

Mr. MARKEY. So how many veterans in the NBA were tested in

the 2003/2004 season, based upon the standard that rumor, innuendo, or fact had been presented, which would justify that testing?

Mr. STERN. None.

Mr. MARKEY. None.

Mr. STERN. That is why we proposed in our collective bargaining,

and Mr. Hunter has indicated, I think, sort of a broad, general area

that will be fruitful, that the number of tests for veterans be inVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00086 Fmt 6633 Sfmt 6602 21640.TXT HCOM1 PsN: HCOM1
83

creased and to include the season so that we don’t have a situation

where the non-testing becomes an issue. We want to be able to resolve all of Congressman Stearns’ doubts about our players and our

testing whether or not we agree that just because the tests have

been negative that somehow proves, some assume, guilt, we are

prepared to step up, because of the importance of this subject to

the kids and to our fans and do the testing.

Mr. MARKEY. Okay. Now, Mr. Hunter, let me ask you. Mr. Stern

just indicated that you have broadly discussed——

Mr. STERN. I don’t want to negotiate here.

Mr. MARKEY. [continuing] okay, I understand, I understand, that

veterans should be tested during the season.

Mr. HUNTER. Yes.

Mr. MARKEY. By what standard should they be tested, and what

should be the increase in the numbers of tests?

Mr. HUNTER. Well, I think that that is what Commissioner Stern

is eluding to when he says he really doesn’t want to get into the

negotiations, because that is one of the issues that is on the table

as to how many times a player should or should not be tested. But

let me just refer to the bill that you proposed, because in your bill,

you are proposing a minimum of one test per year. So I think we

already meet that standard in that we test the veterans when they

come to training camp in October.

Mr. MARKEY. Okay.

Mr. HUNTER. And we are now prepared to move beyond that.

That is what things have evolved to.

Mr. MARKEY. Would you agree to at least one test randomly conducted during the course of the regular season?

Mr. HUNTER. Yes.

Mr. MARKEY. You would accept that?

Mr. HUNTER. Yes.

Mr. MARKEY. Okay. So that is the minimum. And so at least that

has been negotiated.

Mr. HUNTER. But that is all your proposed bill calls for.

Mr. MARKEY. I understand, but it is not my bill, just so you

know.

Mr. HUNTER. Okay.

Mr. MARKEY. Okay. So there may be those that are casting an

even higher-arched eyebrow toward this area in whether or not

basketball players take steroids in any lesser quantity than other

sports do. That is an unknown area until we actually have testing.

Mr. STERN. Yes, but even in the phrasing, that is a very unusual

way to put it, and I would just like to say that that, you know, we

don’t know whether basketball players take steroids, therefore we

have the testing——

Mr. MARKEY. Right.

Mr. STERN. [continuing] not take any less than other sports.

Mr. MARKEY. I am saying we are in cognito. Because we don’t

have that testing during the regular season or the play-offs, we are

not in a position to be able to answer it one way or the other. We

will only be able to assess the comparative use to other sports after

we have a regular season and play-off testing regime in place.

Mr. STERN. Correct. Correct.

84

Mr. MARKEY. And Mr. Hunter seems to be saying that basketball

players are less likely to take steroids.

Mr. HUNTER. I think so. I really do. And that is my opinion.

Mr. MARKEY. And what we are saying is that, at this point, we

really don’t have the evidence in the regular season, because again,

if you think about it, if a CBA player is under a rigorous testing

regime, and you are pretty confident that the younger players are

not taking drugs and an old veteran, during the course of the season, sees this kid down here who is playing well and you know he

doesn’t have drugs in him, he might just be tempted to keep a relatively high salary to take the drugs. Now I am saying, I don’t

know the answer, but no one else does, either, but it is important

for us to remove the uncertainty.

Mr. HUNTER. Well, look, let me reference the Olympic team, for

example. Our players were randomly tested. They had no idea

when they were going to be tested, and these players were selected,

they were tested, and not one of them tested positive for performance-enhancing drugs. So that is 15 that were selected for the

Olympics. Not one tested positively, so I think that kind of dispels

the whole theory that, you know, there has got to be a group of

them out there that are using and if you test them, you are going

to find it.

Mr. MARKEY. Well, the only way to dispel it would be to have an

Olympic type testing regime for the NBA during the regular season

and the play-offs. Then you could be confident. But until you do

that, and as the all-stars that went into play for the Olympic knew

that that was the precondition to them going into an Olympic environment, whereas right now all of the players know that the precondition to the regular season and the play-offs is that there is no

testing. So that creates a completely different, you know, psychological environment for the players in terms of their relationship

with these controlled substances. And until we have some kind of

standard, which we put in place, then the deterrent is not there

during the regular season and the play-offs.

Mr. STERN. Congressman Markey, I would just like to say that

we want to have testing, because we ask our youngsters to admire

our players, and we would like to demonstrate that that is not the

case, not because our incumbents, so to speak, are concerned about

the newcomers or, you know, not to prove or disprove some negative about it. That is a separate issue. I don’t think that guilt by

association with respect to athletics is a fair shot at our players.

I think that what our players will be prepared to do, whether or

not they take. You know, they are saying, ‘‘We don’t take drugs,

but because of who we are and what we want to stand for, we will

submit to random testing.’’ And I tell you that Mr. Hunter has said

that. We are some place between, at least on the basis of this hearing, one and four, and I thank you for your assistance here, which

Mr. Hunter told you he didn’t need.

Mr. HUNTER. No, but just so the record is clear, Commissioner

Stern and I have had those discussions, and I have agreed to a

test. So——

Mr. STERN. Okay. But you know, how can we know if someone

doesn’t do something unless we test them? That is applicable to a

broad range of occupations. And I just, you know, want to say that,

85

on behalf of NBA players, that is not why we are having testing.

We are having testing because we want to stand as models for kids

to see that you can’t do this without testing.

Mr. MARKEY. And I very much appreciate that, and that should

be the highest goal which we have. But you can also imagine some

younger kid who is being tested, he is 21 or 22 years old, and he

is clean, and now he gets into the NBA and he is 23 or 24 and he

knows he is not going to be tested all season long. Now the pressure is there for all of those younger people, and we are talking

about hundreds of younger people, and again, we don’t know the

answer to this question unless and until there is a rigorous testing

regime put in place, or these young people’s health may be put in

jeopardy. And while we do care about the general young population

in the country having examples set for them, which would be deleterious to their health, but we also care about these several hundred young people, who, over a couple of years, are entering the

NBA clean, but now put under tremendous pressure in order to

maintain a competitive edge against older veterans to have to do

the same thing that those older veterans do.

Now Mr. Hunter says that they don’t do it.

Mr. HUNTER. I am convinced they don’t do it.

Mr. MARKEY. And I am saying you may be right, but there is no

empirical basis for your argument. It is a conclusion, which you

have reached based upon your life’s experience, but until we do

test, we are not going to know the answer. And I appreciate, honestly, Mr. Hunter, you and Mr. Stern coming here today, because

it is helping us to formulate a correct policy. And we are still working on it on the committee as well what would be the right set of

policies across leagues to legislate, and we are not finished with the

process yet, but I congratulate you, Mr. Chairman, for holding

these hearings. And I thank you, Mr. Commissioner and Mr.

Hunter, for coming here.

Mr. STERN. And as I said earlier, we applaud the committee for

being engaged in this. We think it is a terrific idea. Thank you.

Mr. STEARNS. I thank the gentleman.

The full Committee Chairman, Mr. Barton, from Texas.

Chairman BARTON. Thank you, Mr. Chairman.

I, too, want to commend both of you gentleman for testifying voluntarily, and especially you, Commissioner Stern, while the playoffs are going on and I know you have got a busy schedule, making

arrangements to come this afternoon.

I want to let you know that Mr. Markey is an all-star in our Congressional basketball league.

Mr. MARKEY. Mr. Stern has seen me play basketball, so I think

should have a right to revise——

Mr. STERN. He is available.

Chairman BARTON. He used to be. I don’t think the bonus to

signing would be all that large, and there are some days that I

would rather see him on the court than in the committee room,

so——

Mr. MARKEY. The older I get, the better I was. I mean, that is

the rule for most people in my category.

Chairman BARTON. I have two questions for you gentlemen.

86

I don’t want to pound a dead horse, but both Mr. Stearns and

Mr. Markey have talked about the fact that under current testing

procedures, your veteran players aren’t tested during the season,

but I also understand that you all are willing to change that policy.

Can we say that the NBA and the Players Association is supportive

of a year-round testing program?

Mr. STERN. On behalf of the NBA, I say to you, you can say that.

Chairman BARTON. Okay. Mr. Hunter?

Mr. HUNTER. Well, we are in the process of negotiating, and unfortunately, I am not prepared to negotiate a deal here.

Chairman BARTON. Well, if we pass a Federal law telling you you

have to do it——

Mr. HUNTER. Well, my position——

Chairman BARTON. I understand the collective bargaining——

Mr. HUNTER. Well, no, my position is the same as Commissioner

Stern’s. If you pass the law, I can assure you we are going to abide

by it.

Chairman BARTON. Well, you can be assured that the law is

going to require year-round testing programs. So it would be helpful for you, especially you, Mr. Hunter, in your political situation.

I mean, we all get elected. I understand that. Your constituency

probably doesn’t want to do that. You might tell them that Chairman Barton said they were going to have to do it. So if that helps

your position with Mr. Stern and you can make me the black hat

guy on that one. But all of the other professional sports have

agreed to year-round testing. That is what they do. You know,

some of the international agencies. And I understand where you

and your group are coming from, but you know, that is going to be

a component of the bill.

Mr. HUNTER. No, I understand your position, and I sort of concluded coming here that that was your position.

Chairman BARTON. Okay. My second question, and it is a little

bit similar to the first question, I think we have support on the

committee that the testing agency be independent and that it be

the same for all sports. I was listening in my office, watching on

television when each of you gave your oral testimony. I understand

that your current testing agency are retired law enforcement agencies, and I am sure that they do have integrity. I am not doubting

that. But do you have an official position on using the independent

agency that would be universally used by all of the professional

sports?

Mr. STERN. On the behalf of the NBA, I don’t have any objection

to that, subject to our having access to check their reliability, because to me, the rights of the individual players tested are important, and we make sure, through a chain of custody, that a sample

taken is a sample tested. But subject to our being able to assure

the fairness of such a procedure, we have no problem with that.

Chairman BARTON. Mr. Hunter?

Mr. HUNTER. I am in agreement.

Chairman BARTON. Okay. That is all my questions, Mr. Chairman. I appreciate it. I do want to commend you all again, each of

you, and say, as a fan who went to the Mavericks-Suns game in

Dallas Sunday evening, you have got a great product, and we want

87

to help keep it great through some of these testing regimes that

maintain the integrity and the confidence of the fans.

Mr. STERN. I think that you and Chairman Stearns, both of

whom have teams still remaining in the play-offs——

Chairman BARTON. Unlike Mr. Markey.

Mr. STERN. [continuing] are rubbing it into Congressman Markey, but that is quite okay.

Chairman BARTON. Well, he has the New England Patriots football team as world champions, and that baseball team up there is

world champions of the World Series, so he is not doing bad.

Mr. STERN. But he is really a Celtic fan at heart, I know that.

Mr. MARKEY. Yes, the Commissioner is correct.

Chairman BARTON. We wouldn’t mind the Mavericks-Suns game

being a little bit earlier in the evening. If you can do something

about that.

Mr. STERN. You, too.

Chairman BARTON. Thank you, Mr. Chairman.

Mr. STEARNS. Thank you, Mr. Chairman.

The gentleman, Mr. Terry.

Mr. TERRY. Thank you.

And again, thank you all for being here.

Mr. STEARNS. Mr. Terry, I am sorry. I beg your pardon. Ranking

Member Schakowsky is here. I am sorry.

Ms. SCHAKOWSKY. Actually, I don’t have questions.

I do want to just say that in Chicago, we are prouder of the Bulls

than we have been for a long time, and I want to thank both of

you for coming. I appreciate your input. I wasn’t here, but I have

read your testimony, and we will work with, Mr. Stern, to consider

your input as we move forward.

So thank you very much.

Mr. STEARNS. Thank you, Congresswoman Schakowsky.

And Mr. Terry.

Mr. TERRY. Just for clarity in the record, picking up on your comments in the answers to the questions, is it a fair statement to say

under the current policies of the NBA that your policy is less restrictive than what is proposed in the chairman’s bill H.R. 1862?

Mr. HUNTER. Yes.

Mr. TERRY. You think so, Mr. Hunter. How about you, Mr. Stern?

Mr. STERN. It is actually in some ways less restrictive and in

some ways more restrictive, because we test rookies potentially

four times a year randomly. So it is actually more restrictive for

them. It is less restrictive for veterans who we test randomly only

in training.

Mr. TERRY. It appears, from Mr. Hunter’s answers, that you are

moving into an area where it is substantially similar to what the

chairman has drafted, at least your negotiations. And I am just curious of where you are in the negotiations, what your time table

is, and do you feel that at the completion of the negotiations that

it will be substantially similar to what the chairman has proposed

or maybe even more restrictive? Mr. Hunter?

Mr. HUNTER. I am going to defer to Commissioner Stern on that

one, please.

Mr. STERN. I would say that in any new collective bargaining

agreement that we have, as to testing regime, it will be more reVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00091 Fmt 6633 Sfmt 6602 21640.TXT HCOM1 PsN: HCOM1
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strictive. As to penalties, it depends upon the outcome of where you

place the penalty for the first negative testing.

Mr. TERRY. Okay. I appreciate that.

Mr. STERN. Oh, positive test. I am sorry, the first positive test.

And that is why we commented upon that part of the——

Mr. TERRY. Commissioner Stern, it just peaks my curiosity. I

wanted to ask this to the prior panel but just didn’t have the time.

As a Commissioner, would it be advantageous to the Players Association or to the league in itself to remove the drug testing issue

from collective bargaining, i.e. we have a law, therefore it is not an

item to be on the table? It just seems odd to me that you negotiate

back and forth on a drug policy and maybe, you know, give up. You

know, as just a general sports fan, you know, ‘‘Gee, we will agree

to one more test if you lift the cap or the salary caps X amount

or we allow the rookies to be paid more,’’ or whatever it would be.

It just seems odd that that is something to be negotiated as opposed to taken off the table by a national law.

Mr. STERN. If that were the dynamic, I would agree with you, but

suffice it to say, in my experience, which encompasses our initial

agreement in 1983 and each subsequent collective bargaining

agreement, on the subject of drugs, the players and the owners

were very much on the same side of the table. You could disagree

about the scope of the program based upon issues of privacy,

rights, and the like, but it was never a question of if you raise our

per diem, we will give you more drug tests. It was always what is

fair. In 1983, our union said, ‘‘We have got issues with drugs of

abuse, and if we catch somebody using them, they should be permanently barred from our league.’’ You know, but if they come forward, we should treat them and actually pay them their salaries.

And we had the first, in effect, employee assistance program really

at a time when professional sports were viewed as being at the hub

of it. It turned out in subsequent years that drugs of abuse became

the center of our foreign policy, our professions, and a lot of other

places. So I think our players and their union have been exemplary

in dealing with this subject, just on its merits. And I respect the

differences that they might have about the number of intrusions or

about, on the subject of year-round testing, because we have a very

long season, perhaps as long as October 1 to June something, that

players who want to go away on vacation might not have a knock

on the door in the Alps——

Mr. TERRY. Well, Mr. Hunter, I will back you up a little bit. I

am not a huge NBA fan, but I do pay attention to what goes on

in the sport, as in football and Major League Baseball. Unlike

Major League Baseball where it was obvious to even the casual

fans what was going on, and it was completely ignored by the owners in the league, you don’t see that in the NBA. So I will say, at

least for the innuendo and the casual sports fan, you don’t see basketball players all of a sudden bulking up from one season to the

next at an incredible rate. So that was Major League’s obvious

dirty little secret. I don’t see that in the NBA, so you guys must

be doing a decent job.

But the chairman does raise a good point, and Mr. Markey, that

empirically, you need to have that type of testing. We rely on the

numbers, not innuendoes. I appreciate it.

89

One last party shot, though. Just as a casual fan, drafting high

school students is an issue and a problem. I will yield back.

Mr. STEARNS. I thank the gentleman.

We are getting ready to close, so I am just going to take the liberty, as chairman, just to ask one more question and then ask Mr.

Hunter to clarify something that you and I talked about.

The question for Commissioner Stern is the Women’s National

Basketball Association, should what we have in the men’s be also

applicable to the women’s?

Mr. STERN. I think it should be applicable. I wouldn’t want to

discriminate against the women. I think it should be applicable to

all professional sports.

Mr. STEARNS. So the same thing that is adopted in the NBA

should be adopted in the Women’s NBA?

Mr. STERN. Correct, and we currently do have random testing in

the WNBA.

Mr. STEARNS. And is it for the women’s the same as for the men’s

where it is just tested during the training camp only? And do you

do veterans different than the newcomers, the rookies?

Mr. STERN. I believe that there is one more test, random test

during the season for the WNBA.

Mr. STEARNS. So you are saying it is——

Mr. STERN. I think it complies with this, because it had a different cycle of collective bargaining. Its collective bargaining agreement was entered into between the last one that we are operating

under and the one we are hopeful to be operating under.

Mr. STEARNS. So today it looks like the Women’s NBA has a

tougher standard than the men’s right now?

Mr. STERN. It is ahead of the NBA in many ways.

Mr. STEARNS. Okay. It is ahead. All right. And we establish that.

Mr. Hunter, I am going to just go back to my question here, and

this is from your opening statement. You state that of the 23 initial

positive tests in the history of the NBA’s steroid policy only three

satisfied the additional steps of a positive test. What are the additional steps, and what were the reasonable medical explanations

that were excused by the medical doctor? And if you don’t know,

we can have you——

Mr. HUNTER. Well, let me give you my best understanding.

When we refer to the 23, what we are saying is that at least 20

of those tests were individuals who were terminated. So these were

guys who, when they were in training camp, they tested positive,

but they didn’t make the team.

Mr. STEARNS. Oh, so——

Mr. HUNTER. So they were gone. They were out of the league.

Mr. STEARNS. Okay.

Mr. HUNTER. Three actually made the team.

Mr. STEARNS. All right.

Mr. HUNTER. Or these were players who——

Mr. STEARNS. That is good to clarify.

Mr. HUNTER. Right.

Mr. STEARNS. Okay.

Mr. HUNTER. And then relative to those three, you actually do

what is called an A and a B sample. So the first time, the test

comes back positive, and then what you do is you test it again to

90

ensure that the lab got the correct results. So it was affirmed in

each of those three cases. And I believe in at least two of them, the

players were taking prescription medicine that they had received

from a physician.

Mr. STEARNS. So all three were excused because they were taking

prescriptions?

Mr. HUNTER. No, they were suspended.

Mr. STEARNS. They were suspended?

Mr. HUNTER. That is correct.

Mr. STEARNS. And they were taking prescription medicine?

Mr. HUNTER. Yes.

Mr. STERN. And seven of the tests positive were for Sudafed, and

they——

Mr. STEARNS. So have you ever gotten a test positive for steroids?

Mr. STERN. Yes, there were three. Those three that were

suspended——

Mr. STEARNS. But he was saying they were prescription drugs.

Mr. STERN. But they were suspended.

Mr. STEARNS. So the question is those three were not for

steroids? They were for prescription drugs?

Mr. HUNTER. No, I think within whatever it was they were taking, there was ephedrine or something that showed up.

Mr. STEARNS. But they were not steroids?

Mr. HUNTER. No, they were not steroids.

Mr. STEARNS. So what you are telling me is that from 1999 to

2005, out of all of your tests, you never got steroids?

Mr. STERN. No, that is incorrect. There were three steroid positive tests, as we both testified to. They were clearly steroids. And

so——

Mr. STEARNS. Not prescription drugs?

Mr. STERN. Not prescription drugs.

Mr. STEARNS. Okay. They were steroids.

Mr. STERN. They were steroids. And seven of the initial tests

were for Sudafed. They were medically excused. And in the others,

the players were dismissed or left the NBA voluntarily and never

played again, so there was no need to further deal with the subject.

Mr. STEARNS. Okay. So that answers the question. What were

the reasonable medical explanations that were excused by the medical doctor?

Mr. STERN. Sudafed.

Mr. STEARNS. Sudafed. Okay.

Let me ask the last question, Commissioner Stern. You have

touched about it in your opening statement about the unusual

strict liability standard that is applicable to drug testing policies.

A player can commit a violation unknowingly by, for example, ingesting a tainted nutritional supplement that is legally sold over

the counter. And that is pretty strict then, because they have strict

liabilities, all of the players.

Mr. STERN. Yes, they do.

Mr. STEARNS. So even if it is tainted, they still are disciplined?

Mr. STERN. They are disciplined. If it turns up, they are disciplined, and that is the way it is in H.R. 1862——

Mr. STEARNS. That is right.

91

Mr. STERN. [continuing] which does not incorporate even the exceptions under the WADA legislation for, you know, possible amelioration based upon external circumstances like that. And I would

urge the Congress to consider stronger legislation with respect to

nutritional supplements, which would help us with that problem.

Mr. STEARNS. Well, I think I have completed my questions, and

I want to thank both of you for taking up your time. We got

through a lot quicker than I thought, and so I would now announce

to the rest of the members we are going to have a hearing. It is

going to reconvene tomorrow at 10 a.m. with our third panel. And

with that, I thank the witnesses.

Mr. STERN. Thank you.

[Whereupon, at 3:44 p.m., the subcommittee was adjourned.]

(93)

THE DRUG FREE SPORTS ACT OF 2005

THURSDAY, MAY 19, 2005

HOUSE OF REPRESENTATIVES,

COMMITTEE ON ENERGY AND COMMERCE,

SUBCOMMITTEE ON COMMERCE, TRADE,

AND CONSUMER PROTECTION,

Washington, DC.

The subcommittee met, pursuant to notice, at 10:10 a.m., in room

2123 of the Rayburn House Office Building, Hon. Cliff Stearns

(chairman) presiding.

Members present: Representatives Stearns, Upton, Cubin,

Radanovich, Bass, Pitts, Bono, Terry, Ferguson, Rogers, Otter,

Myrick, Murphy, Blackburn, Barton (ex officio), Schakowsky, Markey, Towns, Rush, Green, and Baldwin.

Staff present: Bud Albright, staff director; Andy Black, deputy

staff director; David Cavicke, chief counsel; Chris Leahy, policy coordinator; Brian McCullough, professional staff; Will Carty, professional staff; Billy Harvard, clerk; Kevin Schweers, communication

director; Jonathan Cordone, minority counsel; Turney Hall, staff

assistant; and David Vogel, staff assistant.

Mr. STEARNS. Good morning, everybody. The subcommittee will

come to order, and I want to welcome our third panel in the continuing hearing we have had on steroids, and all of you know that

we had two panels yesterday, and we had our opening statements,

so the third panel is fortunate not to hear us again in our opening

statements.

We want to welcome the Commissioner Paul Tagliabue, the Commissioner of the National Football League. I guess you are accompanied by Harold Henderson. Mr. Henderson, welcome. He is the

Executive Vice President of Labor Relations, and of course, Gene

Upshaw, the Executive Director of the National Football League

Players Association.

I know both of you, Mr. Upshaw and Mr. Tagliabue, you came

from China, and I think you just recently gave your—the Upshaw

Award, which we are all very impressed, and secretly desire to

have some day in our afterlife. We will have to live with our

present position. So with that, let me ask you to give your opening

statement, and then we will have some questions for you.

So Commissioner, we will start with you.

Mr. TAGLIABUE. Thank you. Is this on?

Mr. STEARNS. Just need to put your mike on.

94

STATEMENTS OF PAUL TAGLIABUE, COMMISSIONER, NATIONAL FOOTBALL LEAGUE, ACCOMPANIED BY HAROLD

HENDERSON, EXECUTIVE VICE PRESIDENT, LABOR RELATIONS, NATIONAL FOOTBALL LEAGUE; AND GENE UPSHAW,

NATIONAL DIRECTOR, NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION

Mr. TAGLIABUE. Thank you, Mr. Chairman, and members of the

subcommittee.

We very much appreciate the chance to appear here today and

speak with the committee about these very important subjects. We

strongly support the principle of drug free sports. I believe that has

been clear in our policies for almost 20 years, and for us, as I think

it is for the committee, the critical question is how best to accomplish this in the years ahead.

The subcommittee has properly focused on the key concerns, the

health of athletes who use these substances, the values that are

promoted or debased by the use or abuse of these substances, and

the proper roles of government and the private sector in combating

their use.

For two decades, we in the NFL have had very strong programs

in place to eliminate from all of our teams the use of performanceenhancing drugs. My predecessor, Pete Rozelle, took the lead on

this in the years 1986 through 1989, and I inherited his policies,

and have been able to expand them beginning in 1990, with strong

support from the NFL Players Association, through Mr. Upshaw

and his Executive Committee.

Obviously, outside of professional sports, there are severe problems in this area, with the availability of these substances and

their use and abuse by young people, and I am well aware of the

committee’s concerns that when we are talking about the high

schools and other schools and youth organizations, it is a very difficult problem to address because of the limitations of resources

that they have at that level and the cost of dealing with some of

these programs, but we strongly feel that criminal prosecution is

appropriate in those areas for people who are supplying these types

of substances illegally, and in that manner, the issue can be addressed for all of society, not just for professional sports.

I think the committee knows our program quite well, so I don’t

have to reiterate all of that. Just to summarize, we conduct more

than 9,000 tests a year for steroids and other prohibited substances. These include mandatory, unannounced tests for all players during training camp, random, unannounced tests of seven

players on each of the League’s teams each week. Players are notified, without any prior warning, that they should test, and they do

so. If they refuse to do so, they are subject to suspension. We conduct approximately 1,600 tests during the off-season, and players

are required to register with our program, to indicate where they

will be if they will not be at their principal place of residence, and

they are subject to unannounced, random testing on that basis.

Our program is independently managed and supervised. When a

player is suspended, I read about it in the newspaper. That is

when I learn. We have a program medical advisor, who is a leading

member of the faculty at Ohio State University, who selects the

players for random testing. It is his independent judgment, done on

95

a computer-based selection system. No representative of the

League, my office, Mr. Upshaw’s office, or any team, has any role

whatsoever in determining who will be tested, or in determining

when a test is positive. Once a violation is confirmed by the program managers and advisors, discipline is imposed, subject to a

player’s right of appeal.

Teams have no notice that one of their players has tested positive until the player has been notified of the confirmed positive test

and of the disciplinary action. Our penalties are severe. For a first

offense, the minimum suspension is for 25 percent of the season,

four out of sixteen regular season games. In other leagues, this

would be the equivalent of a 20 to 40 game suspension. If a suspension begins late in the season, it carries into the playoffs. If the

suspension—if an offense occurs during the preseason, we suspend

during the regular season, so that the penalty is effective by taking

the player out of competition when the games count, rather than

during the preseason, when the games do not count in the standings.

In addition to these penalties, financial penalties, a player who

once tests positive is subject to reasonable cause testing 24 times

a year on an unannounced basis, and the combination of the suspension without pay and the subsequent testing 24 times a year on

an unannounced basis has made our discipline very effective. We

have suspended 54 players, and in only two cases was there—has

there ever been a repeat, and in those two cases, the player chose

to retire rather than to continue his career.

We understand the elements of the bill and the committee’s interest in uniform national legislation. We would, as I say, support

the principle of drug free sport, but in our judgment H.R. 1862, as

drafted, is not appropriate to be enacted in its present form. At

least as it applies to the NFL, we feel that it is unnecessary, but

we recognize the committee’s feeling that legislation is appropriate,

and there are several areas that we think clarification would be

very important.

First of all, the relationship of this legislation to the National

Labor Relations Act. We think that the way the bill is written, it

could easily be construed as superseding and effectively repealing

the NLRA when it comes to collectively bargained programs in professional sports, and we think that would be unfortunate. Second,

we think that the legislation inappropriately turns over to an international agency, the World Anti-Doping Agency, a key Federal policymaking function that can best be handled by the National Institute of Drug Abuse within NIH. Over the years, we have worked

with NIH on these programs, NIDA. As you know, the NIDA implements Federal policy and programs in this area with respect to

other industries, including transportation and the Federal workplace. And we think that the NIDA would be the appropriate agency here, not an organization located in Montreal, which is primarily

responsible to another organization located in Switzerland, when it

comes to making this legislation both effective and consistent with

U.S. legal principles.

So I would be pleased to discuss with the chairman and the other

members of the committee other aspects of the bill. But let me step

back and just comment on the NIDA point. We are running a busiVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00099 Fmt 6601 Sfmt 6601 21640.TXT HCOM1 PsN: HCOM1
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ness. This is a critically important function for us to preserve the

integrity of our games. We manage other critically important functions. For instance, as the committee knows, we are responsible for

stadium security in the face of potential terrorist attacks or attacks

by deranged individuals. We do this very conscientiously and very

carefully. We are responsible for the integrity of our games, to ensure that there is no influence of any gambling or any other untoward influence on the integrity of our games. We hire staff. We

have worked with FBI in those areas. So we manage very well and

very conscientiously critical functions, and we think we can manage this critical function as well.

To turn this over, as I say, to—the critical aspect to the World

Anti-Doping Agency, which is responsible to more than 150 nations, as I understand it, and many dozens of different sports with

different interests, some of those sports’ interests being directly or

indirectly competitive with our own interests, we think is inappropriate for multiple reasons. We have great respect for WADA and

for the IOC, but we also know that we were there with these testing programs effectively in the early 1990’s before WADA even existed, and at a time when the IOC was not handling these issues

particularly well, so we think it is a little bit anomalous, to say the

least, that we should now be obligated to follow their lead, and

turn over this aspect of our program to that organization operating

on an extraterritorial basis.

In terms of independence, I have read that some people say that,

you know, the League has a conflict of interest in this area. I don’t

understand that. We have a program that is outsourced to, in the

first instance, the IOC-certified lab at UCLA. The second step of

the function is handled independently by our medical advisor at

Ohio State University. The third phase of our function, in terms of

toxicology and proof of actual positive test, is handled by another

leading forensic expert in Utah. I do not play in a role in those determinations. The teams do not play a role, and most importantly

of all, it is not about me personally or about the team ownership.

It is about the fact that, as Commissioner, I have no stake in keeping players on the field. I have no stake in who wins a game, or

who qualifies for the playoffs, or who gets to the Super Bowl. My

stake is in the integrity of the game.

When I am in a room with 32 owners, 32 coaches, I know that

each of them wants to get to the Super Bowl. I am indifferent on

that matter. I don’t care who gets to the Super Bowl. My job is to

be neutral, and to ensure the integrity of our game, whether it is

from untoward influences having to do with potential gambling, or

whether it is from substance abuse with performance-enhancing

substances.

So, Mr. Chairman and members of the committee, I will wrap up

by saying that we strongly support the principle of drug free sport.

I think that we are unique in having a 20 year track record which

demonstrates that, and we understand the committee’s interest in

putting some more teeth into national policy in this area, and if the

committee concludes that legislation is necessary, we would look

forward to continuing to work with the committee on the specifics

of the legislation.

[The prepared statement of Paul Tagliabue follows:]

97

PREPARED STATEMENT OF PAUL TAGLIABUE, COMMISSIONER, NATIONAL FOOTBALL

LEAGUE AND HAROLD HENDERSON, EXECUTIVE VICE PRESIDENT-LABOR RELATIONS, NATIONAL FOOTBALL LEAGUE

Chairman Stearns and Members of the Subcommittee: The issue that the Subcommittee is considering today—the use of steroids and other performance-enhancing drugs in professional sports—is an important one that merits thoughtful attention by Congress. It is an issue that spans a wide range of concerns: the health of

athletes who use these substances, the values that are promoted or debased by the

use of these substances, and the proper roles of government and the private sector

in combating their use.

For two decades, the National Football League (‘‘NFL’’) has had very strong programs in place to eliminate from all teams the use of performance-enhancing drugs.

No one in the medical, scientific, research or sports community has had all the answers. But we have invested in research and development and we have worked with

leading institutions, top scientists and others to seek to stay ahead of an everchanging curve. The NFL’s policies, which have included prompt and stiff sanctions

for violators, have addressed these issues in a firm and constructive way. Today the

quickening pace of new developments in medicine and science, including genetics,

heightens the challenges that we all face.

In these efforts, we have had strong support and active participation in all of our

programs by the NFL Players Association (‘‘NFLPA’’), the collective bargaining representative of NFL players. Together, we intend to continue to have very strong

policies and programs to deal with the scientific, medical, ethical, competitive and

legal questions likely to result from the ever-escalating availability of body-changing, performance-enhancing, and eventually even gene-altering substances in our society.

We have produced to the Subcommittee detailed information about the structure

and operation of our program.

Outside of professional sports, the availability and the use of steroids and other

performance-enhancing substances continues to be a severe problem. These issues

need to be addressed by effective criminal and regulatory prohibitions and by the

prosecution and punishment of those who continue to make such substances readily

available in our society, including to young people. This is particularly important

when institutions such as high schools and other youth organizations do not have

the resources necessary to address these challenges.

1. THE NFL’S PROGRAM ON ANABOLIC STEROIDS AND PERFORMANCE-ENHANCING

SUBSTANCES.

More than twenty years ago, in 1983, Commissioner Pete Rozelle notified all NFL

players that anabolic steroids fell squarely within the League’s prohibitions against

the abuse of drugs and that steroids had serious adverse health effects. In 1987 and

1988, the League began testing for steroids to obtain a documented understanding

of the extent of steroid use among NFL players. And in 1989, the NFL instituted

discipline for steroid use, with heavy suspensions imposed on players testing positive for these substances.

In testimony given in May 1989 to the Senate Judiciary Committee, Commissioner Rozelle explained the basis for the League’s more stringent approach:

‘‘The fundamental responsibility of [the Commissioner] is to protect, as best

he can, the integrity of the game he oversees and the public’s confidence in it.

In my view, steroid use both threatens that integrity and confidence and presents other significant problems as well.

‘‘Our measures are designed to promote common sense, fair play, and good

health. If they do no more than generate an increased awareness among athletes at all levels of the potential risks of using steroids, our program will have

been a modest success. . . .[But] we hope our new measures will be a much larger

success, and a significant step toward eradicating these drugs from our sport.’’

In August 1989, Commissioner Rozelle issued the first suspensions of NFL players

for positive tests for steroids, and a Federal Court in the Nation’s Capital upheld

the suspensions as within the Commissioner’s authority under the collectively-bargained disciplinary principles then in place in the League.

In the NFL’s submission to the Federal Court in support of that ruling, the

League underscored the negative health and competitive aspects of steroid use for

NFL players, and also emphasized the responsibility of the League and its players

to set a proper example for America’s youth on these matters. In part, the League’s

submission explained:

‘‘[F]ans cannot be expected to purchase tickets to games tainted by steroids.

[In addition,] the image of the NFL and its players is critically important to the

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young people of our Nation who, for good or ill, emulate their sports heroes.

Commissioner Rozelle’s affidavit explains the basis for this concern, and makes

reference to arbitration and court decisions that underscore its legitimacy. In

this connection, it is not surprising that the NFL Players Association has never

challenged the importance of maintaining the image of the NFL or of NFL players.’’

Shortly after becoming Commissioner in late 1989, Commissioner Tagliabue instituted a number of changes in the League’s substance abuse programs and relationships. These changes took account of the need for greater investment in specialized

resources and increasingly varied and sophisticated testing techniques in order to

deal with the growing array of substances that were creating both competitive

issues and adverse health effects for NFL players. These changes included yearround random, unannounced testing for all players; retaining new medical and scientific advisors to oversee the administration of the policy; and moving the testing

to two laboratories certified by the International Olympic Committee. All of our testing is now at the WADA-certified lab at UCLA.

In 1993, the key elements of the League’s program were agreed to by the NFL

Players Association in collective bargaining. Since then, the League and the NFLPA

have met regularly to review the workings of the program and ensure that we remain proactive in responding to developments in science and technology, doping control research and the policies of other organizations. For example, in 1997, we added

a number of steroid precursors to the list of banned substances, including

androstenedione and DHEA. The former was not made a controlled substance by

Congress until last year; the latter remains a legal substance.

In December 2000, the Program’s jointly-retained medical advisor, Dr. John

Lombardo, issued a ‘‘Health Alert’’ to all NFL players regarding Ephedra. We began

testing for it in 2001, and discipline was imposed for any positive Ephedra test

starting in 2002. As a result of a recent federal court decision, the status of Ephedra

under FDA regulations is uncertain.

We have also pioneered the use of new and improved testing techniques. As new

types of so-called ‘‘designer drugs’’ are discovered, we move promptly to address

them. For example, when the designer steroid THG was identified in 2003, the

League re-tested more than 2000 urine specimens—every specimen in the UCLA

lab’s possession—to ensure that no significant use of this substance would avoid detection and disclosure. And our policy has from the outset incorporated a ‘‘related

substances’’ provision, to ensure that minor chemical changes do not escape the prohibitions of our program. This longstanding feature of our program is reflected in

the WADA and United States Anti-Doping Agency (‘‘USADA’’) guidelines.

We have continued our policy of investing in research and development by entering into a partnership with the USADA to establish a new laboratory at the Center

for Human Toxicology at the University of Utah. We expect this laboratory to be

operational later this year, and once it receives appropriate certification, it will be

available to professional and amateur sports organizations for both testing and research.

This process of continual examination and improvement has continued into 2005.

In our most recent meetings, the League and the NFLPA agreed to the following

improvements in our program dealing with performance-enhancing substances,

which will take effect this season:

• To reduce the threshold for a positive Testosterone test from the current 6:1 Testosterone/Epitestosterone ratio to a ratio of 4:1. This is the standard adopted

by the WADA earlier this year. • To increase number of times a player can be randomly tested during the offseason

from 2 to 6. • To add additional substances to the list of banned substances. • To codify the League’s ability to re-test specimens for designer steroids and other

substances that may have evaded detection.

Under our current program, more than 9000 tests for steroids and other prohibited substances are conducted each year. These include a mandatory unannounced

test for all players during training camp; random, unannounced tests of seven players on each of the League’s 32 teams each week throughout the preseason and regular season; weekly, random, unannounced tests of each playoff team through the

Super Bowl; and approximately 1600 offseason tests which, like the regular season

tests, are conducted on a random, unannounced basis. The selection of players for

random testing is determined independently by the Program’s Medical Advisor, who

uses a computer-based selection system specially designed for this purpose. No representative of the NFL, the NFLPA, or any NFL team has any role whatsoever in

determining who will be tested. No representative from any team has any role in

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posed, subject to a player’s right of appeal; and teams have no notice that one of

their players has tested positive until the player has been notified of disciplinary

action.

In this respect, it is important to understand what a four-game suspension, which

has been the discipline for first offense, means in the NFL. It takes the player entirely out of the lineup—and out of the locker room—for one-quarter of our regular

season. In other leagues, this would be the equivalent of a 20 or 40 game suspension. If a suspension begins late in the season, it will carry into the playoffs. Any

suspended player likewise loses a quarter of his annual salary. Suspended players

also may be required to forfeit some or all of their signing bonuses. And insofar as

they have the opportunity to earn performance bonuses, a loss of four games will

almost certainly place those performance targets out of reach.

In addition to these penalties, a player who tests positive is subject to reasonable

cause testing on an unannounced basis 24 times a year. One indication of the effectiveness of this combination of measures is that we have only had two players test

positive a second time; both chose to retire rather than accept an even longer suspension and the accompanying public embarrassment.

2. GROWTH HORMONE AND TESTOSTERONE.

Two other matters related to the scope and effectiveness of the League’s testing

programs also deserve mention. The key issues here relate to current limitations of

testing science and laboratory capabilities.

The first is the subject of Human Growth Hormone (‘‘HGH’’). We have prohibited

this substance since 1991. Currently, there is no readily available urine test for

HGH. A blood test was first used at last summer’s Olympic games in Athens, where

300 of the more than 11,000 athletes who competed in the Games were tested. No

athlete tested positive. Currently, no lab in the United States is certified by WADA

to conduct these tests, although we are advised that this will certainly change, and

perhaps soon. We are currently evaluating our next steps with respect to growth

hormone and will continue to consult with experts in the field, including those associated with other leading sports organizations. As scientific developments warrant,

we will be prepared to adjust our own policies, as we have consistently done in the

past.

The second matter involves Testosterone and the Carolina situation that has been

in the media in recent weeks. If, as has been suggested, players were using substances for which no test was available, or were using a substance at levels that

were calibrated to escape detection under existing NFL test protocols, they would

have avoided a positive test under either our program or those administered by

other leading sports anti-doping organizations.

These matters are under investigation by both our office and by Federal law enforcement authorities. We are proceeding deliberately and with due respect for the

government’s investigation. Until those reviews conclude, it is inappropriate to comment on the specifics of any individual player.

Currently, we are addressing testosterone issues in two respects. First, to take account of the evolving consensus as to test protocols for the Testosterone/

Epitestosterone ratio, we are lowering the threshold for a positive test from a ratio

of 6:1 to a ratio of 4:1. Second, we are developing a program to review player tests

over time to identify unusual changes in player T:E ratios, even if they are below

the 4:1 threshold. Significant deviations would then result in more detailed medical

review, reasonable cause testing and other responses.

3. SUMMARY OF THE NFL’S VIEWS ON H.R. 1862.

We understand that a principal reason for these hearings is to consider whether

a uniform national policy should be put in place to govern testing and discipline by

professional sports organizations for any abuse of steroids and other performanceenhancing substances. We have carefully reviewed H.R. 1862, and would respectfully urge that it not be enacted into law in its present form. We believe that the

bill, at least insofar as it relates to the National Football League, is unnecessary;

that it would unwisely supercede and effectively repeal the National Labor Relations Act and the authority of the National Labor Relations Board over important

terms and conditions of player employment in professional sports; and that it potentially risks undermining the effectiveness of the anti-substance abuse programs that

we have had in place for more than 15 years.

The bill would not improve upon the NFL’s current program. We test for a broad

list of steroids, other performance-enhancing drugs, and masking agents. We review

our program regularly and revise it on an annual basis. Our testing protocols are

administered by an independent, jointly retained physician who is not employed by

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the NFL or any NFL team. All of our testing is performed at the UCLA Olympic

Laboratory—an independent lab that is certified by the WADA and other major certifying bodies. We have year-round random testing in the NFL with substantial penalties for players who test positive. While the WADA recently cut its out-of-competition testing in half for Olympic athletes, we have expanded the number of off-season

tests to which NFL Players are subject. Unlike WADA, we do not distinguish between in-season and out-of-season by permitting the use of certain substances in the

off-season but prohibiting them during the season. In short, the drug testing program in the NFL is not a ‘‘problem’’ that needs federal legislation in order to be

‘‘fixed.’’

In several respects, we believe that a federalized drug testing program is less desirable than the collectively-bargained approach that exists in the NFL. First, we

do not believe there is any demonstrated basis for supplanting collective bargaining

as the appropriate means for addressing these issues. If any professional sports organization believes it has been faced with a refusal to bargain in good faith on these

issues, it should seek relief before the National Labor Relations Board as federal

law provides.

Second, a uniform system for all sports will necessarily fail to account for the differences among sports organizations in structure, length of season, number of players, average career length, and program cost. One risk is that the uniform program

will have a ‘‘least common denominator’’ element that actually lowers standards in

some sports leagues. As one example, the bill would only require that players be

tested once per year. Under our policy, some players are randomly tested as often

as 10 times a season—far more than would be required under the bill. Over time,

this provision may thus become a basis for viewing less comprehensive testing programs as effective, or for lowering the current level of testing or otherwise diluting

the terms of the current collectively-bargained program.

Third, our collectively-bargained approach allows for a more rapid and certain response to developments in doping and anti-doping technology. As one example, in

1997, the NFL and NFLPA agreed to include Androstenedione as a banned substance. Players testing positive for Andro were suspended. But it was not until 2004

that Congress designated Andro as a controlled substance. Had we been required

to wait for the Secretary of Commerce to make such a determination, as Section 3

of H.R. 1862 appears to contemplate, NFL players might have been able to use

Andro without penalty for years longer than was the case under our current program. The Secretary is obligated to follow traditional rulemaking procedures, meaning that the process can be cumbersome and protracted, particularly when compared

to the process by which the NFL and NFLPA have expanded the list of banned substances over the past decade.

A second such example involves Ephedra. As noted earlier in my statement, the

NFL and NFLPA determined to include Ephedra as a prohibited substance at the

start of the 2001 season. NFL players testing positive for Ephedra are suspended.

The FDA eventually implemented a ban on Ephedra but its rules were sharply limited by a federal judge’s decision last month. Agreements between the NFL and the

Players Association are not subject to these kinds of court challenges. Indeed, under

the National Labor Relations Act, courts give great deference to these kinds of employer-employee agreements. Regulations issued by the Secretary of Commerce are,

by nature of the notice and comment and judicial review provisions in the Administrative Procedure Act, necessarily subject to lengthy administrative procedures,

court challenges, and potential revision or invalidation by a single federal judge.

They may also be subject to challenge under provisions of state law that are not

applicable in the context of collectively-bargained agreements. And once Congress

federalizes drug testing in sports, and replaces collective bargaining under the National Labor Relations Act with statutory and regulatory mandates, there can be no

assurance that even agreed-upon provisions that exceed federal minimums will be

respected by the courts. Nor would the anti-injunction provisions of the NorrisLaGuardia Act necessarily continue to apply.

Fourth, simply incorporating the WADA list of prohibited substances is likely to

be overbroad in some respects and under-inclusive in others. For example, WADA

prohibits such substances as beta blockers and erythropoietin (EPO). The former,

used to slow the heart rate and reduce muscle tremor, has been seen in sports such

as archery, golf and rifle; the latter has been seen in more extended endurance

events, such as cycling. There is simply no indication from our independent medical

experts that either has been used or would be effective in professional football, and

a requirement to test for them would almost certainly be a costly misuse of medical

and laboratory resources. By contrast, the WADA does not currently prohibit synephrine, a stimulant banned and tested for in the NFL.

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Fifth, the penalties required by the bill are excessive in the context of professional

football. As we explained earlier, a four-game suspension, combined with ongoing

testing, works. From any perspective—financial, competitive, and reputational—it is

a substantial penalty. There have been virtually no repeat offenders in the NFL.

A two-year suspension, in the context of a sport where the average career length

is less than four years, is therefore both unnecessary and disproportionate. It would

diminish the substantial support that the League’s steroid program currently has

among players and could lead to demands to reduce testing in a way that sharply

limits the number of players detected and disciplined.

It also bears mention that other drug testing organizations, such as USADA and

WADA, currently do not impose a mandatory two-year suspension for every athlete

who tests positive for every prohibited substance. Rather, the two-year sanction is

more properly viewed as a maximum penalty. In 2004, fully one-third of the Olympic-level USA athletes testing positive for a substance prohibited by the USADA

were not suspended. A significant number received no more than a public warning.

Under our policy, players are held to a strict liability standard—claims of inadvertent or unintentional use are expressly precluded as defenses and are not considered as mitigating circumstances for discipline.

Finally, Section 6 of the Bill calls for various studies and reports relating to the

Bill’s effectiveness. The first such report would address ‘‘the effectiveness of the regulations prescribed pursuant to this Act’’ in the context of professional sports. How

will such effectiveness be measured? Cynical critics of the NFL program claim that

it is not effective because there are relatively few positive tests—demanding, in effect, that the League ‘‘prove a negative.’’ But the US Anti-Doping Agency, using the

same lab and similar testing procedures, identified only 9 athletes who tested positive for steroids in 2004. Does that mean that USADA has an ineffective program?

Or does the relatively low number of positive tests instead mean that, within the

limits of existing science, doping control efforts are in fact effective? We believe the

evidence sharply supports the latter conclusion. What will be the standard of effectiveness under H.R. 1862?

These are but a few examples of the issues that would be raised if the NFL’s policy more closely reflected the provisions of H.R. 1862. We genuinely respect the concern that underlies the bill, but we believe that the NFL has demonstrated a long

and genuine commitment to combat the use of performance-enhancing drugs in football. Federalizing that program under the direction of the Secretary of Commerce

will not further the Subcommittee’s goals.

If the Subcommittee determines nonetheless to proceed with legislation, we would

urge that it do so deliberately. Rather than proceed on an accelerated basis, we

would suggest that the Subcommittee conduct further in-depth discussions to narrow the areas of potential difficulty and focus the application of the bill more precisely.

4. THE NFL’S PROGRAMS TO COMBAT USE OF PERFORMANCE-ENHANCING SUBSTANCES BY

YOUNG PEOPLE.

We recognize that one of the Subcommittee’s primary concerns is the extent to

which young people are using steroids today. This has been one of the primary factors underlying the NFL’s programs as well.

Among athletes and coaches, where we can influence behavior, we make an aggressive effort to discourage the use of steroids, supplements and drugs of abuse.

As one example of this, we have worked with leading institutions in medicine and

sports to create reliable guides on fitness, nutrition, safety and conditioning—entitled ‘‘Play Safe! The NFL Youth Football Health and Safety Series.’’ This four-volume series, which was first distributed in 2003, gives players, coaches, parents and

the public general information on football-specific health and safety issues in a

clear, easy-to-understand format. Needless to say, this series emphasizes that the

use of performance-enhancing substances, and/or other drugs of abuse, is unacceptable.

By partnering in the publication of this series with leading academic and public

service organizations, we have sought to ensure that this series will be regarded as

definitive and independent and also widely distributed and used. The series editor

is Dr. Barry Goldberg, the Director of Sports Medicine at Yale University Health

Services and Clinical Professor of Pediatrics at Yale University School of Medicine.

The series is produced in partnership with the American College of Sports Medicine,

the American Red Cross, the National Athletic Trainers Association, and the Institute for the Study of Youth Sports at Michigan State University.

Two of the four volumes of this series deal with matters of direct interest to this

Subcommittee. One volume specifically discusses ‘‘Strength and Conditioning’’ and

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offers practical, step-by-step techniques to build strength, endurance and flexibility,

improve performance and decrease risk of injury—all without steroids or other substances. Another volume in the series entitled ‘‘Health Concerns for Young Athletes’’

has an entire section on substance abuse and specific warnings about steroids, including the following:

‘‘There should not be any controversy about steroid use in sports; nonmedical

use is illegal and banned by most, if not all, major sports organizations.’’

‘‘The use of anabolic-androgenic steroids to enhance performance is not only

illegal, it is dangerous.’’

This series has been distributed nationwide in both print and on-line editions and

has been furnished to the Subcommittee. It has been furnished to high school football programs throughout the country and to our NFL National Youth Football Partners network, which includes the Boys and Girls Clubs of America, Jewish Community Centers Association, Police Athletic Leagues, Pop Warner, and the YMCA,

among others. The entire series is available free of charge on NFLHS.com, a popular

high school football website sponsored by the NFL. The site also includes articles

and Q&A sessions between a former NFL coach and high school players on various

topics, including the dangers of steroids and drug use. NFL representatives and

other professionals also address these issues at our annual NFL Youth Football

Summit in Canton, Ohio and youth football coaches throughout the country receive

our NFL Coaching Academy Playbook, which includes a chapter devoted to health

and safety issues that gives specific advice to football coaches on the dangers of

steroids and steps coaches can take to detect and deter drug use by their players.

USA Football, a not-for-profit advocacy and educational organization jointly endowed by the NFL and the NFLPA, has made a wide array of resources available

to parents, coaches and players across the nation. The USA Football website contains articles on steroids and drugs of abuse, and USA Football is making this a

key focus of its health and safety programs for 2005, including at its Huddle 2005

national conference next month. The message is always the same—to play football

in a way that is safe, within the rules, and without use of artificial performanceenhancing products.

The NFL’s recognition that a strong anti-steroids policy may positively affect the

conduct of our Nation’s youth is not of recent vintage; in fact, it dates back at least

to the late 1980s. In the same 1989 testimony before the Senate Judiciary Committee to which we earlier referred in this statement, Commissioner Rozelle emphasized precisely this point:

‘‘The third risk of anabolic steroid use by adult athletes, as dangerous as the

other two, is its potential effect on the youth of America. Whether NFL players

like it or not, they are role models. I worry about the young athlete, still in his

formative years, who emulates his favorite college or pro football star by taking

a drug he believes to be a harmless source of size and strength. Equally worrisome is the youngster who recognizes the risks, but ignores them and looks beyond to the rewards of a larger physique and possibly a professional contract.

‘‘In 1987, the NFL produced a video tape on the harmful effects of steroids

featuring a discussion among our drug advisor, the medical officer for the

United States Olympic Committee, an expert from the American College of

Sports Medicine, and two team physicians from the NFL. This tape was made

available for showing to our own players, and 450 copies of it have been distributed throughout the country by the National State High School Coaches Association.’’

So the question remains, what accounts for the levels of steroid use by high school

students and what can we do about it?

First, steroids, growth hormones, and similar substances are freely available—almost on demand—in the retail marketplace or over the Internet. As the Subcommittee knows, we live in an era of borderless electronic commerce and the global

Internet pharmacy. A web search for ‘‘buy steroids’’ yields a large number of Internet sites where one can buy a wide range of steroids. The most difficult problem

appears to be deciding where—not how—to buy steroids. The same is true of growth

hormones, where one of the first sites identified in response to a search for ‘‘buy

human growth hormone’’ offered customers the chance to ‘‘Buy 2 and Get 3rd Free.’’

These substances are freely marketed as cure-alls, promising youth, vigor, enhanced

social standing, freedom from disease, improved personal appearance, and the like.

Apart from the Internet, magazines, newspapers, faxes and other print materials

advertise a wide variety of steroids, growth hormones, and similar products.

Second, there are substantial media pressures that lead adolescents to use

steroids or ‘‘body shaping drugs.’’ Dr. Linn Goldberg, who testified before the Committee at an earlier hearing, has decried the extent to which steroid use has become

acceptable among advertisers, who suggest their product is ‘‘on steroids’’—i.e., bigVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00106 Fmt 6601 Sfmt 6621 21640.TXT HCOM1 PsN: HCOM1
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ger, faster, better. As Dr. Goldberg asks, ‘‘Could anyone imagine marketing strategy

that [suggests] that their product is ‘on’ any other drug of abuse, like cocaine, LSD

or marijuana?’’

Third, high school students evidently assume that there is very little risk of detection except perhaps by attentive parents or a well-informed school or athletic official. Our own research has disclosed no state in which there is mandatory testing

of athletes for steroids, although a number of states are looking at instituting such

programs. A survey of high schools conducted by the National Federation of State

High School Associations in 2003 showed that fewer than 4 percent tested students

for steroids. Generally, where testing has been proposed, it has been rejected, as occurred recently in California. Given budget constraints and other pressures, this is

not surprising. For example, the same 2003 survey found that of school districts

that do not have drug testing, 54 percent cited budget concerns as the reason. Yet

these circumstances leave a large gap in the state and local educational infrastructure that might serve to address issues of concern to the Subcommittee.

Fourth, the use of steroids is probably as prevalent among non-athletes as it is

among athletes, and the use of steroids is not limited by age or gender to high

school boys. It evidently continues to be true that the ‘‘perfect body’’ remains something that many high school students strive for, and drug testing of professional

athletes is likely to have a very limited influence on many high school students if

their levels of self-esteem and peer acceptance drive their behavior.

Research presented at a 2004 meeting of the Endocrine Society found that while

both athletes and non-athletes used both anabolic steroids and body shaping drugs,

‘‘student athletes were less likely to use steroids, alcohol, cocaine, cigarettes,

pseudoephedine and diet pills’’ than were non-athletes. Dr. Goldberg’s studies

showed ‘‘an increase in anabolic steroids use among high school non-athletes, which

may be one of the reasons for the national increase in steroid use among teens.’’

This appears to be true among both boys and girls.

It is questionable whether the same approaches that affect behavior of athletes

will work for non-athletes. In testimony given in March before this Committee, Dr.

Goldberg cited research suggesting that special programs, called ATLAS and ATHENA, which are targeted separately to high school boys and girls, could lead to significant reductions in all types of drug use, including anabolic steroids.

5. CONCLUSION.

Our challenge going forward will be to ensure that our research is current, that

adequate resources are available to support programs proven to be effective with

young people, including non-athletes, and that sports organizations remain firm in

their commitment to clean competition at all levels.

Thank you for inviting us to appear today. We will be pleased to answer any questions.

Mr. STEARNS. I thank you. Mr. Upshaw, welcome.

STATEMENT OF GENE UPSHAW

Mr. UPSHAW. Thank you, Mr. Chairman. Thank you, Mr. Chairman.

I want to first start by saying we, as players, support the position in the statement that the Commissioner has just put on the

record. He mentioned a couple of things that I just want to touch

on, because we totally agree in this area when it comes to performance-enhancing drugs and stimulants.

The first thing that I want to say, it is a product of collective bargaining, and it has been a product of collective bargaining, but

never once in the history of the Players Association have we ever

decided to trade one issue for another issue when it came to performance-enhancing substances. We believe strongly in this. This is

definitely player-driven, and when I say it is player-driven, the

players understand what this program is all about. When I say

they understand what this program is all about, they feel the same

way as the Commissioner does about the integrity of the game. The

integrity of the game is really what and why we must have it.

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The other reason that we have it in place is that it can—if we

don’t have it in place, there will be cheaters. There are players, and

players have said in the past, and that is why we have a strong

policy, is because they don’t want to use performance-enhancing

drugs, but they want to make sure that they are out of the game

totally. We have never in the history of this agreement on these

issues had one player to say, or defend anyone that has used it. We

don’t want to send that message. We understand our role as role

models, and you do hear players from time to time that say they

are not role models and they don’t want to be role models. Well,

we also have to accept the responsibility that goes with what we

do.

When we get to the penalties of the legislation, we strongly believe as players that the 2 year ban is strictly too much. We have

a career that basically lasts for about 4 years. If you lose 2 years

in a suspension for a first offense, your career is basically over.

That is something that we have to look at. We look at the 25 percent loss of pay, the four game suspension, as a very, very severe

suspension, and we believe it has worked, and history has proven

that it has worked in the NFL. We have not had repeat offenders,

which is a really a way to judge the program. So, we have done

what we need to do, as far as educating our players, educating our

teams, and getting the players to understand that if there needs

to be change, we will do it.

We also have an annual, or quarterly review, in which we look

at the policy and make changes if changes need to be made. There

are times when changes have to be made before we have a quarterly meeting. An example of that was in 2003, our lab at UCLA

discovered THG. Immediately on—we had a phone call with Mr.

Henderson and Mr. Tagliabue, and we agreed to add that to the

list without a quarterly meeting. We have to move fast to try to

stay ahead of what the drug of abuse and drug—performance-enhancing drugs that come on the radar screen, and we will continue

to do that.

To sum up, to say that one size fits all, is something that I heard

in the testimony yesterday. I think we have to draft, and we have,

in our situation, crafted an agreement and a policy that addresses

football, and the Commissioner is absolutely right. When WADA

decided to do whatever they decided to do in 2000 and 2002, we

were there before that. We started testing players in 1987, suspending players in 1989, and having year round testing in 1990.

So, we have a track record of doing what needs to be done in this

area to guarantee that our game is performance-enhancing free.

Last, but not least, the whole issue of integrity of the game is

really something that we would like to stress here today, because

it is important to understand that the contests on the field have

to be judged in a way that is fair, and the public has confidence

in what we put on the field. That is why our product is what it is.

The last thing I would like to touch on is the independence of the

program. It is independent. The League office, my office, or Harold

Henderson’s office have nothing to do with who is tested, the outcome of the tests, or the penalties of the tests. If you are guilty in

the National Football League, you will be suspended, and we feel

strongly that that is the right way to go. You can’t get any more

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independent when none of us have a particular interest in the outcome of who is playing and who is not playing. What our job is to

do is to make sure that the integrity is protected, and I think we

have done a good job of that.

As I said earlier, we understand our position as role models, and

I would like to thank the chairman for mentioning the Gene Upshaw Award. I was in Lancaster, Pennsylvania last night, and

there were over 400 high school and college kids in the audience,

and I had an opportunity there to talk about this issue in front of

those kids, and whenever we have an opportunity to do that, we

will do it, we have done it, and our players continue to do it whenever asked, and even when not asked, because it is an important

issue. And my whole message dealt with character, it dealt with

cheating, and it dealt with their athletic abilities, and we all understand that as role models on what we have to do, and we have done

that in the National Football League, and I am not saying we have

done it perfectly. I am not saying we have caught everyone, but if

you use performance-enhancing drugs in the National Football

League, you will get caught.

Thank you very much.

[The prepared statement of Gene Upshaw follows:]

PREPARED STATEMENT OF GENE UPSHAW, EXECUTIVE DIRECTOR, NATIONAL

FOOTBALL LEAGUE PLAYERS ASSOCIATION

Mr. Chairman and Members of the Subcommittee: My name is Gene Upshaw. I

am the Executive Director of the NFL Players Association, the labor union that represents all NFL players in collective bargaining. I also played in the NFL for 15

seasons with the Oakland and Los Angeles Raiders. For my accomplishments as a

player, I have been honored by induction into the Pro Football Hall of Fame.

I am pleased to respond to the Subcommittee’s invitation to appear and testify

on H.R. 1862, the Drug Free Sports Act.

The bill directs the Secretary of Commerce to issue regulations requiring testing

for steroids and other performance-enhancing substances by professional sports

leagues, including Major League Baseball, the National Basketball Association, the

National Football League, the National Hockey League, Major League Soccer and

others. Testing is to be random and occur at least once a year. By rule, the Secretary is to issue a list of prohibited substances including those listed by the World

Anti-Doping Agency (‘‘WADA’’). The bill provides a minimum two (2) year suspension for a positive test and permanent suspension for a second positive test.

Before commenting on H.R. 1862, it may be helpful to the Subcommittee for me

to provide some background and explanation of the collectively-bargained Policy and

Program on Anabolic Steroids and Related Substances that has been in place in the

NFL for more than a decade. It is the most comprehensive in professional sports

today. Our results confirm that the program is very effective. It reflects a strong

and ongoing commitment by both management and our union backed by substantial

financial investments, top scientific resources and more than a few tough decisions.

There are numerous issues on which management and labor disagree, and we are

presently involved in a difficult round of collective bargaining negotiations. But

there is complete agreement on this: steroids and other performance-enhancing substances have no place in our game, or anywhere in sports. For many years, we have

been committed to keeping them out of the NFL, and we will continue to work with

the League, and with government and private parties, to help remove them from

American life.

The NFL began testing players for steroids in 1987; started suspending violators

in 1989; and in 1990 instituted a year-round random testing program, including

during the off-season, backed by suspensions without pay for violations. The program has strong features to deter evasion, including suspension for players testing

positive for masking agents or who attempt to dilute their urine to beat the tests.

Players who test positive are subject to up to 24 unannounced tests per year, including during the off-season. They remain subject to this frequent, year-round testing

for the remainder of their professional football careers.

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We also recognize the importance of staying current, and have consistently expanded our own list of prohibited substances—in the past several years, nearly 20

additional substances have been added to the banned list. Those included ephedra,

which we prohibited three years ago. As the Subcommittee knows, the federal government’s ban of that dangerous supplement was just limited by a District Court

Judge. Nonetheless, ephedra will remain a prohibited substance in the NFL because

of the risks it continues to present to our player population.

This process of ongoing review is one of the most important aspects of our Program. The League and the players meet on a quarterly basis to review the operation

of the Program and discuss issues. Every year the Policy is re-written—hopefully

for the better. We expect shortly to conclude that process for 2005 and will shortly

publish the revised Policy and distribute it to all the players. We will provide the

Subcommittee with the new version, but I can highlight a couple of changes today.

First, we have reduced the threshold for a testosterone positive. While a player

formerly had to have a t:e ratio greater than 6:1 for a positive test, that ratio will

now be 4:1.

Second, we have increased the maximum number of off-season tests from 2 to 6

per player. Thus, at a time when other drug testing organizations both in this country and around the world are sharply reducing their ‘‘out of competition’’ testing,

we are sending the message to our players that steroid use is inappropriate at any

time—in-season or out.

Why has this issue been among the highest priorities of the NFL and its players?

First, these substances threaten the fairness and the integrity of the game on the

field. To allow the use of steroids and banned stimulants would not only condone

cheating, but also compel others to use them to remain competitive. Our own players want to rid the League of these substances so they can compete on a level playing field.

Second, we have a responsibility to protect our players from the demonstrated adverse health effects of steroids and other banned substances. Medical literature is

replete with research linking the use of these substances to a wide range of serious

health problems.

Third, we take seriously our role in educating and leading young people. As President Bush said, the use of performance-enhancing drugs is dangerous and sends the

wrong message that there are shortcuts to success and that performance at any

price is more important than integrity. Our players regularly meet with young people—both athletes and non-athletes, girls as well as boys—in a wide variety of settings, including our ‘‘Pipeline to the Pros’’ sessions. We consistently emphasize that

steroids or other drugs are the wrong course for players. They are dangerous. They

are unfair. They are wrong.

The key provisions of our policy are:

• An annual test for all players plus unannounced random testing in and out of season. We test players on all teams each week of the season, conducting more

than 9,000 tests a year for steroids and related substances.

• A list of more than 70 prohibited substances, including anabolic steroids, steroid

precursors, growth hormone, stimulants and masking agents. This list is continually revised and expanded.

• A mandatory four-game suspension (25 percent of the regular season schedule)

without pay upon a first violation. A second violation would result in a six-game

suspension and a third would ban a player for a minimum of one year. Players

cannot return to the field after a suspension until they test clean and are

cleared for play.

• Strict liability for players who test positive. Violations are not excused because

a player says he was unaware that a product contained a banned substance.

• Education of players and teams about the program through literature, videos, a

toll-free hotline and mandatory meetings.

The consistent application of these core tenets has resulted in the recognition by

experts in the field of the NFL’s policy as the most effective in professional sports.

Over the past five seasons, less than 1 percent of our players have violated our steroid program and been suspended. In short, virtually all of our players get the message and participate in the NFL without using anabolic steroids or other performance-enhancing substances.

We would be naı ̈ve if we did not understand that there are temptations and pressures to succeed facing football players that require us to make education and deterrence of substance abuse a constant priority.

When our steroid testing lab—the U.C.L.A. Olympic Analytical Laboratory—informed us in 2003 of the new designer steroid called THG, we immediately added

it to our banned substance list.

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As we go forward, we will continue to be vigilant. The NFL spends $10 million

a year on our steroid and drug programs, including the funding of research to identify new substances and to improve testing. To date, close to $100 million has been

invested on this initiative. And we are prepared to do more if necessary.

Despite efforts that we and others in sport have made to eliminate anabolic

steroids and other performance-enhancing drugs from athletic competitions, there

are those in America and elsewhere who will seek to beat the system by designing

and producing illicit substances that inappropriately affect athletic performance

while escaping detection.

We are proud of our Program and what it has accomplished. Is it perfect? Does

it catch everyone? No. But the players overwhelmingly support the program, recognize its value, and believe it applies to all players in a fair and even-handed way.

In that respect, our Program is different from any other drug testing program the

Subcommittee is likely to examine. It has not been imposed by management or by

a sports federation or any other governing body. The players were not dragged

unwillingly to the bargaining table. In the NFL, players and teams recognized the

problem and have reached a common consensus that these substances had to get

out of the game and that testing and tough discipline for violators were the key elements of an effective program. For more than a decade, as thousands of players

have entered the League, this Program has continued to have extraordinary support

from players.

Let me turn briefly to comment on H.R. 1862. While we share the goals that the

legislation is designed to achieve, there are important differences in our approach

from that outlined by the bill.

H.R. 1862 would impose a Federal regulatory regime on all professional sports requiring a uniform testing and discipline system. Sports leagues would be mandated

to establish a uniform steroid testing program based on the World Anti-Doping

Agency list of prohibited substances.

The bill provides that that Secretary of Commerce may exempt Leagues that have

adopted testing policies and procedures that ‘‘exceed the requirements’’ of Federal

regulations. However, it is not clear what that phase covers. For example, would a

League have to impose greater penalties than the bill prescribes to be exempt?

Would a League have to ban more substances than the WADA in order to ‘‘exceed’’

the federal regulatory requirements? Would more tests than required by the Secretary of Commerce be needed to obtain exemption? The bill answers none of these

questions and unless the Federal regulations mandated the most minimal requirements, the possibility of qualifying for an exemption might be illusory.

Furthermore, the bill fails to acknowledge the collective bargaining process or address the special characteristics of individual team sports. The number of games

played, the size of the team rosters, the average length of a player’s career, the

physical demands of the individual sport, the length of preseason training, are just

a few of the characteristics that differentiate the individual team sports and affect

the components of a successful testing program. Although the penalties proposed by

H.R. 1862 for a positive test may be appropriate for Olympic competitions occurring

every two or four years; they are not suitable for professional football. The penalties

and testing regime we have adopted and have been implementing have been effective and have the support of management and the players. Moreover, the costs of

running such a program are substantial and a successful testing program must take

into account the capabilities of U.S.-based testing facilities. In sum, H.R. 1862 raises

several critical issues. For example:

• Does the Secretary of Commerce possesses the expertise or experience to effectively implement the broad powers conferred by H.R. 1862?

• Is a uniform penalty structure and testing program appropriate for all professional sports? In other words, when it comes to professional team sports, does

‘‘One Size Fits All’’?

• Finally, will a statute mandating a uniform substance abuse testing program administered by the Federal Government be as effective and likely to succeed as

one produced and implemented through collective bargaining, and which has

been praised for more than a decade by many experts who have led anti-doping

efforts in sports?

One simple but powerful fact will be of interest to the Subcommittee: I constantly

spend a great deal of time with current NFL players, and I cannot recall an occasion

in more than ten years in which a player who used steroids was defended by his

teammates or any other player. NFL players know what cheating is and they do

not want cheating or cheaters in our game.

In considering the effectiveness of our program, the comments of current players

and coaches are instructive:

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‘‘I’m not sure how much more we can do with our steroid policy. It is already

the most comprehensive testing in professional sports. If you are doing steroids

now, you’ve got some kind of death wish because I doubt very much there are

many players taking steroids now in the NFL.’’ Rob Konrad, Oakland Raiders,

Boston Globe, March 31, 2005.

‘‘I was drug tested for steroids just last week and I was drug tested through

the season. I just have a hard time believing that people can do it and beat the

system the way it is.’’ Sean O’Hara, New York Giants, Newsday, April 1, 2005.

‘‘The NFL has been very clear about steroids and that feeling permeates every

locker room. So it is considered bad to do anything like that, not only from an

organizational standpoint, but a player-to-player standpoint. You will be

frowned upon if another player found out you were taking steroids. I think

there is a very small percentage of guys in the NFL doing it. Very small.’’ Jerome Bettis, Pittsburgh Steelers, New York Daily News, April 21, 2005.

‘‘I coached in the League before there was [a steroid policy]. I can see the difference. That’s how far our professional sport has come. I think it is the cleanest professional organization in the world.’’ Dick Vermeil, Head Coach, Kansas

City Chiefs, Florida Today, May 16, 2004.

I hope that as it continues its review, the Subcommittee will understand the importance of this level of player support, and will respect the process by which it has

been achieved and maintained.

Today new challenges are being presented to our society by the improper use of

human growth hormone and the continuing advance of gene therapy and genetic

manipulation.

Both the government and private sectors must aggressively address these challenges. If not, the secret designers of new illicit substances will slog on, and the future will bring more high-profile grand jury investigations, health risks to young

people and dishonor to sports. NFL players are prepared to do their part, as they

have for more than 15 years.

Mr. Chairman, we in the NFL thank you for your leadership on this issue, and

we appreciate the opportunity to testify today.

Mr. STEARNS. And I thank you. And I agree with you. The perfect

is the enemy of the good. You can’t necessarily guarantee perfection, but you certainly can strive for it.

The hearing we had yesterday, there are two areas that came up

dealing with the unions, and one was brought up by Mr. Fehr from

the Baseball Players Association, and then Mr. Foose, from the

Major League Soccer Players. They mentioned the Fourth Amendment, which is that individuals are secure in their homes. Yet the

NFL has 1,600 tests off-season, and as you folks have mentioned,

the players have to tell you where they are going to be, so I tried

to convey to them I thought that was a moot issue, and sort of a

red herring. It wasn’t a serious issue. Can I assume, based upon

your 1,600 off-season, that you have never felt that you were denying the Fourth Amendment rights of your players by saying we are

going to test you randomly, we want to know where you are going

to be so we can be there?

Mr. UPSHAW. Maybe I wasn’t clear at the beginning, but this policy is player-driven. The players wanted this.

Mr. STEARNS. Okay. So——

Mr. UPSHAW. This is what our players wanted.

Mr. STEARNS. Okay.

Mr. UPSHAW. This is why our policy has been successful.

Mr. STEARNS. Yes.

Mr. UPSHAW. Because our players want it, and when I say they

want it, they understand the rules. When you talk about off-season,

in-season testing, and all of those issues, in the National Football

League, there is only 1 month that you are not——

Mr. STEARNS. Okay.

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Mr. UPSHAW. [continuing] at the facility. So, we are there all the

time. We believe, as players——

Mr. STEARNS. I hope Mr. Fehr and Mr. Foose of the Major

League Soccer have heard your comments this morning, because I

didn’t think—I thought it can be worked out. It is not a Constitutional crisis of denying the Fourth Amendment, and I think you

brought that out.

The other area is, and this has been mentioned, the National

Labor Relations Act, and how this would be effected by this bill,

and I guess I would say to that that obviously, steroid possession

is a criminal offense, and we have a compelling interest in ensuring

the integrity of competition and in compliance with the Federal

criminal law. So, in the event that there is criminal action, then

we have a right to get involved. Now, obviously, we want to work

with you, and my idea this morning is to leave this hearing with

a full understanding how—could you support H.R. 1862 with certain modifications? I think that is what I am asking, Mr. Commissioner.

You and I talked earlier a little bit about the components of this

bill. There are six major components. One is the testing, and how

you mentioned it is an outside group, how it is random, every player, 1,600 in the off-season, I think you are to be complimented on

your manner of testing. Also, it is administered such that the Commissioner doesn’t even know about it until he reads about it in the

newspaper, so it is an independent body that does that. That is

what we have in the bill. There is an area dealing with what substances we should include. We have suggested WADA.

Now, Mr. Tagliabue, I think you indicated that you would suggest the NIDA. Is that——

Mr. TAGLIABUE. Yes.

Mr. STEARNS. If we had a modification to this bill to reflect a list

of substances not necessarily by WADA but another group, maybe,

for example, the NIDA, would that move you more toward supporting the idea of the bill?

Mr. TAGLIABUE. Yes. I think so. You know, I think there are

probably four or five critical areas. One is——

Mr. STEARNS. Okay.

Mr. TAGLIABUE. [continuing] what I have mentioned, in terms of

the role of the NIDA, instead of the role of a non-U.S. agency located outside of the United States. The second is on the discipline,

where I think our program is very effective.

Mr. STEARNS. Do you think our 2 years is too draconian?

Mr. TAGLIABUE. Yes, and even there, you know, I read in the

‘‘L.A. Times’’ yesterday that the WADA’s chairman himself says

that there is a range of penalties that goes from zero to 2 years,

depending upon the circumstances.

Mr. STEARNS. Right.

Mr. TAGLIABUE. So, I think that is a second key area.

Mr. STEARNS. Okay.

Mr. TAGLIABUE. A third key area is, and I don’t mean to make

a mountain out of a molehill, is the issue of the National Labor Relations Act. I think there could be language that would make it

clear that collective bargaining continues in this area, because I do

feel that the way the bill is currently written, successors to me and

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successors to Mr. Upshaw could take the view, well, let us just recede to the minimum standards of the bill, and I think that that

approach of receding to a lowest common denominator would be inappropriate and unfortunate. I am not going to do it, and he is not

going to do it, but neither one of us is going to be around forever,

and the future is a long time, so I think clarifying that point about

the continued importance and respect for collective bargaining in

this area is a key thing, coupled with whatever provisions might

go into Federal law.

So those would be some of our key thoughts.

Mr. STEARNS. So if we incorporated those—so if this bill moved

in that direction, then would I assume that you would not be

against H.R. 1862 if it incorporated some of the things you were

talking about?

Mr. TAGLIABUE. You could assume that, yes.

Mr. STEARNS. Okay. So, I would say that this morning, you are

saying, we support the idea of a Federal bill with these modifications. Now, Mr. Upshaw, is there anything that you might want to

add, because I forgot to—I want to make sure that you are

fully——

Mr. UPSHAW. No. I—well, since——

Mr. STEARNS. [continuing] suggestions, too.

Mr. UPSHAW. [continuing] he didn’t mention it, but in the bill, it

also speaks to exemptions from the bill, exemptions from this, and

I was not clear about how you gain such an exemption, and when

I look at—except the penalty, and the way that you have drafted

the independence, we are way ahead of where—we want to know,

have we done too much? Do we roll it back, or I mean, we are not

in—we are not saying that we would do that because the bill would

allow us to do that, because it is not good for our sport. That is

why one size doesn’t fit all. But on the other hand, if there are provisions and clarifications on exemptions, I would definitely like to

know what they are.

Mr. TAGLIABUE. Mr. Chairman, I would say two things, which is

my focal point here. If there are Federal standards, and they are

high, and they are demanding, fine. What I do not want to see happen here is that our ability to effectively run the best program in

the country is limited. If I want to fire somebody because their report comes to me that they, a collector didn’t do his or her job, I

want to be able to fire that person and not have to go to the Secretary of Commerce.

And I don’t want to have to have long regulatory hearings about,

you know, tenure——

Mr. STEARNS. Arbitration.

Mr. TAGLIABUE. [continuing] and arbitration and incumbency and

back pay rights, and all the other stuff. When we find that a player

has substituted some substance for his urine, the collector is fired

if he didn’t do his job, and so that is one key thing.

Second key thing is, I don’t want to have to run around and do

things that the best scientific opinion can’t agree is necessary. We

are already having a discussion on this issue with respect to

Human Growth Hormone. WADA is already talking about testing

for Human Growth Hormone. They are talking about going from

urine testing to blood testing, which is, I am told, the only way you

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can test for Human Growth Hormone. Our scientific people are not

satisfied that the blood test has yet been properly validated. I don’t

want to be forced to spend millions of dollars on a test that someone is saying you have to do because it makes them look good in

some international forum, when our scientific people say the test

has not yet been validated.

If we do have a validated test, like Mr. Upshaw said, on any substance, this came up with THG, we are the only one, only one that

I am aware of, who went back and got 2,000 samples of urine previously collected and went back and tested all of them for THG, retested all of them once the test had been identified. I am not aware

of any other organization that did that. And I think that shows our

bonafides here, but the same token, I want to be forced to spin my

wheels and spend money on something that has not been proven,

just because someone else thinks it is in their interest to say they

are the world’s leaders in anti-doping.

Mr. STEARNS. My time has expired. The Ranking Member, Ms.

Schakowsky.

Ms. SCHAKOWSKY. Thank you very much, gentlemen, for being

here and for your testimony, and for the work that you are doing

in the NFL to make sure that your sport is not tainted by performance-enhancing drugs.

I wanted to—let us begin with the assumption that there will be

a Federal bill, and go over some of the provisions. I want to—I

think you spoke to this a little bit, but I want to ask this question

directly of both of you. Do you think the Department of Commerce

is the most appropriate Federal agency in which to house a program regulating performance-enhancing drugs, or do you think this

program, for example, would be better administered by a department or agency with expertise on pharmaceuticals and public

health, such as the Department of Health and Human Services?

Mr. Tagliabue, if you want to begin.

Ms. TAGLIABUE. I guess I would say that on first blush, I think

it is a little anomalous that this goes to the Department of Commerce, but I would also have to add that even though I have practiced law in Washington for 20 years, I am not the world’s greatest

expert on the scope of the authority of the Secretary of Commerce.

As I did say, I think that the NIDA should have a major role

here, because it is within the National Institutes of Health. It does

administer drug testing programs in other areas that are critical

to our society, such as transportation and the Federal workplace.

And it just seems to me that taking advantage of that expertise,

plus their relationships with the Department of Justice and the

White House and the FDA and the DEA makes sense, and we all

know that our government is—works best when a bunch of agencies work together on the civil side and on the criminal side, and

I think that the NIDA here can be that lynchpin, as they say. I

don’t see how WADA fits into that picture.

Ms. SCHAKOWSKY. Well, WADA only to the extent that that was

the list.

Mr. TAGLIABUE. Yes, but that is a critical issue.

Ms. SCHAKOWSKY. Yes.

Mr. TAGLIABUE. And NIDA can talk to WADA and see what their

list is. They can take advantage of WADA’s expertise. It doesn’t

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have to be farmed out to Montreal or to Switzerland for that purpose.

Ms. SCHAKOWSKY. Mr. Upshaw.

Mr. UPSHAW. I agree 100 percent, and also, I don’t think we can

stress it firmly enough, that we have the best experts in this country, that we should use and take advantage of the people we have.

As I look at the WADA list and I look at the people that they purport to represent, I do not see any collectively bargained groups

there. I see no team sports in that list, and I don’t see a lot of input

from the people that it really affects, and as the chairman has

pointed out, the thing that makes our program so unique is that

it is player-driven, and players want a fair, level playing field when

it comes to these issues. And that is why we feel better about having it here in our country.

Ms. SCHAKOWSKY. Do you believe that legislation should include,

as part of penalties for a first offense, a requirement that athletes

undergo drug rehabilitation and recommended medical treatment?

Do you do that, and do you think that should be part of the——

Mr. UPSHAW. Yes.

Mr. TAGLIABUE. We do extensive counseling, treatment, and both

on a mandatory and on an optional basis, for which we pay under

our health insurance plans, when it comes to the drugs of abuse.

We do less of that under these performance-enhancing substances,

because I believe our advice has been that this is more of a matter

of choice, and it is less of an issue of addiction here. So, you know,

we are certainly into the multifaceted approach to deterrence which

starts with education, can go to counseling, goes to strict penalties,

goes to rehabilitation, if there is evidence that that works. But if

it is just a matter of a player trying to get an edge, as Mr. Upshaw

suggests, then the best deterrent is to eliminate him from the game

by suspending him, and not to get too carried away with counseling.

Mr. UPSHAW. I just want to add one last caveat to what the Commissioner said, and that is once there is a positive test, the one

thing that I don’t think has been mentioned, the player is not eligible to return unless he is clean, and given medical clearance to return, and that is determined by the medical advisors, not by my

office or Paul’s office or Harold’s office. The medical people make

that decision, and not us, and if they feel that he needs counseling,

that will be part of it.

Ms. SCHAKOWSKY. Thank you.

Mr. STEARNS. I thank you. The full chairman of the committee,

Mr. Barton from Texas.

Chairman BARTON. Thank you, Mr. Chairman, and I want to

thank each of you three gentlemen for attending our hearing voluntarily, and especially you, Mr. Tagliabue. I know that you were

traveling, I think in China, and you are amazingly coherent for

somebody who has just gotten back from that long of a journey.

I really only have one general question, and it goes to the overall

scope and structure of the program. I hope it is evident that Congressmen and Congresswomen on both sides of the aisle really

think it is time to do something, and we are not being derogatory

about what the NFL has done. I think in many ways, you all have

done an excellent job. But at our hearing yesterday, we had the

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Major League Baseball and the Players Association, Major League

Hockey and their Association, the National Basketball League Association and their Players Association, and we had somebody from

the Olympic Committee, and we laid out the parameters that we

were going to have an independent testing agency that was going

to do testing year-round, and it was going to include a random testing protocol.

So, my general question is, understanding that you have your

own testing program, and you are very pleased with it, do you see

that your program could be integrated into the kind of program

that I just said?

Mr. TAGLIABUE. Yes, I think we definitely feel that way, and you

know, I think our basic attitude is that we operate under the Federal Trade Commission Act. We operate under the Food and Drug

Act. We operate under the antitrust laws. We can operate under

something in this area, so long as it is written in a thoughtful and

effective way.

Chairman BARTON. Well, we are going to use what we call regular order, which we will have a subcommittee markup, and that

could happen as early as next week. Then, we will take a little

time, and my friends on the minority side have already talked to

me that they have got a list of issues that they want to work on,

so we will probably take some time between subcommittee and full

committee, but then at full committee, we will also have an open

markup process. And I am open to a bill that, as long as it has

these general parameters, work with each of the major professional

leagues to kind of customize parts of the program around what

your specific sports and player relationships and collective bargaining agreements are, but we do want to have one testing agency, so that we get uniformity. And as I said, we do want it to be

a year-round program, and have a random protocol in it, so that

the players, you know, can’t kind of be pre-warned and game the

system. And my understanding was steroids, as soon as you stop

using them, there is a pretty fast release time, so that it would be,

without the random aspect of it, you could kind of get around the

testing program.

Mr. UPSHAW. Just to speak a little bit about the random release

time. It is our understanding that the steroids that are being used

in this area, is not a release time that is very quick. It is between

35 and 45 days. And that is why, because we understand the cycles

of what happens when you are using these type of supplements,

and performance-enhancing drugs. The other part that is—I had a

little concern about was the independence in the laboratories in

who are they certified—I mean, we all are using the same labs that

the Olympics are using now. That is what we use in the NFL. The

experts that are doing the testing, the guy that found the THG,

was the guy that does our testing, and does our analysis out at

UCLA.

And so there is a little gray area, and matter of fact, there is a

big gray area, about the certification procedures of the lab.

Chairman BARTON. This is—my time is about to expire, and I

have one question that is a little bit off-point from this hearing, but

I don’t normally get three illustrious witnesses like this. We had

a hearing in our Oversight Subcommittee earlier in the week about

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devices and drugs that are used to beat drug tests, and the individual who actually got caught with one of the devices I believe

was a player for the Minnesota Vikings. Does the NFL have a policy that sanctions or punishes players that use, you know, fake

urine samples or masking agents, or in some cases, prosthetic devices to help beat drug tests? Is there a policy on that?

Mr. TAGLIABUE. Absolutely, Mr. Chairman. This goes back 20

years, you know, which is as basic as spare the rod, spoil the child.

We have explicitly in our policy that when a player delivers his

urine sample, he must be naked from the knees to the nose, and

this idea that all of a sudden, there has been a new world-renowned discovery, because there is a device for delivering, you

know, someone else’s urine, it is something we have been addressing for 25 years, and it is treated as a positive automatically. Any

effort to dilute, subvert, adulterate, ignore, misdeliver, is a positive,

and it results in automatic suspension.

Mr. UPSHAW. Suspension.

Chairman BARTON. Well, we don’t—we found out that it is not

illegal under Federal law to have these devices.

Mr. TAGLIABUE. That is a different——

Mr. UPSHAW. That is different.

Mr. TAGLIABUE. It is illegal for us.

Chairman BARTON. Well, that is good. This is another area you

are ahead. It is going to be illegal by the end of this Congress.

Mr. TAGLIABUE. Well, it should be. There are a lot of things that

should be illegal.

Chairman BARTON. But I have—that is not directly on point, but

I just wanted to—and I appreciate that you already had—I would

assume the Players Association supports the position that the Commissioner just enunciated.

Mr. UPSHAW. We jointly wrote the policy, and we totally agree

with it, and that—I was asked a question about the Fourth Amendment earlier. I mean, we cannot go into his house and find what

he has there. That is completely different, but if he comes and tries

to use a device, or any player tries to use a device, as the Commissioner has pointed out, it is a positive test, and you are suspended.

Mr. TAGLIABUE. And we also, Mr. Chairman, we—our supervisors

spot-check our collectors on an unannounced basis to make sure

that the collectors are enforcing the knees, the nose requirement,

and if they find that they are not, then the collector is fired.

Chairman BARTON. Very good. I guess my last comment, Mr.

Chairman, I would hope next year, the Cowboys and the Texans

each get one free first round draft choice.

Mr. UPSHAW. At the rate they are playing, they might.

Chairman BARTON. That is the best line all year, right there.

Mr. TAGLIABUE. You have got to recognize he is a Raider.

Chairman BARTON. Yes.

Mr. UPSHAW. That is why, when Paul said he had no, you know,

he was not concerned about who won, well, I am still a little concerned about the Raiders, so——

Chairman BARTON. Yes, well, a good line is a good line.

Mr. STEARNS. Thank you, Mr. Chairman. The gentleman from

Massachusetts.

Mr. MARKEY. I thank you so much.

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First of all, thank you so much for having a good policy on the

books for a long time. You help us with everyone else, because you

have been able to work on this process with the players and the

owners in a very constructive way over a long period of time, and

so, you have showed that where there is a will, there is a way.

One of the objections which you raise is the National Labor Relations Act, and that you like to keep as many things subject to collective bargaining as possible, although I think I heard from both

of you that you keep these health issues in a separate category

from every other collective bargaining issue, which is pretty much

what Congress does as well. What we do is we pass minimum wage

laws, and we say you can’t negotiate around them. We pass child

labor laws, and we say, you can’t negotiate around those. We pass

worker safety laws, and we say you can’t negotiate around those.

Those are off the table for you guys, and for everyone. So, Congress, even with the National Labor Relations Act and collective

bargaining, we pass laws here that we believe are just so fundamental that we are not going to allow them to be subject to collective bargaining.

Now, what you say is, and especially you, Mr. Upshaw, because

we appreciate it that you have always tried to keep them separate.

Some of the other representatives from the other leagues, who represent the unions, have obviously not adopted that position. They

see it as a central bargaining chip with other issues, which is troubling to us, so as we move forward, it is going to be necessary for

us to take note of that, that you have set an example as to how

it should be done, but we can’t be sure that the other leagues, especially the unions, will follow suit.

You, Mr. Upshaw, have set a model for how important it is to

keep it as a health issue, as—even as a competitiveness issue, but

still, not a collective bargaining issue, although you keep it inside

the collective bargaining process. So, just so you understand, as we

would move forward, if we did pass legislation, we would think of

it in the same context that we think of worker safety, child labor

laws, minimum wage, we are just putting it in a separate category,

as you have yourselves, although not legally, but at least de facto

in the way that you negotiate.

Now, Commissioner Tagliabue, you have expressed several specific concerns about H.R. 1862, and if I can list them, perhaps we

could work through them a little bit. One, you say that the number

of tests required is less than the NFL already does. Two, that the

regulatory process to add new drugs to the prohibited list may be

too slow to respond to developments in doping technology. Three,

that the World Anti-Doping Association list of prohibited substances is overbroad in some respects and underbroad in others.

Four, that the penalties are excessive in the context of professional

football. And five, that it would be difficult to measure the effectiveness of the regulations issued pursuant to the bill. I think I

have summarized your five objections.

So, let me ask this, then. If we increased the number of tests,

streamlined the regulatory process, so that we move more rapidly

to add new doping agents to the prohibited list, gave the Secretary

of Commerce discretion to make adjustments to the World AntiDoping regime, and perhaps moved the jurisdiction to NIDA, and

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adjusted the penalties so that they affect a set percentage of the

season, rather than a set amount of days, would the NFL then be

able to support the bill?

And I would ask Mr. Upshaw if you could respond as well.

Mr. TAGLIABUE. I think the answer is yes, and I guess the way

I would summarize what, you know, the points you made, as I said

at the outset, I think putting NIDA in here is very important, in

place of the World Anti-Doping Agency. It seems to me that is a

critical part.

Second, I think, as you said, the legislation can and should clarify the relationship of this bill, this statute, to the NLRA, and I

think the key thing there is that by having a collectively bargained

component to whatever program will be going forward, it insulates

it from challenge in a very effective way. That is my main point.

I think that is Mr. Upshaw’s main point here, that by having it collectively bargained, it effectively insulates it from challenge in

ways that might not otherwise be the case.

Mr. MARKEY. You are saying that other leagues may challenge

it.

Mr. TAGLIABUE. A player.

Mr. MARKEY. A player may challenge it.

Mr. TAGLIABUE. If you just have a regulatory scheme, a player

can come in with an agent and file a lawsuit under the—you know,

in a Federal court or in a state court, and rely on a state statute

that has to do with employment terms and conditions. There are

a lot of them out there, some of them specific to the rights of professional athletes. Those kinds of suits are barred by collective bargaining, because the union is the sole and exclusive bargaining rep

of the members of the unit, and therefore, deference is required to

union negotiated agreements. So, I think that is a very important

element of preempting collateral challenges to suspensions.

Mr. MARKEY. All right. But assuming that the legislation dealt

with the collateral challenge, would the essential principles that

you have laid out, as modified by what I just said——

Mr. TAGLIABUE. Yes.

Mr. MARKEY. Would that be appropriate for the committee to legislate?

Mr. TAGLIABUE. Yes. I think so. Like I say, I think the three key

points that we would make on the five areas that you have raised

are NIDA role rather than WADA, clarifying the point about collective bargaining authority, which I think is more than a theoretical

point, and third, would be addressing the penalty provisions in a

way that is less draconian and is more, allows somewhat greater

discretion to the individual sports, and you know, nonetheless, stiff

and clear, but less draconian than a 2-year suspension.

Mr. MARKEY. Okay. Now before——

Mr. TAGLIABUE. The other issues about, you know, flexibility and

getting things in and getting things out, those are real concerns,

but I would assume in the process going forward, that could be

managed. But just to take one example, when we banned ephedra,

we were the first to do it, there were industry groups saying that

they were going to sue us if we banned ephedra. We said we are

banning ephedra for our athletes, not for society generally. You

want to sue us, sue us.

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Mr. MARKEY. Did they sue?

Mr. UPSHAW. No.

Mr. TAGLIABUE. No, because we tailored our program to our athletes. Did they sue generally? Yes. As you know, a Federal Court

in Utah has struck down part of the FDA ban, so I don’t want to

be in a situation where, by taking this from where we are to where

we are going, all of a sudden, we fall under the general rubric of

okay, you live with the rest of society on ephedra. If our doctors

find that ephedra is dangerous to our athletes, in the kinds of high

level physical activity that they engage in, we are going to ban it.

We don’t want to lose that authority by what may happen here, by

putting us under the Administrative Procedure Act or anything

else.

Mr. MARKEY. Okay. So—and under the Administrative Procedure

Act, the challenge would be that the law, as we have promulgated

it, is not reasonable, and isn’t related to the issue that it is dealing

with, that it is arbitrary, that there is no defined standards.

Couldn’t we cure that in the way in which we draft the legislation,

so that as we flesh out the Administrative Procedures Act, we have

given enough guidance that it could sustain a challenge in court?

Mr. TAGLIABUE. I would hope so, but I, knowing what ephedra

represents for our athletes, I am astonished that there is a Federal

Court decision out there in the last 2 months saying that the FDA’s

authority to deal with ephedra is not as extensive as the FDA

though.

Mr. MARKEY. I just—if I might—I just don’t think that is an insuperable obstacle in——

Mr. TAGLIABUE. No, like I said, I don’t think it——

Mr. MARKEY. [continuing] terms of our ability to craft——

Mr. TAGLIABUE. [continuing] is insuperable.

Mr. MARKEY. [continuing] it in a way that could——

Mr. TAGLIABUE. But it is a real——

Mr. MARKEY. [continuing] withstand an APA challenge, you

know, because if we were tasked with that specifically, it would be

possible to write something in a way that the court would not be

able to rule it was arbitrary and capricious, or was unreasonable,

because there were specific justifications that were built in for each

one of the—could I ask Mr. Upshaw, because—I am far, far over.

I apologize.

Mr. UPSHAW. The only response I would like to make, you did

touch on a percentage. We do have a percentage. We have 25 percent of a season being lost for violating the policy, and that sort

of gets back to the question I raised earlier about exemptions. We

need to clarify what does that mean. If we are going beyond what—

where this bill is and where it might end up, I would think that

the clarification on exemptions need to be a lot clearer for us, because we think right now, we are exempt.

Mr. STEARNS. The gentleman’s time has expired.

Mr. MARKEY. But can I just—but on those five items that I listed, if we were able to work on them, would you be able to support

legislation?

Mr. UPSHAW. Well, what we would have to do, both the Commissioner and myself, would be to see the whole bill in totality. We

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can’t respond to one piece of it, you know, in piecemeal. We would

have to see it——

Mr. MARKEY. Well, I mean—right. No—until all——

Mr. UPSHAW. We are not——

Mr. MARKEY. [continuing] conditions are complete. But if we did

complete all of those five conditions that are in the testimony,

would be able, then, to support the legislation?

Mr. UPSHAW. I am not ready to make that commitment yet, I

mean, but I am willing to say that the players and the League are

willing to look at all of them, and then judge it after we see it all.

Mr. STEARNS. Would the gentleman from Massachusetts yield

briefly before he yields back his——

Mr. MARKEY. I would be glad to, and I apologize. I thank you for

your indulgence.

Mr. STEARNS. I just want to ask Mr. Upshaw if you know who

the defending Super Bowl champion is.

Mr. UPSHAW. Yes.

Mr. STEARNS. Who is it?

Mr. UPSHAW. New England.

Mr. STEARNS. Oh. And where is Mr. Markey from?

Mr. MARKEY. Yes, well——

Mr. UPSHAW. I know. I am surprised Mr. Markey didn’t bring

that out.

Mr. UPTON. Mr. Chairman, do you know where the quarterback

from that team is from?

Mr. UPSHAW. He is from California.

Mr. MARKEY. I was actually going to use as one of my arguments

that the nexus that we would have is that a lot of times, there is

public funding for the stadiums for these professional football

teams, but Massachusetts did not provide any public funding for

the Kraft family, so I was not able to use that argument.

Mr. UPSHAW. And I just want to remind you that Mr. Kraft reminds us of that all the time.

Mr. STEARNS. The gentleman’s time has expired. The gentleman

from Michigan, Mr. Upton.

Mr. UPTON. Thank you, Mr. Chairman, and I, again, appreciate

this second day of hearings, and I—to start off, I just wanted to say

again, Mr. Commissioner, we appreciated your response this last

year on the decency debate, you know, it was a very important part

of what we were able to do in the last Congress, when we passed

legislation again in this Congress, and we are waiting for the Senate to act.

And we appreciate your role for a long time in this issue, as well,

on steroids, as you have been the leader in the field, and the questions haven’t been to the NFL like they have been to Major League

Baseball and other sports, and that is because of the respect that

both of you have for the game, not only in the past but the future.

One, just to follow up on Mr. Markey’s question, in terms of, as

you know, in this legislation that was introduced, it calls for a 2-

year ban. It seems to me that you would, knowing that the NFL

has tested every player every year since 1987, and the first offense

is a four game suspension, this, in essence, would be, if a team

didn’t go to the playoffs, 32 games. It seems as though, if it was

rolled back to 1 year, would that be, obviously, preferable, but it

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wouldn’t be exactly where you are, is that what I am hearing this

morning?

Mr. TAGLIABUE. Yes, I think it still would be too much. I mean,

we have had 54 suspensions in 15 years, and only two repeats out

of 54, and both of those players retired. I think that shows a very

effective program, because it is not just the four game suspension,

but the fact that once you have tested positive, you are tested 24

times a year on an unannounced basis. That is more effective as

a deterrent than another 6 months, another 9 months, another

twelve months. So I think that when you look at our program, 54

suspensions in 15 years, it is working.

And as Mr. Upshaw said, these players have a short career, and

neither one of us is for——

Mr. UPSHAW. And once a player is in that program, he is in it

for the remainder of his career. He is not out because he tests clean

for a period of time. He is still in.

Mr. UPTON. Now, this particular player that Mr. Barton, Chairman Barton referenced, from the Vikings, that was apparently, I

am told, found through airport security with a device, what is likely to happen—and he was obviously not being tested at the time.

What is likely to happen to someone like this scenario that happened?

Mr. TAGLIABUE. Well, this player has been in the league, I think,

for two or 3 years. He has already been suspended for four games

under our drugs of abuse program, which means that he has either

tested——

Mr. UPTON. Was he suspended for this incident?

Mr. TAGLIABUE. No, but he has been suspended for four games

last year under our drugs of abuse program, which means that he

has either tested positive already twice or three times. In other

words, the program has caught him twice or three times in his first

2 years in the league. So, whatever he is using, it is not very effective.

Mr. UPTON. Mr. Upshaw.

Mr. UPSHAW. There is nothing else to add to that, except as the

Commissioner has pointed out, it would be, from what I can understand about this device, it would be almost impossible to bring it

into a testing area and use it. He just couldn’t do it, unless they

are, you know, I just don’t think it is even possible when you are

talking about from the knees up.

Mr. UPTON. That is why, as I am listening, you wonder why he

even purchased this stuff, knowing that it is not going to work.

Mr. UPSHAW. You mean you don’t believe it was for his cousin?

Mr. UPTON. Oh. Find out. Let me just ask a question on the

Human Growth Hormone, and that is where a real potential for

abuse could be. Tell me what you are doing on this issue.

Mr. TAGLIABUE. Well, we have with us some scientists who work

on our program, and I will try to just recap what they have been

telling me over the many months. No. 1, we are working with other

organizations, including the World Anti-Doping Agency, trying to

share learning in this area. Second, it appears that the actual performance-enhancing effects of this, the Human Growth Hormone,

may be misperceived. In other words, it may be overblown that the

actual performance-enhancing effects are less than some athletes

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expect. So, we are going to educate our players in this area. Hopefully, education here is going to be an important deterrent.

And third, we are actively looking at the two types of tests that

are being developed in the labs. Both are, as I understand it, blood

tests, rather than urine-based tests. They test this—different elements. One tests for the Human Growth Hormone itself. The other,

as I understand it, tests for the chemical consequences within the

body of the use of the substance. As I said earlier, in the judgment

of our experts, neither test has yet been adequately validated as reliable. The WADA did test, I think, 300 athletes in Athens, out of,

I think, 11,000, and there were no positive tests. That could either

be, I guess, because the test isn’t effective, or they are not using

it. But we are on top of it. We regard it as an important issue, and

in fact, we, the NFL, raised this as a critical issue in Congress back

in 1992, 1993, and 1994, when this was first coming up with the

pharmaceutical firms. So, we have been on it since it has been on

the horizon.

Mr. UPTON. Thank you again. I yield back my time.

Mr. STEARNS. I thank my colleague. Mr. Towns, the gentleman

from New York.

Mr. TOWNS. Thank you very much, Mr. Chairman.

Let me just say that I really appreciate you holding this hearing.

I think it is very important, you know, but I come saying that we

can learn from what the NFL is doing, and I think that I want to

say to the Commissioner in particular, I think that the real problem, though, is some of the other sports teams, in terms of the

other leagues, I should say, you know, have not made the kind of

progress you have made, and that is the thing that we are dealing

with. And I must say to you that I feel that, you know, that when

someone is doing basically what they should do, that we should

leave them alone, but—and you seem to be doing that, you know.

You are moving forward, you know, taking action, but others are

not taking action, and that is the problem. And I just have difficulty with, you know, when you legislate, you know, one size fits

all, and I just hope that somewhere along the line, that others will

get the message and begin to move, because I really would hope

that we would not have to get involved in this process. I really

would hope that it would clean it up. And my real concern is the

youth. They idolize professional athletes. They see them as role

models, and then when we here they are doing all kinds of things,

that really bothers me.

Now, I know you have an outreach program. How is that working? Is it effective?

Mr. UPSHAW. Well, we like to believe that it is effective, and we

try to improve in this area as much as we can, and as I said in

my opening comments, we recognize that we are role models, and

we recognize we have a responsibility, and with that, we also take

this issue on with the type of force that needs to be given here to

get it out of the game and out of our society in general. We don’t

want to send the wrong message.

Jointly, between the NFL and the Players Association, we have

a number of programs that we are using to use as an outreach, and

whenever given the opportunity to talk about this in any form, we

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will do it, and we continue to do it, and I think the Commissioner

has a couple examples here right now.

Mr. TAGLIABUE. To your point, we have published a four part

health series for young athletes through our Youth Football Fund.

I am holding up some of it here. Two of the four volumes deal directly with strength and conditioning, and with the evils of using

performance-enhancing substances. This has been produced for us

under the direction of a leading physician at the Yale University

Medical Center. It has been produced for us by—in conjunction

with the American College of Sports Medicine, the American Red

Cross, the Institute for the Study of Youth Sports at Michigan

State University and other such organizations, so we give this as

wide circulation as we can. It is on our Internet site. It is on Internet sites of the USA Football Organization, which is a not for profit

advocacy group that we endowed in this area.

So we think we have been doing as much as we can do here. We

can’t prosecute people. We can’t indict them. But we can educate,

and we have been very proactive in this area of youth education,

not only through these materials, but as Mr. Upshaw gave with his

own example last night, he was out speaking to kids, and we have

many, many players out speaking to kids about how to play the

game, and the fact that you play it without using performance-enhancing drugs.

We have a video series that goes with this. We have clinics for

high school coaches every year, including out at the Hall of Fame,

and at the beginning of our season, and we emphasize throughout

the ways of dealing with these issues of performance-enhancing

drugs, and that they have no place in the game whatsoever.

Mr. TOWNS. All right. Let me just—which I would like to make

certain that I fully understand, is the probable cause, the basis in

terms of a player is subjected to probable cause testing instead of

random. I mean, what leads to that?

Mr. UPSHAW. Well, we don’t have probable cause in this area.

You are randomly tested, seven players per week per team are tested every week, in season and out of season. The only place that we

would use probable cause to get someone into a program would be

drugs of abuse.

Mr. TOWNS. Drugs—I didn’t get that.

Mr. UPSHAW. Drugs of abuse.

Mr. TOWNS. Drugs of abuse, yes. So, for instance, if you felt, or

you heard that a person was using, would you do anything about

that?

Mr. UPSHAW. We would do something about it. Of course we

would. We have medical experts that will intervene, and they

would make the determination if he meets the criteria, he would

be tested.

Mr. TOWNS. Yes. You know, Mr. Chairman, you know, I think

your legislation is, you know, when you look at what some of these

sports teams are doing, the leagues are doing, that—and I understand it, but when you have someone that is moving, you know,

forward, in a very positive kind of way, you know, then I wonder,

you know, if we should take action now, or should we wait and see,

would others finally get the message. You know, some people learn

faster than others, and maybe they might eventually realize that

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we are serious here, and that we are going to take some action.

Rather than just do it now, to do it later.

I just sort of hate to see everybody, you know, sort of being under

the same umbrella, or—and knowing that, for instance, NFL in

particularly, I really feel that they understand our seriousness, and

they understand that—how important this is to the young people.

Now, I must admit there is others that don’t. I think baseball

hasn’t learned the lesson, and of course, in particular, but if we

wait, maybe they will understand that, rather than to move forward now.

I would prefer us not being involved in it, if we don’t have to get

involved in it.

Mr. STEARNS. Well, I thank the gentleman’s opinion, and that is

why we have the hearing. I think we have, it was in the bill, the

Secretary of Commerce exempts those organizations that have

higher standards, so they are not involved, and I think, based upon

what we have heard today, there is some reason to adjust, to

amend the bill, to recognize some of the things that the Commissioner has talked about, and of course, what the other people have

said. So—but I appreciate your opinion.

With that, are you complete? Yield back—go ahead.

Mr. TOWNS. So in other words, you are saying that you will be

moving forward, rather than to just wait and see, in terms of, if

others will come in line.

Mr. STEARNS. It would be my preference to move forward to try

to amend the bill to incorporate what we have had on this hearing,

the two hearings yesterday, the hearing we had in March, and the

one we had in 2003. So, that we have had a series of five hearings,

and I think we have a credible bill that is still in the making, and

so, any suggestions you have, you know, I am thinking that we

would try to incorporate, and possibly have a markup soon. I am

not sure when, but to continue to keep the debate going. And I

think obviously, as you know, the debate has created within somebody’s mind, to increase the penalties and to make more serious

the testing. That is what we saw, obviously, with baseball. So, I

mean, just the fact that we are moving forward has created that

momentum.

Mr. TOWNS. Well, let me just say why my reservations, I have

reservations. We need to set up a program to be able to test in the

high schools. They do not have the resources to do that, and of

course, I think that if we are going to take action here, we should

include the young people. Let us develop a way that some dollars

will go into a situation where they can be tested, because you are

talking about toxicology labs, and of course, that becomes expensive, in terms of urine, of course, and blood. So, what about a high

school that has football players that might be involved. They don’t

have the money to do any testing, because they only can get uniforms, and generally, the uniforms, in many instances, you know,

are hand-me-downs. So, I think that if we are going to take action,

I think we should do it in a comprehensive basis, rather than to

just jump into it and do something. Let us look at what we—my

concern is the youth. I mean, that is my concern, and I want you

to know that any legislation that comes out of here, I believe it

should deal with the youth as well.

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Mr. STEARNS. I thank the gentleman. His time has expired. Mr.

Terry.

Mr. TERRY. Thank you, Mr. Chairman. I am curious.

I am just trying to figure out generally how the NFL’s drug policy mirrors the chairman’s draft bill here. Mr. Upshaw, if you could

help me, just give an average 5 year veteran, never had an issue

with drugs or anecdotal or rumors about that player. How many

times in 1 year would that particular player be tested?

Mr. UPSHAW. He could be tested every time there is a test, depending on the randomness of the program that Dr. Lombardo has

put together. So he could be tested as often as there are tests.

Mr. TERRY. All right. So unlike the NBA, veterans are eligible for

random tests. Did you say that the team only has to do seven random tests a year?

Mr. UPSHAW. No, seven per week.

Mr. TERRY. Seven per week.

Mr. UPSHAW. Yes.

Mr. TERRY. Could the team do the same seven players——

Mr. UPSHAW. No.

Mr. TERRY. [continuing] throughout the year——

Mr. UPSHAW. I mean, you would——

Mr. TERRY. [continuing] and game it that way?

Mr. UPSHAW. [continuing] have to ask Dr. Lombardo how that

program works, because that is another part of independence of it

from our standpoint, we don’t know who those seven guys are. It

is only the computer program that tells who those seven players

will be, and there is no distinction between veterans or rookies or

practice squad players or anyone. It is seven players.

Mr. TAGLIABUE. The way it works is that our program advisor,

who is at Ohio State University, generates, or has a computer program that randomly identifies seven players on every team every

week, and that list of players, randomly generated at Ohio State

University, is delivered to the team early in the week, and a team

representative or a program representative then says Upshaw,

Henderson, Tagliabue, give us your urine right now.

Mr. TERRY. So that All Star, MVP, All Pro, is likely to be——

Mr. TAGLIABUE. All Star——

Mr. TERRY. [continuing] randomly tested.

Mr. TAGLIABUE. It does not matter. It is—a computer in Columbus, Ohio is identifying the names, and there is no time to say not

him, do him. You know, this idea that people can shove, shift,

jump, and jive. It doesn’t make sense.

Mr. TERRY. Well, I appreciate that.

Mr. TAGLIABUE. It doesn’t work that way. You get a list early in

the week, and it is you, you, you, and you right now. If you don’t

give us your urine, you are suspended.

Mr. TERRY. Well, I do appreciate—I think in many ways, a lot

of fans feel that probably the NFL players, or football players in

general, are more susceptible to want to use performance-enhancing, just because it—I think it takes such a toll on your body. But

I do think the NFL has probably done one of the best jobs of the

professional sports, in trying to come up with a comprehensive

drug policy.

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Mr. Tagliabue, I asked this to Mr. Stern yesterday. It seems to

me that it would be advantageous to professional sports to remove

drug testing from collective bargaining, as opposed to the policy of

keeping it part of collective bargaining, where you can really focus

on the issues, pay and treatment of personnel. Do you see, perhaps,

there, an advantage to removing drug treatment or drug policy

from collective bargaining?

Mr. TAGLIABUE. No. I think that collective bargaining is appropriate for all aspects of employee healthcare, including the quality

of our physicians, the right of an athlete to get a second opinion,

if he wishes to get a second medical opinion that is different from

the team physician, including the allocation of the costs of psychological counseling, and all of these matters. I think that this is another area, it is part of the broader area of healthcare for the players.

Mr. TERRY. Well, then let me——

Mr. TAGLIABUE. And to Mr. Upshaw’s credit and his association’s

credit, they have viewed this issue that way. They have not viewed

it as a Fourth Amendment issue or as a privacy issue. So, I think

it works fine.

Mr. TERRY. Well, let me interrupt. I am sorry, because I only

have 56 seconds left, and I have one specific question for Mr. Upshaw, but I want to follow up on what you are saying here in regard to the collective bargaining matter.

The general, one of the principles or generalities of which the

chairman has based his bill is that this would be a minimum policy, a floor, in that you can, in essence, I am using this word, opt

out of the federally run, under Department of Commerce program,

if you exceed those standards. So my question would be, is there

incentive, then, in this bill, for all of the professional sports to exceed the minimum standards here, as to escape the administrative

controls and the issues of which you spoke?

Either one of you can speak.

Mr. UPSHAW. Well, this sort of gets back to the exemption issue.

I mean, as the bill is written today, the 2 year ban brings us back,

right back in, and that is a problem. And I definitely have a problem with the independence of it, and I also have a problem with

the involvement of WADA. I mean, we have used WADA where we

thought it was necessary in our sport, and we have used their advice, and we continue to use their advice, but we don’t believe that

they are the gold standard.

Mr. TAGLIABUE. I said earlier that I think that as the bill is currently written, there are some perverse incentives that can reduce

programs in this area to the lowest common denominator, but we

have identified the areas where we feel that changes could be

made, and that would be rectified.

Mr. TERRY. I appreciate that. Mr. Upshaw, as a Husker alum,

donor, booster, give me your insights on Bill Callahan.

Mr. UPSHAW. Well, I think Bill can be a tremendous. I mean, he

started late. He was still under contract with the Raiders, and he,

you know, had a tough time getting his staff together. I am very

optimistic that he will turn that program around. I don’t want to

get into how the last coach got out of there, but that is for another

story.

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I just want to make one more comment, and I probably shouldn’t,

but I will, about the collective bargaining issue. One of the things

that make this program that we have designed in the NFL so

unique is that when you are dealing with the collective bargaining

arena, you then take out the integrity of what one individual club,

or one club owner, or one team might decide to do on its own. By

keeping it under one umbrella, that we don’t want to see independent programs out there, and that is very important to remember. But the most important part to remember is that the people

we are talking about are the players, and to get the support of the

players, to keep the support of the players, and to understand that

if you refuse to test, if you just refuse, I am just not going in, it

is a positive test. And I think that is one of the biggest deterrents

we have in our system that makes it what it is.

Mr. STEARNS. I thank the gentleman. The gentlelady from California, Ms. Bono.

Ms. BONO. Thank you, Mr. Chairman. I actually just want to

comment. I don’t have many questions. I appreciate your thoroughness and certainly your strong stance against steroids, most especially ephedra. I just believe ephedra is such a terrible drug, and

yesterday, I pressed Baseball Players Union rep, Mr. Fehr, on this

issue, and I just really want to thank you. There is no clinical reason for ephedra. I guess it is a bronchodilator, but it is a very poor

one at that, and it is a dangerous substance, so I thank you for

your stance on that.

I have questions, considerations, and problems with this legislation, and I think that it needs to be refined and fixed. I think we

have heard some great testimony on ways to improve the legislation. I look forward to working with you, Mr. Chairman, and thank

all of you gentlemen.

Mr. STEARNS. I thank the gentlelady. Mr. Bass, the gentleman

from New Hampshire.

Mr. BASS. Thank you, Mr. Chairman. I, too, don’t have any questions. I want to thank our panel for being here today. This has

been a very good series of hearings. Every conceivable question

that could be thought of has been asked. So now we have—we

know where we are. We know—we think we may know where we

are going, and I think we are going to have a productive markup

and a successful bill on the floor.

I yield back.

Mr. STEARNS. I thank the gentleman. Mr. Murphy.

Mr. MURPHY. I thank you, Mr. Chairman. Just a couple quick

questions.

One on the issue where the National Football League, which appears to have the most comprehensive programs in professional

sports for testing, but you recall the issue of the physician giving

the Carolina Panthers steroids, just weeks before the 2004 Super

Bowl appearance. It begs the question, on a situation like that, on

two things.

One, is the current system really working to catch systems like

that, and should there be a different number other than a random

seven, once a team is reaching the playoffs, to—like I believe in the

preseason, you test everyone. But once a team is reaching the playoffs, there should be more extensive testing.

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Mr. UPSHAW. Well, I will comment briefly on what we believe

came out of that, and it is an ongoing investigation as we speak.

We have realized that we needed to change some standards, and

we have done that. We actually changed the ratio from 6 to 1 to

4 to 1. We also included more off-season testing as part of our ongoing program, so we have increased that from two to six.

The other part of it is, knowing that the nature of the tests and

the nature of the randomness of it, if a person is in the playoffs

or in the Super Bowl, he is still being tested all the way up until

that point. He doesn’t know when it is, and you also have to remember that we are talking about anabolic steroids that stay in

your system for 30 to 45 days. So to cycle in and cycle out, you are

taking too much of a chance, and we don’t believe that we need to

increase the number from seven, because we have been doing it all

year.

Mr. TAGLIABUE. I guess the only thing I would say about the

Carolina investigation is that we don’t know enough yet to be definitive, but it does involve a unique substance, which is the socalled ratio between naturally appearing testosterone in the body

and epitestosterone, and whatever the issues are there, they would

be an issue under any drug testing program. They have to do with

the limitations of science, medicine, and testing technology, not

with the limitations of our program. Whatever those issues are, so

far as we are aware of what is being investigated there, they would

exist under a WADA program, an IOC program, or any program

that anyone could come up with, given the current state-of-the-art.

Mr. MURPHY. Yes, I understand. What I was wondering is if a

team is making it to the big game at the end, that should it be a

situation or be considered a situation where just all the players

would be tested because, obviously, that would make a big difference.

Mr. TAGLIABUE. You know, it is a thought worth considering. I

think that the deterrent effect of unannounced, random testing the

way it is is pretty comprehensive.

Mr. MURPHY. Let me shift to another question here I am wondering about, and that is a procedure I am not clear, but I want

to know if that is the case. If players are being considered in a

draft, NFL draft, is there a test that takes place for those college

players prior to that? What is done, and is it comprehensive?

Mr. TAGLIABUE. We have, each year, what is called the combine

in Indianapolis, where we invite about 600 collegiate players to a

timing, testing, and physical evaluation program. It lasts about a

week, and in addition to all of the medical testing, we do test those

players for drugs, both drugs of abuse and steroids.

Mr. MURPHY. And what happens if a player who is being considered for the draft tests positive for steroids?

Mr. TAGLIABUE. Well, at the moment, he goes into unannounced

testing, which I think in this context would be 24 tests a year from

the moment he signs a contract with an NFL team.

Mr. MURPHY. So they would not necessarily be in a situation that

would have any potential suspensions. They are obviously not a

member of the team yet, but you would monitor them to the same

level as someone else who has been discovered.

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Mr. UPSHAW. He would automatically enter into the program. It

is just part of a pre-employment physical that we do to make sure

that if there is a violation, it is automatically into the program.

And he is there for the rest of his career.

Mr. TAGLIABUE. At this point, we do not have discipline for preemployment positive tests. We do mandate that as soon as the

player signs a contract, if he does sign a contract with an NFL

team, he goes into the automatic 24 unannounced tests a year.

Mr. MURPHY. Well, I do want to commend the League for doing

such comprehensive testing, acknowledging it is a serious problem.

And I think it also—although I think we need to do more with our

youth to convince them of the dangers of this. Sadly, nothing is

more convincing than when you see some retired player ending up

with a premature death on this, and I am hoping we can continue

this kind of real serious approach to this, and I thank you for the

message you send to today’s youth about that. It has to be unrelenting and strong. Thank you.

Mr. UPSHAW. Thank you.

Mr. STEARNS. I thank the gentleman. I don’t have any more

questions, but I think the ranking member has indicated that she

does. Is there anyone who would like to do another round? Okay.

Mr.—the gentleman from New York. Okay. Okay. The gentlelady

is recognized, Ms. Schakowsky.

Ms. SCHAKOWSKY. Thank you. I just had a couple more questions. Again, assuming that we do do legislation, should the legislation allow for any discretion to be considered when issuing a penalty for a first time offense or subsequent offenses, and how do you

deal with that?

Mr. UPSHAW. Well, under our policy, there is no discretion. If you

test positive, you are positive, you have a chance to appeal. You

have a chance to have a B bottle tested, but that is the way we

deal with it.

Ms. SCHAKOWSKY. Okay. In the bill, it identifies the Professional

Sports Association, that is a quote, as the judge in any appeal process, and it is my understanding that under your negotiated agreement, the Commissioner may be the judge or a designee, but that

in practice, the Commissioner has been appointing judges that are

mutually agreed upon by the Players Association. I am wondering

if, instead of identifying the Professional Sports Association as the

judge, whether or not in the legislation, we should have the Professional Sports Association appoint a designee mutually agreed upon

by the Players Association, if that would be a preferable way to go,

in language in the—in legislation.

Mr. UPSHAW. I don’t want to speak for the other leagues, but in

our situation, we are very comfortable and satisfied with the Commissioner as the person that hears those appeals. Obviously, when

you start talking about these types of issues, the players feel firmly

and strongly that it is fair, and that is why we have the Commissioner, and I don’t know if you could take the legislation to say one

size fits all, as obviously you can see, all of these programs are

completely different from each other. But we feel that the Commissioner is charged with the integrity of the game, and we would

leave it in his hands.

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Ms. SCHAKOWSKY. But am I wrong that it has been common

practice that the Commissioner has appointed judges, or is that not

so?

Mr. UPSHAW. We don’t—I mean it is his decision. We have

enough confidence in his decision to do this, but I can’t recall any

judge that has ever heard a case.

Mr. TAGLIABUE. The way we have handled this is that I appoint,

in some cases, a law professor to sit as the appeal officer. In other

cases, it might even be our general counsel, if the Players Association is okay with that. Generally, Mr. Upshaw and I have agreed

that since the buck stops with me, and it stops with the League,

when it comes to liability and responsibility for everything that

goes on in the NFL, he is comfortable that I have the authority to

designate appeal officers. I feel very strongly that I have the responsibility to make sure the NFL is a safe and sound place for

people to play, and I want to make sure that we are ultimately

overseeing the safety in the terms and conditions of working in the

NFL, including the designation of appeal officers. And the union

has been comfortable with that.

Ms. SCHAKOWSKY. Okay. Let me finally just say this. Mr. Upshaw, would you say from your point of view that the 2 year suspension, as a career ending penalty, is your biggest objection to the

way the bill is right now?

Mr. UPSHAW. Well, that is one of them. That is one of my biggest

objections.

Ms. SCHAKOWSKY. Okay. Do you want to just quickly, then—or

do you feel that——

Mr. UPSHAW. Well, I——

Ms. SCHAKOWSKY. [continuing] sufficiently the point has been

made?

Mr. UPSHAW. I think the point has been made that——

Ms. SCHAKOWSKY. Okay.

Mr. UPSHAW. [continuing] turning the testing program and the

protocol——

Ms. SCHAKOWSKY. Right. Okay.

Mr. UPSHAW. [continuing] over to WADA——

Ms. SCHAKOWSKY. WADA.

Mr. UPSHAW. I don’t want to get there and go there any more,

but I have a real concern there, and I also have, you know, a big

concern about the whole appeal process, which you raised already,

so——

Ms. SCHAKOWSKY. Okay. Good. So, it would be the 2 year suspension, the testing program itself, and the appeals process would be

your main three headline items?

Mr. UPSHAW. That definitely would be on the list, and in looking

at the whole bill in totality, would also be helpful, too.

Ms. SCHAKOWSKY. I understand. Thank you very much. I appreciate it.

Mr. STEARNS. I thank the gentlelady. The gentlelady from Tennessee, Ms. Blackburn, is recognized.

Ms. BLACKBURN. Thank you, Mr. Chairman, and thank you to

both of you, for being here with us today. I apologize, I had to jump

out and take care of a couple of meetings, and then come back. So,

we do appreciate your being here, and I think that as many of our

129

members have said, we would rather not be handling this issue,

and we would rather not be in the process of discussing this and

having to bring forward a bill, but we feel as if the industry doesn’t

take the steps that it needs to, then we do need to do something,

and in all fairness, I am going to have to say that you all have

taken steps, and we appreciate both your willingness to be here,

and the steps that you are on the record having taken, and maybe

it is that we are here because of BALCO and baseball, as we continue to hear many times, and I think also we are here, in part,

because this issue has been one of those wink and nod and turn

a blind eye sort of issues for many folks.

Mr. Commissioner, you made a statement early on in your comments that you are concerned about the integrity of the game, and

I would just submit to you that I think for many of us, we are concerned about the integrity of pro sports, and concerned about the

longevity of pro sports.

I think that one of the things we have all found is the quickest

way to lose something is to abuse it, and the process and the practice that has gone on does cause us concern, and that ties right

back to one of the reasons that we are here, and you also made a

comment that your choice would be to protect the game from untoward influence, and so therefore—and we join you in that, but I

think we are also concerned with that, and have been a little bit

surprised about the resistance that we see from some—or the willingness to come in and police this.

Mr. Upshaw, I think my question, I want to come to you on this.

You have mentioned several times the bargaining chip, and talking

about a bargaining chip with your collective bargaining, and the

penalties, the penalty system. In addition to the penalties, is

there—with the suspensions, is there a financial penalty that they

are paying?

Mr. UPSHAW. Yes. It is 4 weeks without pay.

Ms. BLACKBURN. But there is no additional—that is what I am

trying to get at. They are not having to sit down and write a check

for a specific amount.

Mr. UPSHAW. Well, it all depends on, you know, some contracts.

It all——

Ms. BLACKBURN. Okay.

Mr. UPSHAW. Because the contracts—if any——

Ms. BLACKBURN. All right. That is what I wanted to know, and

I am going to move on. I have got 2 minutes, and we have a vote

now. I want to go back to a May 16 USA Today article by Jarrett

Bell. And your legal counsel for the Players Association made a

comment about if a player tested positive for drugs, someone who

is getting ready to go through the draft, that they would not have

to give back their signing bonus, that it was your position that he

would not have to give back the signing bonus, and could continue

to work on through his contract. And you all have had a situation

that has come up through the draft this year in that, and I was

struck in some of my reading, there was a New England Patriots

player who was referencing all of this, and the testing, and said

this proves the rewards outweighs the risks. So, I want to know if

you agree with those statements, and if, under your current policy,

is it to the advantage of a college prospect to use a performanceVerDate 11-MAY-2000 09:41 Aug 10, 2005 Jkt 000000 PO 00000 Frm 00133 Fmt 6601 Sfmt 6602 21640.TXT HCOM1 PsN: HCOM1
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enhancing substance to better his numbers, and this was all done

in reference to the Combine.

Mr. UPSHAW. Well, that was what I reference, you lose pay, and

you could lose additional money, depending on what is negotiated

in the contract. There are certain provisions of the contract that

players are required to refund money for things that might occur

that is in the contract. I don’t think there is any dispute between

our office and Harold Henderson’s office on what the language

says. And all they were doing, and I remember reading the article,

was basically defending their position about what the language

said, and the language will speak for itself.

But as far as a player taking a chance to do this, and use performance-enhancing drugs to gain an advantage, or to even be

drafted or get into the NFL, is a risk that he takes that he will

get caught, and he will be suspended. The point now is, if a player

does this, and I don’t believe that the risk is worth the reward,

under no circumstance, because it is not the message we would

want to send, and it is not the message we want our players to

come into the League with. But on the other hand, he will and is

in the program, and he is one positive test away from being suspended the next time. So, the policy is strong enough in the areas

that it needs to be strong, and the language that—negotiated by

agents and general managers is another issue, that is an addition

to what we——

Ms. BLACKBURN. Okay. So you would——

Mr. UPSHAW. [continuing] require under the program.

Ms. BLACKBURN. [continuing] take issue, then, with the May 16

article.

Mr. TAGLIABUE. Yes, I think it is ridiculous.

Mr. UPSHAW. Yes.

Ms. BLACKBURN. Okay. All right. That is—Commissioner, go

ahead.

Mr. TAGLIABUE. I think it is a great exaggeration. We have thousands of players in the League every year. We have been at this

for almost 20 years. We have had 54 players violate the policy. We

have had no player—we have had only two players out of those 54

ever be a repeat, and both of those players resigned rather than

face the humiliation, embarrassment, and financial consequences of

having been a repeat offender, so I think that the discipline clearly

works.

With respect to the entering player, if we have been testing

them, as I think we have, if college players coming into the NFL

for 10 or 15 years, we have tested between 5,000 and 10,000 players, and we have had one incident, this year’s incident.

Ms. BLACKBURN. Okay.

Mr. TAGLIABUE. So, I think that to suggest that this shows that

the players, the college players think that the rewards outweigh

the risks is not supported by the record.

Ms. BLACKBURN. Thank you. I appreciate that very much. I know

my time has expired. I had one other point, and I will just ask

them to respond in writing.

Mr. STEARNS. No, I—we have 11—about 10 minutes before the

vote, I think.

Ms. BLACKBURN. Okay.

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Mr. STEARNS. And this—after you finish, we are going to finish

the hearing.

Ms. BLACKBURN. Okay.

Mr. STEARNS. So if you want to go ahead.

Ms. BLACKBURN. Both of you had mentioned, but—did not go

back to, but you mentioned in your marks genetic manipulation,

and the gene-altering drugs, and we don’t have to go into that now.

If you will just respond to me. Commissioner, you had the, Play

Safe, I think is your magazine. If you will respond a little bit to

how you are addressing that. When we talk about long-term effects,

that is something that is of great concern in how that addresses

our children, how it affects our children, I mean. And you can just

respond to me in writing how you are addressing that genetic manipulation issue within the greater issue of the performance-enhancing drugs, and I thank you both so much for your time, and

I will have to say we love our Tennessee Titans.

Mr. TAGLIABUE. Just one other point. I read, just this week, several people in the media saying that in this area, there is a wink

and a nod, and there is rhetoric, but no hard programs. We spend

over $10 million a year on our anti-substance abuse programs.

That is a pretty costly way of approaching rhetoric.

Mr. STEARNS. I thank the gentlelady. With that, Commissioner

and Mr. Upshaw, thank you very much. Mr. Henderson, I appreciate your attendance, too, and so, with that, we will close down

the hearing, and the subcommittee is finished.

[Whereupon, at 11:48 a.m., the subcommittee was adjourned.]

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