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55–749 PDF 2010

THE MITCHELL REPORT: THE ILLEGAL USE OF

STEROIDS IN MAJOR LEAGUE BASEBALL

HEARING

BEFORE THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

JANUARY 15, 2008

Serial No. 110–206

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

TOM LANTOS, California

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

JIM JORDAN, Ohio

PHIL SCHILIRO, Chief of Staff

PHIL BARNETT, Staff Director

EARLEY GREEN, Chief Clerk

DAVID MARIN, Minority Staff Director

(III)

C O N T E N T S

Page

Hearing held on January 15, 2008 ......................................................................... 1

Statement of:

Fehr, Donald M., executive director, Major League Baseball Players Association ............................................................................................................ 112

Mitchell, Hon. George, former U.S. Senator .................................................. 21

Selig, Allan H. ‘‘Bud’’, commissioner, Major League Baseball ...................... 91

Letters, statements, etc., submitted for the record by:

Fehr, Donald M., executive director, Major League Baseball Players Association, prepared statement of ..................................................................... 116

Mitchell, Hon. George, former U.S. Senator, prepared statement of ........... 26

Selig, Allan H. ‘‘Bud’’, commissioner, Major League Baseball, prepared

statement of ................................................................................................... 96

Waxman, Hon. Henry A., a Representative in Congress from the State

of California:

Letter dated January 8, 2008 ................................................................... 11

Letter dated January 15, 2008 ................................................................. 4

Prepared statement of ............................................................................... 14

(1)

THE MITCHELL REPORT: THE ILLEGAL USE

OF STEROIDS IN MAJOR LEAGUE BASEBALL

TUESDAY, JANUARY 15, 2008

HOUSE OF REPRESENTATIVES, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, DC.

The committee met, pursuant to notice, at 9:31 a.m., in room

2154, Rayburn House Office Building, Hon. Henry A. Waxman

(chairman of the committee) presiding.

Present: Representatives Waxman, Towns, Cummings, Davis of

Illinois, Tierney, Watson, Lynch, Yarmuth, Norton, McCollum, Van

Hollen, Sarbanes, Welch, Davis of Virginia, Burton, Shays,

McHugh, Souder, Turner, Issa, and McHenry.

Staff present: Phil Schiliro, chief of staff; Phil Barnett, staff director and chief counsel; Karen Lightfoot, communications director

and senior policy advisor; Brian Cohen, senior investigator and policy advisor; Michael Gordon, senior investigative counsel; Steve

Glickman, counsel; Earley Green, chief clerk; Teresa Coufal, deputy

clerk; Caren Auchman and Ella Hoffman, press assistants;

Zhongrui ‘‘JR’’ Deng, chief information officer; Leneal Scott, information systems manager; Kerry Gutknecht, William Ragland, and

Miriam Edelman, staff assistants; David Marin, minority staff director; Larry Halloran, minority deputy staff director; Jennifer

Safavian, minority chief counsel for oversight and investigations;

Keith Ausbrook, minority general counsel; Steve Castor, minority

counsel; Patrick Lyden, minority parliamentarian and Member

services coordinator; Brian McNicoll, minority communications director; Benjamin Chance, minority clerk; Ali Ahmad, minority deputy press secretary; Jill Schmalz, minority professional staff member; and John Ohly, minority staff assistant.

Chairman WAXMAN. Good morning. The committee will come to

order.

When our committee held its first hearing 3 years ago on Major

League Baseball’s steroid scandal, I talked about how the culture

of Major League clubhouses trickled down to become the culture of

the high school gym.

Later that same day, Dan Hooten and Denise and Raymond

Garibaldi proved that connection with their powerful testimony

about the deadly impact that steroids had on their sons.

The Hooten and Garibaldi families were frustrated that baseball

wasn’t doing more to confront its role in a growing epidemic. For

our part, this committee made it clear to the players and owners

that they needed to take steps, and major ones, to deal with this

problem. The first was to dramatically strengthen the league’s testVerDate 11-MAY-2000 15:02 Apr 30, 2010 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 U:\DOCS\55749.TXT KATIE PsN: KATIE
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ing program for performance-enhancing drugs. The second was to

investigate the extent of steroid use.

The starting point for addressing any scandal is in the facts. If

a cheating scandal broke out at any university, the bare minimum

we’d expect a thorough review of what happened and how it happened. This, unfortunately, wasn’t baseball’s first impulse. The

commissioner, the owners and the union didn’t want to look at the

past. The code of silence in baseball clubhouses was threatening to

become baseball’s official policy.

To his credit, Commissioner Selig listened to the testimony at

our hearing and recognized that baseball had a serious problem.

He then did the right thing and asked Senator George Mitchell to

take a hard look at baseball’s steroid era.

I thank Commissioner Selig for that, and I thank Senator Mitchell for taking on an enormous task. Anyone who reads the Mitchell

report will come to understand how difficult this challenge was.

Virtually no one volunteered information to Senator Mitchell. In

fact, only one active player, Frank Thomas agreed to speak with

his investigators. Senator Mitchell and his staff did a superb job,

but I think even they would acknowledge that their report isn’t a

comprehensive accounting of the steroids scandal. If reports had

epitaphs, this one’s would be: It didn’t tell us everything, but it told

us enough.

And what it tells us is damning. The illegal use of steroids and

performance-enhancing drugs was pervasive for more than a decade. Major League Baseball was slow and ineffective in responding

to the scandal, and the use of Human Growth Hormone has been

rising.

The Mitchell report also makes it clear that everyone in baseball

is responsible. The owners, the commissioner, the union and the

players. Despite that shared responsibility, most of the media attention over the past month has focused on the players. They are

the face of the game, and they are the ones our kids emulate.

As Chuck Kimmel, the president of the Athletic Trainers Association, recently pointed out: ‘‘Young athletes are very impressed by

what their sports heroes say and do. There’s a real authority carryover in these situations. They assume because a person is an expert in one area that they’re qualified in another.’’

Our committee hasn’t had an easy experience with individual

players. We have tried to be sensitive to their legitimate privacy

rights and to the obvious harm this issue can do to their reputation. But too often their responses to legitimate questions have

been evasive or incomplete. This investigation is no different than

any other that we undertake. We expect and the law requires

truthful testimony. In one important instance, the Mitchell report

provides new information relating to one of our previous inquiries.

Three years ago, we initiated an investigation into testimony

that Rafael Palmeiro provided on March 17, 2005. Mr. Palmeiro

testified that he never took steroids. Several months later, he has

tested positive for Winstrol, a powerful steroid. As part of that investigation, we interviewed Miguel Tejada for relevant information.

A transcript of that interview has never been made public out of

respect to Mr. Tejada’s privacy. But in that interview, Mr. Tejada

told the committee that he never used illegal performance-enhancVerDate 11-MAY-2000 15:02 Apr 30, 2010 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 U:\DOCS\55749.TXT KATIE PsN: KATIE
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ing drugs and that he had no knowledge of other players using or

even taking or talking about steroids.

Well, the Mitchell report however directly contradicts key elements of Mr. Tejada’s testimony. The conflict is stark and fundamental to the committee’s 2005 investigation. As a result, Ranking Member Tom Davis and I will be writing the Department of

Justice today to request an investigation into whether Mr. Tejada

gave truthful answers to the committee.

[The information referred to follows:]

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Chairman WAXMAN. I also want to make it clear that the steroid

scandal is not just about ball players. In my view, not enough attention has been paid to the Mitchell report’s indictment of the people who run baseball. The players seem to have been surrounded

by enablers and officials willing to look the other way.

In the end, the owners and the Commissioner’s Office are every

bit at fault as the players. The report recounts how the medical director for Major League Baseball actually led a presentation in

1998 on the benefits that could be obtained from testosterone.

Team doctors who attend the meeting were disturbed. The league’s

medical office seemed to be sending an official message of leniency.

The situation in the league security office didn’t seem to be much

better. Little investigating seems to have been done when reports

of illegal steroid use were passed along. In a steroids case involving

former Cleveland Indian outfielder Juan Gonzalez, the league security office appears to have done nothing. In another case, a bullpen

catcher for the Montreal Expos, Luis Perez, gave Kevin Hallinan,

the director of security for Major League Baseball, a list of eight

players who had obtained anabolic steroids.

And I want to read from the Mitchell report about what happened next: ‘‘Hallinan told us that the Perez incident could have

been the ‘single most important steroids investigation’ he conducted, but to his disappointment, he was not given permission to

interview the Major League players named by Perez.’’

The Mitchell report also recounts the efforts of Stan Conte, the

chief trader for the San Francisco Giants, to remove Greg Anderson

from the Giants clubhouse. Mr. Anderson was Barry Bonds’ personal trainer. The different approaches taken by Mr. Conte; the Giant’s general manager, Brian Sabean; and the Giant’s president,

Peter Magowan, are a sad reflection of the poor leadership many

teams brought to this effort.

It is a dismal record and it needs to be put front and center; not

hidden. It helps us understand how the steroid era infected baseball and how that virus spread to colleges and high school. That

is the bad news.

The good news is, I believe baseball is now taking steroid use seriously and making fundamental changes. In 2005, Commissioner

Selig and Don Fehr, the head of the players union, voluntarily reopened bargaining. To their credit, they worked together to make

baseball’s steroid policy one of the toughest in sports. I might say

that in 2005 I had my doubts at whether Mr. Selig and Mr. Fehr

would rise to this occasion, but I want to commend them both for

the leadership that they have been showing. And in the wake of

the Mitchell report, Mr. Fehr accepted responsibility and said: ‘‘in

retrospect, we should have done something sooner.’’

Since the report’s release, Commissioner Selig has begun implementing some of the Mitchell recommendations, and both the owners and the players have agreed to try to reach agreement on additional changes. This committee wants Major League Baseball to

have the most effective program possible. We also want to do everything we can to eliminate the use of these drugs by children.

Frank and Brenda Marrero, the parents of Efrain Marrero, are

here this morning along with Don Hooten. Efrain Marrero was a

promising 19-year-old college athlete who turned to steroids and ulVerDate 11-MAY-2000 15:02 Apr 30, 2010 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 U:\DOCS\55749.TXT KATIE PsN: KATIE
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timately committed suicide. In his memory, Mr. and Mrs. Marrero

have established a foundation to fight steroids and other performance-enhancing drugs. They’ve also submitted testimony for this

hearing, and I ask unanimous consent that it be made part of the

record.

Without objection, that will be the order.

[The information referred to follows:]

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Chairman WAXMAN. I want to close my opening statement by

reading from their statement: ‘‘simple, honest accountability is all

we’re asking for . . . no family should have to endure the anguish

we’ve suffered, but tens of thousands of youngsters are at risk. For

them we ask you to dig deep, find the unvarnished truth and report it fairly.’’

To Mr. and Mrs. Marrero, and Mr. Hooten, and to all the concerned parents around our Nation, I want you to know we’re trying

to do just that.

I now want to recognize Mr. Davis, who as chairman of this committee held that important hearing and investigation, got us started. It is an effort we’ve worked closely together on, and I’m pleased

to continue that role with him in this year’s hearing.

[The prepared statement of Chairman Henry A. Waxman follows:]

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Mr. DAVIS OF VIRGINIA. Thank you, Mr. Chairman. I’d associate

myself with your opening statement.

I want to note that we, too, have reviewed Mr. Tejada’s statement to the committee and the evidence regarding him in the

Mitchell report. And as a result of that review, we’ve concluded

that further investigation is warranted into whether Mr. Tejada

made knowingly false material statements to the committee. Therefore, we’ll join the chairman in asking the Justice Department to

investigate this matter.

Mr. Chairman, thank you for calling this hearing. In the words

of baseball’s dugout philosopher, Yogi Berra, this is deja vu all over

again. The game of baseball, its fans and aspiring players seem

caught in the grip of a recurring drug-induced nightmare.

Let’s be clear about our purpose. We’re not self-appointed prosecutors trying the claims of the Mitchell report. This is not a court

of law. And the guilt or innocence of the players accused in the report of steroid abuse is not our major concern. Our focus is on Senator Mitchell’s recommendations more than his findings. We’re

here to save lives, not ruin careers. We want steroids and other

dangerous drugs out of sports, period.

We want this because we know those who aspire to athletic stardom look up to those who have achieved it and often emulate their

methods. We want young athletes to understand there are no

shortcuts to success, that excellence has to be the product of physical exertion not pharmacology. In true sport, the road to achievement is paved with hard work, dedication and focus; not ‘‘the

clean,’’ ‘‘the clear,’’ or Human Growth Hormone.

We know some consider this exercise a waste of time. They say

sports are none of our business and we ought to be sticking to what

is important: winning the war on terror, strengthening homeland

security, reviving a flagging economy. Some even throw a sports

metaphor back at us and claim we’re only grandstanding. Us, playing to the crowd? Perish the thought.

But seriously, to those critics I say, other issues might be more

important, but that doesn’t make this inquiry unimportant. There

is nothing irrelevant or inconsequential about the health of our

children and the integrity of the game so many of us love. I would

hope no one would dispute that protecting public health, keeping

young athletes safe is a vital and appropriate function of government.

Nearly 3 years ago, our first foray into this subject proved extremely productive. After our hearings, then Ranking Member

Henry Waxman and I introduced legislation that turned out to be

unnecessary because baseball and other major sports acted quickly

on their own to enhance drug testing and enforcement programs.

A little governmental sunshine can go a long way.

Today, thanks to the leadership of Commissioner Selig and the

wise willingness of union chief Don Fehr to urge cooperation among

its members, baseball now doles out 50 game suspensions for first

offenses, 100 game suspensions for second offenses, and lifetime

bans for third offenses. All players are tested twice a year, and

testing techniques have been improved to detect more substances

at lesser levels.

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Baseball also has targeted abusive amphetamines, which in

many clubhouses were literally dumped into a coffee pot for communal consumption. Now we have before us the Mitchell report. Its

409 pages paint a sordid picture of backroom drug deals involving

clubhouse personnel; players injecting each other with illegal substances right in their locker rooms; and more efforts aimed at obfuscation and confiscation. The report names 89 players with varying degrees of involvement with steroids and HGH.

But they are just part of a far wider culture in a sport that values home runs and victories over fair play. The report confirms

that active participation or passive acquiescence and drugging cannot coexist with the responsibility to set a proper example for those

stepping up the lower rungs of the ladder of athletic success. In

other words, while 2 years ago we hoped otherwise, our work here

is definitely not done. Stiffer penalties and stepped-up enforcement

have caused some players to back off of steroid use. Unfortunately

that progress has created a strong, perverse incentive to develop

substances that can’t be detected by current testing regimes.

But as a panelist in our last baseball hearing famously said,

We’re not here to talk about the past. Our panel today will address

in essence one question: Going forward, what will the leaders of

baseball do to implement the recommendations outlined in this report?

We’ll ask Senator Mitchell how these specific recommendations

came to be; what makes them particularly important given what

the Mitchell panel found. We are watching closely because America’s youth are watching closely. Despite significant efforts, including the Atlas and Athena programs that discourage steroid use

among high schoolers, attitudes about steroids and usage levels

among young athletes remain stubbornly constant.

Not surprisingly, rates of steroid use go up as the athletic stakes

get higher. Steroid abuse by high school seniors seeking that extra

edge to earn a college scholarship is twice that of eighth graders

where the goal is merely to catch the eye of a high school coach.

Over the past 5 years, more teens have come to believe steroids are

dangerous, but the percentage of those who actually disapprove of

performance-enhancing drugs remains sadly unchanged. The myth

of youthful invulnerability, the allure of athletic success and the rationale that every one else is doing it combine to drive an intoxicating culture that won’t be countered effectively with slogans, posters

and half-hearted enforcement programs.

We commend Commissioner Selig for having the coverage to appoint Senator Mitchell to undertake this investigation and for letting his findings become public. They certainly did not reflect well

on the commissioners’ 10 years as leader, but he let the chips fall

where they may. Let’s applaud him for finally attacking the problem rather than running and hiding from it.

Already the commissioner has ordered all recommendations that

he believes did not require union approval to be implemented immediately. This means drug tests and background checks for clubhouse personnel. It means clubs will maintain a log of all packages

sent to Major League ballparks; that they’ll distribute and post

Major League Baseball’s policy on prohibited substances. Perhaps

most significantly, it means the 24-hour notice of steroid testing

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will be eliminated. These are encouraging first steps, but that is all

they are, first steps.

We also commend Mr. Fehr for standing ready to discuss further

amendments to the collective bargaining agreement. He leads a

union that too often has been, frankly, intransigent and uncooperative. We know some of the measures suggested in the report—for

example, that baseball should hire an independent firm to conduct

testing—will not be easy to sell. But he has helped his members

see the writing on the wall which says this: Baseball needs to fix

the problem, change this culture, alter how it does business with

regards to steroids, Human Growth Hormone and all matter of

dangerous performance-enhancing drugs or—and this is a promise

not a threat—Congress will do it for you.

Finally, we commend Senator Mitchell for his excellent work.

Saddled with a daunting list of obstacles—no subpoena power, no

corporation from the players and little enthusiasm among owners

more concerned about keeping turnstiles clicking and home runs

flying—he produced a sober, even-handed document whose factual

assertions almost universally have stood up to scrutiny. Senator

Mitchell’s recommendations at first glance seem well grounded and

realistic, and we’ll have the chance to probe them further today.

For example, he urged the commissioner to establish an office

with enhanced authority to investigate and report the use of performance-enhancing drugs. Major League Baseball already responded last week, announcing creation of a new department of investigations. The recommendations and actions appear to be sound,

but I understand the union chief believes the devil will be in the

details. How will the new office’s powers be? How will it work with

the players to accomplish its goal? Has baseball effectively reorganized itself in setting up this office, or has the sport simply reshuffled the deck chairs in response to a scandal, like we often do in

Congress?

Senator Mitchell also calls for increasing player education about

the dangers of steroid use. Former big league manager, Phil Garner, told the story of confronting one of his players about steroid

use and telling him his heart could give out by the age of 40. The

player said he didn’t care, that he wanted to be as big and strong

and rich now as possible; he’d worry about the rest later.

Finally, Senator Mitchell recommends increasing independence

and transparency of the program, as well as conducting year-round

unannounced testing.

Mr. Fehr, I suspect you have your work cut out for you to convince players to embrace these recommendations. But the collective

bargaining process should not be used as an excuse to tolerate or

shield illegal activities, activities which degrade and damage the

very enterprise that employes the players. Negotiation is the right

process, but we can’t abide inaction or half measures as its only

products. The health of young athletes across the country is at

stake, and we won’t hesitate to defend their interests and the interests of millions of Americans who have grown tired of the cloud

that is still hovering over baseball.

From this moment, we begin to look into steroids in sports and

how their use affects impressionable young athletes. Our efforts on

this issue have been bipartisan. From the beginning our committee

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has come together in a sense of cooperation and team work that

continues to this day. And in that spirit, we look forward to a frank

and constructive discussion today on how to clean up baseball.

When commentators talk about the importance of chemistry in the

locker room, that is not what they had in mind.

Thank you, Mr. Chairman.

Chairman WAXMAN. Thank you very much, Mr. Davis. I also

want to commend Senator Mitchell for the terrific work he has

done on this report.

Senator Mitchell, you have an outstanding record as a Member

of the Senate and the leader of the Senate, and I could go through

your many accomplishments, but you may have achieved even more

since you left the Senate as an international statesman. You’re

well-known for your work in bringing divided groups together.

Brought people together in Northern Ireland, and brought Democrats and Republicans together on this committee, and I thank you

for that. You’ve done a great job, and I know how difficult it is to

do a job without subpoena power when we were in the minority.

But we worked together on this committee to use what powers we

have to accomplish the important things that need to be accomplished. So I thank you for your work, and I’m pleased you’re here.

I’m also mindful of your time schedule. I do want to inform you

it is the policy of this committee, no matter who testifies, that they

testify under oath. So if you’d please rise and raise your right

hand.

[Witness sworn.]

Chairman WAXMAN. Well, I want to recognize you to make your

presentation to us.

STATEMENT OF HON. GEORGE MITCHELL, FORMER U.S.

SENATOR

Mr. MITCHELL. Mr. Chairman, Congressman Davis, members of

the committee, thank you for inviting me to appear before you this

morning.

In March 2006, I was asked by the commissioner of baseball to

conduct an independent investigation into the illegal use of steroids

and other performance-enhancing substances in Major League

Baseball. When he asked me to accept this responsibility, the commissioner promised that I would have total independence and his

full support. He kept that promise.

Last month I completed and made public my report. Since then,

the public discussion has largely focused on the names of players

who are identified in the report. I will focus today on the report’s

broader findings and recommendations.

I begin with a summary of our conclusions. The illegal use of

steroids, Human Growth Hormone and other performance-enhancing substances by well-known athletes may cause serious harm to

the user. In addition, their use encourages young people to use

them. Because adolescents are already subject to significant hormonal changes, the abuse of steroids and other such substances

can have more serious adverse effects on them than on adults.

Many young Americans are placing themselves at serious risk.

Some estimates appear to show a recent decline in steroid use by

high school students. That is heartening. But the most recent

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range of estimates is from about 2 percent to 6 percent. Even the

lower figure means that hundreds of thousands of high-school-aged

young people are illegally using steroids. It is important to deal

with well-known athletes who are illegal users, but it is at least as

important, perhaps even more so, to be concerned about the reality

that hundreds of thousands of our children are using these substances. Every American, not just baseball fans, ought to be

shocked by that disturbing truth.

During the period discussed in my report, the use of steroids in

Major League Baseball was widespread, in violation of Federal law

and of baseball policy. Club officials routinely discussed the possibility of substance use when evaluating players. The response by

baseball was slow to develop and was initially ineffective. The Players Association had for many years opposed a mandatory random

drug-testing program, but they agreed to the adoption of such a

program in 2002 after which the response gained momentum.

Since then, the Major League clubs and the Players Association

have agreed to a number of improvements to the program, including stronger penalties that have increased its effectiveness. The

current program has been effective in that detectable steroid use

appears to have declined. However, many players have shifted to

Human Growth Hormone, which is not detectable in any currently

available urine test.

The minority of players who use these substances were wrong.

They violated Federal law and baseball policy. And they distorted

the fairness of competition by trying to gain an unfair advantage

over the majority of players who followed the law and the rules.

They, the players who follow the law and play by the rules, are

faced with the painful choice of either being placed at a competitive

disadvantage or becoming illegal users themselves. No one should

have to make that choice.

Obviously, the players who illegally used performance-enhancing

substances are responsible for their actions. But they did not act

in a vacuum. Everyone involved in baseball over the past two decades—commissioners, club officials, the Players Association and

players—share to some extent in the responsibility for the steroids

era. There was a collective failure to recognize the problem as it

emerged and to deal with it early on. As a result, an environment

developed in which illegal use became widespread.

Knowledge and understanding of the past are essential if the

problem is to be dealt with effectively in the future. But being

chained to the past is not helpful. Baseball does not need and cannot afford to engage in a never-ending search for the name of every

player who used performance-enhancing substances.

In my report, I acknowledge and even emphasize the obvious.

There is much about the illegal use of performance-enhancing substances in baseball that I did not learn. There were and there are

other suppliers and other users. It is clear that a number of players

have obtained these substances through so-called rejuvenation centers using prescriptions of doubtful validity. Other investigations

will no doubt turn up more names and fill in more detail, but that

is unlikely to significantly alter the description of baseball’s

steroidera as set forth in my report.

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The commissioner was right to ask for this investigation and this

report. It would have been impossible to get closure on this issue

without it or something like it. It is appropriate to acknowledge,

Mr. Chairman, that it was you and this committee who originally

suggested that such an inquiry be conducted. But it is now time to

look to the future, to get on with the important and difficult task

that lies ahead. I urge everyone involved in Major League Baseball

to join in a well planned, well executed and sustained effort to

bring the era of steroids and Human Growth Hormone to an end,

and to prevent its recurrence in some other form in the future.

That’s the only way this cloud will be removed from the game.

The adoption of the recommendations set forth in my report will

be a first step in that direction, and I will now summarize them.

While some can be and have been implemented by the commissioner unilaterally, others are subject to collective bargaining and,

therefore, will require the agreement of the Players Association.

The recommendations focus on three areas.

First, there must be an enhanced capacity to conduct investigations based on nontesting evidence. Some illegal substances are difficult or virtually impossible to detect. Indeed, one leading expert

has argued that testing only scratches the surface. The ability to

investigate vigorously allegations of violations is an essential part

of any meaningful drug prevention program. The commissioner has

accepted my recommendation to create a department of investigations led by a senior executive to respond promptly and aggressively to allegations of the illegal use or possession of performanceenhancing substances. To do its job effectively, this department

must establish credibility and cooperate closely with law enforcement agencies.

I recommended that the commissioner strengthen pre-existing efforts to keep illegal substances out of Major League Baseball clubhouses by logging and tracking packages shipped to players at

Major League ballparks; conducting background checks and random drug tests on clubhouse employees; and adopting policies to

ensure that allegations of a player’s possession or use of performance-enhancing substances are reported promptly to the department of investigations. I also recommended that club personnel

with responsibility affecting baseball operations be required to sign

annual certifications that they have no unreported knowledge of

any possible violation of Major League Baseball’s drug prevention

policy. The commissioner has implemented all of these recommendations.

Second, improved educational programs about the dangers of

substance use are critical to any effort to deter use. Over the last

several years, the Commissioner’s Office and the Players Association have made an increased effort to provide players and club personnel with educational materials on performance-enhancing substances. Some of these efforts have been effective. Some were criticized by both former players and club personnel. Several suggestions for improvement are set forth in my report.

Third, although it is clear that even the best drug-testing program is by itself not sufficient, drug testing remains an important

element of a comprehensive approach to combat illegal use. The

current program was agreed to in 2006 and will remain in effect

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until 2011. Any changes to the program therefore must be negotiated and agreed to by the clubs and the Players Association. In

my report, I set forth the principles that presently characterize a

state-of-the-art drug-testing program. And I urge the clubs and the

Players Association to incorporate them into baseball’s program

when they next deal with this issue. The program should be administered by a truly independent authority that holds exclusive authority over its structure and administration. It should be transparent to the public, allowing for periodic audits of its operations

and providing regular reports of aggregate data on testing and test

results. It should include adequate year-round unannounced testing and employ best practices as they develop. To ensure that the

independent administrator can accomplish these objectives, the

program should receive sufficient funding. And it should continue

to respect the legitimate privacy and due process rights of the players.

Finally, I hope that the commissioner, the clubs and the Players

Association will have a reasonable time and opportunity to consider

and discuss these recommendations with their members and constituents and to reach their own conclusions about their implementation. My report demonstrates I’m not an apologist for either the

commissioner or the Players Association. But in fairness, I think

we should recognize what they have done to address this problem.

As noted in my report, prior to the 2002 negotiations, the commissioner took several key steps to lay the foundation for an agreement on the mandatory drug-testing program, including in early

2001 he convened a meeting of several respected team physicians,

during which they shared their own experiences and concerns

about the use of steroids by Major League players. That year, he

unilaterally imposed a drug-testing program for Minor League

Players which he could do because Minor League Players are not

represented by the Players Association. In 2002, after detailed negotiations, the Players Association agreed to the commissioner’s

proposal for a mandatory random testing program in the Major

Leagues. To their credit, this was a significant step by the Players

Association because, as I noted earlier, they had for many years opposed such a program.

The drug-testing programs in all sports, including the Olympics,

have evolved over time through a process of trial and error as the

programs were modified to address emerging problems and concerns. In that respect, baseball’s program has been like all the others as described in my report. Since 2002, the commissioner and

the Players Association have agreed to several improvements in the

program to deal with issues as they arose. They did so even though

under Federal labor law they were under no obligation to modify

their collectively bargained agreement during its term.

Mr. Chairman, members of the committee, I was asked to conduct an inquiry and to report what I found as accurately, as fairly

and as thoroughly as I could. I’ve done so to the best of my ability,

and my work has been completed. Now it is up to the commissioner, the clubs and the players to decide how they will proceed.

Their actions over the past 6 years have demonstrated that they

can address this problem through the collective bargaining process.

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I hope you will encourage and give them the opportunity to do so

again.

Thank you again, Mr. Chairman, for inviting me to be here and

for your patience. And I’ll be pleased now to try to respond to any

questions that you or any other member of the committee may

have.

[The prepared statement of Mr. Mitchell follows:]

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Chairman WAXMAN. Thank you very much, Senator Mitchell.

We’ll now proceed to recognize Members for 5 minutes for questions for the Senator. We’ll start with Mr. Towns.

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

this hearing and, of course, Ranking Member Davis as well.

Senator Mitchell, thank you so much for your job well done. At

the hearing in 2005, I asked the players whether anyone who had

knowledge of steroid use should be required to report it. And by

‘‘anyone’’ I mean trainers, team doctors, scouts, agents, clubhouse

staff, management, everyone officially connected with the game.

Some players said yes; some said no.

Senator Mitchell, your report found that a lot of people in and

out of baseball knew about steroid use and either turned a blind

eye or actively concealed it or ‘‘I don’t want to get involved’’ concept. What should the consequences be for the people who enabled

the players to cheat, and has baseball done enough dealing with

that problem?

Mr. MITCHELL. Thank you, Congressman. In my report, I noted

that, for many years, baseball has had a policy requiring the disclosure of information about the use of performance-enhancing substances. And making possible severe penalties in the form of fines

for those who fail to comply with that policy. We found, however,

that very large numbers of persons involved in baseball were unaware of the policy, and even many who were aware did not follow

it. We also found that no one has ever been fined for failure to comply with that policy. As a consequence—included as part of our recommendations, and they are found in the report—we suggest that

there be a written policy at the Major League level, MLB level,

which is distributed to all of the clubs, setting forth the process to

be followed when information is available that should be reported

and also that every club so have a policy widely distributed, posted,

and made known to all employees about the process to be followed

when such information is available and should be reported.

I should point out, however, that there are some ethical questions regarding physicians and other medical personnel in terms of

legal requirements imposing restraints on the provision of information. And of course, every State has such laws, and they must be

observed. With that in mind, we think the policy can be much more

clearly articulated and can be much more aggressively disseminated and pursued. And failures to comply with the policy should

receive discipline or punishment pursuant to the policy.

Mr. TOWNS. Very quickly. I see the light is about to change on

me. How would you characterize the level of cooperation you received from the Players Association while conducting your investigation?

Mr. MITCHELL. As I said in my report, the Players Association

was largely uncooperative.

Mr. TOWNS. You know, I’m concerned about that because, you

know, I remember when football, we had some problems, and of

course, they need to understand that this is very serious. They are

role models, even though some say they are not. But I think when

young people look at them, they see them as role models, and I

think they have to understand that. And we have an obligation and

responsibility.

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Very quickly, just before the light changes on me, when we had

a hearing on baseball a few years ago, one of the things we found

was that Major League Baseball was sweeping the problem of

steroids use under the rug. Other sports like football had a serious

steroid problem in the past but had really taken steps to clean up

the game. Senator Mitchell, how would you compare Major League

Baseball today to the other sports leagues like NCAA and the

Olympic sports in terms of how credible and effective the drug program is?

Mr. MITCHELL. In my report, I included an analysis of the known

provisions of all of the programs, a point-by-point comparison. It is

clear that, in terms of penalties, Major League Baseball has the

strongest program. The penalties are the stiffest when measured in

proportion to the length of season and other indicia. With respect

to the operations of the program, we did not have access to the

other programs, other than that which has been publicly described

about them. And I caution anyone in attempting to make comparisons based solely on the published data about the programs. It

really does require a detailed analysis and in depth knowledge of

the actual manner in which the programs are operated to be able

to conduct the kind of comparison which I think you’re seeking.

Chairman WAXMAN. Thank you, Mr. Towns.

Mr. Davis.

Mr. DAVIS OF VIRGINIA. Senator Mitchell, again, thank you again

for your report. Let me start—there seems to be some disagreement between the Players Association and you regarding the opportunity for a player to respond to the evidence against him. Most of

this disagreement appears to be over how and what was communicated to the players prior to October 22, 2007. We have a letter

from you on that date stating that, During the course of any interview, I will inform the player of the evidence of his use, including

permitting him to examine and answer questions about copies of

any relevant checks, mailing receipts or other documents and give

him an opportunity to respond.

The Players Association responded in a November 20th letter

that the players had been informed that you would provide them

with the evidence if they consented to the interview. Your letter

talks about an opportunity to respond. The Players Association

talks about being provided with evidence if they consented to an

interview. I guess my question is, was a player required to consent

to an interview to see the evidence against them?

Mr. MITCHELL. Yes.

Mr. DAVIS OF VIRGINIA. So they couldn’t simply appear, review

the evidence and leave if they concluded they had nothing to say

about the evidence?

Mr. MITCHELL. That’s correct.

Mr. DAVIS. Do you have any earlier letters communicating your

offer to provide the evidence to the players.

Mr. MITCHELL. Yes.

Mr. DAVIS OF VIRGINIA. Could the decision of players not to come

in have been a result of their belief that they would be required

to answer questions?

Mr. MITCHELL. I can’t speak for the players. I did not communicate with any current players directly. And if I might, I would

70

be glad to give a more detailed explanation, Congressman Davis,

when you complete your question.

Mr. DAVIS OF VIRGINIA. Go ahead. It is important.

Mr. MITCHELL. Well, from the first day of this investigation to

the last, I was consistent in my public statements that players

would have the opportunity to meet with me and, at that time, I

would disclose to them all of the evidence that I had and give them

an opportunity to respond. On March 30, 2006, the day I publicly

accepted this assignment, I said, ‘‘We’ll provide those whose reputations have been or might be called into question by these allegations an opportunity to be heard.’’

On January 18, 2007, I addressed the owners in Phoenix, and my

remarks were made public and widely reported throughout the

country. I said, I’ll insist that those who might be adversely affected by this investigation have an opportunity to be heard. I

made similar statements in press interviews during the spring and

summer of 2007. And I’ll be glad to provide you references to those

statements.

We were informed early in the process by Major League Baseball

officials that we were bound by the provisions of the collective bargaining agreement between Major League Baseball and the Players

Association, which require that requests for interviews with current players be made through the Players Association. As a result,

in the summer and fall of 2007, I sent a series of letters to the

Players Association listing the names of those players we sought to

interview because we had received allegations that they had used

performance-enhancing substances. We identified the years during

which the alleged use had occurred and the clubs with which the

players were then affiliated. The Players Association subsequently

responded in letters stating that all of the players declined to be

interviewed.

In October 2007, in a personal meeting that I had with representatives of the Players Association, we were informed that they

had not previously understood that any player who participated in

an interview would at that interview be informed of the allegations

that we received about it. So to make absolutely certain that there

could not possibly be any further misunderstanding, I asked them

to again contact all of the players involved and inform them of the

details of my offer. I followed that up with a letter in which I reiterated that, ‘‘To be clear, I have been and remain willing to meet

with any player about whom allegations of performance-enhancing

substance use have been made in order to provide those players

with an opportunity to respond to those allegations. During the

course of any such interview, I will inform the players of the evidence of their use, including permitting him to examine and answer questions about copies of any relevant checks, mailing receipts or other documents, and give him an opportunity to respond.’’

Five weeks later, the Players Association responded in a letter on

behalf of those players. The letter stated in part that some have

been in direct contact with you. On behalf of the others, we report

that they continue to respectfully decline your request. And those

that had been in contact with us declined the request through

other lawyers almost without exception. That is, according to the

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Players Association, all of the current players about whom allegations were received were contacted twice; once in the summer and

early fall of 2007, and then between October and November 2007,

and each time they declined my invitation to meet and talk with

me. At your request, Mr. Chairman, I’ve supplied all of this correspondence to the committee.

I should say, just for the record, Congressman Davis, a different

procedure was followed for former players. They are not members

of the bargaining unit that is represented by the Players Association. We contacted each former player directly by telephone, by letter or both to inform them that allegations had been received about

them and to invite them to an opportunity to interview and to provide them with the chance to respond. Even though we were not

required to do so, at the request of the Players Association, we provided to the Players Association a list of all the former players

about whom allegations were received.

Mr. DAVIS OF VIRGINIA. Can I just ask, did any former or current

players come forward and have their names cleared as a result of

the invitation that you——

Mr. MITCHELL. Yes, one former player retained his own lawyer

who contacted us and asked to come in and meet with me. I met

with him and his lawyer. He told us that he had in fact purchased

performance-enhancing substances illegally as had been alleged by

Kirk Radomski, one of the witnesses whom we interviewed. He told

us however, that he had not used them. I asked him whether he

had any evidence to support or corroborate his statement. He said

that he had, and he provided that evidence to us. We conducted an

independent investigation and concluded that he was telling the

truth and that we therefore made the decision not to include him

in the report. Now, I’m not clear whether you’re talking about current or former players.

Mr. DAVIS OF VIRGINIA. I asked both, and you just said it was

a former player. No current player?

Mr. MITCHELL. No. Let me—I don’t want to characterize the status of the player, if I might.

Mr. DAVIS OF VIRGINIA. That’s fine. Right. Thank you.

Chairman WAXMAN. Thank you, Mr. Davis.

Mr. Cummings.

Mr. CUMMINGS. Senator Mitchell, I want to first of all thank you

for an outstanding report. And I have for a long time been a great

admirer of yours, your integrity and your—what you bring to public

life is just incredible. I want to just kind of refocus us a little bit.

Senator Mitchell, this committee held hearings on this issue of

steroid abuse in Major League Baseball in 2005. One of our most

powerful witnesses at that hearing was Donald Hooten, the father

of Taylor Hooten, a teenage ballplayer who committed suicide after

taking steroids. Mr. Hooten is in the audience at this hearing.

Frank and Brenda Marrero are also here today. Unfortunately,

their son, too, Efrain, also committed suicide after taking steroids

in an effort to become a better athlete. I noticed that when you

talked about your findings, the No. 2 finding went to the whole

issue of children and the fact that it could have—the steroids and

illegal substances could have a very detrimental effect on children.

This committee, Senator, as you probably know, got a lot of flack

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back in 2005 when we took a look at Major League Baseball and

its handling of steroids. And we are receiving similar criticism even

today. People are saying, Why are you getting involved in that? But

I want to take a moment to remind everyone why we’re here in the

first place. We are here—we started this because of our youngsters.

We first took a look at the issue of steroids upon learning of the

deeply troubling Centers of Disease Control Prevention study that

said 1 in 16 students reported using steroids. This was almost

three times the amount who reported using steroids 10 years ago.

And I can tell you that steroid use is, as you said, extremely dangerous. And I think as I listen to you, I want you to help us with

this. You talked about ending the era of steroids. You also talked

about how our children are affected. Your recommendations I know

were going to the League, but I’m just wondering, if the bottom

line—see, I don’t worry so much about the players because they’re

millionaires. I worry about the kids who are impressionable, who

are going to those stores on the weekend using their allowance to

buy these substances. That is what I worry about. I worry about

the kids in my neighborhood, whose only dream, they think the

only dream they have is to become a Major League athlete and

buying this stuff. And so I guess what I’m asking is, if we—and we

have a program say in Baltimore called Powered by Me. And what

it does, it works with coaches and the clergy and so many others,

parents, to try to get parents—kids to stay off steroids.

Peter Angelos, the owner of the Orioles, who I am glad is here,

has agreed to be a major part of that program.

I want to thank you, Peter.

But I guess what I’m saying is, if we’re going to end it—are you

looking at some kind of amnesty for these players so they can perhaps turn around and help our children. I mean, what did you have

in mind? And these people who—you know—one of the dilemmas

that we find ourselves in is that the people have committed a

crime, as you said, gone against baseball policy. And at this critical

moment, what message do we send if we were to grant some type

of amnesty, and is the benefit of stopping here and saying, OK, you

did it, we’re going to put that aside, but we are going to go forward,

is there—you know, is there a benefit to doing that? And how do

you—what is your feeling about the way, if any, Major League

Baseball should help our children, because the fact is that a lot of

damage, Senator, has already been done? It has already been done.

There are kids right now who have in their backpacks some of

these very substances, and they’re going to be probably using them

today, God forbid. But that is a fact. And it is based a lot upon the

folks that they were trying to emulate. So I know that is a packed

question. But if you’d try at it, please.

Mr. MITCHELL. I’m happy to do so, Congressman. First, it is not

a consequence that I began my remarks with a reference to the

dangers of steroid use by young people. I believe that to be the

most shocking fact that I uncovered in the course of this, uncovered

in the sense of my knowledge. It was obviously known before, but

it is not widespread. And I tried hard in every public appearance

that I’ve made and will continue to do so to call attention to that

fact. The fact that hundreds of thousands of American youngsters

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are using steroids ought to be a wake up call to every American,

whether they’re sports fans or baseball fans or not.

Second, let’s be clear, this goes far beyond baseball, way, way beyond baseball. Baseball players are not the only persons who are

role models for young people. All professional athletes are. Entertainers are. Political leaders are. It is a broad societal issue that—

of which baseball is only a part. Could I answer the second part,

Mr. Chairman, about——

Chairman WAXMAN. It would be welcome, Mr. Mitchell, but we

do have many Members, and you’re trying to get a train. But go

ahead and see——

Mr. MITCHELL. I just say, respectfully, amnesty is a loaded word

in American politics today. What I said in my report was that I believe the commissioner should forego discipline on past users except

in those cases where he deems it necessary to impose discipline to

protect the integrity of the game. My recommendation is based on

several reasons. The first is that I believe that everyone involved

should be trying to bring this troubling chapter in baseball’s history to a close. The more time you spend in the past, the harder

it is to look into the future.

Second, the actions which I describe in my report are between 2

and 9 years old. They’re dated in time. It is a well established principle of American labor law that if you impose discipline, it must

be in accordance with the law that existed at the time the act occurred. In many of these instances, there was no punishment under

the program or even predated the program.

Third, more than half of the people mentioned in my report are

no longer in Major League Baseball, and therefore, the commissioner has no authority to discipline them even if he wanted to do

so.

And finally, and I have a fairly long section on this in the report,

I want to just close with one thing; I spent 5 years working in

Northern Ireland. And after many long and painful negotiations

and difficult decisions, a conflict that had raged for a long time was

brought to an end. The most difficult, emotional, and controversial

part of the process that we adopted dealt with an analogous circumstance, the release from prison of persons who had been engaged in the struggle, who had committed what they believed were

acts of patriotism but which the authorities and the victims and

their families believed were brutal criminal acts. And I learned

then that some times you have to turn the page and look to the

future. And I sincerely believe, even as I recognize there are valid

arguments both ways, that baseball has to look to the future. And

the way to do that is to turn the page on the past, to lay the foundation for a well conceived and well executed program and also a

very strong discipline for future violations when everybody knows

this is what we’re going to do.

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

Chairman WAXMAN. Thank you, Mr. Cummings. Let me announce that because of the time constraints, we won’t recognize

any Members who have not come to the hearing up to this point

to ask questions, and I’d like to ask each Member to stay strictly

within the 5-minute timeframe even to anticipate that the answer

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may be part of the 5 minutes; not 5 minutes and then a further

5 minutes for the answer itself.

Mr. BURTON. Thank you Mr. Chairman.

It’s nice to see you again, Senator.

Mr. MITCHELL. Thank you, Congressman.

Mr. BURTON. I would like to start off by saying, I hope every

sport and every commissioner of every sport and all the leaders of

the sports will recognize that this is a problem that’s very pervasive. And I hope that they’ll all take their lead from baseball and

football and start making sure that they stop steroid use and other

drug use in their sports so that we don’t have to have these kinds

of hearings.

I don’t like to see Congress doing this. This doesn’t seem to be

something I think Congress should be doing. Nevertheless, I think

it is useful, especially if it gets the message out to all sports figures

and high-profile figures that they should not be involved in this.

I just have two questions for you, Senator, and then I’ll let my

colleagues ask the rest of them.

First of all, some of the sportscasters have asked why did you

give the owners an advance copy of the report and not give it to

the Players Association.

Mr. MITCHELL. No owner received an advance copy of the report,

Congressman. Under the agreement I reached with the commissioner at the outset, I provided to the Commissioner’s Office a copy

of the report because the commissioner is legally bound to maintain

confidentiality of certain information with respect to the drug testing program under the agreement between baseball and the Players Association. The commissioner wanted, and I believe appropriately, to be able to review the report to make certain that I did

not inadvertently disclose any information in violation of his legal

obligation to maintain its confidentiality. He reviewed the—his attorneys and others reviewed the report on that basis. There were

no material changes in the report as a result. To the best of my

knowledge no owner saw the report. And certainly it was not my

intention, in complying with that agreement, that the report go to

the owners.

Mr. BURTON. Along the same lines, the chief investigator of the

Pete Rose case, John Dowd, said that he was surprised that there

was a refusal by you and your staff not to make public to the AP

and other news people documents that were referenced in your

footnotes.

I would just like to know what the response is to that.

Mr. MITCHELL. Certainly.

We received and requested a number of documents, a total of

115,000 in all in the course of the investigation, from others for use

in connection with the investigation.

Our investigation is over, my work is completed, and the responsibility for the disclosure of those documents rests with the persons

who are the owners and possessors of the document. And those who

seek them we simply directed to the persons who own and possess

the documents.

Mr. BURTON. Thank you, Senator.

I yield back my time, Mr. Chairman.

Chairman WAXMAN. Thank you very much, Mr. Burton.

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Mr. Tierney.

Mr. TIERNEY. Thank you, Senator. Thank you for your report and

for your time here today.

I understand, Senator, one of the key features of any drug testing policy is the medical use exemption. And athletes who have a

legitimate need for a particular banned substance or banned drug

are allowed to apply for an exemption in order to use that, and

baseball has that kind of a policy, as well, as I think the Olympics

do. That’s an important exemption, but people are always concerned that it will be abused, obviously, that somebody is going to

use that exemption as an excuse to get their hands on a performance enhancing drug.

I understand that you attempted to obtain, in order to evaluate

information on medical use exemptions, that information from the

Major League testing program, but didn’t get it. Why did you ask

for it?

Mr. MITCHELL. For the very reason stated in your question: to attempt to satisfy ourselves that the program was being properly operated.

There have been published reports involving other programs,

suggesting that the use of therapeutic use exemptions has been a

mechanism to avoid the purposes of the program; and that’s the

reason we sought the information.

Mr. TIERNEY. Now, I understand that you were not able to obtain

them. You didn’t have subpoena power, which—it is remarkable

that you did such a thorough report without that, and I commend

you for that. This committee did ask the league for that information, and to their credit, they gave the information to the committee. And interestingly enough, one of the largest number of players

receiving exemptions were those that sought it for treatment of attention deficit disorder.

There were drugs like Ritalin and Adderall. My understanding is

that these are stimulants, similar to amphetamines. Some athletes

think that they are performance enhancers. They’re listed by baseball as prohibited stimulants. Ritalin is classified as a Schedule II

controlled substance. According to the Federal Drug Association

these ADD drugs can cause sudden death, stroke, heart attack and

adverse psychiatric effects.

In 2006, ADD drugs were not a major issue. It appears that only

28 medical exemptions were granted; but in 2007, over 100 major

baseball players received medical-use exemptions for these types of

drugs. That’s almost 8 percent of all players saying they had a

medical use exemption for an ADD drug.

This would appear to be an exceptionally high percentage, somewhat over 8 percent, or eight times rather, the percentage of regular adults taking ADD medication in our population.

I would like to know what your reaction is to that.

Mr. MITCHELL. Amphetamines were not part of our investigation;

they were outside the mandate of our investigation. So I don’t have

any knowledge of the information that you just provided.

Mr. TIERNEY. I understand that you weren’t able to get the information.

Mr. MITCHELL. I would prefer not to comment until I saw the full

details, Congressman. I don’t know anything other than what you

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just stated. And since it was not part of our investigation, I don’t

have any comment at this time.

Mr. TIERNEY. I appreciate that. And perhaps we’ll save the questions for the league and for the Players Association. I don’t think

we have enough information right now, either, on that. We will

probably want to explore it more.

But I think it’s certainly concerning that you have eight times

the adult population in our society using it in baseball, and so we’ll

explore it a little bit more with them. Thank you.

Mr. MITCHELL. Thank you.

Chairman WAXMAN. Thank you, Mr. Tierney.

Mr. Shays.

Mr. SHAYS. Thank you, Senator, for your investigation. This is almost surreal to me. I first want to compliment the chairman and

ranking member for holding this hearing and for working so closely

together. And they worked closely together when the now ranking

member was the chairman.

And I want to agree with now-Ranking Member Davis when he

said this is not the most important issue facing the country, but

it is still a very important issue. What I wrestle with is, and why

I feel this is surrealistic is why should cheaters, why should cheating be a matter of collective bargaining?

In 1919, the Chicago Blackhawks scandal, you had eight players;

you had a shortstop, two pitchers, two fielders, a first baseman, a

utility man, a third base. When they tried to throw the Chicago

White Sox, playing Cincinnati Reds, they were booted out for life.

You didn’t have a commissioner at the time.

You had a commission, because the American League and National League were formed in 2003. So now we get a commissioner

because of this scandal, and they took decisive action because of

cheating. They didn’t do anything other than fire them, get rid of

them and send a huge message.

So tell me why cheating should be a matter of collective bargaining.

Mr. MITCHELL. It has been settled law in the United States for

more than 20 years that drug testing in the workplace is a subject

of collective bargaining in those employer/employee situations

where a recognized bargaining unit exists.

Mr. SHAYS. But isn’t there a difference?

The purpose of these drugs is not to give pleasure; it’s to give

them an unbelievable advantage over the other players. It means

they get to play and someone else doesn’t get to play. It means, if

you’re a pitcher, you have an advantage over the hitter; if you’re

a hitter, you have an advantage over the pitcher and so on.

This is cheating, isn’t it?

Mr. MITCHELL. It is indeed. I’ve described it as such.

Mr. SHAYS. So what I wrestle with is maybe the issue of extracting blood and the testing process. But it doesn’t seem to me that

the penalty should be a matter of collective bargaining. It strikes

me, if you cheat, that supersedes the issue of drugs. It’s an issue

of cheating.

So what I wrestle with, and I’m wondering if you have the same

issue yourself, don’t you see a difference between someone taking

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a drug for pleasure and someone taking a drug so that they can

cheat?

Mr. MITCHELL. Yes, I do, and I described that in my report.

There is a difference and it’s a significant difference. And taking

a performance-enhancing substance to gain an unfair competitive

advantage is a serious form of cheating in addition to being a violation of the law.

Mr. SHAYS. I’ll just say what the irony of this for me, as well,

is because of the Blackhawks scandal, we established a commissioner so that they would take, or he or she would take, decisive

action. And yet we have a circumstance where we banned steroids

in 1991, but didn’t have a testing process until 2003. And when we

were asking in our hearing nearly 3 years ago what the procedures

were, they basically said, they weren’t in writing.

Then we found out they were in writing. But they said it was a

draft. And then when we got to see what was in writing and it

wasn’t a draft, it was a suspension or a fine. So someone could pay

a fine and you would never know about it.

Let me ask you about Mr. Palmeiro. This case seems to describe

to me a continued failure on the part of the commissioner and

Major League Baseball to come to grips with this issue. Was he

found to have taken drugs before he hit his 3,000th hit?

Mr. MITCHELL. I’m sorry, before what?

Mr. SHAYS. He had his 3,000th hit—Mr. Palmeiro. Is this a case

you’re familiar with?

Mr. MITCHELL. I’m familiar with the case. But the test concluded

that steroids were present in his system. I don’t know whether a

test can tell precisely when the steroids were placed into his system.

Mr. SHAYS. I’ll end with this, because I can ask the next panel.

What I will want to ask the next panel is, when was he found to

have taken the drug, the drugs, was it before or after he had concluded his 3,000th hit?

Mr. MITCHELL. He was tested before he received his 3,000th hit.

Mr. SHAYS. And it was a positive test?

Mr. MITCHELL. Yes.

Mr. SHAYS. And Major League Baseball kept it quiet until he hit

his 3,000th hit; is that correct or not?

Mr. MITCHELL. That I don’t know. Someone behind me is saying

‘‘no,’’ so I think that’s a question for Major League Baseball.

Chairman WAXMAN. Mr. Shays, your time has expired and we’re

on a very tight schedule.

Ms. Watson.

Ms. WATSON. I want to thank the Chair and the ranking member

for your efforts to thoroughly investigate the topic of illegal steroid

and hormone abuse in Major League Baseball. I also want to commend Mr. Selig, because the Mitchell Report is an important tool

for MLB, especially for the reason that you, Senator Mitchell, conducted your investigation independently and released the report,

unedited by the Commissioner’s Office or the players’ union.

And again, I want to caution that, although comprehensive, that

Mitchell Report is most exhaustive—it’s not completely exhaustive

of the situation. So in an effort to take this to another level, I want

to focus on the responsibility that Major League sports groups,

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high-profile athletes and the leaders in our society have to the general public.

They must be held accountable to the message we send to other

athletes, college students, impressionable high school, young adults

and small children, and people serving in a position of authority

and leadership. And this includes sports personalities whom young

people seek to emulate in every way. And our media-saturated society must always be critically aware of the consequences of their action and statements.

Now, Major League Baseball does have well-intentioned programs in the field, and I want you to comment. I’ll just make my

statement, and whatever time we have left, Senator, I would like

you to comment.

For example, the Compton, California-based legacy of the late

Congresswoman, Juanita Millender-McDonald, a dear friend and a

really competent colleague—thanks to the partnership of Congresswoman Millender-McDonald and Jimmie Lee Solomon, who is here,

and Baseball Commissioner Bud Selig and Major League Baseball—built its first baseball academy for urban minority children.

There is nothing like it anywhere else in the country. And on the

campus of Compton Community College the baseball academy

brings 2,000 Los Angeles area youth per year to play ball, study

academics and learn a vocation.

And I look forward to the program’s expansion into my neighboring district in the center of Los Angeles—we call it South Central

Los Angeles. And this is a very positive program, but illegal drugs

in sports must be eradicated for the messages to truly sink in with

our youth. And so I would like to see some push behind the proliferation of such a program.

In the remaining time, would you comment? And thank you so

very much for your dedication and your work.

Mr. MITCHELL. Thank you for your kind remarks.

I wholeheartedly endorse your suggestion that such programs

gain support and proliferate around the country. It is of critical importance.

Reference was earlier made to Don Hooton, who is here; I met

with him, I’ve listened to his message. He’s gone through it painfully, as have other families who are here. I think it is a very serious problem, and it can’t be solved solely by the professional

leagues themselves.

That’s the point I tried to make earlier. This goes far beyond

baseball or any one organized sport. It’s a broad, societal issue and

will require a broad response at every level of society. And grassroots programs of the type you described at Compton are just

what’s needed all around the country.

Ms. WATSON. Thank you so much, Senator.

Chairman WAXMAN. Thank you, Ms. Watson.

Mr. Souder.

Mr. SOUDER. Thank you, Mr. Chairman.

I have a few questions that go to the fundamental question of

whether baseball can, in fact, regulate itself; and I want to ask several of them. If you can’t give a full, complete answer, then perhaps

you could answer for the record so it’s part of a complete record.

Mr. MITCHELL. I’ll do that, Congressman.

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Mr. SOUDER. One challenge is this, a code of protection, this wall

of silence that you were met by players was a horrific and terrible

role model for Americans all over this country and kids, because we

could not prosecute any drug abuse in America if Americans followed the pattern that baseball players did; that drug abusers and

drug dealers being protected in this way doesn’t help the drug

abuser and it harms potentially innocent people, and calls into

question really how you do collective bargaining when they

wouldn’t respond to you, they won’t respond to Major League Baseball.

I mean, literally one either former or current player coming forth

is a humiliation. If that were followed by other Americans, we

would be in a disaster in our society.

Now, a couple of things. You mention on page 309, just before

you wind up, that there were other trainers, Kirk Radomski had

mentioned that. There were probably others that came through. It’s

pretty clear that the major breakthroughs came because of the

BALCO investigation. There was really no legal breakthrough. You

didn’t have subpoena power. You didn’t have the ability to grant

immunity, which we usually work with in narcotics cases.

Do you believe that we can actually find out—because most of

this stuff is 2 years old, not because we have any proof that it’s

not ongoing; it’s because that’s when BALCO investigations lost our

key people—can this be done without the Justice Department and

find out whether it’s going currently, or not currently if you don’t

have immunity and you don’t have the ability to subpoena, to find

out even what’s happening currently?

The second part of my question is, did you in the course of—and

this goes to management culpability, obviously the abuser’s

abuser—but did you look through e-mails and discussions with the

management to find out what they knew, whether they were discussing it, whether they had, in fact, some knowledge that they

didn’t come forth, because there really wasn’t a lot of that.

You allude to the fact that everybody was involved in this. But

if, in fact, under pressure, management can’t be trusted to make

the decision, this becomes a huge challenge in how we go forward.

Similarly, with the trainers, the trainers, it’s clear from the

statement about Radomski, they are under the employment of the

managers, not under the collective bargaining agreement of labor.

Did any of them come forth? If they didn’t come forth, why wasn’t

their management pushing them to come forth?

I have heard from many sports writers in the first round and in

this round, who say they saw the stuff in the locker room, they

know the trainers were there. Why wouldn’t they talk, because

they weren’t part of the collective bargaining agreement?

Mr. MITCHELL. We interviewed over approximately 700 witnesses. A very large number of them were employees of Major

League Baseball clubs, who were required to participate in interviews as a condition of their employment. And they included many

of the persons in the categories that you described.

As I note in my report, quite a number of witnesses provided testimony that we judge to be not credible in the sense that many

said, ‘‘I didn’t know anything about steroids,’’ ‘‘I never saw anything,’’ ‘‘This is the first discussion I’ve ever had involving it.’’ but

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a large number came forward. And we also talked to a large number of former persons in the employment categories that you described.

And so I think the comments made that the report is not exhaustive in the sense that it does not include every single person who

used steroids, I don’t think it is ever possible to get to that level.

It does provide a substantial basis for describing the era as it exists.

One final comment, Congressman, on the issue of trainers and

other medical personnel. I repeat what I said earlier: They are subject to certain legal and ethical constraints on what they can and

cannot disclose about persons whom they serve in that capacity.

And that has to always be taken into account in trying to achieve

the proper balance.

Mr. SOUDER. Can that be done—because of HIPA and all that

type of thing, can that be done in any format other than the Department of Justice? In fact, won’t that come up in future baseball

enforcement?

Mr. MITCHELL. It’s very difficult to do in the absence of the

power of compulsion.

I prosecuted at the State level. I was the U.S. attorney for Maine

and a Federal Judge and I’ve now been through this experience,

and I can tell you, there’s a huge difference between conducting an

investigation when you can compel testimony and documents and

when you have to simply ask for them. A huge difference.

Chairman WAXMAN. Thank you, Mr. Souder.

Mr. Lynch.

Mr. LYNCH. Thank you, Mr. Chairman and the ranking member.

Thank you, Senator. And as an Irish-American, I appreciate all

your great work in Northern Ireland as well, although I find it difficult to accept the analogy to what we’re doing here.

Let’s go back to the previous point about the difficulty of an investigation without the ability to compel. You had very limited

tools at your disposal. And still I am quite impressed with the

amount of information that you’ve come up with here. Could I ask

you what percentage of your report or what portion of your report

would you consider the result of the assistance given to you in your

commission by Mr. Radomski and Mr. McNamee.

Mr. MITCHELL. We made no effort to categorize it in percentage

terms on that basis.

Mr. LYNCH. Well, let me put it in the inverse then. How successful do you think you would have been without it?

Mr. MITCHELL. Not as successful as we were with them.

Mr. LYNCH. All right. Here’s what I’m getting at.

You conducted this as a voluntary investigation. From this side

of the dais this is an investigation regarding the Controlled Substances Act, the Federal Controlled Substances Act; and you were

compelled to conduct this investigation without tools, without subpoena power, without the ability to plea bargain. And it seemed to

me in reading the report that a lot of information came down, a

lot of people were named as a result of what Mr. Radomski and

what Mr. McNamee brought forward.

Now, their testimony, unlike what you were trying to compel,

was not voluntary. They cooperated as part of their plea bargain

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agreement. And so my first question to you is, how fruitful or how

worthwhile do you think a further investigation might be conducted by someone else, but with the aid of the ability to subpoena,

with the prospect of criminal charges, and with the ability to plea

bargain?

Mr. MITCHELL. I respectfully do not agree that this was an investigation into the Controlled Substances Act. That was a necessary

part of it, since many of the acts involved violated that law and

other laws. But this is a private investigation conducted for a private entity, Major League Baseball, in an effort to—first, to respond to the request of the chairman of this committee and the

committee as a whole, and second to lay the foundation for policies

to reduce or eliminate the use of such substances in the future.

Let me just say that it is the policy of the U.S. Government, and

has been for many years, not to prosecute individual users of some

illegal substances, but to concentrate prosecutorial resources on

manufacturers, distributors and dealers. That’s the case today.

In the last few years 250 professional baseball players have been

publicly identified as having tested positive in drug tests and suspended, most of them in the minor leagues, because that program

has been going on longer, some in the major leagues. Not a single

one has been prosecuted, not a single one, even though the evidence was public and known. That’s because we have pursued a

policy in this country for decades that we ought to be concentrating

on the distributors and the dealers.

Now, if Members of Congress believe that is a wrong policy, then

of course it is within their power to pursue a change in that policy.

But if you do that, you will go back to the arguments made 20, 30,

40 years ago when this policy was first initiated about how best to

allocate scarce government and prosecutorial resources.

Mr. LYNCH. In yielding back my time, Senator, I just want to say

that I think there’s a distinct difference between these individuals,

these professional athletes represented by counsel, that have

agents, that have a lot of resources who are not unwittingly being

induced to use these drugs but are seeking them out for a decided

advantage. This isn’t some drug pusher going into a neighborhood

preying on adolescents.

These are adults. These are people who have the resources, the

skills, the ability to discern what is good for them and what is not

good for them. And they are deciding to use these drugs at a decided advantage because there’s a monetary incentive there, distinct monetary incentive for them to cheat.

And I will yield back my time. Thank you, Senator.

Mr. MITCHELL. Thank you, Congressman.

Chairman WAXMAN. Thank you, Mr. Lynch.

Mr. Turner.

Mr. TURNER. Thank you, Mr. Chairman.

And thank you, Senator, for all your work on this. And I want

to echo the comments of those who have gone before me on this

panel that the most important issue is how this reflects to our kids

and how, from this, their views are formed of drug use.

In using your analogy on Northern Ireland, you indicated that

what we need to do in this is turn the page, get it behind us and

go forward. But you also said that the Players Association was

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largely uncooperative. In order to turn the page we have to at least

have an agreement on shared values. But yet you have great optimism that could be done.

Could you explain that to me?

Mr. MITCHELL. Yes. I did say the Players Association was largely

cooperative in my investigation. I also said that in 2002 the Players

Association reversed its longstanding policy of opposition to a mandatory random drug testing program and agreed to one, the program that exists today. That was a very significant step forward,

and I think they ought to get credit for that, as well as concern

about the other aspect of it.

I also pointed out that since 2002 the Players Association and

the commissioner and the clubs, on the other hand, have agreed to

a number of steps to improve and strengthen the program even

though they were not obligated to take them up, because the collective bargaining agreement had not expired. It’s a policy of the

United States to encourage collective bargaining agreements when

employees are represented by unions. And to ensure stability, economic stability, once an agreement is entered into, the parties are

not obligated to take up any of the provisions until the agreement

expires, notwithstanding that both sides have made significant

changes, some of which, Congressman, came to light in the course

of our investigation. As we would report it to them and ask them

questions about it, they took steps to correct it on an ongoing basis.

Mr. TURNER. Thank you, Senator, because I do think that with

all the work that has been done—and our chairman and ranking

member need to be congratulated and, of course, for your work—

there does have to be some focus on the future and what changes

are being made so that we do have an ability to have a different

message to our kids. And I appreciate your work to help accomplish

that.

Mr. MITCHELL. Thank you, Congressman.

Chairman WAXMAN. Thank you very much.

The Chair now recognizes Mr. Yarmuth.

Mr. YARMUTH. Thank you, Mr. Chairman.

Chairman WAXMAN. Before you begin, Mr. Yarmuth,Senator

Mitchell, I know you hoped to get out by 11. We have five Members, and there are some important issues that we still want—my

colleagues want to cover. If you would give us another 20 minutes,

I would appreciate it.

Mr. MITCHELL. Yes, that’s fine. I will, Mr. Chairman.

Chairman WAXMAN. Thank you.

Mr. YARMUTH. Thank you for your report, although I must say

as the Representative of Louisville, Kentucky, I’m disappointed the

report didn’t deal with the performance enhancing qualities of the

Louisville Slugger. I’m sure you will take that up at a further time.

Mr. MITCHELL. There has been a lot of speculation about bats in

recent years, as you know.

Mr. YARMUTH. But I do want to focus on the issue of the concept

of performance enhancing, because you mentioned in your testimony—you said, the players apparently believe—they took HGH

because they apparently believe that it enhanced their ability to recover from injuries and to combat fatigue. And I think I’m focused,

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as some of the other Members are, Congressman Cummings and

others, on the impact, the influence on our young people.

And I’m sure that our young people are looking at this whole

issue of performance enhancement and looking at Barry Bonds and

some of the other players who have been named and saying, I can

hit more home runs, I can throw faster pitches. And I’m sure you’re

familiar with the op-ed piece that was in the New York Times right

after your report came out. A sociologist and a statistician analyzed

all the players mentioned in your report and found out that there

was no discernible statistical difference between their performance

before and after they were identified as having taken these enhancement substances. And, in fact, there was a slight drop-off, if

anything.

So I’m wondering whether in the course of your investigation you

felt that we really knew enough about what these substances really

did. Because in terms of providing education for our kids, if in fact

there is no performance enhancement, I mean in terms of batting

average or ERA or those types of statistics, maybe the kids would

be less prone to use them if we really found out that there wasn’t

any quantitative difference in their performance.

Would you comment on that, please?

Mr. MITCHELL. I believe that the subject is very complicated. And

as often happens in life, a phrase has entered into the universe of

vocabulary of our society, ‘‘performance enhancing substances.’’ if

you look at and talk to the players who use them, you find that

the motives, while they ultimately involve performance, don’t always do so in an immediate sense.

A lot of it is recovery time, recovery from injury, recovery from

strenuous workouts, the ability to work out more often. A lot of it

is psychological: It made me feel good. Each of us is familiar with

that effect. When you walk in to give a speech before 5,000 people

at a convention, you know if you’re feeling good you’re going to do

a much better job than if you’re not. There is a huge placebo effect

all throughout American medicine, not just in terms of athletes or

performance enhancing substances.

So I think the subject is more complicated than a simple phrase

represents.

However, I think there is also, on the other side, substantial evidence that in at least some individual cases performance was enhanced as a consequence. It might have been psychological, it

might have been recovery. I happen to think, having tried to play

baseball myself as a young man, that anybody who makes it to the

major leagues is a highly talented person. You have to be a great

athlete to get to the major leagues in the event.

So I don’t think anybody who gets to the big leagues needs a

steroid or some other drug to be able to hit or throw or field a baseball. What they were looking for was a competitive advantage in

a highly competitive situation.

In my report, we quote one player who said one of the biggest

gripes is this other guy is taking steroids and he’s taking my spot

on the roster. And so I think it’s more complicated than the phrase

itself suggests. And as so often happens in life, the motives of the

individuals who take them are not always identical; indeed, some

of them cite different reasons for taking different substances.

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Mr. YARMUTH. Thank you, Senator. I yield back.

Chairman WAXMAN. Thank you, Mr. Yarmuth.

Mr. McHugh.

Mr. MCHUGH. Thank you, Senator. Like all my colleagues I deeply appreciate not just this work, but all the work you’ve done in

an amazing career.

In both your written, as well as your presented testimony here

today, you talked about, in your words, a ‘‘truly independent administrator.’’ I wonder if you could define for the record what you

mean by that, particularly with respect to the current administrative approach by Major League Baseball.

Mr. MITCHELL. Currently, all of the professional—the major professional sports in the United States operate their programs in a

way that retains significant authority in the league and the Players

Association. For example, in baseball the person who holds the title

of independent program administrator may be dismissed at any

time by either party for any reason or for no reason.

That person does not have authority over important elements of

the program: the testing regime, in season and off season, the laboratories to be used to analyze the results, a range of issues. So

while he has the title, ‘‘independent program administrator,’’ I do

not believe that he qualifies as independent as that term is understood in terms of best practices in the field today.

I cited a couple of examples, but I also said—and I believe this—

that the test is not the form adopted or the words used to describe

it; the test is the substance of the authority that the person actually has. And that’s what the two parties, the Players Association

and Major League Baseball, the clubs, have to decide on what to

do.

They’re perfectly capable of devising an alternative method so

long as it truly meets the test of independence. And I don’t think

you’ll be able to answer that until you see which process they

adopt. There are models now which exist outside of baseball, which

I cited.

Mr. MCHUGH. Thank you. I would certainly agree with your observation that both Major League Baseball and the Players Association have come a long way and have acted in a forward leaning

way to implement many of the provisions of your report.

Have you had a chance to sit down with Major League Baseball

and the Players Association to talk about the remaining provisions

in your report? Do you intend to do that, if you have not? And

whether you have or have not, how do you view the likelihood of

all of your recommendations being implemented in a timely manner?

Mr. MITCHELL. I’ve spoken by telephone twice with each, with

the commissioner and with Mr. Fehr, prior to today and have

talked with them; and in both cases we agreed that we would talk

in the future.

I have to say that I’m torn. My work is completed, and I’m trying

hard to get back to other things in my life. So I don’t want to appear here to be volunteering to continue my participation any

longer. But I certainly will do anything that I’m asked.

My understanding is that they have begun discussions on the

issues within their jurisdiction. And as I noted in my remarks, the

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commissioner has unilaterally adopted the recommendations that I

made, which he had the authority to act upon unilaterally.

Mr. MCHUGH. So you’re optimistic that the entire report, in due

course, will be implemented?

Mr. MITCHELL. This is not an easy issue. Let’s just look at the

facts. There are 30 clubs, there are dozens of officials. You have

constituents. The commissioner has constituents. There are 1,200

Major League players. They’re scattered all over the world. They

won’t be getting together until some time in February or March at

spring training.

Mr. Fehr has constituents. So just as you go home on weekends

and hold town meetings and consult with your constituents and try

to get a sense of what they’re feeling, they’ve got to do what is, in

essence, the same thing. And I think they ought to be given the opportunity to do that, and then see what they can accomplish. And

then everybody—members of the committee, members of the public,

members of the press—will have a chance to judge and evaluate

what they’ve done.

Mr. MCHUGH. Thank you, Senator.

Thank you, Mr. Chairman.

Chairman WAXMAN. Thank you, Mr. McHugh.

Ms. Norton.

Ms. NORTON. Thank you, Mr. Chairman. And thank you particularly for the rigorous followup on this issue.

We all appreciate what you’ve done, Senator Mitchell; and as I

hinted to you before the hearing, in your spare time, Congress

could undoubtedly use your services with a few disputes I could

name. I’m particularly pleased that your report has come up before

baseball returns to Washington this spring.

I want to ask you a question about the naming of names, which

I think is one of the most valuable parts of your report. And you

named 90 players who, you alleged, used steroids and human

growth hormone. It’s interesting to note that few have denied the

allegation since. I’m going to ask you about one who has. And to

their credit some have come forward to say that they indeed were

involved in such use.

I would like to give you an opportunity to respond to the criticism, however, to the naming of players; and some have alleged

that you had too little corroboration. In doing so, could you tell us

what standard of evidence you used in deciding when to name players and when not to name players? Were there some you did not

name because you did not think that they had met whatever standard you were using?

Mr. MITCHELL. I carefully reviewed and considered all of the information that we received about the purchase, the possession, or

the use of performance enhancing substances by Major League

Baseball players. We received information from a wide variety of

sources. And, of course, in every instance we attempted to establish

the truthfulness of the information that we received before anything was placed in our report.

Since the commissioner had made clear from the outset that he

wanted this report to be public, we obviously understood that our

responsibility was to learn as much as we could and to make public

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that which we could in response to the mandate to accurately, fairly, and thoroughly provide all the information possible.

Now, we received information from so many sources that it would

take far more than time permits here in this limited time to deal

with every single source of information. Some of it was documents,

some of it was canceled checks, mailing receipts, admissions by persons. A significant number of persons admitted the allegations over

the course of time; some of it, as has been noted previously, came

from the testimony of two men, Kirk Radomski and Brian

McNamee.

Ms. NORTON. Let me ask you, Senator, because I think those are

precisely the kinds of sources we would expect you to use under the

circumstances. But let me ask you about the most controversial

name in your report, perhaps, Roger Clemens, a seven-time Cy

Young Award winner who, you say, was a user of steroids and

human growth hormone. Now we see Mr. Clemens coming out and

strongly denying these allegations and doing so publicly.

Why do you think he refused your invitation to talk to you before

the release of the report?

Mr. MITCHELL. I do not know why. As I stated earlier, Congresswoman Norton, we followed the legal process which we were required to follow; and that is notification of then-current players

through the Players Association. As I described earlier—and I will

not repeat so as not to take up all of your time—the way it turned

out, there were two letters that——

Ms. NORTON. Obviously, he hasn’t told you and he hasn’t told us.

That’s why I wondered.

But could I ask you about Mr. McNamee on whom you relied

heavily, for him and perhaps others. Why do you believe that Mr.

McNamee was a credible witness, and have you learned anything

since the report that would lead you to reassess your conclusions

regarding this credibility that you found in Mr. McNamee’s allegation?

Mr. MITCHELL. Since the report was issued, Andy Pettite has

said that Mr. McNamee’s statements about him were true. So they

confirmed the testimony.

Ms. NORTON. And you believe he was a credible—you believe he

was credible on Roger Clemens, why?

Mr. MITCHELL. Well, let me describe the process.

We made every effort to establish the truthfulness of his testimony. Through his attorney he entered into a written agreement

with the U.S. Attorney’s Office for Northern California. That agreement provides that McNamee will cooperate with that office. No

truthful statements can be used against him in any Federal prosecution by that office. If, however, he should be untruthful in any

statement made pursuant to that agreement, he may be charged

with criminal violations, including making false statements, which

is a felony.

As part of his cooperation with the U.S. Attorney’s Office and at

his request, Mr. McNamee agreed to be interviewed by me and my

staff and to provide truthful information. I interviewed him three

times, once in person, twice by telephone. His personal lawyer participated in each of the interviews. Also participating were Federal

prosecutors and agents from the FBI and the Internal Revenue

87

Service. I told him at the outset of each interview that I wanted

nothing but the truth, no exaggeration, no minimizing, just tell the

truth.

Also, on each occasion Mr. McNamee was informed by the Federal officials present that if he made any false statements during

these interviews, he would subject himself to further criminal

charges.

Chairman WAXMAN. Senator Mitchell, let me——

Mr. MITCHELL. I just want to make one final statement.

Thus, Mr. McNamee had an overwhelming incentive to tell the

truth. And I’ll just finish, Mr. Chairman.

The third and last interview was in early December 2007, just

before we released the report. The purpose was to make absolutely

certain that we had accurately understood and reported his statements to us; and to make certain that we achieved that objective,

a senior member of my investigative staff read to him verbatim the

portions of the report that were attributed to him.

At the conclusion of the interview, as we had at the beginning,

we reminded him that all we wanted was the truth. We asked him

if he was completely comfortable with the truth and accuracy of the

statements which would be included in the report, and he said that

he was. He had a couple of minor suggestions which had no material effect on the report, and we proceeded on that basis.

And, as noted, I asked Mr. Clemens to meet with him to give him

an opportunity to respond to the allegations, and he declined.

Chairman WAXMAN. Thank you, Ms. Norton.

Senator Mitchell, in other words, despite the public presentation

by Mr. Clemens that the testimony was not accurate, you continue

to feel comfortable with Mr. McNamee’s credibility?

Mr. MITCHELL. We believe that the statements provided to us

were truthful.

Chairman WAXMAN. Thank you very much.

Ms. McCollum.

Ms. MCCOLLUM. Thank you, Mr. Chair.

Senator, if players using these drugs constitute cheating, and

owner and league officials knew about the use of these illegal

drugs, as is clear from the report, then it would appear for more

than a decade millions of baseball fans were subject to fraud, fixed

games played by big drug users that illegitimately altered the outcome of the games.

It’s my opinion we’re here in the middle of a criminal conspiracy

that defrauded millions of baseball fans, billions of dollars over the

past 15 years. If baseball is simply another form of entertainment,

like going to a concert or attending a professional wrestling match,

which an audience attends solely for pleasure, and they do not attend under the presumption of some form of fair athletic competition, then there would be no difference between Barry Bonds and

Britney Spears.

But, in fact, Major League Baseball is sold as a legitimate competition in which the outcome of the game is dedicated in a field

of transparency wherein every fan can watch it. The fact that

league officials, owners, players and players union all knew of the

massive illegal drug abuse problem that existed, and continues to

exist, with the use of human growth hormones demonstrates to me

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fraud to millions of baseball fans. Every fan who has bought a ticket to see the game for the past 20 years has been witness to a

fraud.

Baseball is sold as America’s game: hometown, apple pie. But, in

fact, it appears that it has been rooted in cheating for profit. The

more home runs hit, the more fans in the seat, the more money in

owners’ pockets and the bigger salaries for players.

Major League Baseball is filled with lawbreakers and coconspirators who ignore the problem and actively fuel the problem.

In your report you mention two items which I would like you to

elaborate on. David Segui of the Baltimore Orioles on September

24, 2004 told his general manager, Jim Beattie, that he was going

to go see a doctor in Florida to obtain human growth hormone. This

information was related to the second Orioles general manager,

Mike Flanagan, so two of the top Orioles executives knew about

this drug use. And your report notes that no one in the Orioles organization reported this admission of use of growth hormone to the

Commissioner’s Office.

You also discuss another incident, one surrounding Greg Anderson and Barry Bonds’ personal trial. The Giants trainer, Stan

Conte, raised concerns about Anderson supplying players with

steroids to the team’s general manager, Brian Sabean.

So my question to you is, what did these individuals do with this

information? For example, did Brian Sabean take this information

and ask to have Mr. Anderson investigated? You spoke to the Giants’ owner; what did the Giants’ owner tell you about this? Did

Mr. Beattie or Mr. Flanagan give you any insight as to why they

failed to report this very important information to the commissioner?

To your knowledge, has anyone else in the Orioles organization

who knew about the use of human growth hormones, what have

they done?

And I thank you for your work on this, because I want to get

America’s game back on track.

Mr. MITCHELL. Let me state as a general matter at the outset,

Congresswoman, that I very much share the concern that you expressed about the use of a performance enhancing substance in

baseball. But I think we all have to recognize that this goes far beyond baseball and it goes far beyond the modern era.

One of the things I did in preparation for this investigation was

to read some of the history, and you can go back to the original

Olympics, many thousands of years ago, to find allegations of people in competitive sports using material to try to gain a competitive

advantage. So I think we should be clear, this is not unique to

baseball, this is not unique to the modern era, this has existed for

a very long time.

Chairman WAXMAN. Senator Mitchell, let me interrupt you because we’re trying to help you get to your train. Could you address

the specific question? Then we have one last question.

Mr. MITCHELL. We don’t have any more knowledge about the incident that you referred to, other than we put what we knew into

the report, and we have no information that any other Orioles official was aware of the allegations.

Chairman WAXMAN. Thank you very much.

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Mr. Welch.

Mr. WELCH. Thank you, Mr. Chairman.

Senator Mitchell, I agree with the wisdom of your judgment to

look forward, not look backward. I also agree with your report that

the minority of players who used these drugs violated Federal law

and baseball policy and distorted the fairness of the game. The

question I have is this.

Do you believe that a Major League baseball player who did use

performance enhancing drugs and is the holder of a Major League

baseball record—most home runs, most batter struck out, most stolen bases—should be stripped of that record?

Mr. MITCHELL. Congressman, I’ve done several of these investigations, and in every instance I’ve been invited to express opinions that go far beyond my mandate and far beyond my authority

and, therefore, I have adopted and pursue a policy of restraint.

I answered the questions I was asked to answer in the report.

It really is not my responsibility, nor do I have any special knowledge or insight that entitles my opinion to have greater weight

than yours or any other fan on the subject you express. That’s the

responsibility of other officials; that’s where it should rest, and I

think that I should limit myself to what I was asked to do, which

I’ve done.

Mr. WELCH. Just a few questions about the role of Major League

Baseball itself.

According to your report, the 1998 winter meetings, Dr. Millman,

Robert Millman, the medical director of Major League Baseball,

gave a presentation that focused on the benefits, not the risks of

taking testosterone, a steroid.

Can you elaborate on why the medical director would be doing

this, which appears to be completely in conflict with the policy?

Mr. MITCHELL. I’m not able to elaborate. We made repeated attempts by telephone, by certified mail and otherwise to contact Dr.

Millman. He did not respond. And, therefore, we were unable to

ask him about that and some of the other information contained in

the report.

Mr. WELCH. There are a couple of other incidents in your report

of apparent complacence by Major League Baseball. When the Florida Marlins were presented with steroids that were found in the

locker of Ricky Bones, that was not reported; in fact, the steroids

were returned to him.

Another case where the personal trainer of Juan Gonzalez, as

you know an MVP, was caught by Canadian customs with syringes.

Do you know what happened in that situation?

Mr. MITCHELL. What we found out we put in the report. Beyond

that, we don’t have any information. I think it’s fair to say that,

as we described in the report, the baseball policy requiring reporting of information was not widely known or understood and not

widely followed during the era described.

Mr. WELCH. Your report does provide examples of Major League

Baseball having what I think could be called a ‘‘culture of silence’’;

the desired teams to win games at all costs, and the historic inability of the Commissioner’s Office to take the problem seriously for

longer than it should have.

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Any comments on the role of Major League Baseball in, essentially through this action and inaction, aggravating what was already a very dangerous situation?

Mr. MITCHELL. I made my comments, Congressman, in the report

and in my opening statement, and I thought about those words and

believed they best and most accurately and most fairly characterized the circumstance.

Mr. WELCH. I yield my time. Thank you.

Chairman WAXMAN. Thank you very much, Mr. Welch. I do want

to point out that Mr. Davis has been sitting here a long time, and

I regret the fact that he’s not going to be able to have time to ask

any questions.

Mr. MITCHELL. Is this the last one?

Chairman WAXMAN. Yes.

Mr. MITCHELL. Go ahead, Mr. Davis.

Mr. DAVIS OF ILLINOIS. Thank you very much, Mr. Chairman.

And I want to thank you for your continuing probe of these great

issues of significance to the American people.

Senator Mitchell, I want to commend you and your colleagues for

the tremendous work that you’ve done in preparing this report.

And I certainly appreciate your giving me these last opportunities.

It is my feeling that Major League Baseball has failed miserably

in policing itself relative to the use of illegal drugs and the proliferation of performance enhancing substances by Major League

baseball players.

The report that you have put together implies certain things to

me. My question is, do you think that the report suggests that

Major League Baseball has the inability to actually police itself, or

is it going to require further legal legislative action to get beyond

the discussions and get beyond where we are to something actually

being done that’s going to stop the proliferation?

Mr. MITCHELL. I do not believe that the report leads to the conclusion that Major League Baseball is incapable of policing itself.

To the contrary, I believe that what has happened in baseball is

quite similar to what has happened in almost every other sport, including the Olympics: a slow start to recognize the problem; an ineffective beginning; but gradually an effort increasing in intensity

and effectiveness that I believe can be successful. I think it is very

important that you don’t take one sport and think that it is unique

in that respect. You go back over the Olympics, you go over all the

other sports; they’ve gone through the same process of trial and

error, getting started, trying to figure out what to do.

So I believe that in the past 5 years, beginning with the adoption

of the mandatory random drug testing program and continuing

through a serious of changes and improvements in that program in

an effort to make it more effective to the contrary, MLB and the

Players Association have demonstrated an ability to deal with the

problem, not as effectively as I or you would like, not as effectively

as they’d like.

And since the problem is dynamic, it is constantly changing. At

this very moment, in various parts of the world, there are people

trying to figure out ways to make new drugs that will enhance performance and not be detectable. You have to keep at it and you

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have to adopt the best program and you have to be flexible. I believe they can do it. I hope they will.

Mr. DAVIS OF ILLINOIS. Let me just ask, how cooperative would

you say that the officials of Major League Baseball were during

your investigation and how cooperative were the Players Association?

Mr. MITCHELL. The commissioner was fully cooperative. The

clubs were cooperative. The Players Association was largely uncooperative.

Mr. DAVIS OF ILLINOIS. Thank you very much, Senator.

Chairman WAXMAN. You’ve been very generous with your time

and we very much appreciate your work and your presentation to

us. The committee is now going to take a 10-minute break before

we call forward our next panel.

[Recess.]

Chairman WAXMAN. The committee will reconvene. Our next two

witnesses need no introduction to this committee. Commissioner

Bud Selig and the president of the Players Association, Don Fehr,

have testified before and are the leaders of Major League Baseball.

Don Fehr has led the Players Union since 1985 and Bud Selig has

been baseball’s commissioner since 1992. They both are familiar

with our committee rules and we welcome you today. And as you

know, we swear in all of the witnesses. I’d like to ask if you’d both

stand and raise your right hands.

[Witnesses sworn.]

Chairman WAXMAN. The record will indicate our witnesses answered in the affirmative. We’re pleased to have you here and

we’re looking forward to your presentation and the opportunity to

ask questions.

Mr. Selig, why don’t you get started first? There is a button on

the base of the mic. Be sure it is on.

Mr. FEHR. Mr. Chairman, if it is green, it is on?

Chairman WAXMAN. Yes.

STATEMENT OF ALLAN H. ‘‘BUD’’ SELIG, COMMISSIONER,

MAJOR LEAGUE BASEBALL

Mr. SELIG. I would like to thank the chairman, the ranking member and the committee members for inviting me to testify today. I

have a number of people with me today that I’d like to introduce.

First our advisor, Dr. Gary Green of UCLA, one of America’s leading experts on performance enhancing substances; Steve Pasierb

from the Partnership for a Drug Free America; Donald Hooten who

has been here before, the head of the Taylor Hooten Foundation;

Peter Angelos, the owner of the Baltimore Orioles who has been at

the table for the last two rounds of labor negotiations; Randy Levine, the president of the New York Yankees; and Stan Kasten, the

president of the Washington Nationals.

On March 30, 2006, I asked Senator Mitchell to conduct a comprehensive investigation of the illegal use of performance enhancing substances in baseball. I decided to do this investigation so that

no one could ever say that baseball had something to hide, because

I certainly did not. Baseball accepts the findings of this investigation and baseball will act favorably on its recommendations.

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Before I turn to the Mitchell report it is important to recall the

progress we have made. Baseball now has the strongest drug testing program in professional sports. Our penalty structure is the

toughest; we have year-round unannounced testing, including testing on game days both before and after games. We use the Olympic-certified laboratories in Montreal and UCLA for our testing and

the day-to-day administration has been delegated to an independent program administrator. A whole generation of players has

grown up under our strict Minor League testing policy which is entering its eighth season. As a result of all of this, steroid use in

baseball today has dropped dramatically from more than 90 violations in the 2003 survey test to just 2 steroid positives in 2006 and

3 in 2007.

This improvement is similar to what we’ve observed in our Minor

League program, where positive test results declined from 9 percent in 2001 to less than 11⁄2 of 1 percent in 2007.

Nonetheless, I felt a need to appoint Senator Mitchell to deal

with the past. Nothing is more important to me than the integrity

of the game of baseball. Baseball needed to fully, honestly, and

publicly confront the use of performance enhancing substances by

players. I knew that an investigation would be an extraordinarily

difficult undertaking. I knew that an investigation would be painful

for all of those associated with the sport. No other sport had confronted its past in such a way, but I knew that baseball must undertake that journey in order to preserve the integrity of our game

and maintain credibility with the millions of baseball fans throughout the world.

This investigation had a second purpose as well. I’m committing

to keeping Major League Baseball’s program the strongest in professional sports. Indeed, Senator Mitchell confirmed that our current program has been effective and the detectable steroid use appears to have declined. But I knew from experience that the development of a state-of-the-art drug program requires continual evaluation and refinement. My desire was for Senator Mitchell to provide us with recommendations and insights to help make additional progress in the ongoing battle against the illegal use of performance enhancing substances in sports.

I gave Senator Mitchell complete independence to conduct the investigation, to consider any evidence that he deemed relevant, and

to follow that evidence wherever it may lead. It is extremely unusual to afford a third party such unfetterred discretion to conduct

an investigation and to make findings public. Yet I believe that

such extraordinary steps were necessary to satisfy my goal of conducting the most exhaustive and credible investigation of this subject that was within my power as the commissioner.

As a lifelong baseball fan, I am deeply saddened and disappointed by the conduct of the players and many other individuals

described by the Senator in his report. On the other hand, as the

commissioner of baseball, with the responsibility for protecting the

integrity of the game for future generations, I’m optimistic that

Senator Mitchell’s report is a milestone step in dealing with baseball’s past and the problems caused by these dangerous and illegal

substances in both amateur and professional sports.

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Senator Mitchell’s report, including his 20 recommendations,

which I fully embrace, help point a way forward as we continue the

battle against the illegal use of performance enhancing substances.

I want to be clear that I agree with the conclusion reached by Senator Mitchell in his report, including his criticisms of baseball, the

union and our players. I have personally agonized over this a thousand times, and what could have been done differently, and I accept responsibility for everything that happens in our sport.

However, as Senator Mitchell found in his report, by August

1998, when the discovery of andro in Mark McGwire’s locker, we

immediately took a number of steps to lay the foundation for bargaining a joint drug program in the 2002 negotiations that included

random testing for steroids. These steps included efforts to improve

regulation of dietary supplements such as andro and the introduction of a steroid education program.

In addition, in 2001 I unilaterally implemented a drug testing

program in Minor Leagues which prohibits all Schedule III steroids

and required random drug testing. After contentious negotiations

in 2002, we finally reached an agreement that led to the first mandatory drug testing program in baseball. I am proud of what we’ve

done, but in hindsight, we should have done it sooner. The compromise we reached with the players in the 2002 drug program was

not perfect. As Senator Mitchell reported, it was a necessary first

step toward achieving the tough drug program that is in effect

today.

And as Senator Mitchell recognized, our program has evolved

since that time. In January 2005, with the agreement of the Players Association, we revised the drug program to add 17 substances

as prohibited substances, including the addition of Human Growth

Hormone. We also increased the penalties for positive tests.

In March 2005, with the support of this committee, I sought the

Players Association agreement to further increase penalties to a

50-game suspension for first-time offenders, 100-game suspension

for second-time offenders, and a permanent ban for third-time offenders. I also proposed adding stimulants, including amphetamines, as banned substances. After months of difficult negotiations, the Players Association accepted my proposals in November

2005.

I fully support each of the 20 recommendations for improving our

program that Senator Mitchell included in his report. Almost all

his recommendations that do not require bargaining with the Players Association have already been implemented. Just last week we

issued written policies that require all clubs to adopt the uniform

written policy for reporting information about possible substance

abuse violations and certify to the Commissioner’s Office that such

policies have been complied with; require all Major and Minor

League clubs to establish a system to log every packet sent to players at its facilities; require background checks to be performed on

all clubhouse personnel; and require all clubhouse personnel to be

randomly drug tested.

Also last week, we established the Department of Investigations

to deal with the investigation of drug use. Headed by wellcredentialed former law enforcement officers who are here today,

who combine to bring over 50 years of experience, the Department

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has established a hotline for the anonymous reporting of information concerning the use of prohibited substances and has already

made initial contacts with law enforcement agencies to pursue continued cooperation. Although the legal issues are more significant,

we’ll also be developing a program to require top prospects to the

Major League draft to submit to drug testing before the draft.

Senator Mitchell also recommends certain changes to the joint

drug program that clearly require agreement of the Players Association. In the weeks since the release of his report, we’ve discussed

each of these recommendations with the Players Association. We

have already agreed to eliminate the 24-hour notice that drug testing collectors had given to the clubs. We have not yet reached an

agreement on the other points, but I certainly will continue to

press for an agreement to revise the program to adopt all of Senator Mitchell’s recommendations.

I’m committed to a program that provides adequate year-round

unannounced testing. As commissioner, I recognize that baseball is

a social institution. Part of our responsibility is to young people.

We have been working closely with the Partnership for Drug Free

America and the Taylor Hooten Foundation to educate America’s

youth and their parents about the dangers of performance enhancing substances. It is essential that we not only investigate and enforce our policy, but that we educate our players concerning the

dangers posed by the use of these substances.

Senator Mitchell noted an improved educational program about

the dangers of substance use are critical to any effort to deter performance enhancing substance use. Increasing awareness of the

dangers of these issues is important not only for the health of the

athletes but also to protect the health of amateur athletes and our

Nation’s youth, who themselves strive to be better on the field of

play.

As Senator Mitchell described in his report, for the past decade,

MLB has conducted educational programs for players in the Major

and Minor Leagues during spring training. We’ve stepped up these

efforts in recent years, striving to find ways to make these programs more effective in reaching the players.

For example, in 2003, I hired Dr. Gary Green, who is seated

right here. Former director of UCLA’s intercollegiate drug testing

program, chairman of the NCAA’s subcommittee on Drug Testing

and Drug Education, and a USADA panel member to develop and

implement educational programs and materials on performance enhancing substances.

Using Senator Mitchell’s recommendations as a guide, we’re

making even further improvements to our educational program.

Senator Mitchell’s report feels there are those who are intent on

cheating and will continue to search for ways to avoid detection

such as turning to the use of HGH, Human Growth Hormone,

which is not detectable in a urine test. I’m committed to stop the

use of HGH in our sport.

Along with the National Football League, baseball is funding an

effort by Dr. Donald Catlin, one of the leading drug experts in the

world, to develop a urine test for HGH. We’ll be convening a summit of the best minds in sports and science to develop a strategy

to address the use of HGH by players.

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Just recently, we’ve joined with the U.S. Olympic Committee,

USADA, and the National Football League in a new long-term program of research on performance enhancing substances. Our initial

commitment is for $3 million in funding when a valid, commercially available and practical test for HGH becomes reality. Regardless of whether the test is based on blood or urine, baseball will

support the utilization of that test.

I’m also here to ask for your assistance in this fight. The illegal

use of performance enhancing substances is a problem for baseball,

but is a social problem that extends well beyond this sport or,

frankly, any sport. We welcome your participation in attacking the

problem at its source.

There are a number of bills that have been introduced that we

wholly support, including Representative Lynch’s bill, H.R. 4911;

Senator Schumer and the Senate bill 877; Senator Grassley, Senate

bill 2470; and Senator Biden’s bill, Senate bill 2237. I’d like to personally thank Representative Lynch for introducing the bill that

would make HGH a Schedule III controlled substance, which I believe is an important legislative initiative.

Even prior to the issuance of the Mitchell report, we had made

great strides in reducing the number of players who used performance enhancing substances. I’m confident by adopting Senator

Mitchell’s recommendations, constantly working to improve our

drug program regardless of the effort of the cost, by pursuing new

strategies to catch cheaters, and by enhancing our educational efforts we can make additional progress in our ongoing battle against

the use of performance enhancing substances in baseball.

The lessons from the past serve only to strengthen my commitment to make the Major League Baseball program the strongest

and most effective in sports.

Thank you, Mr. Chairman. I ask that a copy of my entire written

statement be made part of the record.

Chairman WAXMAN. Thank you very much, Mr. Selig. Both of

your written statements will be made part of the record in their entirety.

[The prepared statement of Mr. Selig follows:]

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Chairman WAXMAN. Mr. Fehr, we’re pleased to welcome you and

we are looking forward to hearing from you.

Mr. FEHR. Thank you, Mr. Chairman. Chairman Waxman——

Chairman WAXMAN. Would you pull the mic a little closer?

Thanks.

Mr. FEHR. Is that better?

Chairman WAXMAN. Yeah.

STATEMENT OF DONALD M. FEHR, EXECUTIVE DIRECTOR,

MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION

Mr. FEHR. Chairman Waxman, Ranking Member Davis, and

members of the committee. As you know, my name is Donald Fehr

and I serve as the executive director of the Major League Baseball

Players Association, And I appreciate the opportunity to speak with

you today.

As I’ve previously testified before many committees, but specifically this one 3 years ago, playing Major League Baseball requires

talent, drive, intelligence, determination and grit. Steroids and

other unlawful performance enhancing drugs have no place in the

game and we neither support nor condone the use of such substances by players or by anyone else.

We cannot change but we can learn from the past. Baseball’s

problem with performance enhancing substances was bigger than

I realized. We understood that a number of years ago when we

began the testing programs. In retrospect, action should have been

taken and probably could have been taken sooner. The Players Association accepts its share of responsibility for what happened and,

as I indicated at my press conference following the issuance of Senator Mitchell’s report, so do I.

Since our first joint drug agreement in 2002, and in particular

since we appeared before this committee some 3 years ago, we have

worked vigorously to rid the game of performance enhancing substances, and the evidence regarding steroids indicates, I believe,

that we’ve been largely successful. On behalf of the players, I reaffirm the commitment to continue that effort.

Today we believe we have the best program in professional

sports. It is a program that members of this committee and other

Members of Congress praised when it was agreed to and implemented. It is independently administered as state-of-the-art random unannounced testing procedures, and we use the universally

acclaimed WADA-certified Olympic lab in Montreal to analyze the

samples. The penalties, as indicated, have been the toughest in

professional sports and it is a program, as Senator Mitchell indicated, that we’ve worked to improve. Over the last 2 years, even

after the 2005 amendments, without any fanfare or controversy,

we’ve agreed on several improvements.

Which brings me to Human Growth Hormone. This is a difficult

and perhaps a unique challenge. There are currently no valid blood

or urine tests for HGH. So what can be done and what have we

done?

First, we banned HGH. We’ve agreed to test for it as soon as a

scientifically valid urine test exists. We also have procedures which

allow for players to be disciplined or suspended based on evidence

other than a positive test, and players have been suspended on

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that basis. It is the so-called nonanalytical finding, so should a scientifically accurate, commercially viable blood test become available, we’ll consider it in good faith. But as Senator Mitchell noted

in his report, the blood tests now being developed may be of limited

practical utility. And while the union has warned players for years

of the risks associated with HGH and other of the substances, the

parties can do more by way of education.

We’ve recently discussed with the Commissioner’s Office having

medical experts meet with players early this season to warn of dangers posed by HGH and other bad substances to reinforce that message. But we can’t do it alone. Abuse of Human Growth Hormone,

as I think the commissioner and Senator Mitchell have already

mentioned, is not just a baseball problem; it is not even much of

a sports problem. All one has to do to appreciate this is to go on

to the Google Web site, maybe after this hearing, and type in the

words, ‘‘Where can I buy HGH?’’ we did this a few days ago and

we got 349,000 hits in a quarter of a second. Ads for Human

Growth Hormone and related substances can be found widely distributed in periodicals that everybody reads.

Representative Lynch and others have introduced legislation to

reclassify HGH as a Schedule III drug, making its treatment comparable to anabolic steroids. I assume that appropriate consideration will be given by the Congress to that bill.

Consideration might also be given to taking action in some form

against the unlawful online sales in marketing of HGH and other

of such substances.

Finally, as I have previously suggested, perhaps the Congress

should examine whether the Dietary Supplement Health and Education Act [DSHEA] as it is commonly known, is being adequately

enforced. One of the members from the panel in his opening statement, or in one of the questions, suggested to kids buying stuff in

stores. To the extent that is true—and I think it is—that means

it is available in stores, and legally.

Senator Mitchell and his law firm were hired to write a report

and he served his client well. But I ask you to remember that this

was a unilateral action taken by management. As a result, we had

no choice but to act as unions are required to act by Federal law,

to represent our members in connection with an investigation with

potential disciplinary consequences. If we had done otherwise, we

would have violated our statutory duty of fair representation. Even

so, while the conduct of the investigation was ongoing, we continued to discuss improvements in our program with the owners. Most

of the media reaction to the report has focused on individual players and what they are alleged to have done. That is understandable. But I would ask you also to recognize that the report contains

no new allegations of improper drug use in 2006 or 2007 when the

current program was in effect. In those 2 years, we administered

some 6,500 tests with only five positive results for steroids. I think

it is clear our program is working well with respect to steroids

which are capable of being detected.

I recognize that many of you hope that I will today endorse all

of Senator Mitchell’s recommendations. With respect, I ask that

you adopt his suggestion that the parties be allowed time to discuss

what can and should be done. You can be assured that you have

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my commitment both on behalf of the organization and personally

that the players will discuss all of those recommendations. We

have already begun those meetings and they will need to be expanded to include not only staff, but players and the commissioner,

as I’m sure he’ll want an opportunity to express his views directly

to the players. Unfortunately, the situation has been muddied a bit

by the commissioner’s unilateral imposition of some of the recommendations. He did so even though these unilateral changes affect our members and even though we have never declined to discuss any potential improvements. In addition, the suggestion is

there that we should once again reopen our bargaining agreement.

It goes without saying that no union, and no management for that

matter, takes lightly the suggestion by the other party that it

should reopen the agreement before the term ends. The contract is

the lifeblood of the union. This makes the process somewhat more

difficult. But we’re committed to pushing forward notwithstanding

that.

There are some subjects that we intend to raise in addition to

what Senator Mitchell has proposed. We want to make certain that

every Major League club has throughout its organization thoroughly vetted and qualified strength and conditioning personnel.

We believe that unproven allegations against players should not be

aired publicly and that fundamental protections of due process

should be strictly adhered to. And we’ll suggest that Minor League

players who currently do not have a neutral decisionmaker with respect to an alleged violation of the Minor League program should

have that opportunity if they wish to challenge a failed test.

We also hope to build on one of Senator Mitchell’s recommendations. Baseball can do a better job of educating its players and educating the public, and that specifically includes the children that so

many of the Members here today have mentioned. Telling our Nation’s kids that drugs will destroy them is only half the battle. And

I went to college in the 1960’s, and we had been telling people that

for all of my adult life, and we’re still struggling with it. So perhaps the focus ought to be shifted, in addition to that, to something

else, because the Nation’s high school athletes and their parents

will still aspire to scholarships and want to pursue their athletic

dreams. So knowing what to do is as important and perhaps more

important than being told what not to do.

Perhaps players can lead the way in developing nutrition,

strength, flexibility and wellness routines and educating America’s

youth in that regard. And in an era in which we hear a lot about

so-called childhood obesity, perhaps that is a more powerful idea

than we can yet appreciate.

Let me just summarize and I’ll conclude. There is no new evidence in the Mitchell report of steroid use in 2006 or 2007. That

does not excuse or condone what happened before that; but it is,

I think, relevant to an examination of the steps we’ve made.

Human Growth Hormone is a problem both within sports and generally. There is not yet a test, but we’ll consider in good faith any

valid and effective test which is developed. And we’ve agreed that

if compelling evidence exists, a violation of our program can be

found even though there is no positive test.

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We have not refused to discuss improvements in our program.

We will not do so here. We’ll not refuse to discuss them here. We’re

committed to discussing Senator Mitchell’s recommendations in

good faith and look forward to receiving specific proposals from the

commissioner.

Last, we’ve made progress and I think great progress, especially

after the amendments we agreed to in 2005. But let me come back

to what I began with. In retrospect, action should have and could

have been taken sooner. As an institution, the Players Association

bears some of the responsibility to that. As its leader, so do I.

Thank you, Mr. Chairman.

Chairman WAXMAN. Thank you very much, Mr. Fehr.

[The prepared statement of Mr. Fehr follows:]

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Chairman WAXMAN. To start off the questioning, the Chair would

like to recognize Mr. Towns for 5 minutes.

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

this hearing. There has been considerable discussions on the problem that Senator Mitchell had in obtaining cooperation from individual players and the Players Association. It appeared that there

was a wall of silence; that people were not allowed to talk or come

forward with information. And in some instances they said the

trainers were not allowed to talk. And then, of course, some information came forth that trainers were providing the steroids. So

why would there be this code of silence?

Do you support this, Mr. Fehr?

Mr. FEHR. Thank you for the question. I think it is something

that came up before and deserves an appropriate answer. We are

obligated to represent the players in connection with the disciplinary investigation. I think that is why Senator Mitchell recognized

in his press conference that what we did was, ‘‘largely understandable.’’ And those were his terms.

Where you have a management investigation with potential discipline, employment consequences, we have an obligation to give

the players appropriate advice as to what that could be and what

the effect of what they say is. We asked if discipline would be imposed, and we did not get an answer that it would not be. Further—and this made it very difficult—this process was complicated

because there were ongoing criminal investigations in San Francisco, in Albany and elsewhere, and I assume others, that we don’t

know anything about and shouldn’t know anything about. I believe

that Senator Mitchell had ongoing relationships with those offices.

He has indicated as much. Therefore, we had to advise players that

nothing they said was privileged and that if the authorities wanted

it, they could compel him to provide it; that there would be possible

discipline; and to do something which ordinarily a union need not

do, which is to advise players that they may need to secure individual counsel before they made their individual decisions as to

whether or not to speak to Senator Mitchell. It is a difficult situation, and that is about the best way I can describe it.

Mr. TOWNS. What are you going to do in the future to change

this? Are you working to change this in terms of the code of silence,

because as long as you have this, there is going to be this problem

that people are going to feel that you’re not addressing it in a very

vigorous manner.

Mr. FEHR. I can guess what I can tell you is this: We would

have—and any union would have—obligations to represent their

members and to give them appropriate legal advice. We hope that

the programs that we’re working on will put us in the position so

that questions as to whether there is a code of silence becomes

largely not central in any future situation. If there are future investigations and we have an opportunity to discuss the parameters

and the conditions of those before they get started, I don’t know

what would happen. But that was not an opportunity we were afforded here.

Mr. TOWNS. Mr. Selig, it is my understanding that Senator

Mitchell wanted to get data from players’ medical records. For example, he wanted data that would show whether there were trends

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in medical records that might indicate the level of steroid use. This

information would not have identified individual players. We understand if you’re going to identify them, that is a problem. But

this information would not have identified individual players, but

his staff said that the clubs delayed providing this evidence for so

long that it became too late to use it.

Mr. SELIG. Well, that was—I think Senator Mitchell would tell

you right from the start that the clubs were remarkably cooperative in every way and I, frankly, didn’t give them any alternative.

Having said that, there were some clubs who felt that there were

some State laws that prevented them from doing it. There were

other people that were concerned about it. In the end, though, we

did reach agreement. It took a long time, but I believe in the end

we resolved those problems, but—so I think that they did get the

information that they required. It did take a long time because,

frankly, the clubs’ lawyers, individual lawyers, had a lot of questions and were very difficult. But we kept going until we were able

to satisfy all the individual clubs. We have 30 clubs and 30 outside

lawyers and all in different States, and State laws are different. I

can remember there was some problems with Florida law and

Texas law and other things. So it took a long time to resolve those,

Congressman.

Mr. TOWNS. Let me put it this way. Senator Mitchell indicated

that there was a tremendous code of silence. Do you support that

code of silence?

Mr. SELIG. Well, I don’t think Senator Mitchell said that he had

any problem with that so-called code of silence from the club standpoint or from our office. In fact, he said over and over again, and

he has told me over and over again, that we cooperated in every

way. I told him the fateful day I called him in late March and said,

‘‘You’ll have complete cooperation. You go wherever you want to go,

wherever you want to—I want you to find out what happened, why

it happened, and how it happened.’’ and I think that he did, and

he did largely because of the cooperation we got.

No, I don’t—of course, I don’t support a code of silence, not in

any way, shape, form or manner.

Chairman WAXMAN. Thank you, Mr. Towns. Mr. Davis.

Mr. DAVIS OF VIRGINIA. Thank you very much.

Commissioner Selig, thanks for moving forward in this. It has

been sort of easy after you reached your collective bargaining

agreement to sweep it under the rug and say that is the end of it.

And you didn’t and you let the chips fall where they may. And I

wish they had fallen differently, and I know you do too. But it is

what it is and we need to move on.

I understand from some of the press reports you are weighing

some disciplinary action in some cases; is that correct?

Mr. SELIG. That is correct, Congressman.

Mr. DAVIS OF VIRGINIA. Do you have any criteria or give us any

clue into kind of what you are looking at?

Mr. SELIG. No, I can’t, because I’m the judge in this case. So I’m

sensitive. But what I said to you on December 13th and what I’d

say to you again today, I have great respect for Senator Mitchell

and I know his feeling on this subject, but I’m going to review each

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one of these matters, management and players, on a case-by-case

basis. I’m getting a lot of information from him.

There is other information yet, Congressman Davis, and then I’ll

make my decisions as I move ahead.

Mr. DAVIS OF VIRGINIA. Thank you. I know you note—you stated

that Senator Mitchell was given unfetterred access to any information that was within your control. Were there any instances in

which you or the clubs denied Senator Mitchell access to information?

Mr. SELIG. None that I know of. Absolutely none.

Mr. DAVIS OF VIRGINIA. Mr. Fehr, what would you have liked

Senator Mitchell to have done differently?

Mr. FEHR. I think that had I been conducting such an investigation, I might have approached it differently. I might have had some

preliminary conversations. I might have tried to see if there were

some ways it could be approached other than by someone who is

legally a management lawyer doing an investigation.

Having said that, the biggest gripe that I think I have and the

players have is that I would have preferred that at some point before he issued a report, if he was going to write something about

Don Fehr, that under the circumstances and the seriousness of it,

he would have sent Don Fehr and his lawyer, if he had one, a letter: I intend to say the following about you. This is why I’m going

to say it, this is your last chance to tell me.

He didn’t do that. He has explained why he thought it was the

appropriate way to do it, the manner in which he proceeded. I

would have done it differently.

Mr. DAVIS OF VIRGINIA. Have you and the commissioner had any

discussions between yourselves, or has it been at the staff level,

about the report and substantively how you’re going to proceed

from here?

Mr. FEHR. The commissioner and I had a very brief discussion

out in Arizona right before the new year when we met to talk

about another important issue. What followed that was a meeting

of staff, which occurred last week, to begin to set the ground rules

and explore what we needed to talk about. And what we’re going

to be trying to do now is figure out when we can have other meetings, and that is a little complicated because this is the busiest

time of the year and it is hard to get hold of players. They are negotiating contracts, they are in workout routines, and they’re

spread.

But I hope we will have those meetings put together in the very

near future and then we’ll begin the process in a more formalized

way.

Mr. DAVIS OF VIRGINIA. Is it safe to assume, then, that you and

the commissioner and your staffs will take this report and meet on

each aspect of it and see where you can come to closure and have

some discussions off camera about implementing this?

Mr. FEHR. Yes. I’d expect that we’d discuss, as I hope I indicated

in my opening statement, all of the recommendations and any

other matters which come up that would be relevant to those discussions.

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Mr. SELIG. I’d add, Congressman Davis, we’ve done the ones that

we felt we should. And I would hope that, frankly, we have this all

completed before spring training.

Mr. DAVIS OF VIRGINIA. Commissioner, let me ask you: In the

book Game of Shadows, it was reported that Barry Bonds’ trainer,

Greg Anderson, was either tipped off about when Bonds was to be

tested or he was able to figure it out. As I understand it, Major

League Baseball looked into that allegation.

What did you learn? How was Anderson able to determine when

Bonds’ test would occur? Or was that just an allegation?

Mr. SELIG. As far as I know, that was just an allegation. Obviously—one thing that Senator Mitchell said today—and I know in

the last decade plus, I’ve learned a lot. This is an evolutionary

process. And I think with each time we are able to tighten this program and maybe do something that we should have done X years

ago, that makes it better. As far as I’m concerned, that is an allegation. I don’t have any evidence of that. But it is impossible today,

it has been impossible now for quite some time, and we need to

continue to strengthen the program so that even people can’t make

those allegations.

Mr. DAVIS OF VIRGINIA. OK. Thank you.

Chairman WAXMAN. Thank you, Mr. Davis. Mr. Cummings.

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

Mr. Selig, I want to join the chairman in thanking you. You

know, a lot of people complain about this committee taking on this

role. But, I mean, what we’ve seen done in Major League Baseball

has been quite a bit and I think it has been very good. Also thank

you for asking Senator Mitchell to do this investigation.

One of the things that concern me is a few minutes ago in answering Congressman Towns’ questions, he was talking about this

whole code of silence. And Senator Mitchell also told us that the

clubs refused to allow their trainers to provide information about

the steroid use of the individual players. And I understand that the

clubs claim that there was a, ‘‘trainer/player privilege,’’ which I’ve

never heard of. And maybe that is a new concept in the law. This

obviously made it much more difficult for the Senator to do his job.

Are you familiar with that? Is that something new?

Mr. SELIG. You know, I’ve heard the discussion. Let me just talk

about trainers, if I may, Congressman, just for a second. I started

meeting with the trainers and team doctors. I just had a meeting

on January 9th with 12 team trainers. So I’ve become very familiar, they’re very professional, they—and they have really briefed

me as thoroughly as one could the last 7 or 8 years. Rob Manfred

of our staff is there. They did it again. I think that only when there

were issues that either the club lawyers felt—and I’m talking about

the individual club lawyers—felt that they were compromising

themselves in terms that they would have to describe to you. But

other than that, every trainer that they wanted to interview, they

interviewed. And I think the trainers were—at least told me they

were very forthcoming. So I don’t think that—unless you have a

situation where there is something that the trainer had that was—

that would violate some type of law, I think that they were very

forthcoming.

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Mr. CUMMINGS. Keep your voice up. I want to make sure we hear

you.

The two of you have a long history with baseball. Mr. Selig,

you’ve been a team owner, a baseball executive, for 40 years.

You’ve been commissioner since 1994.

Mr. Fehr, you’ve been head of the Players Association since 1986,

for decades now. You all have been the two most powerful men in

the sport. We all agree that we need to focus on the future, and

we will do that. But this scandal happened under your watch. I

want that to sink in. It did.

I have a very simple question. Do you all accept, you all, you individually, accept responsibility for this scandal, or do you think

there was nothing you could do to prevent it?

Mr. Fehr, why don’t you go first?

Mr. FEHR. Thank you, Representative. I’m thinking a minute because I don’t want to—I could talk for a long time in response to

that question and I know we don’t want to do that.

Let me simply say as follows. If the question is, did we or did

I appreciate the depth of the problem prior to the time that we

began to work on it hard, the answer is no. If the question is,

should we have? Perhaps we should have. It is a failure that we

didn’t and it is a failure that I didn’t. We can’t change that. There

were a lot of things going on. But if your question more generally

is, do the individuals who have responsibility for negotiating the

agreements on both sides bear responsibility for what took place for

a failure to get at it sooner, as I indicated in my opening statement, of course we do.

Mr. CUMMINGS. Mr. Selig.

Mr. SELIG. Sure. What I would say to you, as I said in my statement, I thought about this thousands of times. I’ve been in this

sport all of my adult life. I agonize over that because I consider myself, in the end, a baseball man. In the nineties, you know, hindsight is always very beneficial. I watch things. I have reread all the

articles that Senator Mitchell had. I take responsibility for everything. So let’s understand that. I take it for all the goods things

that have happened to make the sport as popular as it is today,

and when we talk about something, I guess there is no question

about that. I’ve agonized.

But I would also remind you—and who knows how long this has

gone on? The Senator said over 20 years, which is well before me.

I was then the owner of the Milwaukee Brewers. We have come a

long way and in a difficult environment. My Minor League program, Congressman, is going into its eighth year. So all the great

young players in this sport have now been tested 8 years. And do

I wish we had reacted quicker? Should we have? Yes, one can make

a compelling case and I’ve—I do a lot of introspective thinking and

I’ll second-guess myself. But as far as responsibility, of course all

of us have to take responsibility, starting with me.

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

Chairman WAXMAN. Thank you very much, Mr. Cummings. Mr.

Souder.

Mr. SOUDER. Thank you. I want to thank Mr. Selig and Mr. Fehr

for having taken some steps. And I believe that this report and the

followup are additional steps. But I don’t know. And what many of

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us are asking is, would they have been taken if BALCO hadn’t occurred? Would they have been taken if the hearings here hadn’t occurred? The leadership part is missing. It tends to be waiting until

potentially the law is coming, and then trying to fend the law off.

Let me ask a couple of questions, Mr. Selig. Are you looking at

gene doping?

Mr. SELIG. I’m sorry. I didn’t hear you.

Mr. SOUDER. Are you looking at gene doping, genetic alteration?

As a potential testing question, are you looking at gene doping, genetic doping.

Mr. SELIG. We’ve hired the best experts that we can. And we certainly will look at that.

Mr. SOUDER. Mr. Tagliabue, when we asked him that question 3

years ago, said this is the greatest potential challenge and the NFL

was looking at this. It raises a fundamental question. Are you looking at ways that people disguise steroids, such as cream, vitamin

B–12, what things can be mixed, and will there be penalties for

those?

Mr. SELIG. Let me again—because this is all an evolutionary

process, the answer is yes. Dr. Green, who is sitting behind me, is

one of the leading experts in the country. We have the two gold

standard labs—Christian Ayotte, whom I wish were here today but

isn’t, the head of the Montreal lab and—and between he and Gary

Green and all the other experts that we have, all the team doctors

who I meet on a regular basis, we need to continue to be vigilant,

there is no question about it. When we think we have a problem

solved, there are chemists working—creating new products out

there.

Mr. SOUDER. Are you looking at—I worked in 1989 for Senator

Coats when we drafted the first drug testing laws on what was allowed for athletes in high school. And what laws have been upheld

by the courts—it isn’t probable cause, because you don’t know, but

it is potential cause. In other words, if the students are repeatedly

late for school, if they drive a car, if there are certain erratic behavior changes, you can do testing.

Are you looking specifically at when you see changes in performance, in key categories where they are tripling from 1 year, then

you do extra testing?

Mr. SELIG. Well, we are—you know, we have the program now.

We test as frequently as we can. If there are reasons to test more,

we’re willing and able to do that.

Mr. SOUDER. Are statistical changes potentially one of the reasons?

Mr. SELIG. Are what?

Mr. SOUDER. Are statistical anomalies potentially a reason?

Mr. SELIG. That is something that the independent administrator

would have to do. But I—yes——

Mr. SOUDER. I agree that would be something in due process. But

it is a question. But I raise some of these questions because the

problem with an evolutionary process and—Mr. Fehr, there is a

distinct difference here between due process of penalties, of making

sure that the tests are accurate and what should be tested. And I’d

like that—for you to comment on that. Every time there is a new

variation, does this mean it has to be negotiated? Or in between

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labor agreements, can there be decisions that this is being added

to the list as long as there is process from your perspective?

And the second thing is, why do both of you feel that not only

baseball but all professional sports should be different than the

Olympics? What is your criteria for saying that we have this restriction on the Olympic performers who—they aren’t kids either.

Many of them are just as old. They get all kinds of contracts. They

may not be paid for performance at the Olympics, but they certainly are paid athletes at this point. In fact, Professional Basketball plays in the Olympics.

I’d like you to finish with that question. And also, what do you

do in between labor agreements?

Mr. FEHR. Perhaps let me begin. To answer your last question

first, under the labor law that—when you’re between agreements,

the terms of your preexisting agreement continue by law, unless

and until somebody does something, there is a strike or a lockout

or a unilateral change or a new agreement is reached. So the period in between is not an issue.

Second, with respect to gene doping, I don’t remember precisely

the audience that I spoke to. This is a number of years ago now.

But I think I told the group, and got people sort of sitting up

straight, that gene doping will make what we see now look quaint.

And the reason that it will make it look quaint is if it is done

right—my understanding is that people are trying to develop it so

that it will be done in utero and you would be penalizing something

for someone—for something his parents did at the time that he was

still being carried by his mother. That is a very serious issue. And

I don’t pretend to have a handle on the ethical or scientific or policy questions that relate to that. But it is a very difficult issue.

Second, with respect to mixed and disguised substances, all I can

tell you is that the laboratory we use believes it can find those. We

do add substances in between agreements. If something becomes

unlawful under Federal law it is added automatically, as

androstenedione was when the law was passed in 2005. And we get

lists of masking agents and diuretics and all the rest it of from the

lab that they can test for.

With respect to due process issues—if I can do this very succinctly. Where there is an alleged violation, there has to be an opportunity to challenge that, an appropriate adversary hearing, with

neutral decisionmakers, with whatever arguments are appropriate

to be made by the individual, so that it can be considered to be a

fair hearing.

One of the difficulties with the report we have is that if Senator

Mitchell had said Don Fehr did X, used this particular drug unlawfully, I don’t have a hearing, I don’t confront witnesses, I can’t

cross-examine anybody. The most I can do is be interviewed by the

same person who is the investigator, the prosecutor, and in that

case would be the judge or the jury. That is inconsistent with most

fundamental notions of due process.

On the Olympics, I can say as follows. They have to do what’s

best, what they think is best. The athletes are not really represented. We have to do what we think is best and the test will

be whether we’re successful in eradicating these drugs, as we beVerDate 11-MAY-2000 15:02 Apr 30, 2010 Jkt 000000 PO 00000 Frm 00139 Fmt 6633 Sfmt 6633 U:\DOCS\55749.TXT KATIE PsN: KATIE
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lieve the evidence has shown that we have been in the last several

years with respect to detectable steroids.

I’ll give you one example of how it works the other way. This is

not my first experience with Senator Mitchell on an investigative

panel. He and I were two of the five members of the U.S. Olympic

Committee’s panel that investigated the Salt Lake City bribery

scandal and the report that was written. And we made a series of

recommendations that the USOC adopted in large part as to how

they should change their practices. Suffice it to say, the IOC had

enormous difficulties with our even raising the issue to them. They

did make some changes, but grudgingly. Cultures are different.

Chairman WAXMAN. The gentleman’s time has expired. Mr.

Tierney.

Mr. TIERNEY. Thank you, Mr. Chairman.

Gentlemen, thank you for being here today. I want to take up a

train of thought that I had at the earlier session with Senator

Mitchell. And that is that we had asked the League for some information on exemptions from the drugs on that. And just looking at

the raw numbers here, 2006, the total number of players that were

subjected to testing was 1,356. And there were 35 therapeutic-use

exemptions granted. Of those, 28 were for ADD or ADHD medications.

In 2007, that number jumped significantly. Of the 1,354 players

tested, therapeutic-use exemptions granted were 111, of which 103

were ADD or ADHD medications.

Now, that would make that almost eight times the normal adult

usage in our population amongst baseball players. Does that have

any significance to either of you gentlemen as something we ought

to be looking at? Have we set up procedures to look for anomalies

like this and then determine what we’re going to do about it?

Mr. FEHR. Let me respond to that, and I appreciate your asking

the question since you did raise it with Senator Mitchell. Thank

you for doing so. First of all, therapeutic-use exemptions are granted by the independent program administrator. He must have, in

order to do that, appropriate medical documentation from an appropriate doctor who has conducted a legitimate examination, and

he is free to question that individual to secure more recommendations or any of the rest of it. He is a physician. He is expert in

sports medicine. To go—and I believe that Senator Mitchell did

interview him with respect to the procedures he utilizes to determine whether therapeutic-use exemptions will be granted. No problems were reported by Senator Mitchell in that regard.

As to your more general questions——

Mr. TIERNEY. I think the problem with that is Senator Mitchell

didn’t have the information that we had. You could ask him about

the procedures, but he didn’t have this data to look at.

Mr. FEHR. I’m coming to that.

As to your more general question, I’m not familiar—I accept

what you say about the use in the adult population. I suspect, from

some personal exposure I’ve had to hyperactive kids, that the use

of such drugs among young adults by prescription may be significantly larger than it is in the general adult population.

Having said that, I don’t know that to be true. What I would expect is that if Dr. Smith believes that we have anomalies which

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should be investigated and looked into more closely, he would do

three things: He’d tell us that; he’d look into it more closely with

the doctors granting the exemptions and the players; and if he

thought there were changes that should be made, he would so recommend them. And as Senator Mitchell pointed out, we have not

had a recommendation that he made that has not been adopted.

Mr. SELIG. If I can add to that, because I’ve asked the same

question over and over. You have to start with two things here. No.

1, the player gets a prescription at the local level. The player playing for the Chicago Cubs and the Milwaukee Brewers, that doctor

there gives him that. Then Dr. Smith reviews all of that. So they’ve

been through—it’s been through two levels of medical research. I

mean, the examination and why and how. And if Dr. Smith accepts

it, I guess that we do too. It is within the limit of the adult population, overall population. It is a little higher, but it did go up. And

we are reviewing that right now, trying to break down exactly why

it happened and how it happened.

Interestingly enough, in my meeting with the trainers, that was

one of the major subjects last week: why, how? And everybody has

had a different view of it, and I was fascinated by that view. So

we just need to keep working at it. And I guess hopefully after we

conduct our review with all of the team physicians and Dr. Smith

and all of the team trainers, we’ll be able to give you a better answer to that.

Mr. TIERNEY. Just out of curiosity, is it perceived to be a performance enhancement, the ADD drugs? Are they perceived to be

a performance enhancement to begin with?

Mr. FEHR. Oh, sure. If they are not appropriately medically prescribed, yes, then they are prohibited.

Mr. SELIG. That’s right. And remember it has to go, as I said,

through two levels of doctors. Our independent is the last one. But

you’d hope that a doctor in Kansas City or Philadelphia or anywhere else is only prescribing it if he feels it is medically necessary.

Mr. TIERNEY. Well, I take it from your comments, Mr. Selig, you

do have a system set up to look at anomalies like this and then

you are in this instance looking into it and——

Mr. SELIG. Absolutely. No question about it. This is one that

needs to be dissected.

Chairman WAXMAN. Thank you, Mr. Tierney.

Mr. Burton.

Mr. BURTON. Thank you, Mr. Chairman. I just have one question

of Mr. Fehr. I was interested in your answer about due process.

And I wonder, you probably talked to a number of the players, I

wondered why some of the players didn’t come in. Was it because

they had not been apprised of the allegations against them and

they thought if they went in they would immediately be looked

upon in this media age as guilty of something by virtue of the fact

that they showed up, and is that why they declined, and so they

were darned if they do and darned if they don’t, because if they

went in it would look like there might be something that was

against them, and if they didn’t go in ultimately when the report

came out they would be judged guilty before they had a chance to

defend themselves?

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Mr. FEHR. I guess I would have a couple of responses to that.

First of all, because we are giving legal advice we wanted to make

sure that an attorney retained by the Players Association to give

that advice was conversing with the individual players about these

subjects, and so it wasn’t me that did that. Having said that, I

think that it is probable that there was some players that had

some concerns in those regards. My guess is, because I don’t know

what the bases of individual decisions were that were made by the

players and their individual counsel, but my guess is that it was

the totality of the circumstances that was involved; it was the investigation, possible employment consequences, general reluctance

to get wrapped up in something, concern that they didn’t have precise information as to what the allegations were before they went

in, worry about various criminal investigations that were ongoing

which they might get called even as a witness or somebody to talk

to Senator Mitchell, and the lack of privilege that would apply,

added to the fact that there’s no process to resolve in any meaningful way what happens after an allegation is made. I suspect that

it would be very difficult for most attorneys to recommend that

their clients go in under that basis.

Mr. BURTON. Let me just followup real quickly. In the future if

there’s an allegation against a baseball player, do you think it

should be changed so that they’re apprised of the allegations

against them before some kind of report like this comes out so they

have a chance to prepare and be able to defend themselves?

Mr. FEHR. Yes. I would hope that one of the subjects that we

would discuss in our upcoming meetings would be whether we can

agree that in the future there will be an opportunity for a procedure to challenge in a formal way, in some sort of a neutral to

make a decision before matters are raised publicly. Whether players would take advantage of that would depend on the individual

player and the individual circumstance at the time. Each decision

is going to be fact bound.

Mr. BURTON. Thank you. I yield my balance to Mr. Shays. Did

you want to go further?

Mr. FEHR. No. I just said I appreciate your question.

Mr. SHAYS. I thank the gentleman for yielding. Mr. Fehr, you

continually say we have to do what is best. But it’s clear to me that

involves what is best for the players. You have an obligation you

feel as the representative of the players. What I want to ask is

what obligations do the players have and Major League Baseball

Players Association have to the fans and to the public at large, particularly our young people, what are the obligations there?

Mr. FEHR. I think that I can best respond in the following way.

They have an obligation, and this is not necessarily in order of priority. But they have an obligation, first of all, to comply with the

law and not suggest to anyone that they’re different and don’t have

to or shouldn’t have to or that it’s OK. Second, that to the extent

they can they should be in a position to help educate people both

as to what not to do, but as I said in my other statement, perhaps

it would be better as to what they should do. Third, as a group you

can make certain statements. As an individual who is called before

a tribunal or an individual or who may be challenged with wrongdoing, that individual faces an entirely different set of cirVerDate 11-MAY-2000 15:02 Apr 30, 2010 Jkt 000000 PO 00000 Frm 00142 Fmt 6633 Sfmt 6633 U:\DOCS\55749.TXT KATIE PsN: KATIE
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cumstances and theoretically facts of which he has some knowledge

and people making accusations. What he should do in the context

of that case is going to depend on what the situation is, what the

best advice is he can have and what he ultimately decides to do.

Mr. SHAYS. I would like to ask the same question to Mr. Selig.

What obligations does Major League Baseball have to the public at

large, the fans, the public at large and to our young people in particular?

Mr. SELIG. Congressman Shays, we have an enormous responsibility. There is no question. I have often said in my long career

that we’re a social institution, we have enormous social responsibilities. One of the reasons that I decided to do the George Mitchell

report, and I thought long and hard about all the consequences,

various people that could do it, is that I felt that we had an obligation to. We had toughened our program, we had taken care of the

present and the future, but we had an obligation to go back and

have somebody take a look at what happened so it would be a road

map for the future, for people who came after me and for other people. But we also, I felt, had an obligation to our fans. There is no

question that the impact of this sport socially in this country is

enormous and that is really our primary responsibility.

So that’s why I did the Mitchell report even though there were

a lot of people on all sides who didn’t like it and didn’t like somebody doing it. I felt given the fact I never wanted anybody to say

what were you hiding, why wouldn’t you let somebody look at it.

And I heard it when I was here. And it was an absolutely very fair

concern. And I final said to myself, this is going to be a painful

journey but it’s a journey we’re going on, and I would do it again

today.

Chairman WAXMAN. The gentleman’s time has expired. Before I

recognize Ms. Watson, who will be the next questioner, the two of

you talked about the medical exemption issue and your reviewing

it. Would you keep us apprised of your decisionmaking in that

area?

Mr. SELIG. Absolutely.

Mr. FEHR. Yes, of course.

Chairman WAXMAN. Ms. Watson.

Ms. WATSON. Thank you so much, Mr. Chairman. And I want to

thank the commissioner and Mr. Fehr for being as forthcoming as

you have been. And I know that one of the concerns with the

Mitchell report was that they felt that there was not enough offseason testing. And I know the two of you have grappled with how

do we meet this issue head on. And according to Senator Mitchell,

baseball only conducts 60 off-season tests each year. And this

means that the average league baseball player will go their whole

entire career without being tested even once in the off-season process. And so first to the commissioner, Mr. Selig, do you agree with

Senator Mitchell that more off-season testing is needed, and I’ll ask

Mr. Fehr the same thing, and I would like to have you go into your

views about what actually is needed.

Mr. SELIG. Yes. The fact of the matter is that if you were to ask

me today what would I do if I could change the program today, we

need more testing, more year-round testing. There is no question

in my mind that would strengthen the program. So I not only agree

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with Senator Mitchell, but I agreed with it even before Senator

Mitchell made that observation and did his investigation. So yes,

there is no question that more testing and off-season testing would

be very helpful.

Mr. FEHR. For my part, one of the things which came out of the

Mitchell report was the players were told the number of off-season

tests. Prior to that time they didn’t know how many there were

going to be. They didn’t know whether there would be few or there

would be many. As far as they knew that was going to be up to

the people that draw the names out of a hat to determine who is

going to be tested. One of the things that Senator Mitchell suggested, and I may not have this precisely right, I didn’t review this

part of it overnight, was that perhaps the number of tests in season and off season in terms of how they are divided should not be

static and should be changeable and all the rest of it, and that

probably bears some examination.

Ms. WATSON. That goes right to something that Jeff Kent, who

is the second baseman, as you know, for the Los Angeles Dodgers

and a former Most Valuable Player, and he stated that baseball

never conducts tests, testing in the post season. And I understand

that there was some testing in 2007, but it was limited. And so can

you give me an estimate of the testing in 2007 and what you feel

as to whether it’s efficient or not?

Mr. FEHR. Sure. I can get the precise numbers after the hearing

if there’s an interest. But we began testing in the post season I believe in 2007. And we do what is traditional in team sports. As I

understand it, a number of people from each team are tested during that process. I don’t know the precise numbers. But one of the

improvements we made since 2005 was to increase, was to provide

for testing in October.

Mr. SELIG. Yes, we did test——

Mr. FEHR. Excuse me, I’m sorry. I’m told it was both 2006 and

2007.

Mr. SELIG. We did test in the post season last year, that’s correct.

Ms. WATSON. It appears from what the two of you have said that

the players possibly are under a misunderstanding and they feel

that there is no opportunity for post-season testing. How would you

comment?

Mr. FEHR. Well, I hope they’re not under that misunderstanding,

because if they are and they use drugs that they shouldn’t, then

the likelihood is that they’re going to be caught by the testing procedures. But part of my job is to try and make sure that players

understand what the rules are. And if there’s been a failure there

that’s one of the things we can emphasize in our spring training

meetings.

Ms. WATSON. And probably they ought to be under more scrutiny. If this is something that’s really widespread I would say leadership needs to inform them that random testing after the season

is something that you’re going to see happen. And I would hope

that we would get word of your followup on post-season testing

prior to another hearing like this.

And thank you two for your input. We appreciate it. I yield back

my time.

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Chairman WAXMAN. Thank you very much, Ms. Watson.

Mr. Lynch.

Mr. LYNCH. I thank the gentleman for yielding. commissioner

and Mr. Fehr, I just want to say at the outset that a lot of progress

has been made, and I want to congratulate you both on that. I remember the last hearing we were looking at a collective bargaining

agreement that actually allowed a player to leave in the middle of

his urine test and leave unmonitored and then come back an hour

later for no apparent reason. It also allowed players to pay a

$10,000 fine rather than be suspended, which I thought was a slap

on the wrist. All that has changed, and it has changed because of

the collective bargaining agreement and the whole collective bargaining process that you’ve engaged in. And I want to congratulate

you on that, and I think it needs to be said here publicly.

But look, I’m a former union president, and I’ve negotiated a fair

number of contracts myself. And I always viewed, even though I

was representing Ironworkers who were a heck of a lot less well

paid I guess than the union members you’re representing, I always

felt that the—well, I was always one of the biggest advocates for

a drug-free workplace. And I felt that was my rightful position,

representing the best interests of the people that I represented.

And I do want to just note one thing. This Mitchell report, which

was well done, did note one bit of new information. And I think it

deserves recognition by both of you. And that is he said in the report that while steroid use was down considerably, and that’s a

good thing, he said, HGH is on the rise, it is on the rise. Now, I

think that deserves some type of acknowledgement in your agreement. And I respect the sanctity of the collective bargaining agreement. But here is information we didn’t have when you sat down.

And I know this current agreement goes from 2007 to 2011. December 2011, that’s the next time, unless we reopen this agreement,

that’s the next time we’re going to be presented with an opportunity to change the drug testing protocol in this agreement. And,

you know, I know that Gary Wadler, who testified last time we

were here about the fact that HGH blood testing was used at the

Athens Olympics in 2004. And that’s the World Anti-Doping Agency, a fairly reputable outfit regarding drug testing. And I just think

there’s a way here to get at that. We know it’s on the rise, we know

it’s being used in the sport, we’ve got to get at it.

So I’m going ask each of you, we know it’s a problem, there’s

some testing protocols. Oh, and I just want to get at, I understand

Mr. Fehr’s comments earlier on. You’re saying there’s no valid testing protocol right now that’s commercially available. I think Mr.

Wadler, Dr. Wadler, would disagree with that. And you’re saying

that you don’t want to test for it until something is out there. And

here is my response to that. No. 1, you banned it in your agreement. It says HGH is a banned substance under your current collective bargaining agreement, but you’re not testing for it. All I’m

saying is test for it now, test for it now, get the blood samples, OK.

And when the test becomes commercially effective, if that’s your

objection, we’ll be able to test these retroactively. And I bet you,

I just know that these players, if they know they’re being tested

for HGH you’ll see the incidence of use drop just like you did with

steroids when we started testing for that.

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Mr. SELIG. Congressman Lynch, if I can just add, I don’t disagree

with much of what you said. Our deal with the USOC, which you

probably read about last week, that’s exactly what this is about.

There’s no question, and I agree with Senator Mitchell, the use of

HGH is on the rise. In my meetings with trainers and doctors,

frankly, that’s a subject that I spend a lot of time on. What I would

say to you today is that according to our experts, one of whom, Dr.

Green, is sitting right behind me, there is no commercially available test today. Maybe there will be one in 2 or 3 months. I can

speak from our perspective, because I am so concerned, I’m frustrated by HGH and the lack of a test. It has been—you know, we’re

funding Dr. Catlin with the National Football League, we’ve done

a lot of other things. I cannot tell you my level of frustration about

this. So if there comes a test that’s available, as I said in my statement, I think that we would have to have very meaningful, expeditious discussions because I believe that if we’re serious about it,

and I think we all are, that we would adopt that test, and we

would adopt it as soon as it’s available. So as for the storing of

these things——

Mr. LYNCH. Commissioner, I guess you’re missing my point. I’m

saying if we take the samples now.

Mr. SELIG. I’m going to get to that right now. According to the

people that I’ve talked to and we’ve talked to Dr. Green, Chris

Ayotte, the head of the Montreal laboratory, there has been a feeling that storing samples is not practical. I’m not a medical expert.

Frankly, if there is a way to do it I’m not adverse to doing that.

But I’ve taken the best medical advice that I can get from people,

and they tell me that at least for the moment that is not the way

to do it. Look, if I really felt that there was a way to do it and it

would really do what you say it would do, and I believe that may

be right, of course we would do it. So I have to be guided by the

head of the labs and everybody else. And if they think it’s doable,

then it’s something that we will seriously consider, absolutely.

Mr. LYNCH. Fair enough, Mr. Commissioner. Mr. Fehr.

Mr. FEHR. Thank you. First of all, I don’t know personally whether Senator Mitchell is right that players have switched to HGH because we had workable testing for steroids. It certainly wouldn’t

surprise me. That’s an old story in athletics, where people move on

to the next available drug. And I indicated in my testimony in response to other questions things which I think we can do about

that. I am not aware of any test or any protocol that says you can

store and then test at a later time. And it troubles me to do that.

And I would just remind everybody, although I don’t want to bring

unnecessarily someone else into a hearing, we had issues, ‘‘we’’

meaning this country, had issues with stored samples that were

looked at years later in Lance Armstrong’s case in France. So all

I can tell you is that when a scientifically valid and effective test

is available or some other procedure that the medical experts tell

us we can rely on then we have to look at it very hard and we will.

Chairman WAXMAN. The gentleman’s time has expired.

Mr. Shays.

Mr. SHAYS. Thank you. I feel Major League Baseball is in a different place now than in 2005. You do have three strikes and

you’re out, except for the fact that you can petition 2 years later.

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And I’m going to want to know why you should be able to petition

2 years later after you’ve had that third strike. I want to know specifically do either of you see a difference between cocaine and heroin use versus steroids and enhanced drugs as it relates to baseball.

Mr. FEHR. I’ll take that first since Bud took the last one. I think

yes, in one very specific way, and that is that one category of drugs

is—can or is alleged or is believed to effect the play of the game

on the field and the others do not, so far as I know. And that is

a significant difference and it suggests why you can have different

approaches to that kind of an issue.

Mr. SHAYS. Commissioner, do you have the same answer? If it is,

I’ll go to the next one.

Mr. SELIG. Look, the cocaine—and by the way this sport had a

terrible cocaine problem in the 1980’s and unfortunately there was

no testing as a result of that. But the steroids and HGH are enhancing as opposed to the others, which are recreational.

Mr. SHAYS. So basically you see a difference. And so what I get

to is the issue of collective bargaining. I don’t know how you have

collective bargaining for cheating. And that’s what I wrestle with

more than anything else. I don’t know, Mr. Fehr, how you can even

make the argument in the sense that your players should be allowed to cheat once, twice, three times before they’re kicked out.

It’s inconceivable to me and I think to other people as well. So tell

me why a player should be allowed to cheat three times.

Mr. FEHR. The best way I can respond, Congressman, I suppose

in the short time we have is as follows: Under the law we’re supposed to negotiate all terms and conditions of employment. Discipline and increasing levels of discipline for repeat violations is a

traditional method which is utilized in collective bargaining agreements all across the country in sports and out of sports and has

been for longer than I’ve been alive. In our case the way I look at

it is we want to have a program which stops the use, but does not

destroy, if you can reform people and avoid having repeat problems, their careers. And therefore we think that this works. The

commissioner proposed three strikes, as you know, back in 2005

and we agreed to it.

Mr. SHAYS. Why should someone be allowed to reform when

they’re cheating? In other words, that’s what I don’t get. It seems

to me it’s a different kind of drug. One they’re taking because they

want to cheat, they want to have an advantage. I don’t know about

its addictive nature, but it strikes to me as a huge difference. It

would strike me then that your argument could be the Black Sox

of 1919 should have been allowed three strikes before they were

kicked out. Because it’s the same difference and it’s the same

thing. That’s kind of how I’m seeing it. Mr. Selig, how do you see

it?

Mr. SELIG. I’ll answer it from my—look, we have—today the

three strikes you’re out is the toughest program in American

sports. My father always used to say to me, nothing is ever good

or bad except by comparison. Having said that, in a perfect world,

Congressman Shays, I would like a tougher program. But this is

a subject of collective bargaining and this where we are and this

is the best that we could do, and we came a long way.

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Mr. SHAYS. I hear you and I appreciate what you did in the

minor leagues for taking a stronger action. And, Mr. Fehr, I understand you’re going to speak for your players, you’re going to represent them to the best of your ability. The consequence is though

that you are really saying to the players that they can cheat three

times, and you are arguing that they should be allowed to. That’s

the way I’m left with it.

Mr. FEHR. I think you and I have a disagreement on that, Congressman. But I can assure you of this. I can’t envision the player,

and I’ve never met him, who believes that the public disclosure of

a steroid violation is something which is anything other than of

enormous consequence. And maybe that’s why we haven’t had to

repeat it once. I hope we don’t. If we do it will be tougher. Thank

you.

Chairman WAXMAN. Thank you, Mr. Shays.

Mr. Yarmuth.

Mr. YARMUTH. Thank you, Mr. Chairman. Commissioner, the

Mitchell report details in a number of places incidents in which

club personnel appear to have been complicit in at least enabling

the violations of some of the rules. In one case we know or we

heard that club personnel actually returned steroids to a player

after he had found it. We talked about the penalties being imposed

upon the players for violations. What plans do you have to hold

club personnel accountable for incidents in which they may be

complicit in the violation?

Mr. SELIG. For the same reason that I said that baseball is a social institution with enormous social responsibilities I plan to

evaluate the club personnel in the same way I’m doing the players.

There is no question that if there were club personnel, and there

have been some pretty serious accusations there, if those people are

guilty of doing what was said they are doing, they will face discipline and very significant discipline.

Mr. YARMUTH. Thank you for that. I would like to pursue a discussion I had with Senator Mitchell about the issue as to whether

we really know enough about the effects of the substances we’re

talking about. And again I wanted to make a distinction between

the legality issue and the competitive advantage issue. I’m talking

strictly about the competitive advantage issue. We’ve heard a lot

about what you just mentioned, the distinction between cocaine

and steroids. And you said one is performance enhancing and one

is not. And yet as I said, there is some evidence at least that there

is no, at least statistically there’s no competitive enhancement. So

my question is do we really know enough to say that taking

steroids or HGH improves a player’s competitive position any more

than chewing tobacco does, any more than chewing on sunflower

seeds does, or anything else they might put in their body to relax

them or to stimulate them? I ate up boxes of Wheaties as a kid.

I know Wheaties don’t do it. But do we have enough evidence to

really make these types of determinations?

Mr. FEHR. I’m sorry, the question was directed to you.

Mr. SELIG. My answer to that would be yes, I think there is

enough evidence that using performance enhancing drugs gives a

player an advantage. I’ve talked to a lot of doctors, I’ve talked to

our own people, I’ve talked to other team doctors, I’ve talked to

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trainers about it. Yes, I think there is. And I’ll tell you what else

it does when you think about it. It attacks the integrity of the

sport. You have some people doing something that others aren’t.

And even if one could make a case that, well, really it doesn’t help,

I happen not to agree with that, and I think there’s a lot of medical

evidence that would support that. The fact of the matter is that’s

something you just can’t tolerate. And as I said to Senator Mitchell

way back when, I wanted him to create a road map, that was my

reason, a road map which will show us, which will take history,

and using the way I love to use history to try to educate us for the

future, and you get into an integrity problem. And so as far as I’m

concerned I don’t have a scintilla of doubt that the use of performance enhancing drugs is a very serious matter for this sport at its

core, at its core.

Mr. YARMUTH. Mr. Fehr, do you have the same conclusion?

Mr. FEHR. Let me say a number of things. First of all, I approach

it this way. The use of such substances in a fashion not authorized

by law is unlawful. That’s where you start.

Second, players use it for a lot of mixed motives, including to recover and to help train better, as Senator Mitchell indicated. But

undoubtedly there are players, and perhaps most of them, who use

it because they believe it has such effects whether it does or not.

Third, we did a study jointly with Major League Baseball about

a decade ago as to whether or not androstenedione built muscle

mass. And what the study indicated, if I remember it correctly, I

haven’t looked at it in a long time, is if you take dosages in the

amounts recommended on the bottle nothing much happens. If you

take it in much larger amounts, however, you do build muscle mass

in a fashion which would otherwise have to be duplicated by more

traditional methods of exercise and diet.

Fourth, and to go back to the kids issue, regardless of its effect

on adults, and we do draw distinctions between children and adults

in this country for a lot of issues, but the evidence is clear that it’s

bad for children. And that’s something we need to pay some attention to.

The last thing I’ll say, and I want to stress that I am saying this

because I’m using a bit in response to your question, I am not saying it because it represents a position of the Players Association or

even one that I advocate, but I have wondered given the anecdotal

suggestion about ability to recover better if some of these things

are used, whether in fact there are therapeutic doses which could

be administered to people who have—elderly people with broken

hips. I mentioned that because we had an experience in my family

with that recently. That would be helpful, and I don’t know whether any of that research has been done. But that’s a musing on my

part.

Chairman WAXMAN. The gentleman’s time has expired. The

Chair wants to recognize himself to followup on some of the points

raised.

Commissioner Selig, I want to ask you about the BALCO scandal. Senator Mitchell explored the scandal and the role of the management of the San Francisco Giants in great detail. What he

learned provides a case study of everything that went wrong with

baseball management’s approach to reports of steroids use. As

146

early as 2000 the Giants trainer Stan Conte expressed concerns

about the presence of Greg Anderson in the Giants locker room, but

he received no support from General Manager Brian Sabean to

have him removed.

In 2001, another Giants trainer, Barney Nugent, raised concerns

about Anderson with Kevin Hallinan, the head of Baseball Security

Office. And Mr. Hallinan promised to do something about this. He

did nothing.

In 2002, Stan Conte reported to Giants general manager, Brian

Sabean, that he believed Greg Anderson was selling steroids to

players. Mr. Sabean did not confront Mr. Anderson or Barry Bonds

about these allegations. He did not take steps to have Mr. Anderson removed from the clubhouse, and he did not report Conte’s concerns to anyone in the Giants organization or in the Commissioner’s Office.

Finally, in September 2003 a search warrant was executed on

Mr. Anderson’s residence and it became public that Anderson was

under investigation for steroid distribution. Only then was Anderson barred from the Giants clubhouse. And even at this point Mr.

Sabean never reported to the Commissioner’s Office that anyone in

the Giants organization had raised concerns about Mr. Anderson.

Commissioner Selig, Stan Conte did the right thing here, he

warned Brian Sabean repeatedly about Anderson’s ties to steroids,

but Mr. Sabean never did a thing about it. Instead he seemed to

go out of his way to allow the suspicious behavior to continue. How

do you account for Mr. Sabean’s behavior and at the very least

should Sabean have reported the suspicion to your office?

Mr. SELIG. Well, it’s a subject that I’m familiar with, Mr. Chairman, because I ran a club for almost 30 years, and I understand

the sanctity of a clubhouse and who should get in and should not

get in. There should not have been anybody in clubhouses. We now

have done that. We sent a trainer’s letter out in 2003 telling people

that the clubhouses now would be carefully watched. They are,

we’ve changed all that. But this is one of the matters that frankly

is under review and under discussion. You’ve raised a very valid

point. It’s a point of great concern to me. The fact of the matter

is why anybody is ever in a clubhouse, other than the trainer, is

beyond my comprehension. And I have 30 years of practical experience.

Chairman WAXMAN. Do you think Sabean should have reported

this to the Commissioner’s Office?

Mr. SELIG. Of course.

Chairman WAXMAN. Senator Mitchell——

Mr. SELIG. I don’t really want to say any more because it is a

matter that I have under review, but the answer to your last question is yes.

Chairman WAXMAN. Senator Mitchell also interviewed Giants

owner, Peter McGowan, about his actions with regards to reports

that Barry Bonds was using steroids. McGowan told Mitchell that

he asked Barry Bonds this question in 2004. ‘‘I’ve really got to

know, did you take steroids?’’ Mr. McGowan said that Mr. Bonds

admitted that he had taken substances that he later found out to

be steroids. According to Senator Mitchell, 2 days after his interview with Mr. McGowan, Mr. McGowan’s lawyer called and said

147

that Mr. McGowan had misspoke about this conversation with Mr.

Bonds. Commissioner Selig, what do you think was going on here?

Do you think the Giants owner had any knowledge or at least suspicions that Barry Bonds was taking steroids? What do you think

Mr. McGowan’s lawyer meant, lawyers meant when they said that

Mr. McGowan had misspoke?

Mr. SELIG. Mr. Chairman, again, it’s a matter under review, but

it’s something that I’ll have to look into. But I can tell you right

now I’ve already started to look into it and I will continue.

Chairman WAXMAN. Well, this incident shows why it’s important

for baseball’s management to take the problem of steroids seriously. It’s possible that the BALCO scandal could have been averted had Brian Sabean and Peter McGowan acted in a responsible

fashion. Instead they seemed more intent on protecting Barry

Bonds. And it seems clear that Brian Sabean violated baseball

rules by failing to report information about alleged steroid use to

the Commissioner’s Office. And Peter McGowan’s answer to Senator Mitchell’s questions don’t seem to clarify his role at all. Will

Sabean be sanctioned by your office? What about Mr. McGowan or

the Giants organization?

Mr. SELIG. Well, I’m going to give you the same answer. And I

think you’ll understand since I’m the judge that it’s one of many

matters under review.

Chairman WAXMAN. Well, it’s easy to blame the players for the

entire steroid problem, but the Mitchell report shows that the

blame runs much deeper. There was a culture throughout baseball

to just look the other way when it came to responding to reports

of steroid use.

I thank you for your responses. Mr. McHenry.

Mr. MCHENRY. Thank you, Mr. Chairman. To be honest with

you, Mr. Chairman, I don’t think that Congress’ proper role is to

mediate disputes between those that make tens of millions of dollars and those that make hundreds of millions of dollars. And to

be honest with you, the substance of this hearing is really about

the images that your players are sending to our youth. To be honest with you, Canseco, McGwire, Sosa, Palmeiro, it’s not really

about their health and well being we’re talking about. We’re talking about the sanctity of the game that we love. But more importantly the images we’re sending to those kids in high school, they

want to be professional ball players that seek it, that crave it, that

look up to these guys as heroes. And so my questions are going to

be about that, centered around that. And that’s my main concern

here, is the images we’re sending to our youth. I know there are

questions about your social responsibility. But it goes beyond professional athletes. It goes beyond the Players Association and the

owners. But the actions you took in 2005 were good. You have a

tough testing program. We want to make sure it remains strong.

But it did take a long time for you to get there.

My question to you, Mr. Fehr, what responsibility does the Players Association have for the health and well being of your members?

Mr. FEHR. I think for the health and well being of our members,

is that your question?

Mr. MCHENRY. Yes.

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Mr. FEHR. I think a couple of things. Obviously we’re concerned

about that. Obviously it’s our role to try to educate players as best

we can.

Mr. MCHENRY. How do you educate them?

Mr. FEHR. You talk to them, you have doctors talk to them, you

warn them.

Mr. MCHENRY. Do you have programs that do that?

Mr. FEHR. Yes, we have some. And we’ve already had before you

came into the room some discussion about the fact that we’ve had

at least one meeting in which we discussed enhancing that beginning early this season.

Mr. MCHENRY. Do you think, Mr. Selig, Mr. Fehr, your actions

in 2005 have been enough?

Mr. SELIG. I’m sorry, that question?

Mr. MCHENRY. Do you think your actions in 2005 have been

enough?

Mr. SELIG. We’ve made enormous progress. I do want to keep

saying that. Look, this is a process evolving. We need to do more.

There are things that I think we can do, I think that we can do

them together in some cases, and we need to expand our educational program. One of the things I have to say today that I’ll

never forget as long as I live is Donald Hooton’s presentation with

the Garibaldis. I sat over there and it stunned me. And I think Mr.

Hooton will tell you, I called him the next morning. He didn’t believe it was me, so we had to go through 2 minutes of that. But

the fact of the matter is for our own people it’s a tough enough situation, and it attacks the integrity of the sport and everything else.

But the message that we send is critical. And I have since talked

to a lot of athletic directors, coaches, football and basketball and

other sports and baseball, and there’s no question that we need to

tighten this program and we need to continue to tighten this program. And so I agree, you know I agree with Senator Mitchell over

and over, this is an evolutionary thing. And we can’t rest because

we don’t know what else is out there, and that’s what we need to

do.

Mr. MCHENRY. Mr. Fehr, why was the union so hesitant to allow

the adoption of an anti-steroid policy? The Major League Baseball

did it unilaterally with the minor leagues in 2001. And it took 5

years for there to be an effective testing policy to the point where

you’re—quoting the newspaper, we’re still in discussions. Why is

that? Why did you hesitate adopting an anti-doping policy?

Mr. FEHR. The question I think is more appropriately put, why

did we oppose mandatory random testing prior to 2002, which we

did. And the reason why I’ve previously testified—I’ll try and succinctly respond to your question today—I believed, the players believed, that fundamental principles of probable cause bore a role

here. That before you did a search or invaded the privacy of an individual you ought to have cause related to that individual to do

that. It became apparent a year after or some months after the

2001 program was introduced in the minor leagues, with revelations about Ken Caminiti and so on in the spring of 2002, that approach may have not been as well thought through as we thought

it would. And as I testified at this committee in 2005 we had a lot

of discussions and we decided that the best approach was to test

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it empirically. And we did a survey test. And the survey test came

back significantly higher than I believed it would, and certainly

than I hoped it would. We then went to program testing. I thought

at the time that the testing we had in effect in 2004 would probably have done the trick with respect to steroids. A lot of people

didn’t, including a lot of members of this committee. And so we

took the additional steps. And since 2002 we have modified the

agreement, sometimes formally, sometimes administratively, in a

number of requests, in a number of different respects, including recently, and I expect that to continue.

Mr. MCHENRY. Mr. Selig.

Mr. SELIG. One of the virtues of the Mitchell report for me was

to point out again, even though we had done all these things, how

much more we had to do, which answers your basic question. That

this thing is changing so rapidly that we not only will continue to

do it, but we need to look forward and do more.

Mr. MCHENRY. A final comment.

Chairman WAXMAN. The gentleman’s time has expired.

Mr. MCHENRY. A final comment. You need to think about the

youth here and the images you’re sending to them. And a followup

question for both of you, a simple yes or no. Do you two feel

complicit in the rise of steroid use in Major League Baseball?

Mr. FEHR. As I indicated in my testimony, we didn’t pay enough

attention to it soon enough. If that fits your definition of

‘‘complicit,’’ then the answer is yes.

Mr. SELIG. I said in my testimony and my statement and again

today I’ll take responsibility. I take it for all the great things that

have happened in the last 16 years. I’ll certainly taking it for that.

And that’s why I wanted the Mitchell report, because it would

show me and show the people who come after me a road map of

what maybe they should have done under the circumstances.

Chairman WAXMAN. Thank you, Mr. McHenry.

Ms. Norton.

Ms. NORTON. Thank you, Mr. Chairman. First, I would like to

commend both of you on the progress you’ve made, especially since

our hearings. In my view, the most important recommendation in

Senator Mitchell’s report is his recommendation, and I’m going to

quote him, for an entity with, ‘‘exclusive authority over all aspects

of the formulation and administration of the drug program.’’ Commissioner Selig, you mentioned in your testimony an independent

program administrator. I would like to know what your version of

an independent entity would look like. And to ask Mr. Fehr what

his thoughts are concerning a completely independent drug testing

program.

Mr. SELIG. Well, I’ll give my answer first. I think since we’ve

been here we’re much more independent, we have two of the gold

standard labs on the North American continent in Montreal and

UCLA. We have Dr. Brian Smith from the University of North

Carolina, who Dr. Green had recommended to us. I think that everybody involved in the program will tell you that nobody has overturned any of his decisions, so he has been independent. It’s a matter that we’ll continue to review. But I think frankly based on the

results, and we’ve gone into it in very significant detail and surrounded these with the best labs and the best people whose reputaVerDate 11-MAY-2000 15:02 Apr 30, 2010 Jkt 000000 PO 00000 Frm 00153 Fmt 6633 Sfmt 6633 U:\DOCS\55749.TXT KATIE PsN: KATIE
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tions are impeccable, and Dr. Smith I think if he were here today

would tell you that he has been independent, and it’s up to us to

make sure that he is.

Ms. NORTON. Mr. Fehr.

Mr. FEHR. Thank you, Congresswoman. Let me begin by stating

something which is obvious to labor lawyers, but perhaps in this

day and age isn’t as well known. Under the law we have the legal

right, but more importantly the responsibility to negotiate all terms

and conditions of employment.

Ms. NORTON. You don’t have to go—I taught labor law, Mr. Selig.

I’m asking you a question.

Mr. FEHR. I apologize.

Ms. NORTON. Because I’m aware of—I have great respect for collective bargaining. It was one of the subjects I taught at Georgetown Law School. I’m asking what your views are?

Mr. SHAYS. You blew that one.

Mr. FEHR. It would appear so, yes.

Ms. NORTON. What your views are, your personal views are, however you arrived at that. And you’re talking about someone who respects the collective bargaining process, not somebody who thinks

we or anybody ought to override it. What are your views of a completely independent drug testing program?

Mr. FEHR. Let me try again. I believe that there should be an

independent program administrator. We have one, as has been indicated. None of his recommendations have been other than complied with. Senator Mitchell indicated, and I agree with, in his report, and I agree with it, that there are a number of different alternatives that might be considered the precise formula that would be

adopted, needs to be decided in bargaining—I haven’t closed yet—

on the kinds of recommendations that I will make to the players

as to what changes make sense. We do expect to get some proposals from the Commissioner’s Office. And we’ll look at it in good

faith and we’ll let you know what we come up with.

Ms. NORTON. I appreciate that answer. And by the way, I understand the position you’re put in. I’m not asking you to bargain at

the witness table. I do want to indicate that you have a terrible

burden, Mr. Fehr, because you do represent players. There’s no

way for players to feel good about any kind of additional oversight.

I understand that entirely.

Mr. FEHR. I appreciate that.

Ms. NORTON. However, from your point of view nothing would be

better than to take this issue off the table. If you want to talk

about a deterrent effect. Imagine the deterrent effect of knowing

that an independent entity having nothing to do with anybody, not

just doctors or scientists whom you trust, is who is going to conduct

these random tests. Then the union does not have to worry about

grievances where they’ve got to represent the player no matter

what. It’s out of your hands. And therefore I must ask you, what

would be your objection to adopting the world and U.S. anti-doping

agency standards in baseball after all you’ve gone through just to

get this off the table, to imagine the effect of regaining almost instantly the credibility that baseball has lost the trust just in time

for the Nationals to come to Washington?

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Mr. FEHR. I think they would say they’re already here, but we

are having a new stadium. Let me just try and respond. I don’t

think my responsibilities are consistent with doing something just

to get it off the table. Our responsibilities are to do two things. We

have to negotiate what we think is a fair and appropriate program.

Ms. NORTON. Mr. Fehr, I said a deterrent effect.

Mr. FEHR. No, I understand.

Ms. NORTON. If you want to go with grievances for the players

from here to kingdom come, then be my guest.

Mr. FEHR. All I can tell you is that I believe we can and have

and will continue to achieve that deterrent effect, and we’ll see

where these discussions take us. And I’m sure that this

committee——

Ms. NORTON. Well, let me ask Mr. Selig if he would at least consider a totally independent administrator. I mean, that’s one of the

recommendations. You say you supported all 20 recommendations.

He knew what you all have just said to me, he knew about the vast

improvement that you’ve already done and still he said you needed

a totally transparent independent commission. Mr. Selig, what

would be your response to at least considering that?

Chairman WAXMAN. Your time has expired to ask questions, but

we would like to hear your response to the question.

Mr. SELIG. I really believe, as I said to you earlier, that this program is working in an independent way. But it’s a very fair question and it’s one we will closely evaluate because we need to be totally and completely independent.

Ms. NORTON. Thank you.

Chairman WAXMAN. Thank you very much.

Mr. Davis.

Mr. DAVIS OF ILLINOIS. Thank you very much, Mr. Chairman.

The focus of this committee’s work on baseball has mainly been

with regards to its drug testing policy. But Senator Mitchell notes

that improvements to the drug testing program by itself will not

be sufficient and that the Commissioner’s Office should place a

higher priority on the aggressive investigation of nonanalytical evidence; that is, evidence of possession on youths. Commissioner

Selig, you acted quickly on this recommendation, and I commend

you for it, because on Friday of last week you appointed a new Office of Investigations for your office. Could you tell us the purpose

of that office and what it’s intended to do?

Mr. SELIG. I can. That was I think Senator Mitchell found in the

course of our history, Congressman, that we didn’t have enough of

an independent arm, so to speak, just doing investigation which

would help us overall. So we’ve taken two people. One is a former

deputy police chief in New York, the other an FBI man for over 30

years. They’re here today. They have over 53 years of experience

in law enforcement. They are to track every possible rumor, everything that’s said on this subject, so that I can say to myself and

to people in baseball and to all of you we now have a department

that will do nothing but that so that nothing escapes us. And that

will be their primary and really sole responsibility.

Mr. DAVIS OF ILLINOIS. Mr. Fehr, let me ask you, will the Players

Association cooperate fully with this new office and urge players to

do the same?

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Mr. FEHR. One of the difficulties I have in responding is I don’t

yet know what the department is going to do, I don’t know what

techniques it’s going to follow. It’s my understanding that the protocols have not yet been developed. One of the things we’ve indicated to the commissioner we would like to talk about is how is

this going to work. We have developed, for example, procedures to

handle investigations for the nonanalytical positives that have resulted in suspensions the last several years. I don’t know whether

there will be differences or not. I can’t evaluate it until we look at

that. I certainly hope that we’re going to be in a position to say at

the end of the day that we’ll represent our players in connection

with any such investigations. But the investigations are going to be

conducted in a way which does not suggest there are fundamental

problems with it. We’ll let you know.

Mr. DAVIS OF ILLINOIS. Earlier this morning Senator Mitchell indicated that he did have some faith and confidence that baseball

would be able to adequately police itself. Could the two of you tell

me what as a team that you expect to do that you have not already

done that’s going to vindicate this kind of faith that the Senator

expressed?

Mr. SELIG. Well, in the case of the department these people’s sole

responsibility really will be to investigate all these things. They

won’t have to go through layers of people. I think the Senator was

a little bit troubled by that. There are people with, as I said, 53

years of law enforcement experience. So that they will be, they will

not only be in touch with all the law enforcement departments everywhere where all our franchises are, but here in Washington and

everything else, and that is their job now and it is a big one. So

that we can never again say, well, we didn’t know or this guy told

this guy somebody else or labor said this to security and security

said this. They will report to Mr. DuPuy, the president of Major

League Baseball, directly and there will be no question about it.

And as I said, both of these very well-trained people will do nothing but follow this subject in every way, shape, form and manner.

Mr. FEHR. Congressman, in all the years I’ve been in baseball

and in the 30 odd years I’ve known the commissioner I don’t think

anybody has ever previously referred to us as a team, either actual

or potential.

Mr. DAVIS OF ILLINOIS. Nor will they again.

Mr. FEHR. Given the conflicting interest that our relative constituencies have, especially in the economic matters, and the adversarial nature of the collective bargaining process that our law enshrines, it may not happen again.

Mr. Selig may be right. All I can tell you is this. Since the strike

in 1994–1995, which was horrible and ugly and ended as a result

of an injunction as a result of unfair labor practices and it took a

long time to get an agreement afterwards, there’s been a change

in the relationship. We were able to reach agreements in 2002 and

in 2006, although not without difficulty, but without stoppages and

without the last time around threats of stoppages. We have been

able to negotiate agreements dealing with performance enhancing

drugs and to amend those a number of times, both administratively

and formally. What I can tell you is that we should be in a position

to cooperate where we can. Where we can’t, where the constituVerDate 11-MAY-2000 15:02 Apr 30, 2010 Jkt 000000 PO 00000 Frm 00156 Fmt 6633 Sfmt 6633 U:\DOCS\55749.TXT KATIE PsN: KATIE
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encies differ, I assume that we’ll have to work those out. That’s the

nature of bargaining. But the object is to cooperate where we can

and minimize the areas of dispute. From my part I had a long time

with a lot of disputes with Major League Baseball. I’m willing to

have another one if we have to. That’s far from my first choice.

Mr. DAVIS OF ILLINOIS. Thank you very much, Mr. Chairman.

And I just hope that you can find enough common ground to protect and preserve not only the integrity of the game, but also to

promote the public interest and send the right signals and the

right messages to our young people. Thank you very much.

Chairman WAXMAN. Thank you, Mr. Davis.

Mr. Sarbanes.

Mr. SARBANES. Thank you, Mr. Chairman, for holding the hearing. You all have been very patient and you’ll be glad to know

you’re getting toward the end here. I’m highly sensitized of this

issue recently for a couple of reasons. One is a few weeks back I

introduced legislation that would create a foundation to support the

President’s Council on Physical Fitness and Education, which I

hope will take the lead with others in a campaign nationally that

we have to undertake to combat the use of steroids. But in the

process I’ve been visiting a lot of youth sports programs, and so

forth, around my district over the last few weeks just to promote

the mission of the President’s Council and have seen firsthand obviously the impact that professional athletes have. I mean, the

posters that are on the walls, the comments of the kids. And so the

effect that modeling has on them is I think obvious to all of us.

The other thing is a little thing that happened yesterday. My 14-

year old son loves baseball. He wants to play baseball. He’s been

playing it. So I thought I would help him get in shape for the baseball season that’s coming up and went out and bought him one of

these push-up things where there’s a piece of equipment, there’s a

tape that comes with it. So last night we went down to watch the

tape. It seemed innocent enough. But at the end of it the person

on the videotape said, so what you need is three things, you need

equipment, you need this instruction booklet on how to make sure

your form is good, and then of course you need these supplements

that you can go buy too. So that pretty much drove it home. This

was last night at 9. So I was ready for the hearing just based on

that.

There seem to be three categories of athletes that we’re talking

about. One of those who are not using any performance enhancing

drugs, and it sounds like it requires quite a bit of discipline to resist it. The second group would be those who are doing it and don’t

care. They’ve just decided that it’s all about the detection, if they

can escape detection they will, and they’ll use these drugs to get

a competitive advantage. And then I think there’s a group in the

middle which has been described which are the athletes who say

I don’t want to do this, but if I’m losing out competitively to these

other folks who aren’t being taken to task I’m not just going to sit

idly by, and so they get pulled into it.

Now, what I’m curious about is how can we move the culture

away from this notion that you don’t do it because you don’t want

to be detected, which leaves you open to the arrival of new nondetectable drugs to sort of undermine the effort? How can we get

154

to a culture of clean? Do you have any confidence that the enforcement mechanisms that you’ve implemented and will agree to implement further going forward can actually lead to that so that those

who don’t use and those who don’t want to use but are can take

over the game in a positive way and drive that culture? So it’s not

about whether you’re getting detected or not, it’s about doing the

right thing. I don’t want to sound naive about it, but can we get

to that point where that’s the sort of cultural norm? How much

confidence do you have in that, both of you?

Mr. SELIG. Well, I would say that I have a lot more confidence

than I did 3 years ago. All of our educational programs that go out,

baseball with the Partnership for a Drug-Free America and the

Hooton Foundation have spent an enormous amount of time and

money and we’re getting the message across. Now, with all the internal things we’re doing in baseball to change the culture, and I

think the culture has been changed in a lot of ways, maybe even

more than we know, but I would hope that all the things that we’ve

done, just think all the things in the last week of the Mitchell recommendations about certifying from trainers and checking packages and doing all the things that support the new department,

which I think is going to be very important, I think today everybody in this sport, and I’m talking on the field and off the field,

has a much clearer understanding that this culture not only needs

to be changed, is changing and is changing dramatically. We just

got to keep the pressure on, to be frank with you. Yes, I’m optimistic that we can do that. And in fact we have to do it. We have no

other choice. This must be done.

Mr. FEHR. I guess from my part I hope we can. I think we’re

moving and have made some big strides in that direction. I have

no doubt that this or other committees of the Congress will be interested in whether history proves out that we have. And we’ll see.

Our task is to keep working at it.

But let me address one thing you said, which is—to me is of really enormous importance. You talked about your son’s seeing a video

that said he should take supplements. If any of you haven’t done

it, please go to the drugstore or GNC or somewhere else and look

at what is up on the shelf. Every tree, every grass, every bush,

every mineral, everything else anybody has ever heard of is there.

When I mentioned in my prepared testimony in my opening remarks that one of the things that may bear consideration is a review of the Dietary Supplements Act [DSHEA], to see if it makes

sense, so that we don’t, in effect, advertise to kids. Because, as Senator Mitchell has said, as the commissioner said, as I have said any

number of times, this is a very wide problem.

And I will just give you one example of it. I will hand it up to

the committee when we are done.

This is an ad in the Continental Airlines magazine. We saw it

coming down here. It says, ‘‘Choose life, grow young with HGH, the

reverse aging miracle.’’

It is one thing to say that athletes should do whatever they can,

and we don’t question that. But if the messages generally are not

consistent with that, especially to kids, we have a really tough road

to hoe. And so I hope that people would consider that.

155

Mr. SELIG. The public service announcements that we are doing

with the Partnership for a Drug-Free America which shows what

it does to people’s bodies, that needs to go on at every level.

As I said earlier, I’ve talked to a lot of people in college sports

and high school sports and other things, and there is no question,

and hopefully, out of all this, baseball can be a leader in doing exactly what you are asking, and that is to send a right message.

Mr. FEHR. If I could apologize and ask your indulgence for 30

more seconds. If you go to young people’s athletic programs, one of

the messages you will see most consistently delivered in any variety of ways will be, you are not big enough, you are not strong

enough, you are not fast enough. Do something about it. And the

kids want to.

In wrestling, we approach this in different ways. We have things

like weight classes. We don’t otherwise. If the message is going to

be in the main competitive team sports that most people are not

big enough, strong enough or fast enough, that makes it even more

difficult. And I haven’t got a clue as to how to attack that, because

that is what the coaches want.

Mr. SARBANES. Thank you.

My time is up, Mr. Chairman. I appreciate it. I would just say

that I hope that the public is watching not just as fans of baseball

but also does some self-reflection as parents and coaches and

things about the messages that we are sending and how we can

participate in this campaign to turn around steroid use.

Chairman WAXMAN. Thank you very much, Mr. Sarbanes; and

Mr. Selig, Mr. Fehr, I thank you so much for your patience and

your willingness to be here.

Senator Mitchell described a pretty sad and in many ways depressing history of baseball in the era of steroids, but he also laid

out a road map. And I appreciate the fact that both of you are willing to consider those recommendations in that road map so that we

can get beyond where baseball has been in the past. I think we

have made progress, but we still have a ways to go.

I thank you very much for your leadership, your efforts; and I

hope we can hear continued good news from both of you about this

subject.

Mr. SELIG. Thank you very much.

Mr. FEHR. Thank you very much.

Chairman WAXMAN. Before we close, I want to ask unanimous

consent to put in the record a statement by the Marreros. If it is

not already in the record, we want to make sure they are able to

put their statement in the record on behalf of the Efrain Anthony

Marrero Foundation.

Without objection, that will be the order.

That concludes our business today, and we stand adjourned.

[Whereupon, at 1:50 p.m., the committee was adjourned.]

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