```

[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]

                    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

                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
21-640                      WASHINGTON : 2005
_____________________________________________________________________________
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                    ------------------------------  

                    COMMITTEE ON ENERGY AND COMMERCE

                      JOE BARTON, Texas, Chairman

RALPH M. HALL, Texas                 JOHN D. DINGELL, Michigan
MICHAEL BILIRAKIS, Florida             Ranking Member
  Vice Chairman                      HENRY A. WAXMAN, California
FRED UPTON, Michigan                 EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida               RICK BOUCHER, Virginia
PAUL E. GILLMOR, Ohio                EDOLPHUS TOWNS, New York
NATHAN DEAL, Georgia                 FRANK PALLONE, Jr., New Jersey
ED WHITFIELD, Kentucky               SHERROD BROWN, Ohio
CHARLIE NORWOOD, Georgia             BART GORDON, Tennessee
BARBARA CUBIN, Wyoming               BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois               ANNA G. ESHOO, California
HEATHER WILSON, New Mexico           BART STUPAK, Michigan
JOHN B. SHADEGG, Arizona             ELIOT L. ENGEL, New York
CHARLES W. ``CHIP'' PICKERING,       ALBERT R. WYNN, Maryland
Mississippi, Vice Chairman           GENE GREEN, Texas
VITO FOSSELLA, New York              TED STRICKLAND, Ohio
ROY BLUNT, Missouri                  DIANA DeGETTE, Colorado
STEVE BUYER, Indiana                 LOIS CAPPS, California
GEORGE RADANOVICH, California        MIKE DOYLE, Pennsylvania
CHARLES F. BASS, New Hampshire       TOM ALLEN, Maine
JOSEPH R. PITTS, Pennsylvania        JIM DAVIS, Florida
MARY BONO, California                JAN SCHAKOWSKY, Illinois
GREG WALDEN, Oregon                  HILDA L. SOLIS, California
LEE TERRY, Nebraska                  CHARLES A. GONZALEZ, Texas
MIKE FERGUSON, New Jersey            JAY INSLEE, Washington
MIKE ROGERS, Michigan                TAMMY BALDWIN, Wisconsin
C.L. ``BUTCH'' OTTER, Idaho          MIKE ROSS, Arkansas
SUE MYRICK, North Carolina
JOHN SULLIVAN, Oklahoma
TIM MURPHY, Pennsylvania
MICHAEL C. BURGESS, Texas
MARSHA BLACKBURN, Tennessee

                      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                 JAN SCHAKOWSKY, Illinois
NATHAN DEAL, Georgia                   Ranking Member
BARBARA CUBIN, Wyoming               MIKE ROSS, Arkansas
GEORGE RADANOVICH, California        EDWARD J. MARKEY, Massachusetts
CHARLES F. BASS, New Hampshire       EDOLPHUS TOWNS, New York
JOSEPH R. PITTS, Pennsylvania        SHERROD BROWN, Ohio
MARY BONO, California                BOBBY L. RUSH, Illinois
LEE TERRY, Nebraska                  GENE GREEN, Texas
MIKE FERGUSON, New Jersey            TED STRICKLAND, Ohio
MIKE ROGERS, Michigan                DIANA DeGETTE, Colorado
C.L. ``BUTCH'' OTTER, Idaho          JIM DAVIS, Florida
SUE MYRICK, North Carolina           CHARLES A. GONZALEZ, Texas
TIM MURPHY, Pennsylvania             TAMMY BALDWIN, Wisconsin
MARSHA BLACKBURN, Tennessee          JOHN D. DINGELL, Michigan,
JOE BARTON, Texas,                     (Ex Officio)
  (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)

  

 
                    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 performance-enhancing 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 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.
    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-sports-through-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 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 
performance-enhancing 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-
sponsors 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.
    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 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 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 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 appropriately 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 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.
    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.
    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 together. 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.
    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 full-time 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-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 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.
    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 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 Anti-Doping 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 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 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 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 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 reviewing 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 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 through 2003. During 
that period I was able to see first hand 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 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.
    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 first-time 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 league-specific 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 deterred 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.
    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.
    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 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 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, such a player also has no confidentiality protection. 
Ours, therefore, is one of the most stringent policies 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''. 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:]

   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 
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.
    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 third-time 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 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 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 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:]

     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.
    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.
    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, 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 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.
    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.
    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 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.
    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 Anti-Doping 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 over-the-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 no-notice 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 
performance-enhancing 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 testing 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 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:
---------------------------------------------------------------------------
    \1\ The 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.
---------------------------------------------------------------------------
        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 off-season.
(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.
---------------------------------------------------------------------------
    \2\ Our 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.
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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 
going-forward 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 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 out-of-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.
---------------------------------------------------------------------------
    \4\ See 49 C.F.R.  40.137 (2003) (Department of Transportation 
Procedures for Transportation Workplace Drug Testing Programs).
---------------------------------------------------------------------------
      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.
    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, punitive 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 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 models, 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 represent 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.]
    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 performance-enhancing 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 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 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-size-fits-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.
    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.
    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 one-
size-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 one-size-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----
    Mr. Shorter. I don't think there is a problem with the one-
size-fits-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.
    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 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.
    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 performance-enhancing 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 Anti-Doping 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 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.
    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 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 
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.
    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 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?
    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.
    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-the-art, 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 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 correspondence 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.
    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 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-
the-counter 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 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 
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 
willingness 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.
    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 performance-enhancing 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. 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 two-year 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, 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 anti-drug 
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 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 anti-drug 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.
    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 problem-solving 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.
    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 Anti-Drug 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.
    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----
    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 
Anti-Doping 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----
    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 individual. 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 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 increased 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.
    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, 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 play-offs 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.
    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 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 restrictive. 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.
    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 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.
    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.]

                    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.

 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 
performance-enhancing 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 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 business. 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:]

 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 
ever-changing 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 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 
year-round 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 determining when a test 
is positive; once a violation is confirmed, discipline is imposed, 
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 performance-enhancing 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 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 Norris-LaGuardia 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.
    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 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 performance-enhancing 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., bigger, 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.
    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 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.
    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 naive 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.
    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:
          ``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.
    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 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 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 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 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 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.
    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 Anti-Doping regime, and perhaps moved the jurisdiction to 
NIDA, and 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.
    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 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 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 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 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 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.
    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.
    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.
    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.
    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 so-called 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.
    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 
pre-employment 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.
    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 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 
performance-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.
    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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