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THE NFL STARCAPS CASE: ARE SPORTS’ ANTIDOPING PROGRAMS AT A LEGAL CROSSROADS? 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COMMERCE, TRADE, 

AND CONSUMER PROTECTION 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

NOVEMBER 3, 2009 

Serial No. 111–78 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 


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COMMITTEE ON ENERGY AND COMMERCE 

HENRY A. WAXMAN, California, Chairman 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

RICK BOUCHER, Virginia 

FRANK PALLONE, JR., New Jersey 

BART GORDON, Tennessee 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

BART STUPAK, Michigan 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

Vice Chairman 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANE HARMAN, California 

TOM ALLEN, Maine 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

CHARLIE MELANCON, Louisiana 

JOHN BARROW, Georgia 

BARON P. HILL, Indiana 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

CHRISTOPHER S. MURPHY, Connecticut 

ZACHARY T. SPACE, Ohio 

JERRY MCNERNEY, California 

BETTY SUTTON, Ohio 

BRUCE L. BRALEY, Iowa 

PETER WELCH, Vermont 

JOE BARTON, Texas 

Ranking Member 

RALPH M. HALL, Texas 

FRED UPTON, Michigan 

CLIFF STEARNS, Florida 

NATHAN DEAL, Georgia 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOHN B. SHADEGG, Arizona 

ROY BLUNT, Missouri 

STEVE BUYER, Indiana 

GEORGE RADANOVICH, California 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

(II) 


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(III) 

SUBCOMMITTEE ON COMMERCE, TRADE, AND CONSUMER PROTECTION

BOBBY L. RUSH, Illinois 

Chairman 

JANICE SCHAKOWSKY, Illinois 

Vice Chair 

JOHN P. SARBANES, Maryland 

BETTY SUTTON, Ohio 

FRANK PALLONE, JR. New Jersey 

BART GORDON, Tennessee 

BART STUPAK, Michigan 

GENE GREEN, Texas 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

ZACHARY T. SPACE, Ohio 

BRUCE L. BRALEY, Iowa 

DIANA DEGETTE, Colorado 

JOHN D. DINGELL, Michigan (ex officio) 

CLIFF STEARNS, Florida 

Ranking Member 

RALPH M. HALL, Texas 

ED WHITFIELD, Kentucky 

GEORGE RADANOVICH, California 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

MICHAEL C. BURGESS, Texas 


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C O N T E N T S 

Page 

Hon. Bobby L. Rush, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 3 

Hon. George Radanovich, a Representative in Congress from the State of 

California, opening statement ............................................................................. 5 

Prepared statement .......................................................................................... 7 

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

California, opening statement ............................................................................. 10 

Hon. Steve Scalise, a Representative in Congress from the State of Louisiana, 

opening statement ................................................................................................ 11 

Prepared statement .......................................................................................... 13 

Hon. Phil Gingrey, a Representative in Congress from the State of Georgia, 

opening statement ................................................................................................ 16 

Hon. Cliff Stearns, a Representative in Congress from the State of Florida, 

opening statement ................................................................................................ 17 

Hon. Gene Green, a Representative in Congress from the State of Texas, 

prepared statement .............................................................................................. 181 

Hon. G.K. Butterfield, a Representative in Congress from the State of North 

Carolina, opening statement ............................................................................... 183 

Hon. Joe Barton, a Representative in Congress from the State of Texas, 

prepared statement .............................................................................................. 187 

WITNESSES

Robert D. Manfred, Jr., Executive Vice President, Labor and Human Resources, Office of the Commissioner of Baseball, Major League Baseball ...... 20 

Prepared statement .......................................................................................... 23 

Roger Goodell, Commissioner, National Football League .................................... 28 

Prepared statement .......................................................................................... 33 

DeMaurice Smith, Executive Director, National Football League Players Association .................................................................................................................... 45 

Prepared statement .......................................................................................... 78 

Michael S. Weiner, General Counsel, Major League Baseball Players Association ........................................................................................................................ 85

Prepared statement .......................................................................................... 87 

Travis T. Tygart, Chief Executive Officer, United States Anti-Doping Agency . 94 

Prepared statement .......................................................................................... 96 

Gabriel A. Feldman, Associate Professor of Law and Director, Sports Law 

Program, Tulane University Law School ........................................................... 105 

Prepared statement .......................................................................................... 108 

Jeffrey Standen, Professor of Law, Willamette University College of Law ........ 143 

Prepared statement .......................................................................................... 145 

SUBMITTED MATERIAL

Letter of June 25, 2009, from Mr. Goodell to Mr. Smith ..................................... 30 

Memorandum of September, 2009, from Messrs. Goodell and Smith to NFL 

players ................................................................................................................... 46 


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(1) 

THE NFL STARCAPS CASE: ARE SPORTS’ 

ANTI-DOPING PROGRAMS AT A LEGAL 

CROSSROADS? 

TUESDAY, NOVEMBER 3, 2009 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COMMERCE, TRADE, 

AND CONSUMER PROTECTION, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 11:40 a.m., in Room 

2123, Rayburn House Office Building, Hon. Bobby L. Rush [chairman of the subcommittee] presiding. 

Present: Representatives Rush, Schakowsky, Sarbanes, Sutton, 

Butterfield, Barrow, Space, Waxman (ex officio), Radanovich, 

Stearns, Terry, Gingrey, and Scalise. 

Staff Present: Michelle Ash, Chief Counsel; Brian Cohen, Senior 

Investigator and Policy Advisor; Timothy Robinson, counsel; Will 

Cusey, Special Assistant; Theresa Cederoth, Intern; Aaron Ampaw, 

CBC Fellow; Bruce Wolpe, Senior Advisor; Angelle Kwemo, Counsel; Brian McCullough, Minority Senior Professional Staff; Shannon 

Weinberg, Minority Counsel; Will Carty, Minority Professional 

Staff; and Chad Grant, Minority Legislative Analyst. 

OPENING STATEMENT OF HON. BOBBY L. RUSH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Mr. RUSH. The committee will now come to order. This subcommittee is called today to hear testimony based on the title, 

‘‘NFL StarCaps: Are Sports’ Anti-Doping Programs At a Legal 

Crossroads?’’ The Chair recognizes himself for 5 minutes for the 

purposes of an opening statement. 

The major reason for being here today is the StarCaps case, 

which is now before the 8th Circuit Court of Appeals and the Minnesota State District Court. 

Sports industry analysts and legal experts everywhere are of the 

mind that Williams v. The NFL will have a major effect on how 

future collective bargaining negotiations in professional sports are 

weighed and concluded. 

Let me be real clear here, we are not here to debate the particular merits of the Williams case, or to judge which parties were 

at fault. We are also not here to second guess the choice of law rulings made by the three-judge panel from the 8th Circuit Court of 

Appeals or to predict how the case will unfold as an employment 

complaint under State drug and alcohol testing workplace laws. 


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Instead, what we should be here to do is to listen closely to our 

panel of expert witnesses. Two of our witnesses are key protagonists in the Williams v. NFL disagreement. We should also hone 

in on what they don’t say and what we could say to encourage 

these parties to work out their serious differences. 

It is in all of our interests for these parties to reach an agreement on this enormously important matter, and we are very fortunate today to have access to Commissioner Goodell, and also to Mr. 

Smith, and to hear that are testimony and answers of all our distinguished witnesses. 

For me it would be very useful to understand better why agreement over discipline between the NFL and Kevin and Pat Williams 

could not be reached. What obstacles block the road to agreement? 

I hope that we will also spend some time thinking about whether 

collective bargaining has become too soured as a consequence of 

this case. Will the collective bargaining agreement still be the preferred avenue for hammering out league union agreements on disciplined players. 

A word about the Members of Congress, about the U.S. Congress. 

We as Members of Congress and we as parents are especially concerned about the serious health and safety harms to youth and to 

student athletes from illegal performance enhancers. Notwithstanding high profile steroid cases and scandals, a good number of 

young athletes still find it hard to resist performance enhancers 

that guarantee on-the-field performances resulting in off-the-field 

fame and riches. 

The institution of strong anti-doping policies is what Congress 

has been bargaining for with the professional sports community 

and industry over the past 5 years. By this hearing today you can 

enable us to help you to achieve what is a preferred and a nonnegotiable outcome for all the stakeholders, including and most importantly your fans, our constituents, and the American people. 

I look forward to hearing from all of the witnesses today, and I 

yield back the balance of my time. 

And now I want to recognize the chairman of the full committee—no. 

[The prepared statement of Mr. Rush follows:] 


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Mr. RADANOVICH. Thank you. 

Mr. RUSH. Right now I am recognizing the ranking member of 

this subcommittee for 5 minutes for the purposes of opening statement. Mr. Radanovich, you’re recognized for 5 minutes. 

OPENING STATEMENT OF HON. GEORGE RADANOVICH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. RADANOVICH. Thank you, Mr. Chairman, and it is a pleasure 

to be here with you at this hearing today. I want to thank you for 

holding this hearing, and I believe that this hearing will continue 

this committee’s interest in making sure that performance enhancing substances are not part of sports. The work we have done in 

the past has I believe produced positive changes to the existing 

drug changing policies of the professional sports leagues, and those 

policies are restoring integrity to the legacy of many sports that 

were severely tainted over the last 2 decades. 

The pervasiveness of steroids gave way to designer steroids produced by entrepreneurial drug pushers, and the trickle down to 

younger athletes not surprisingly remains an issue, as hundreds of 

thousands of high school age and even younger athletes continue 

to risk their health through the use of steroids. 

Steroids have a legitimate medical purpose and are often used to 

help treat and cure illnesses, but those substances are for the sick 

and must be administered under care of trained medical professionals. They are not for the healthy athlete who is looking for a 

fast track to obtain a competitive edge. That is cheating and it is 

pure and simple that it is cheating. It is also incredibly dangerous 

and unhealthy. Whether it is the blinding desire of an athlete to 

improve or the lure of increasingly lucrative careers in professional 

sports for the few who succeed, it is unacceptable behavior. 

Mr. Chairman, I fully support the committee’s interest in making 

sure that the stronger drug policies that have been adopted are not 

in jeopardy of being undermined. A legal case involving NFL players has focused attention on the collective bargaining agreement 

between the players and the league and the relationship to State 

law. I am interested to hear the facts of the case as it currently 

stands and the implications for any professional sports collectively 

bargained drug programs. 

As a side note it seems a stretch to consider whether the original 

roots of labor law meant to protect workers from unfair and dangerous working conditions were intended to undermine a policy 

meant to increase the health and safety of participants while at the 

same time ensuring the integrity of the sport. 

As I understand it, the case is going and could eventually resolve 

the legal uncertainty depending on its outcome. However, because 

of the initial determinations made by the courts, a final result in 

the case may present issues that challenge the balance of our Federalist approach to worker protections in the area of drug testing 

policies, which permits States to enact laws for worker protections 

that may be stricter than those collectively bargained. 

The case obviously raises doubts about whether and to what extent collectively bargained agreements’ drug policies in professional 

sports are affected by such State laws. 


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Additionally those questions may have implications for other 

sports, including at the Olympic and collegiate levels. If the drug 

policies are only as strong as the minimum that can be tested 

under State law, the significant advances in drug testing policies 

achieved in the last several years which were agreed to by both 

players and management may be erased. That is not the result 

that anyone of us want to see. 

Mr. Chairman, I am very interested to hear the perspectives of 

our witnesses today, and I look forward to working with you on 

this issue and I yield back. 

[The prepared statement of Mr. Radanovich follows:] 


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Mr. RUSH. Thank you. The Chair now recognizes for the purposes 

of opening statement the chairman of the full committee, the gentleman from California, Chairman Waxman. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

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

for holding this hearing. 

As a result of congressional hearings, public outrage, and the actions of professional sports leagues and players associations, 

progress has been made in reducing steroid use by professional 

athletes. Unfortunately, this recent ruling in the case of Williams 

v. The NFL, better known as the StarCaps case, threatens to undermine this progress, and we are holding this hearing to understand the implications of these rulings and to assess whether congressional intervention is required. 

When Mark McGwire and Rafael Palmeiro and other professional 

baseball players appeared before the House Oversight Committee 

in 2005, I said we were holding the hearing because there was a 

absolute correlation between what happens in major league locker 

rooms and what happens in high school locker rooms. Rampant 

steroid abuse in the pros sends an unmistakable message to our 

kids. 

Since that hearing and the hearing last year with Roger 

Clemens, steroid use by high school students has been dropping. 

The latest survey data shows that steroid use among 8th and 10th 

graders is at a 20-year low. In part this is attributable to examples 

set by professional sports and their player unions. As the scope of 

the problem became evident major league baseball, the NFL, and 

their player unions establish tougher testing policies and new codes 

of conduct regarding drug use. These changes have not completely 

eliminated steroid use, but they have made it tougher for players 

to cheat and increase the consequences when they are caught. 

The reason we are having this hearing is that the recent court 

decisions involving the National Football League’s drug testing policy have put this progress at risk. 

We all know the story. The Federal court in Minnesota has ruled 

and it has been upheld by the court of appeals that State laws governing workplace drug testing may trump the collective bargaining 

agreement of the NFL, Major League Baseball, and other sports 

leagues. This is a serious problem because State laws undermine 

the stringent sanctions established by the sports leagues and their 

players associations. 

If these rulings prevail, they could wreak havoc with policies designed to curb performance enhancing drug use in professional 

sports. In fact, if the rulings are taken to logical conclusion, players 

on one team could be allowed to use drugs that would subject players on another team to suspensions and fines. 

The NFL, Major League Baseball, and other leagues could be 

limited as to how and when it could test players in Minnesota, but 

not players on the other teams in the league. Some players could 

be penalized for performance enhancing drug use while others 

would get away scot free. 


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In short, these new legal interpretations could render the NFL 

and Major League Baseball drug testing programs unenforceable, 

loophole ridden, and unacceptably weak and ineffective. I believe 

we can and must avoid this outcome. 

Our panelists today will offer guidance on how they expect the 

legal issues to be resolved and how to solve the problems caused 

by these new legal interpretations. I am hopeful the courts will ultimately rule that the strong collectively bargained drug policies 

can stand against State law that would weaken them. But if this 

is not the case, then we need to find out if the collective bargaining 

process can solve these problems or whether congressional action 

is needed. 

One thing is clear, we should not allow the drug policies that the 

NFL, Major League Baseball, and other sports leagues have put in 

place to be rendered null and void. That is an invitation to steroid 

abuse in professional sports, and it will inevitably lead to more 

steroid use on high school football fields and baseball diamonds. 

I look forward to the testimony today, and I thank all of our witnesses for being here. 

Mr. RUSH. The Chair now recognizes the gentleman from Louisiana for 2 minutes for the purpose of opening statements. 

OPENING STATEMENT OF HON. STEVE SCALISE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF LOUISIANA 

Mr. SCALISE. Thank you, Mr. Chairman. My voice is a little sore. 

I was watching the Saints go 7 and 0 last night with some friends. 

My friend from Atlanta is not really happy about that, but in New 

Orleans we are very happy. 

Sports are part of our culture and part of the very social fabric 

of our Nation. Unfortunately we have recently seen how performance enhancing drugs can cast a cloud over athletes and jeopardize 

the integrity of sports. Professional athletes in particular bear a 

special responsibility. Whether they like it or not, professional athletes are role models. They have a great influence over our young 

people and can bring a lot of good to our local communities. 

We have see this first hand in south Louisiana. We have seen 

the influence, a league, a team and its players can have. The NFL 

has been committed to helping New Orleans and the Gulf Coast region since Hurricane Katrina. By the end of 2005 the NFL had 

raised over $20 million for hurricane relief. 

Commissioner Goodell, on behalf of my constituents and those 

that have been helped by the NFL in our region, thank you for 

your hard work and the NFL’s commitment to our recovery. I also 

want to thank you for selecting New Orleans as the host of the 

Super Bowl in 2013, which will mark our 10th Super Bowl. This 

is yet another sign that New Orleans is still a world class city that 

can host major events, and it is another milestone in our recovery. 

The Saints organization must also be commended for the support 

it has shown to the city and the State it calls home. Following Hurricane Katrina, the Saints set up a relief fund that provided much 

needed resources to charities around our region. They also made a 

commitment to return to New Orleans after not being able to play 

a single game in the city during the 2005 season. 


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I am proud to have the Saints headquartered in my district. In 

2006, in their first game back in New Orleans the Saints showed 

what a team can do for a city and for its fans. The atmosphere that 

night in September in the Super Dome was electric, and the Saints 

started their most successful season in franchise history until this 

year with a resounding victory over the Falcons ironically. 

More importantly, the Saints gave the people of Louisiana hope 

that their way of life was slowly returning to normal. They galvanized our region and provided a much needed boost and distraction 

from the difficult recovery process. The spirit and generosity of the 

New Orleans Satins started at the top with its owner Tom Benson, 

his wife Gail, and his granddaughter Rita LeBlanc, who are active 

in the community, but we also need to remember the players. Drew 

Brees has become actively involved in our region with his Brees 

Dream Foundation—— 

Mr. RUSH. The gentleman’s time is up. 

Mr. SCALISE. [continuing]. Which has given millions of dollars. So 

many other players, the Manning family still has a great impact. 

I will look forward to the testimony. I would have appreciated us 

having an opportunity in the Energy and Commerce Committee to 

have a hearing on the health care bill, because this week we are 

going to be taking that up. 

Mr. RUSH. The gentleman’s time is up. 

Mr. SCALISE. Unfortunately, we didn’t get that opportunity, but 

I look forward to hearing from the panel. 

[The prepared statement of Mr. Scalise follows:] 


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Mr. RUSH. The Chair now recognizes Dr. Gingrey, the gentleman 

from Georgia, for 2 minutes. 

OPENING STATEMENT OF HON. PHIL GINGREY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA 

Dr. GINGREY. Mr. Chairman. Thank you. I thank you for calling 

this hearing today on an issue that impacts a very unique industry 

in the United States, professional sports. In recent years Congress, 

including this committee, has carefully examined the use of performance enhancing substances in our professional sports leagues 

at a time when the public rightfully questions the role that Congress has on this matter due to other pressing issues facing our 

Nation, mainly the economy and health care reform. We are here 

to review the anti-doping policies and the collective bargaining 

agreements of the major sports in this country. 

There is no question that for millions of fans professional sports 

provides a way for them to take pride in their city, it helps create 

jobs for countless hardworking Americans, and gives us tales of 

athletic lore that we share with future generations. 

Mr. Chairman, professional sports therefore have a large impact 

on our society and our way of life. However, the use of performance 

enhancing substances not only endangers the integrity of the athletic institutions, but they also are troublesome for the health of 

the players, and they set a very poor example for our Nation’s 

youth who rightly or wrongly look up to athletes as their role models. 

Yet today’s hearing is not about whether or not major sports 

leagues, particularly the NFL, implement anti-doping policies. Instead, today’s hearing is about how these policies should be enforced after they have been enacted in collective bargaining agreements to provide for fair treatment of players while maintaining a 

level playing field for competition within each league. 

It can be argued that the current framework in which we operate 

does not provide that level playing field for which we strive. The 

NFL StarCaps case illustrates how a patchwork of State laws compromises the ability for anti-doping policies in leagues to be backed 

up by the enforcement tools necessary to eliminate the use of performance enhancers. 

Mr. Chairman, given that professional sports inherently operate 

in the realm of interstate commerce, this is not just an issue of 

State and Federal labor laws and how they operate. 

I look forward to hearing from our distinguished panel on these 

issues, and I see that my time is gone and I will yield back. 

Mr. RUSH. The Chair thanks the gentleman. 

The gentlelady from Illinois, Ms. Schakowsky, the Vice Chair of 

the subcommittee, is recognized for 2 minutes for the purposes of 

opening statements. 

Ms. SCHAKOWSKY. Thank you, Chairman Rush, for holding this 

hearing. I also want to thank Chairman Waxman for his commitment and extensive work over the years on this issue. It is really 

largely due to his ongoing efforts, along with the work of this committee, that led the major sports leagues to establish stronger policies banning the use of steroids in recent years. I congratulate the 

leagues for doing that. 


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My principal concern, as I think everyone on this committee’s is, 

has to do with young athletes. They see professional athletes making millions after juicing, and what do they learn? That it pays off, 

despite health costs, their own health and even sometimes fatal 

consequences, they continue to do it. So there has to be real consequences, real penalties that directly bear on the game itself and 

the right to participate, which gets me to the question today. 

At the heart of this hearing is the interaction of State labor laws 

and league steroid policies that were developed as part of collective 

bargaining agreements and then overruled by the courts. We want 

to make sure that the policies are as strong as possible, and so I 

really look forward to hearing from the witnesses today on your 

recommendations on how we can resolve this and make sure that 

we keep in place those strong sanctions when the steroid policies 

are violated, and I yield back. 

Mr. RUSH. The Chair recognizes the gentleman from Florida, Mr. 

Stearns, for 2 minutes. 

OPENING STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA 

Mr. STEARNS. Thank you, Mr. Chairman, and thank you for having this hearing. As former chairman of the CTCP Subcommittee 

in the 109th Congress, I held hearings on steroids and sports. Jan 

Schakowsky was the ranking member at that point. We were the 

first in Congress to hold hearings on performance enhancing drugs, 

and that was in 2003. These hearings led me to introduce legislation, the Drug Free Sports Act, which would have required the Secretary of Commerce to issue regulations requiring random testing 

for steroids and other performance enhancing substances and 

would have called for a permanent suspension from participation 

in a professional sport association following two previous violations. 

As a result, I believe, of my legislation Major League Baseball 

adopted a ‘‘3 strikes and you’re out’’ policy. Today, however, we are 

examining an NFL case in which two players have managed to 

simply escape suspension for testing positive for a banned masking 

agent. With the help of the NFL Players Association, the players 

have been successful so far in using the State of Minnesota’s more 

lenient workplace laws to escape a mandatory 4 game suspension, 

as simply dictated by the NFL’s collectively bargained policy in anabolic steroids. This was done and agreed upon. 

The use of steroids and other performance enhancing drugs, in 

addition to being illegal, undermines the integrity of sports and 

poses significant health risks to the athletes. Allowing more lenient 

State laws to undermine and preempt collective bargaining agreements made between players and unions and professional sports 

associations such as the NFL sets a bad precedent for players and 

jeopardizes public confidence in professional sports. Collectively 

bargained uniformed steroid policies are made for a reason and 

should be governed by Federal labor law, if not for the integrity of 

professional sports as a whole, but for the health and well-being of 

professional athletes who are also looked to, as mentioned by Jan 

Schakowsky, as role models by aspiring high school athletes. 

Thank you, Mr. Chairman. 


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Mr. RUSH. The Chair now recognizes the gentlelady from Ohio, 

Ms. Sutton, for 2 minutes. 

Ms. SUTTON. I thank the chairman. I thank you for holding today’s hearing on the NFL StarCaps case. 

This situation raises several important issues, including the public health concerns that we have heard expressed here from steroid 

use. When a player takes steroids or a masking agent, the player’s 

health, integrity, and accomplishments are at risk, and we would 

be naive to dismiss that young people look up to and admire professional athletes, imitating their behavior, whether that athlete 

wants that to happen or not. 

A University of Michigan survey found that an estimated 200,000 

high school students used steroids in 2008, and the motivation is 

obvious. Professional athletes’ achievements are celebrated and 

glamorized, team owners and professional sports leagues profit considerably from the players’ performances, but to protect the health 

and well-being of our athletes and most importantly our young people we must stand together to say that athletes should not use performance enhancing drugs. 

I want to add, Mr. Chairman, if I can, that at this point Ohio, 

I come from Ohio, I represent a great State, Ohio’s unemployment 

rate right now stands at 10.1 percent. With so many people unemployed, it is more than unfortunate that well paid professional athletes who serve as role models to our youth refuse to play by the 

rules and engage in irresponsibility and unlawful behavior. 

So I am hoping that as a result of this hearing we will settle the 

ambiguity that exists and that we will resolve somehow to make 

sure the collective bargaining agreements do prevail. 

Thank you. 

Mr. RUSH. The Chair now recognizes the gentleman from Nebraska, Mr. Terry, for 2 minutes. 

Mr. TERRY. Thank you, Mr. Chairman. I thank the witnesses 

here today to tell us your position on the Pelosi health care bill. 

That is humor. All right, I will interpret that for you. 

It is nice to have a little diversion here and talk sports, as a 

sports fan, a true sports fan, all sports, NFL, Major League Baseball, NHL, all of them. And I dearly want to make sure that the 

competition is pure and it is clean. Now, the gentlelady from Ohio 

used the word ‘‘naive.’’ I want to make sure that Mr. Weiner and 

Mr. Smith, representing players here, are not approaching this in 

a naive position, and don’t think that this committee and subcommittee and this Congress won’t take this issue up and pass 

Federal legislation that will preempt State law, that will be a drug 

testing policy that will be imposed on you, and I will guarantee we 

will be much harsher in trying to clean up the sports than the directors have been. 

I am greatly disappointed in the Williamses’ lawsuit challenging 

the collective bargaining agreement. The basic agreement between 

this committee and the major league sports was that they would 

handle this internally and we wouldn’t have. Well, that has been 

breached by the players now. 

So I think there is two fundamental questions here that face this 

committee today and that is do we need to draft a national drug 

testing policy to be imposed upon all major league professional 


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sports? If that is necessary, let’s begin the work, Mr. Chairman. 

Otherwise, if you don’t think it is necessary, maybe it is necessary 

that major league sports pull out of the States who claim their 

State laws will supersede the collective bargaining. Maybe Minneapolis without the Vikings is the appropriate remedy. 

I yield back. 

Mr. RUSH. The Chair recognizes the gentleman from Georgia, 

Mr. Barrow. 

Mr. BARROW. I thank the Chair. 

Mr. RUSH. The Chair thanks the gentleman. Mr. Sarbanes of 

Maryland is recognized for 2 minutes. 

Mr. SARBANES. Thank you, Mr. Chairman. I won’t need 2 minutes. 

The public has been very adamant in its call for more practices 

and policies, and so forth, that will curb the use of performance enhancing drugs in sports, as they should be. We have had plenty of 

hearings in the Congress when the Oversight and Government Reform Committee in the last session under Chairman Waxman’s 

leadership there we examined the issue quite closely. And the reason to pursue it is, number one, because of the discredit it brings 

to the sport. But secondly, and more importantly, it has already 

been alluded to is the harmful, dangerous conduct that it can lead 

to among our young people who aspire to these professional sports 

folks and hold them up as models. 

Now there is these recent legal cases that have highlighted and 

in some instances, I guess, may have created complications in pursuing this goal of reducing the use of performance enhancing drugs. 

So it is important that we got that resolved. 

I look forward to the testimony of the panel today to help us do 

that, and I yield back my time. 

Mr. RUSH. The Chair now recognizes the gentleman from North 

Carolina, Mr. Butterfield. 

The Chair now recognizes the gentleman from Ohio for 2 minutes, Mr. Space. 

Mr. SPACE. In the interest of time I waive. 

Mr. RUSH. The Chair thanks all the members here who are really 

cooperating in an outstanding way. 

Now it is time to introduce the witnesses and we are going to 

begin at my left. The witnesses today is one, Mr. Roger Goodell, 

who is the Commissioner of the National Football League. 

Seated next to Mr. Goodell is Mr. Robert D. Manfred, Jr. He is 

Executive Vice President for Labor and Human Resources, the Office of the Commissioner of Baseball, Major League Baseball. 

Sitting next to Mr. Manfred, Jr., is Mr. DeMaurice Smith, the 

Executive Director of the National Football Leagues Players Association. 

Next to Mr. Smith is Mr. Michael S. Weiner, who is the General 

Counsel for the Major League Baseball Players Association. 

Seated next to Mr. Weiner is Mr. Travis T. Tygart. He is the 

Chief Executive Officer of the U.S. Anti-Doping Agency. 

Next to him is Mr. Gabriel A. Feldman, who is an Associate Professor of Law and Director of the Sports Law Program at the 

Tulane University Law School. 


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And then the final witness today is Mr. Jeffrey Standen. He is 

a Professor of Law at the Willamette University College of Law. 

I want to thank all the witnesses who are appearing before the 

subcommittee today, and I want to ask that you would join with 

me now in swearing in, raising your right-hand to be sworn in. Will 

all the witnesses stand and raise their right-hand? 

[Witnesses sworn.] 

STATEMENTS OF ROGER GOODELL, COMMISSIONER, NATIONAL FOOTBALL LEAGUE; ROBERT D. MANFRED, JR., EXECUTIVE VICE PRESIDENT, LABOR AND HUMAN RESOURCES, OFFICE OF THE COMMISSIONER OF BASEBALL, 

MAJOR LEAGUE BASEBALL; DEMAURICE SMITH, EXECUTIVE 

DIRECTOR, NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION; MICHAEL S. WEINER, GENERAL COUNSEL, MAJOR 

LEAGUE BASEBALL PLAYERS ASSOCIATION; TRAVIS T. 

TYGART, CHIEF EXECUTIVE OFFICER, UNITED STATES ANTIDOPING AGENCY; GABRIEL A. FELDMAN, ASSOCIATE PROFESSOR OF LAW AND DIRECTOR, SPORTS LAW PROGRAM, 

TULANE UNIVERSITY LAW SCHOOL; AND JEFFREY STANDEN, 

PROFESSOR OF LAW, WILLAMETTE UNIVERSITY COLLEGE 

OF LAW 

Mr. RUSH. Please take your seats. Let the record reflect that the 

witnesses have all answered in the affirmative. 

And now I must announce to you that there is a vote in progress 

on the floor of the House, and so the committee will stand in recess 

until 15 minutes after the final vote. There are three votes and 

after these three votes we will reconvene 15 minutes after the final 

vote. 

The subcommittee stands in recess. 

[Recess.] 

Mr. RUSH. The subcommittee will again be called to order. 

I understand that Commissioner Goodell is on his way back in, 

so in the interest of time, I am going to ask Mr. Manfred to start. 

But before you start, Mr. Manfred, I just want to say to all of 

the witnesses and those who are present, we really thank you so 

much for your patience, for your indulgence. We do have votes that 

occur from time to time on the floor and we have to leave to go vote 

on the floor. But you have been very patient and kind to us, and 

we really appreciate that. 

So with that said, the Chair recognizes Mr. Manfred for 5 minutes for an opening statement. 

STATEMENT OF ROBERT D. MANFRED, JR. 

Mr. MANFRED. Chairman Rush, Ranking Member Radanovich 

and members of the committee, thank you for the opportunity to 

be here today to address an issue of concern to Major League Baseball. 

Baseball Commissioner Allan Selig has made the eradication of 

the use of performance-enhancing substances a strategic priority 

for Major League Baseball. Under Commissioner Selig’s leadership, 

drug programs have been developed, deployed, updated and constantly improved at both the Major League and minor league level. 

Baseball’s programs call for pre- and post-game testing for both 


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steroids and stimulants out of competition and off-season testing is 

required. In total, we conducted 13,000 tests of our players in 2009. 

Baseball uses the most up-to-date drug testing technologies at 

laboratories certified by the World Anti-Doping Agency. And our 

programs are transparent in that all suspensions are announced 

publicly and testing statistics are published annually. 

These programs have been effective in reducing the use of performance enhancing substances. We had only two steroid positives 

in 2009 and have been equally effective in detecting players, including high profile players, who have persisted in the inappropriate use of such substances. 

Without exception, the progress baseball has made at the Major 

League level has been accomplished in the collective bargaining 

process. The first drug testing program was negotiated as part of 

our 2002 agreement when it became apparent that improvements 

needed to be made. Baseball and the Players Association took the 

unprecedented step of twice reopening the agreement to strengthen 

the drug programs. The collective parties made further improvements in the 2006 round of negotiations and then reopened that 

contract to deal with the recommendations made by former Senator 

George Mitchell. 

Based on our experience, Major League Baseball believes that 

the substantive terms of drug testing programs should continue to 

be established by the collective bargaining process created and regulated by the National Labor Relations Act. The recent decision by 

the United States Court of Appeals for the Eighth Circuit in Williams v. NFL, however, has raised the possibility that State laws 

could interfere with the uniform enforcement of baseball’s collectively bargained drug program. 

It is well-settled law that section 301 of the NLRA preempts 

State claims that are inextricably intertwined with the consideration of the terms of labor contracts. Prior to the Eighth Circuit decision, we assumed that claims based on State laws establishing 

standards for drug testing programs would be preempted in the 

context of a collectively bargained program. 

Uniformity of enforcement is an essential element of any drug 

testing program in the context of professional sports. The essence 

of sport is fair competition, the use of performance-enhancing drugs 

undermines fair competition. In a nationwide sport such as professional baseball, all athletes must be held to a single standard of 

clean competition. Once Major League Baseball and its players association have agreed on a drug testing program, individual States 

and local governments cannot be allowed to undermine the program with employee protective statutes. 

Unfortunately, the problem of inconsistent State and local regulations is not merely hypothetical. There are a number of States 

and municipalities that have laws related to drug testing that 

could create claims for players covered by our programs. Such 

claims could lead to uneven enforcement of the drug policy which, 

in turn, would undermine the credibility of our program and the 

integrity of the competition known as Major League Baseball. 

Because we have always believed that claims based on State 

drug testing laws would be preempted, we have never bargained 

with our Players Association in an attempt to deal with the probVerDate Mar 15 2010 02:17 Aug 31, 2012 Jkt 074849 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 E:\HR\OC\A849.XXX A849

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lem of State claims. I am a firm believer in the process of collective 

bargaining and the utility of that process in dealing with difficult 

issues. Having said that, I doubt that the collective bargaining parties had the legal power to waive in advance State law claims of 

individual union members. 

Major League Baseball, of course, recognizes the legitimate right 

of States to pass employee protective legislation in the area of drug 

testing. Even a cursory review of the applicable State laws, however, demonstrates that such statutes were intended to deal with 

programs that regulate drugs of abuse in traditional workplaces 

such as factories and hospitals, not the use of performance-enhancing drugs by professional athletes. Given this fact, it would seem 

that a narrowly drafted statute could solve the problem faced by 

professional sports without creating undue interference with the 

prerogatives of the States, while preserving the primary role of collective bargaining in setting the substantive terms of drug testing 

programs. 

I thank you for giving us the opportunity to be here today, Mr. 

Chairman. 

Mr. RUSH. The Chair thanks the witness. 

[The prepared statement of Mr. Manfred follows:] 


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Mr. RUSH. The Chair now recognizes the Commissioner of the 

National Football League, Mr. Goodell, for 5 minutes. 

STATEMENT OF ROGER GOODELL 

Mr. GOODELL. Mr. Chairman, thank you. And I apologize for 

being late. Ranking member, members of the committee thank you 

for having me here today. I do appreciate the opportunity to appear 

again today to discuss the NFL’s longstanding commitment to 

eliminate steroids and other performance-enhancing substances 

from sports. 

In recent years, several committees of Congress reviewed our collectively bargained antisteroid policies and have commended us on 

a strong and effective program that accomplishes three main goals: 

first, protects the health and safety of our players; two, upholds the 

integrity of competition on the field; three, sends an important 

message to young people that these substances are dangerous and 

wrong. 

For the last 20 years, a central principle of our policy has been 

the player is responsible for what is in his body. The player is responsible for what is in his body. As Gene Upshaw, the late head 

of the Players Association testified only last year, and I quote, ‘‘We 

have strict liability for players. There is no excuse for any player 

that says he was not aware of a banned substance in what he was 

taking. That is his responsibility. He is responsible for what goes 

into his body,’’ end of quote. This principle ensures that the program will operate in a fair and uniform manner throughout the 

league, and that is the essential issue today whether we can continue to have a uniform program with credibility and integrity that 

applies on an equal basis to all players. 

In the past, we have always testified with the full support of our 

Players Association. I am sorry to report today, for the first time, 

our Players Association sits next to me, but does not stand with us 

on this issue. Last season, three players from the New Orleans 

Saints and two players from the Minnesota Vikings tested positive 

for a banned substance. The particular substance is banned because both it can be used as a masking for steroid use and because 

of potential adverse health effects. 

Based on the positive test, each player was suspended for four 

games, 25 percent of our regular season. The five players appealed 

and argued that they had ingested the banned substance inadvertently by using a supplement that did not list a diuretic on the 

label. Following lengthy hearings, the suspensions were upheld. 

The Minnesota players then sued the NFL in State court in Minneapolis arguing that the suspensions violated Minnesota State 

law. A State court judge issued an injunction that same day allowing the two players to participate in critical late season games. 

The next day, the Players Association sued the league in Federal 

court on behalf of all five players, even though doing so expressly 

violated the collective bargaining agreement. Last May, the Federal 

judge dismissed every one of the Player Association’s challenges 

and the Eighth Circuit Court of Appeals unanimously upheld that 

ruling in September. 

There were claims of impropriety, bias and the like in the proceeding and you may hear such claims today. But all of those 


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claims were fully considered and rejected by every Federal judge to 

hear them. Regrettably, the Federal courts permitted the two Minnesota players to proceed with a different set of claims under State 

law. That is why we are here today. 

We have vigorously opposed the application of State law to our 

antisteroid program and will continue to do so. The Players Association, that for nearly two decades has been our partner in developing and administering this program, has refused to support us 

on this issue, even after I wrote to DeMaurice Smith in June and 

specifically asked for his support. 

Mr. Chairman, to that point I ask that this be entered into the 

record. It is the letter I sent to DeMaurice back in June. 

Mr. RUSH. Hearing no objection, so ordered. 

[The information follows:] 


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Mr. GOODELL. As a result of these court rulings, there is no barrier to suspending the New Orleans players. But considerations of 

fairness and uniformity led me to defer those suspensions while we 

addressed the Minnesota State law issue. 

More broadly, our collectively bargained policy, which was intended to apply on a uniform basis to all players on all teams, is 

now subject to individual State laws, as interpreted by individual 

State court judges. Every sports organization has recognized it is 

simply impossible to operate a credible and effective program on 

this basis. 

For example, the Minnesota players claim that they are permitted under State law to use any banned substance so long as 

they do so outside of the locker room. If that is the law, it will effectively end antisteroids programs in all sports in the State of 

Minnesota. 

We have always supported collectively bargained solutions in this 

area. While we are reluctant to seek action from Congress, we believe this presents the rare case in which narrow and tailored Federal legislative action is warranted to confirm the primacy of Federal labor law and respect agreements on this important subject. 

The NFL’s policy is straightforward: Substances banned under 

our steroid policy are bad for players’ health and undermine the integrity of the game. We have made that policy clearly known to 

players, and we have zero tolerance for failure to follow it. 

I appreciate your time and look forward to your questions. 

Mr. RUSH. Thank you, Mr. Goodell. 

[The prepared statement of Mr. Goodell follows:] 


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The Chair now recognizes the Executive Director of the National 

Football League Players Association, Mr. DeMaurice Smith. You 

are recognized for 5 minutes, Mr. Smith. 

STATEMENT OF DEMAURICE SMITH 

Mr. SMITH. Thank you, Mr. Chairman, Subcommittee Chairman 

Mr. Rush, Mr. Ranking Member. Good afternoon. My name is 

DeMaurice Smith, and I thank you for the opportunity to testify 

concerning the important issues being considered by your subcommittee. 

I serve as the Executive Director of the National Football League 

Players Association. Having been elected to that position in March 

of this year, one of my first priorities was to become fully conversant with the NFL and the NFLPA’s policy on anabolic steroids 

and related substances. The policy has been in place for many 

years and it has been successful in terms of preventing the use of 

performing enhancing substances in the National Football League. 

Let me make one thing clear. The National Football League Players Association believes in this policy. I believe in this policy. It is 

a collectively bargained policy. That is why in September of 2009, 

myself, along with Roger Goodell, sent a memorandum to every 

player in the National Football League, reminding them of the applicability of the policy, signed at the bottom, Mr. Roger Goodell, 

Commissioner, Mr. DeMaurice Smith, NFLPA Executive Director. 

And with permission, I would like this to be added to the record. 

Mr. RUSH. Hearing no objection, so ordered. 

[The information follows:] 


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Mr. SMITH. Is extremely important to me that our players compete on a playing field that is level and that the competition among 

these elite athletes occurs without the help of any performance-enhancing substances. 

I am keenly aware that our players’ choices, both on and off the 

field, not only affect themselves but also members of the vast audience who watch them. I am also keenly aware that there are serious and adverse health effects from using steroids and other substance. It is why the health of our players is paramount. 

The safety of our players remains paramount, and I will always 

stand with the National Football League when we fight and work 

together to ensure player safety. It is for those reasons that our 

union first negotiated this very strict policy in the early 1990s. 

Over time, we have made collectively bargained changes to that 

policy to ensure safety, to ensure that the players who play this 

game play so at an even playing surface. As a result, we have always agreed to the strict liability feature which makes every player 

responsible for what he puts in his bodies. As a result, players will 

be suspended under the policy even when they do not know that 

a product they are using contains a prohibited substance. 

We test at least 10 players per week per team during the season, 

and the player is likely to be tested about six times in the off season. A player’s first positive test typically brings an automatic 

game suspension; a second positive test brings an eight-game suspension; And a third positive test and a suspension of up to 1 year. 

As a testament to the success of this policy, there have only been 

five two-time offenders since the policy was put in place in 1993. 

No player—no player in our history has ever been suspended for 

a third offense. 

We have also placed great emphasis on education under the policy. We have developed various educational materials to warn our 

players about the health risks of using steroids. Players are encouraged to call a hotline number to check on the acceptability of various products under the policy. That hotline is a crucial safety 

measure that was inspired by the National Football League and 

our union to ensure that our players have immediate access to the 

best information. 

We have also created the Sports Nutrition Label Certification 

Program which certifies to players that products of any company 

participating in the program are free from any substances. 

Against this background it is unfortunate that the policy has attracted some negative attention related to this StarCaps case. 

Most importantly today, Mr. Chairman, I want to emphasize 

what StarCaps is not about. StarCaps is not about any player who 

used a product to gain a competitive advantage. It is not a case 

about any player who used a product to enhance their performance. 

Instead, it is about the use of a product called StarCaps, which was 

used by players to help them lose weight. 

It is not a steroid. StarCaps was marketed over the counter as 

an all-natural product, and the list of ingredients on its packaging 

did not include any banned substances. The players who ingested 

the product did not know nor were they ever told that StarCaps actually contained bumetanide, an unlisted ingredient and a prescription diuretic that is prohibited under our policy. 


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In normal circumstances, of course, it does not matter under the 

policy whether the players knew this or not since they are responsible for everything they put in their bodies. But this case did not 

involve normal circumstances. That is because, unknown to the 

players, the person appointed by the National Football League as 

the independent administrator of the program had previously become aware that StarCaps contained bumetanide. He, along with 

other League officials, failed to inform the players of this fact. 

Making matters worse, a League lawyer interfered with the administrator’s independence by dictating that he change his response to such cases to ensure that players who unknowingly took 

StarCaps would be suspended. 

I remain concerned about these revelations for two reasons. 

First, I believe our policy contemplates that an independent administrator, who in this case is a medical doctor, well credentialed in 

his field, must at all times have the health of the players as his 

first priority. He should not serve as strictly a functionary. He 

must serve as a doctor who is obligated to inform players as patients when their health is at risk. That did not happen in this 

case. 

The same goes for a League lawyer who also failed to convey the 

information that he knew to the players or to the hotline that they 

used to make sure that the information is accurate. That is why 

we filed our action in Minnesota. That is why we sought this appeal. 

That being said, as a result of the StarCaps case, I believe that 

we have to make some changes to the policy. But the issues with 

the collectively bargained program that emerge in the context of 

StarCaps can and should first be addressed by working with the 

league through the collective bargaining process. 

I believe in the collectively bargained process. I believe in the 

program that resulted from collective bargaining. I believe that the 

league should have adhered to that collectively bargained process. 

Mr. Chairman and the subcommittee, let me conclude by saying 

that we appreciate this committee’s and this subcommittee’s continuing interest in the health of players at all levels of the game. 

We believe that the most effective way to ensure that our collectively bargained policy does not conflict with State law is for the 

league and our union to draft carefully crafted language in the new 

CBA, that we are currently negotiating, that reflects our acute 

awareness of these issues. 

We are confident that we can effectively work through the process with the league to implement these changes as we have done 

in the past. We will do so together to strengthen our policy. 

I look forward to working with this subcommittee. I appreciate 

all of your efforts, and I am happy to ask and answer—I am 

sorry—answer, any of your questions today. Thank you very much. 

Mr. RUSH. The Chair thanks the gentleman. 

[The prepared statement of Mr. Smith follows:] 


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Mr. RUSH. The Chair recognizes Mr. Michael Weiner, who is the 

General Counsel for Major League Baseball Players Association. 

Mr. Weiner, you are recognized for 5 minutes and, to be fair, 

thereabouts. OK? 

STATEMENT OF MICHAEL WEINER 

Mr. WEINER. Thank you, Mr. Chairman, Ranking Member 

Radanovich and members of the committee. Thank you for the opportunity to testify today. In addition to my comments now, I 

would ask that my written testimony be made a part of the official 

record of today’s proceeding. 

As Mr. Manfred indicated, we have an effective joint drug program in Major League Baseball. It has been collectively bargained, 

it is comprehensive, its science is state of the art and it contains 

elements of fundamental fairness to all involved with the program. 

We have an independent program administrator, we have yearround testing both during the playing season and during the off 

season and, of importance, the collective bargaining parties have 

demonstrated the flexibility and the program itself calls for this 

flexibility for us to respond to developments—legal developments, 

scientific developments—and we have through the bargaining process responded to those developments to maintain the effectiveness 

of our program. 

The Williams decision that is the impetus for today’s hearing has 

had no impact on the operation of the joint drug program in Major 

League Baseball, and the Players Association does not believe that 

the ongoing litigation in Williams warrants congressional intervention. That intervention would implicate longstanding congressional 

policy, longstanding Supreme Court precedence that accommodates 

State prerogatives that pass laws to regulate workers in the workplace. 

The bargaining parties in Major League Baseball and those in 

many industries regularly bargain collective bargaining agreements 

against a backdrop of State laws. It is something that unions and 

management do all the time. And because of that, both Congress 

and the Supreme Court have repeatedly expressed reluctance to— 

and I will now quote from the Allis-Chalmers decision of the 

United States Supreme Court—to grant to collective bargaining 

parties the ability to contract for what is illegal under State law. 

The Williams case again does not warrant deviation from that 

principle. As I indicated, it is ongoing litigation. The decision of the 

Eighth Circuit is not even necessarily the final word of the Eighth 

Circuit. There is a petition for rehearing pending before the Eighth 

Circuit right now and there are other possibilities for further appellate proceedings. In addition, if the case is ultimately remanded, 

sent back to the State court, at that point there will be a trial of 

the State law claims. 

I emphasize that nothing has been decided with respect to the 

State law claims other than that they can be heard. In addition, 

as Mr. Smith emphasized in some detail, the Williams case is not 

about steroids. The substance involved, as he indicated, is 

StarCaps, an over-the-counter weight loss supplement that turned 

out to contain a prescription drug that was not listed on its label. 

And as he said—Mr. Smith said—that litigation has focused in 


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large part on the administration of the agreement as it relates to 

StarCaps, the fact that the NFL had knowledge of—that StarCaps 

contained the prescription medication and the lack of disclosure of 

that to players and to the union. These are relevant facts in weighing the league’s request for congressional intervention. 

Turning to the Minnesota statutes involved, again it is important 

to note that there has been no determination at this point that 

those statutes even apply or affect in any way professional sports. 

I have had the opportunity to read Professor Feldman’s written testimony, and we agree with him that in the end there may well be 

no conflict at all between the Minnesota statutes and the collective 

bargaining agreements that govern professional athletes in the 

State of Minnesota. 

We have also, in advance of this hearing, spoken with the AFL– 

CIO. It is their position that they do not support congressional 

intervention in a matter such as this. They believe that collective 

bargaining should be permitted to work to address any problem 

that might exist. 

So, in summary, the Players Association—the Baseball Players 

Association, I should say—hopes that this committee and the Congress will allow the Williams litigation to play itself out fully. At 

that point, all concerned about this issue can determine whether 

any problem actually exists, and if there is a problem, all involved 

can make a determination as to the best solution. 

Thank you for your time, and I welcome the chance to answer 

any of your questions. 

Mr. RUSH. Thank you. 

[The prepared statement of Mr. Weiner follows:] 


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Mr. RUSH. The Chair now recognizes Mr. Travis T. Tygart, the 

CEO of the United States anti-doping agency. Mr. Tygart, you are 

recognized for 5 minutes. 

STATEMENT OF TRAVIS T. TYGART 

Mr. TYGART. Thank you, Mr. Chairman, Ranking Member 

Radanovich, members of the committee. Good afternoon. My name 

is Travis Tygart, and I am the Chief Executive Officer of the 

United States Anti-Doping Agency. I want to thank you for the opportunity to be here today and for your longstanding interest in the 

rights of clean athletes and the integrity of competition. 

USADA, as you probably know, has been recognized as the national anti-doping agency for the U.S. Olympic Movement; and 

while our current mandate does not extend to professional sport, 

we do not work in a vacuum. The elimination of doping in professional sports is equally important to the elimination of doping at 

all levels of sport in this country. 

Sport in America has taken on a significance that extends well 

beyond a form of entertainment. In its purest form, sports builds 

character, promotes selfless teamwork, dedication and commitment 

to a greater cause. Sadly, when doping is introduced, its corrosive 

effects eat away at the core attributes and compromises everything 

valuable about sports. The existence of doping in professional sport 

hurts us all. 

Last year, the subcommittee conducted hearings on the Mitchell 

Report. Major League Baseball and its players were not the only 

sports organization or players hurt by those revelations; unfortunately, the accomplishments of clean athletes at all levels of sports 

in this country were hurt. 

I would like to digress momentarily to the StarCaps problem that 

led to the Williams case. Recently I testified in the Senate and outlined a series of legislative changes that we believe are necessary 

to protect athletes of all ages and other consumers from mislabeled 

dietary supplements, in particular, those supplements that contain 

undisclosed drugs that are dangerous to consumers like the one in 

this case. 

With respect to today’s issues, we strongly support Federal legislation that protects uniform national enforcement of a sports 

league’s sound anti-doping program against interference from inconsistent State laws. This preemption should be available for all 

sound sport anti-doping policies, not just those collectively bargained. Where a sports league has a national scope, its anti-doping 

program cannot be effective unless it is uniform and national in 

scope. We have learned that lesson from the history of anti-doping 

in the Olympic Movement, from the adoption of the World AntiDoping Code and the acceptance of the world code by the U.S. and 

other governments through the ratification of UNESCO’s International Convention against Doping in Sport. That convention commits the U.S. to coordinate the fight against doping in sport in the 

U.S. through appropriate measures including legislation consistent 

with principles of the code. 

As described in the code, sport anti-doping programs are based 

on three fundamental objectives to maintain a level playing field 

for athletes, to protect the health of athletes and to preserve the 


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spirit of sport. If application or enforcement of anti-doping rules 

can vary depending on where a particular competition takes place 

or where an athlete or a team is located, the playing field is not 

even and clean, athletes’ rights are violated. 

There could be unique or inconsistent State regulations pertaining to conduct which constitute a violation of anti-doping rules, 

the selection of athletes to be tested, the sample collection process, 

the laboratory analysis of samples, the results management process 

and the imposition of discipline. 

The problem of an uneven playing field caused by nonuniform 

anti-doping rules was the primary reason behind the adoption 

worldwide of the World Anti-Doping Code. Before the enactment of 

the code, the rules of international sports federations like FIFA, 

the world governing body for soccer, could not be uniformly enforced worldwide because of the patchwork of inconsistent national 

anti-doping rules and laws. 

USADA follows all of the requirements of the code in the operation of our Olympic program. Some professional leagues, like the 

ATP and the WTA, have now also adopted the code. Any sports 

league that adopts the gold standard, the code, should receive the 

benefit of Federal preemption of any inconsistent State law. 

Now, whether viewed from the perspective of the obligations 

under the UNESCO convention or simply from the public policy 

goal of eliminating doping in America, sports that adopt sound 

anti-doping programs that substantially comply with the basic 

principles of the code should also be protected from inconsistent 

State laws. There is much less justification, however, for preempting State laws in favor of professional sports league programs 

that are not fair or effective. 

To obtain the protection of Federal preemption as a matter of 

public policy, of sports anti-doping programs, should, most importantly, be independent and transparent in addition to being required to satisfy the following criteria: effective out-of-season and 

out-of-competition testing; a full list of prohibited substances and 

methods that are prohibited; and implementation of best legal and 

scientific policies, investments into education, investments into research, partnerships with law enforcement to hold those accountable who manufacture or illegally distribute these dangerous drugs. 

In conclusion, requiring these minimal principles is consistent 

with the WADA code, the USADA protocol and the recommendations you heard from Senator Mitchell. If all U.S. professional 

sports leagues implemented anti-doping programs that met these 

criteria, it would go a long way towards eliminating doping in the 

U.S., in restoring public confidence and the integrity of achievement and the value of true sport as a teacher of life lessons. Most 

importantly, it would be a significant step toward protecting the 

health our young athletes who emulate our professional heroes. 

Thank you. 

[The prepared statement of Mr. Tygart follows:] 


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Mr. RUSH. The Chair now recognizes Professor Gabriel A. Feldman for 5 minutes for the purposes of an opening statement, 5 

minutes or thereabouts. 

STATEMENT OF GABRIEL A. FELDMAN 

Mr. FELDMAN. Mr. Chairman, Ranking Member Radanovich and 

other members of the committee, I want to emphasize that the 

Eighth Circuit’s decision in NFL v. Williams has only created a potential problem. 

The Eighth Circuit did not hold that the suspension of the 

Williamses violated Minnesota State law. The Eighth Circuit only 

held that the Williamses may challenge those suspensions in Minnesota State court under Minnesota State law because that independent Minnesota State law was not preempted by section 301 of 

the LMRA. 

That is an important point to focus on because we only have a 

problem if the Minnesota State court then determines that the suspensions of the Williamses violated that Minnesota State law. That 

would be the problem. If that is the problem, we can focus our solution on that particular problem. 

We don’t have that problem yet. If we get there, then we need 

to recognize we only have a narrow problem. We have the laws of 

one State, Minnesota, potentially interfering with the NFL’s performance-enhancing drug policy—just one State. 

I do not think it is appropriate or wise for Congress to pass a 

Federal law providing a broad exemption for professional sport 

leagues from State law just because of this narrow problem involving one State. Granting an exemption to any industry to protect it 

from State law should only be done for compelling reasons, even if 

it is a narrow exemption, because even a narrow exemption has potential for producing harmful unintended and unanticipated consequences. 

And to put a spin on an old cliche, for Congress to pass a law 

now based on this particular problem would be like the man who 

uses a shotgun to kill an ant that has crawled into his house. Except here we are not even sure the ant is in the house. 

I think the more appropriate way to fix this narrow problem is 

with a narrow solution. I think the most appropriate narrow solution, the first step, is for the NFL to litigate this case in State court 

and convince the State court that the suspensions of the 

Williamses do not violate Minnesota State law. That may seem like 

an obvious solution, but it addresses the problem head on, and I 

think it is likely to be successful. 

And here is why I think it is likely to be successful: Putting aside 

the merits of the claims—and we are dealing with two different 

Minnesota State statutes, the DATWA and the CPA. Neither of 

those statutes was intended to apply to the performance-enhancing 

drug policies of professional sport leagues. 

Look at each one briefly. DATWA was designed to regulate the 

testing of recreational drug use by employees in Minnesota. It was 

a byproduct of the War on Drugs in the 1980s. Employees were 

coming to work under the influence of drugs; they were causing accidents, they were unproductive, they weren’t showing up at all. So 


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private employers started instituting strict drug-testing policies for 

their employees. 

States responded with regulations like DATWA to protect these 

employees. And those regulations had protections in place such as 

ensuring that the testing procedures were not overly invasive and 

ensuring that employees who did test positive for recreational drug 

use were given treatment and rehabilitation, not just simply punishment and termination. 

As an important aside, those goals are completely consistent with 

the goals of the leagues’ recreational drug-testing policies, but 

there is simply no indication nor any reason to believe that 

DATWA’s was intended to regulate or limit the ability of professional sport leagues to test their athletes for performance-enhancing drug use. 

The Minnesota legislature was concerned about the use of performance-detracting and addictive drugs by employees; the legislature was not concerned about the use of performance-enhancing 

drugs or cheating by professional athletes. They are very different 

purposes. 

I think the best argument the NFL has is, these laws should not 

apply at all. Even if there were technical violations—and I think 

the NFL has a strong argument that there were no technical violations; but even if there were technical violations, those laws simply 

should not apply here. 

The suspension of the Williamses does not violate the spirit or 

the purpose of DATWA. The argument with respect to the CPA is 

even stronger. CPA was essentially passed to prevent employers 

from disciplining employees for using alcohol and tobacco off work 

site in nonworking hours—nothing to do with performance-enhancing drugs of professional athletes. 

If litigation in State court is unsuccessful, then the NFL’s next 

step should just seek an exemption from the Minnesota State legislature. Ask the Minnesota State legislature to carve out an exception from its drug-testing statutes. Louisiana has carved out an exception from its drug-testing statutes to make it clear that it does 

not apply to professional athletes; Minnesota could do the same 

thing. 

In fact, Minnesota amended the DATWA in 2005 to allow sports 

leagues to use random drug testing for its pro athletes. They did 

it in 2005; there is no reason to think they wouldn’t do it now. If 

both of those solutions are unsuccessful and if the players in the 

league can’t negotiate around it, then and only then do we have a 

problem. 

Then we have this one law potentially interfering with the NFL’s 

drug policy. There are not many other laws out there that pose the 

same problem. They are looked to be two State statutes that have 

minor conflicts with the NFL policy, just two others in addition to 

Minnesota. 

If we get to the point, though, that in Minnesota State court has 

said that the suspension of NFL players is not allowed because it 

violates Minnesota law, then Congress should consider passing a 

Federal exemption, but that must be a narrow exemption. The risk 

of having a broad exemption or providing too much protection for 

the leagues is pretty clear. 


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Congress right now may think it is a good idea for the NFL policy to trump State law because Congress likes the current policy. 

What happens in the next round of collective bargaining negotiations if the players in the league agree to a different policy that 

Congress doesn’t like? What if it is too lenient? What if it is too 

strict? What if it doesn’t supply a list of banned substances? What 

if it gives the Commissioner the ability to increase or decrease a 

particular penalty as he sees fit? Do we want that policy protected 

under attacks from State law? 

I think we have a long way to go before this is a problem that 

Congress should be concerned with. Thank you. 

[The prepared statement of Mr. Feldman follows:] 


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Mr. RUSH. The Chair now recognizes Professor Standen for 5 

minutes for an opening statement. 

STATEMENT OF JEFFREY STANDEN 

Mr. STANDEN. Thank you, Chairman Rush and Mr. Ranking 

Member, for inviting me here today to testify. I am Jeffrey Standen 

from Willamette University in Salem, Oregon; and in my view, the 

Williams decision is built on a simple premise and that premise is 

erroneous. 

Professional sports leagues, such as the NFL, are not typical 

multistate business organizations. They are hybrid business organizations, neither fish nor fowl, and do not easily fit within the mold 

anticipated by section 301 of the LMRA and the judicial decisions 

interpreting it. 

The NFL and the other major American professional sports 

leagues are unique business operations. The NFL requires its franchises to be owned by a single individual or group of individuals, 

and to be owned locally. In other words, a single owner may not 

own more than one franchise. This aspect of the business arrangement provides incentives for local teams to promote local marketing 

opportunities and ticket sales. Local ownership gives teams strong 

incentives to hire and retain the best players and coaches possible 

to enhance their chances for on field success. 

Yet the fact that teams are individually owned by local interests 

does not mean that NFL teams are competitors in a regular business sense. NFL teams compete, but they do not wish to drive their 

competitors out of business. Instead, NFL teams rely on a high degree of cooperation in both obvious and nonobvious ways. Teams 

cooperate to create uniform game rules, game schedules and championship tournaments. They cooperate to create and sell national 

and international marketing opportunities, including broadcast 

rights, digital media and national sponsorships. 

This obvious cooperation, which is currently under scrutiny by 

the Supreme Court of the United States and the American Needle 

antitrust litigation masks a deeper codependency among teams. 

When one franchise does poorly, the entire league suffers, even to 

the extent that professional leagues have been known to take over 

ailing franchises rather than allowing them to fail. 

As co-venturers, franchises actively help ensure the financial 

health and continuing viability of their competitors, devising rules 

to assist their nominal opponents in the hiring of high-quality players and coaches. These rules promote competitive parity and include salary caps, wage scales, luxury taxes and entry drafts, preferential draft and waiver rights to the least competitive teams, restrictions on draft picks, prohibitions on one-sided trades, weighted 

schedules and so forth. 

In short, the multistate location of the franchises of a sports 

league tends to mask the nearly complete dependency that teams, 

in fact, have on each other to ensure the overall success of the 

league. 

In my view, the NFL and other professional sports leagues are 

better characterized as single national firms and not as a number 

of independent companies that cooperate in small matters such as 

game schedules or rules of play. Yet, even as a single entity, the 


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sports leagues have unique needs that require special consideration 

under the law. 

Ordinary national businesses that have operations in several 

States must abide by the respective State laws, for example, drugtesting restrictions, minimum-wage rules and the like. But the 

NFL differs from the ordinary single entity because, although 

teams are financial co-venturers, they are also, of course, on-field 

competitors. The league relies on competition among its cooperators. As a result, where a State law or other law strikes down a 

term of employment that directly or indirectly creates competitive 

balance, then the very continuation of the NFL as a business enterprise is threatened. Such decisions might make sense in the context of a single national business that happened to have local operations in multiple States, but in the context of a professional sports 

league, such applications of State law would be devastating to the 

chief product the league produces—competitive and exciting game 

contests. 

One important way that leagues ensure competitive parity is by 

prohibitions on player doping. Doping is prohibited in part because 

it allows certain players and their respective teams an unfair advantage over their competitors. As a result, I would suggest to this 

subcommittee that the Congress amend section 301 of the LMRA 

to preempt any State claim that would conflict with any drug-testing policy that is incorporated as part of a valid collective bargaining agreement. 

Thank you, Mr. Chairman. 

Mr. RUSH. The Chair thanks the gentleman. 

[The prepared statement of Mr. Standen follows:] 


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Mr. RUSH. And the Chair thanks all of the witnesses for their 

very provocative and insightful testimony. The Chair recognizes 

himself for 5 minutes to question the witnesses. 

One of the concerns raised by the Williams v. NFL decision is 

that it takes control of league performance-enhancing drug policies 

out of the hands of the league and the players, leaving their collectively bargained policies to the whims of State legislatures that 

may weaken these policies. And if this is the case, it is impossible, 

in my opinion, to see how these collectively bargained drug agreements can be deemed offensive. 

My first question is, Mr. Smith, you represent the NFL players 

union and you brought this case to the courts. What is your view? 

Can the implications of the courts’ decision in this case be resolved 

through the collective bargaining processes? 

Mr. SMITH. Mr. Chairman, I do not believe that that is the case. 

As Mr. Feldman pointed out, the StarCaps decision from the 

Eighth Circuit, just to be absolutely clear, did not conclude that the 

NFL in our joint drug policy was suspended because of State law. 

The other point that Mr. Feldman made absolutely clear is also 

true. That case is not yet over. So it is not a situation where anyone has ruled that our drug policy is now null and void. That has 

not happened. 

The other fact that is absolutely clear, as he has taken a look at 

the issue, as I as not only the executive director, but still a lawyer 

who every now and then is consumed by arcane legal principles, 

when we looked at the issues of what States could pose problems 

to this drug policy, there were three—Minnesota, Maryland and 

North Carolina. 

When you look at those three States, the three issues that could 

be problems if the case concluded in a way that was adverse to the 

policy if that happened, the three issues—one, that an employee 

would have the right to explain a positive test—that is one hurdle 

that could be placed in front of our NFL policy; the second hurdle 

deals with the certification of the labs that conduct the test; and 

the third hurdle is that it would have to change the testing procedures to allow for testing of masking agents. 

As we look at what could happen, if this case proceeded to the 

worst possibility, three States would be affected and those are the 

three primary hurdles that would need to be addressed. 

So as I look at a fix to the problem, I see the collective bargaining process as the best way not only to fix the problems of preemption that we now know to have popped up in our program, because we didn’t know before; but also if we did have those problems 

in those three States, those three things can be specifically addressed in the collective bargaining process. And, no, I do not believe it would subject our collective bargaining agreement to the individual judgments of a State legislature. 

Mr. RUSH. Mr. Goodell, would you respond to Mr. Smith’s testimony, please? 

Mr. GOODELL. Yes, I would appreciate the opportunity. 

Just on the final point that has been raised here is that this may 

be a potential problem. We have gone through, in the National 

Football League, months of litigation and uncertainty on this issue. 

In addition, the players continue to play on the field during this 


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period of time; and as many of you discussed early on, what message is that sending to the young people that look up to the National Football League? 

In addition, I—as you may know, I had to make a decision recently where the two Minnesota Viking players were prohibited 

from being suspended under our policy so they could pursue the 

State claim there are two other players at the New Orleans Saints 

that were not under that restriction and could have been suspended. On the basis of fairness and making sure that our policy 

is applied on a uniform basis, I did not think it was appropriate 

to suspend those two Saints players. There is a competitive issue, 

there are fairness issues, and there are uniformity issues; and I did 

not do that. And I believe it was the right decision. 

But it has impacted the National Football League right now in 

our drug program, and I want to try to make this very clear to this 

committee. This is not a potential problem, it is an existing problem; and all of us have to deal with this now. We cannot wait. 

The last issue and a couple of points that were raised here that 

we should adhere to our collective bargaining, I agree we should 

adhere to our collective bargaining. The union went outside of our 

collective bargaining and challenged our program. Not once, but 

twice we are told by Federal courts that there is no merit to their 

claims. 

The other issue is, this isn’t about steroids in this specific case. 

This is about another drug that is prohibited under our policy because of two reasons. One, it is a masking agent for performanceenhancing drugs, a masking agent. That means that potentially 

someone could be taking this drug to cover up the use of a performance-enhancing drug. And I am not saying that happened in this 

case. I don’t know. 

The second issue is that players were specifically warned that 

weight loss products can be tainted. They are unregulated, and 

products can be tainted and put in—products that are prohibited 

by our program can be put into these products. What happens unfortunately—and we saw this tragically with a Minnesota Viking 

player, ironically, that died on the practice field from dehydration. 

Weight loss products can be very dangerous if not properly supervised, particularly when they are competing at the level that they 

are competing on. 

So there is risk right now. This is not a potential problem. This 

is a health problem now, and we believe it should be addressed 

now. 

Mr. RUSH. The Chair’s time has been used up. 

The Chair recognizes the ranking member, Mr. Radanovich, for 

5 minutes. 

Mr. RADANOVICH. Thank you, Chairman Rush. And I want to 

thank the panel for being here for questions today. 

Mr. Smith, I do have a question for you. And I did see you offer 

a letter for the record; so just to clarify, it is my understanding 

that Commissioner Goodell testified that he sent you a letter in 

June asking you to support the league in your collectively bargained drug program against challenges under the Minnesota State 

law. 


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According to the Commissioner, you have not responded to the 

letter. Is that correct? And if so, why not? 

Mr. SMITH. No, that is not correct. 

There was a request, after the union filed their initial challenge 

in the Eighth Circuit, which challenged the procedure and the fairness of the applicability of the process. The Williamses retained 

their own lawyers. They filed a State law claim. It was during that 

claim that, for the first time, this issue of State preemption was 

raised by the individual lawyer on behalf of those players. 

What Mr. Goodell asked the union to do was to take a position 

against its players where they had raised the applicability of the 

Minnesota State drug-testing statute. We decided not to take that 

position against our own players. 

So I believe that is the issue to what you are referring to. The 

letter that I have is the joint statement issued by myself and 

Roger, saying that the NFL’s drug testing policy is still in effect, 

players will still be disciplined. 

And to follow up on—— 

Mr. RADANOVICH. That is not happening? 

Mr. SMITH. It is. Players are currently being tested. Players are 

currently being tested. Players are proceeding through the adjudication process. That process of this drug policy, Mr. Congressman, has not stopped. It has not stopped at all. 

Mr. RADANOVICH. Mr. Goodell. 

Mr. GOODELL. Yes. 

Well, I guess I ask a question: What happens if another player 

from Minnesota is detected to have violated our policy? My assumption is they would fall and go under the same claims that the 

Williamses did. 

Mr. RADANOVICH. And they would still be playing? 

Mr. GOODELL. I believe that is correct. 

Second of all, in the letter that I wrote to De—and I am not a 

lawyer, so I will profess to that up front. But it is specifically asks 

the plaintiff, NFL’s Players Association, that they submit an amicus brief in support of the league’s position on the Williams appeal 

on the applicability of State law. This was after the trial judge 

ruled in favor of the NFL and said that we followed the procedures 

by the policy, and it was before the Federal appeals court had 

made the decision in August. 

Mr. RADANOVICH. Thank you. 

Mr. Smith, what is your response to the fact that, as Mr. Goodell 

had mentioned, players were warned that the substance may not 

appear on the label of some of these products, but the warning was 

there that that may not be an excuse? 

Mr. SMITH. Sure. I would love to answer that question. I agree 

with Roger on one thing. The players’ safety and their health is important. And when we proceeded through—— 

Mr. RADANOVICH. If you could be specific to the question, and 

that is that you were warned that some of those substances may 

not appear on the label, but that really is not an excuse. 

Mr. SMITH. They are warned, and they are warned that what 

they take and put in their body they would be held responsible for. 

What our policy also includes is to have a doctor who is an independent administrator make a decision about what to do. And 


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when I found out that that independent administrator was told by 

a league lawyer to change his decision, that is a problem. When I 

am told that a lawyer is representing and advising a team about 

this issue on one day, and then turns around and now becomes the 

judge, jury and decision-maker for the players in the same issue, 

that is a problem. 

Mr. RADANOVICH. Thank you, Mr. Smith. Thank you. I don’t have 

a lot of time. 

I want to ask Mr. Tygart on that and your response to these exceptions; and then perhaps Mr. Goodell, if I can, after that. 

Mr. TYGART. And specifically on the warnings? 

Mr. RADANOVICH. Yes, to the fact that there is warning. 

Mr. TYGART. Yes, I think all players; certainly within the NFL’s 

program, what has been evidenced through the StarCaps case, the 

players were generally warned. And that is the approach that most 

leagues take. 

We all know that the industry is highly unregulated and there 

is the potential for dangerous drugs showing up in these dietary 

supplements, and players are on notice of that and they assume 

the risk if they take those. 

Mr. RADANOVICH. Mr. Goodell, could you respond to that plus the 

physicians weighing in on this and changing decisions? 

Mr. GOODELL. Yes. If I can just go back and just correct one 

thing on the record here. 

Our lawyers did not tell the independent doctor to change his decision. They told him to enforce the program. That is what they are 

supposed to do: enforce the program. That is first. 

Second, on your issue about warnings, even in the lengthy hearings that took place in the case with these five players—one player 

has since retired—each of those players recognized that they had 

been warned, that they were aware of the policy on supplements 

and that they could be tainted. They were fully cognizant of all of 

that; and in fact, the two players in Minnesota have a specifically 

negotiated provision in their contracts about weight loss that would 

result in a bonus if they made their weight loss. 

So they were fully aware of the fact that they were taking something the team would not approve. 

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

you very much. 

Mr. RUSH. The Chair now recognizes the gentleman from Louisiana, Mr. Scalise, for 5 minutes. 

Mr. SCALISE. Thank you, Mr. Chairman. There are a few things 

I am trying to get a handle on. 

Mr. Smith, if I can ask you, first of all, on the StarCaps case— 

and I am going to ask Mr. Goodell this, too, because there does 

seem to be a little bit of differentiation between what you are saying and what he is saying. 

But, first of all, in your testimony you said that—you made reference to players—I will quote—‘‘players who unknowingly took 

StarCaps.’’ Do you know of any players who took StarCaps without 

knowing it was StarCaps? How can you unknowingly take 

StarCaps? 

Mr. SMITH. It was unknowingly taking something that contained 

a banned substance. 


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Mr. SCALISE. They knew they were taking StarCaps? 

Mr. SMITH. Correct. 

Mr. SCALISE. They knew they were taking StarCaps. You are just 

questioning whether or not they knew the substance was—— 

Mr. SMITH. No, I am not questioning anything. I am saying, they 

did not know that it contained bumetanide. 

What we do know is that the league knew that StarCaps had 

bumetanide in it. What we also know, after testimony under oath, 

is that even though the league knew that it contained that substance, they did not tell the hotline, and the doctor who knew never 

told the players. 

Mr. SCALISE. And I am going to ask Mr. Goodell what the league 

knew because you made specific references to the league attorneys 

knowing this and withholding it. But earlier you also said—and 

both of you, I think, agreed on the policy—that a player is responsible for what goes into their body. 

So whether or not the league knew it—maybe the league didn’t 

know. If the league did or didn’t know it, and it did contain substances that are banned under the policy that ultimately, if your 

earlier statement, agreement by both parties, is that the player is 

responsible for what goes into their body, how does that mesh with 

maybe they took it, but they didn’t know something banned was in 

it? 

Mr. SMITH. I think the difference would be in what we consider 

to be not only absolute fairness but procedural fairness. 

This should not a ‘‘gotcha’’ game. 

When a doctor who advises players about their own safety knows 

that there is something in a pill that could hurt them—Mr. Goodell 

referred to Korey Stringer and the diuretics. So we lost a Minnesota player because of among other things, massive loss in body 

water. 

Mr. SMITH. So it does seem to me that when you have a doctor 

who, A, has a Hippocratic oath to first do no harm but also to help, 

when you have that doctor who is also the independent administrator of that program to make those decisions and that doctor 

knows, hey, there is something in this pill that could hurt people, 

the one thing that I would hope would happen is that doctor telling 

people that that is in it. And we know under testimony that that 

doctor knew. We also know under testimony that the league lawyer 

knew. 

So the challenge to those suspensions recognizes that, yes, players are responsible for what occurs in their bodies, but, at the same 

time, all of us would also agree that when you do have a collectively bargained drug program, the one thing that is implicit in 

that program is fairness. And that is why those suspensions were 

challenged, not only on those facts, about the facts that eight people who had tested positive for bumetinide previous to the Williams 

players were not punished. 

So when someone steps in and changes the decisional framework, 

changes that discretionary point from not punishing somebody on 

day one to punishing them later on, that’s when the players raise 

that claim as a violation. 

Mr. SCALISE. And I know my time is limited. Mr. Goodell, if you 

could—— 


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Mr. GOODELL. Yes, let me just go back again, because the chairman said at the outset of this hearing that we weren’t going to litigate something that’s already been litigated. 

As I stated before, the claims that DeMaurice are making here 

are exactly the points raised in their litigation. The trial court rejected them, and the appeals court rejected them. That is not why 

we’re here today. We’re here today to talk about the difference in 

Minnesota State law versus what is going to essentially gut our 

performance-enhancing program. That’s the core issue. 

The second issue is we make this extremely clear to our players 

at every opportunity supplements are unregulated and they can be 

tainted with products that are prohibited by our drug program. You 

are responsible for what’s in your body. We do not do product-byproduct warnings. As you saw, that does not do product-by-product 

warnings. 

This is something we have done collectively in our program. If 

we want to change the program, I am more than happy to sit down 

with our Players Association and try to figure out how we can 

strengthen our program. We have done that consistently since I 

have been Commissioner and even prior to my becoming Commissioner. 

Mr. RUSH. I’m sorry—— 

Mr. SCALISE. I yield back to the Chair. 

Mr. RUSH. The Chair now recognizes the gentleman from Georgia 

for 5 minutes. 

Dr. GINGREY. Mr. Chairman, thank you. 

I will direct my first question, Mr. Smith, to you. 

Mr. Smith, your predecessor, Gene Upshaw, made the following 

forthright statement before the Senate Commerce Committee in 

2005, and I quote, ‘‘We think we’re doing a very good job in the National Football League. We do not wait for anyone else to act. We 

want it off the field because our players believe that anyone who 

uses drugs are really cheaters. There is no room for cheaters in 

sports. It also affects the integrity of the game and integrity of the 

contest. We do not want cheaters in our sport and will do whatever 

we have to do to keep it out. We have had unanimous support from 

players on this issue.’’ That ends the quote. 

The result of the Minnesota litigation has been to stay the suspension of the players who did test positive. Despite the fact they 

cheated, they remain on the field and you intervene to support 

them. With your actions to intervene, is it incorrect to state the 

Players Association has departed from its previous position of 

unanimous support to get cheaters off the field as stated by Mr. 

Upshaw? 

Mr. SMITH. Mr. Congressman, that quote by Mr. Upshaw—I can’t 

remember it verbatim, but if you wanted to cross out or add my 

name to that quote, you can. I stand by everything that he said. 

At the same time, there isn’t a day, not a day, where Mr. Upshaw also didn’t believe in the fairness of the applicability of that 

same program. When he spoke about cheaters, he believed it. So 

do I. When he spoke about the support of our program, so do I. 

On September—I’m sorry, September of 2009, I wrote and agreed 

with Roger, it is important for all players to understand that the 

policy on anabolic steroids remains in place. I stand by that. We 


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did not depart from that at all. What we challenged, we challenged 

the health and safety issues as related to these players. We challenged the fairness of the applicability of that collectively bargained program. 

Dr. GINGREY. Mr. Smith, let me ask you this question then. Are 

you concerned about the signal sent to young athletes when the 

professional players and their union challenge positive drug tests? 

Mr. SMITH. I am only concerned if anyone believes that I don’t 

take this seriously. I am concerned if they believe that we don’t 

support our system. It is why on September of 2009 I agreed with 

the Commissioner and put out a statement that I support our program. 

Let’s be clear. Our program continues. People are currently tested. People are being adjudicated through the system. What I will 

challenge is if that system, so collectively bargained, is applied to 

them in an unfair manner. 

Dr. GINGREY. Let me continue with you, Mr. Smith, and I’m not 

picking on you. 

Mr. SMITH. No, it is all right. 

Dr. GINGREY. I wish I had enough time so I could also ask Mr. 

Goodell a line of questioning, but I need to continue this. Do you 

support, then, the NFL’s efforts to have the 8th circuit’s decision 

overturned? And, if so, why haven’t you filed a brief? And if not, 

why not? 

Mr. SMITH. That case, we are no longer in—we are not a party 

to that case. Roger indicated that the court ruled against us in our 

case. The Williamses have separate lawyers that have filed another 

case. We are not parties to it. 

What we have agreed to support is the existence and continuance 

of our policy. I believe in our policy, but I also believe that we have 

to get it right. If we’re in a situation where a doctor from the 

league knows that there is a substance in a pill and that doctor can 

make a decision not to tell our players, that is something we have 

to get fixed. 

Dr. GINGREY. Two more quick points. Do you support the Williams suit in the Minnesota State court? 

Mr. SMITH. I support—I support their right to pursue fairness. 

And what they are have claimed is they have claimed that the Minnesota State law was violated with respect to the league and the 

NFLPA’s drug-testing policy. Interestingly, the Williamses lawyer 

in that case has not identified what particular issues under the 

Michigan—I’m sorry, Minnesota State law that were violated, so I 

haven’t seen that yet. 

Dr. GINGREY. Mr. Chairman, I know I’m about to run out of time, 

but there is one last point I want to make, and I’ll do it quickly. 

Thank you so much. 

Mr. Smith, this will be my last question. Your predecessor, Mr. 

Upshaw, testified less than 2 years ago that a suspended player 

cannot sue in an effort to overturn a suspension. Since then, not 

only have players sued in their individual capacity, but the union 

has as well. Was Mr. Upshaw incorrect in his testimony before this 

committee several years ago? 

Mr. SMITH. Mr. Upshaw was a spirited leader of a great union. 

My guess is if that he knew that this policy was applied in an unVerDate Mar 15 2010 02:17 Aug 31, 2012 Jkt 074849 PO 00000 Frm 00180 Fmt 6633 Sfmt 6602 E:\HR\OC\A849.XXX A849

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fair way, he would seek any and all avenues to make sure that it 

was applied in a fair way. 

Dr. GINGREY. Mr. Chairman, thank you. 

Mr. RUSH. The Chair thanks the gentleman, and the Chair is 

willing to entertain a second round for a brief period of time. There 

are some questions that I have that I want to ask. 

Frankly, I would like to ask Mr. Goodell and Mr. Smith, Mr. 

Tygart, Professor Feldman and Dr. Standen, I’ll ask you this question. I don’t want to get too involved, too deeply involved in the details of the suspension of the two Minnesota Viking players. Our 

concern in this hearing, as I stated earlier, is the broader legal 

question of preemption and that was raised as a point as the case 

went through the courts. 

One detail of the StarCaps case I would like to discuss is the 

question of arbitration and appeals. When the Williams initially 

appealed their positive test, it was not heard by a neutral official. 

And under NFL rules it was heard by a representative of the 

league. 

Mr. Goodell, in retrospect, would it have made for sense for the 

NFL policy to require a neutral arbiter? Could that help avoiding 

this legal morass that we’re involved in? 

And I would like to ask again your comments on neutral arbitration, and I would like to ask Mr. Smith and others also the same 

question. 

Mr. GOODELL. Yes, this is not a decision that I made. This is a 

decision that came out of our collective bargaining. The arbitration 

system that we have was collectively bargained. It was agreed to 

roughly 25 years ago. It was agreed to multiple times as part of 

extensions of our collective bargaining agreement during that period of time. And I would submit to you that probably no arbitration system is perfect, but we have a collective interest in making 

sure that our policy has got integrity and credibility, and that’s 

how it was enforced, and that’s how we have stood by our program, 

collectively with our union. 

I would take issue with Mr. Smith about Gene Upshaw. As the 

Congressman points out, he has made it very clear here, players 

cannot sue against this agreement. Yes, he fought hard for his 

players, very hard for his players, and he respected them, but he 

respected the system. 

Mr. RUSH. I want to move forward. Mr. Smith, would you respond on the issue of neutral arbitration? 

Mr. SMITH. Sure. Baseball has a neutral arbitrator, basketball, 

neutral arbitrator. What Mr.—Mr. Goodell is right. This is a collectively bargained process. But where a league lawyer is advising the 

Minnesota Vikings on one day about the steroid issue and then on 

the next day sits in judgment of the players, that was a process 

that was challenged well before I became executive director. 

Where we have, according to the court’s ruling, a situation where 

a league lawyer informed the so-called independent administrator 

sometime in late 2006 or sometime in early 2007 that if a player 

tested positive for a banned substance, then assuming he had no 

therapeutic reason the player must be referred to the NFL for discipline. That was a change from what that independent administrator had done prior to that time. So to get to the point of your 


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issue, we collectively bargained a process that should have been 

fairly implemented. 

When we found out—— 

Mr. RUSH. I do understand exactly what you’re saying. But my 

point, and I ask Mr. Weiner this, going forward, is there a role for 

neutral arbiter, a neutral arbitration in these types of negotiations? 

Mr. WEINER. Absolutely, yes. Our program has always incorporated a neutral arbitrator as a fact finder. And I guess I would 

put it this simply. 

I think everybody at this table stands united against the use of 

performance-enhancing drugs, but you can be against the use of 

performance-enhancing drugs and still be in favor of fairness. And 

our view has always been that fairness requires adjudication of 

these matters by a neutral. 

Mr. RUSH. Mr. Tygart. 

Mr. TYGART. Yes, we’d add that. And we agree, obviously, due 

process is an important aspect. Because there are several different 

rights of athletes that you are dealing with through the arbitration 

process, and we do have external arbitration process as the dispute 

resolution over doping cases in the Olympic movement. 

But the rights are of the accused. So is there the opportunity to 

have notice of the charge, cross-examine witnesses, have a wellwritten, reasoned decision? But there is also the rights of all the 

other clean athletes out there who have to be equally balanced in 

this analysis. Ours goes to independent arbitration, the NFL’s obviously has gone to the Commissioner as designee, and you see the 

result of that in this case. 

Mr. RUSH. Professor Feldman. 

Mr. FELDMAN. I would agree. I think there is no question that 

the best result is to have a neutral arbitrator. You don’t always get 

the best result as a result of a collective bargaining agreement. You 

get a compromise. I think here the compromise was not a neutral 

arbitrator. I think they would be better off with a neutral arbitrator, but that’s for the parties to decide. And I don’t think anyone 

here is in favor of interfering with the collective bargaining process. 

Mr. RUSH. Professor Standen. 

Mr. STANDEN. Yes. First, I would state that whether there was 

a neutral arbitrator or not in this case would not have changed the 

results in the 8th Circuit Court of Appeals. So it wouldn’t matter 

in that regard. But I can understand why the parties would agree 

to have someone inside the Commissioner’s office to arbitrate the 

claims. The insider knows the story better, knows the industry. 

And so it can make sense for parties sometimes to have arbitration 

done by a non-neutral, non-outside party. Whether they do that or 

not of course is up to the parties. 

Mr. RUSH. I want—Mr. Goodell, we are at a point of impasse, it 

seems. I hope not, but it is pretty obvious that there is some definite lines of demarcation that exist, and I’m not sure how permanent they are. What do you see going forward? How do you see— 

are you going to wait until the court process and the litigation 

process is over? How do you see the future? 


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Mr. GOODELL. No, we are going to continue to defend, as I said 

in my opening statement, our program in the Minnesota State 

court. We will defend that vigorously, as I said in my opening. 

In addition, just as recently as 2 weeks ago, we made proposals 

to the union about how to strengthen our program, our drug program. So we will continue with the collective bargaining process. 

The issue here though, Mr. Chairman, as you properly brought 

out and was just raised, this can’t be solved by the collective bargaining process. This issue was created by the NFLPA, it is exacerbated by the CBA, and now they don’t know how to fix it. 

The problem is this has gotten beyond the control of the two parties to negotiate in collective bargaining. That is why your committee is looking at this; and that is why we believe some narrow, 

tailored legislation would be appropriate. 

Mr. RUSH. The Chair now recognizes the gentleman from Georgia. 

Dr. GINGREY. Commissioner Goodell, in your testimony, you summarize the history of the NFL’s policy on performance-enhancing 

substances and the partnership the league has had with the NFL 

Players Association on the issue since the early 1990s. Unfortunately, as you outlined, the case involving two Minnesota Vikings 

testing positive for the masking agent bumetinide—I’m the only 

doctor up here, and you guys all can pronounce it correctly, and I 

can’t. Hopefully, that was close enough. Did that masking 

agent—— 

Let me start over. Unfortunately, as you outlined, the case involving two Minnesota Vikings testing positive for the mask agent 

undermines the ability of the league to enforce the very policy that 

was negotiated with the NFL and the Players Association. We have 

already seen ramifications of this due to the fact that the players 

from the New Orleans Saints have not been formally suspended for 

testing positive for the same masking agent, simply because Louisiana has different laws in Minnesota. Because the NFL has not 

been able to carry out the suspension of these players, the Saints 

players, are there other instances to date to which you can point 

where the outcome of this StarCaps case hinges on other suspensions or are there examples where the league is now hesitant to 

carry out the drug-testing policy because of purported inequitable 

treatment? 

Mr. GOODELL. Well, not specifically right now. But, as you point 

out, you cannot have an effective, credible program for anti-steroid 

use and have the integrity in that program if players are subject 

by different States to different standards. You just cannot do it. 

And that is the issue that is at hand today. We have to have the 

ability to enforce a program across all 50 States, allow every player 

in the NFL and other sports to be subject to the same fairness, the 

same standards, the same policy and, if necessary, the same discipline. That is at the core of what’s going on here, and that is why 

the letter that DeMaurice refers to I asked DeMaurice if he would 

sign with me, because of the doubt and the uncertainty that presented by the StarCaps case. 

It created doubt in the player’s mind. Do we have a program? If 

I’m in Minnesota, am I subject to the same policy? 


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And they will probably take that defense. If a player in Minnesota is caught, whether it is in baseball or football or another 

sport, we will probably come in and try to use the State laws of 

Minnesota to protect them. That is not managing and adhering to 

a policy in a consistent and uniform businesses. 

Dr. GINGREY. Real quickly, let me ask you a series of questions. 

Did the Players Association agree to the drug policy program, including the process for appeal? 

Mr. GOODELL. Absolutely. Multiple, multiple times, Congressman. 

Dr. GINGREY. Has the Players Association ever challenged a suspension before? 

Mr. GOODELL. In our appeals process, yes; not outside of the appeals process that I am aware of. 

Dr. GINGREY. Do you know why they challenged this one? 

Mr. GOODELL. I take Mr. Smith at his word. 

Dr. GINGREY. Can State laws that offer employees the right to 

explain positive test results indicating they took a banned substance effectively give every player a free pass to take banned substances if the NFL drug policy is not upheld? 

Mr. GOODELL. I know this, Congressman. What we’d be doing is 

deserting the principle that DeMaurice said at the beginning, and 

I stated, that every player is responsible for what’s in their body. 

If we allow people the excuse, you will inherently damage the 

credibility of your program. 

And I use an example. When you’re talking to your son about 

drinking and driving, you have to give that individual, you are responsible for what’s in your body. You may not drink beer, you may 

not drink vodka and soda, but if you drink punch and there’s some 

type of liquor in there and you’re driving, you’ve violated the law. 

You’re responsible for that, and you have to recognize that principle. 

And I do not want to desert that principle, and I don’t believe 

anybody up here who wants to have an effective program should 

desert that principle. 

Dr. GINGREY. Does the Minnesota State law recognize WADA, 

the World Anti-Doping Agency, certified labs outside Minnesota for 

the purpose of meeting their State requirements? 

Mr. GOODELL. I don’t believe they do, Congressman. 

Dr. GINGREY. Mr. Smith, do you know the answer to that? 

Mr. SMITH. I don’t know. 

Dr. GINGREY. Mr. Chairman, I thank you; and I yield back at 

this point. 

Mr. RUSH. The Chair has a couple of other issues. I want to say 

this, and I want to say this with all sincerity. We are very much 

concerned, as you know, about this drug policy and any violations 

of it. We are concerned about the safety of your players, the safety 

of America’s youth. We are concerned about fairness on the filed 

and in other arenas. 

It certainly is within the realm of our responsibilities to come up 

with legislation to address this problem, but it would be something 

that we would do only as a last resort. We’re not anxious to get 

involved legislatively here. We really want to see the parties work 


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this out and try to come up with some kind of resolution to this 

particular issue. 

The question that I have is, Mr. Goodell, have you all gone to the 

Minnesota legislature and asked them to change the State law? 

Have you all used that as an option? 

Mr. GOODELL. We can certainly do that. It doesn’t prevent another State from changing their law and gutting the program in 

the same fashion. So I don’t believe that’s a fix. It may fix this 

hole, but there will be two or three others that will develop on the 

side. 

Mr. RUSH. It seems as though the Players Association and the 

League, their lobby heads—— 

Professor Feldman, I watched your body language as you have 

listened to the testimony, and it seems to me that you might have 

something to say that would be able to help us get out of this dilemma that we’re in. Can you offer this committee and your fellow 

witnesses any insight into how do we resolve this without Federal 

intervention or Federal legislation? 

Mr. FELDMAN. First, I’ll have to be careful with my body language in the future, but I think that, whether we call it a potential 

problem or a small current problem, it is still a narrow problem. 

We have the Minnesota laws. I think it is easy to make an argument that those laws do not apply to the NFL’s performance-enhancing drug-testing policy. I think it is easy. I think you can win 

that case in State court. If you lose, I think you can make a very 

persuasive argument that the State legislature should change the 

laws. 

Now the Commissioner just said, well, that is just doing it one 

State at a time and then another State can pass a law and another 

State can pass a law. Well, looking at the actual reality, there are 

only two other States right now, as has been mentioned, Maryland 

and North Carolina, that have State statutes that might conflict. 

In addition to those two States, plus Minnesota, only two other 

States even have mandatory drug-testing regulations that would 

impact the NFL. Only five have regulations whatsoever. Only three 

of those conflict. 

It may be the case that down the road some other States may 

add regulations and those regulations may conflict with the NFL, 

but there is no reason to believe they will. There is no reason to 

believe that any of the current State legislation is intended to deal 

with the NFL. So there is no reason to believe that any States will 

come up with new legislation. 

So I think the better fix here is the narrow fix. Go to the Minnesota State legislature and say, your laws are creating this potential problem, clarify your laws, make it clear that they are not intended to apply to the NFL. That’s exactly what the Louisiana statute says. I don’t see why other statutes couldn’t do it. 

Someone had mentioned earlier the choices, either Minnesota 

modifies their laws or professional teams thinking about leaving 

the State. I think there is no question what the Minnesota legislature would do. And it is not forcing them to do anything. It is just 

saying, modify your law, make it clear. You want to protect your 

employees from recreational drug testing, do that. Just don’t interfere with what the professional sports leagues are doing. 


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Mr. RUSH. I want to thank all of witnesses for your interest, your 

intensity and the time that you have given this committee. I really 

look forward to working with you and this committee looks forward 

would working with you to try to resolve this issue. 

I believe that if, in fact, this became more of a one, two or three 

matter, then the Congress would rush—no pun intended—to solve 

the problem and to provide for some type of legislative remedy, 

some type of preemption. But, right now, I think we’re reluctant to 

do that. But, at the same time, we are concerned about the effects 

of this, and we want to keep a wary eye on this procedure and on 

this process, and we want to work with the Players Association and 

with the NFL to try to encourage you to come up with a remedy 

to this problem and come up with it fairly quickly. This is not an 

issue that we can take a lot of time on, because it sends—and is 

currently sending—the wrong message to far too many people. 

I have to commend the NFL for coming to the Congress and asking us to intervene. Mr. Goodell, when you were in my office, you 

asked us to intervene. I think that was a proper and responsible 

thing to do. 

Again, we will be looking at this issue. If legislation is necessary, 

we love to write laws, so we won’t hesitate to write them, but I 

think we need to go slow on this. And I’m going to ask—simply request that the Players Association and the NFL you all get together and try to work this thing out, if you possibly can. 

You don’t want to have 435 Members of Congress writing a law 

that will have in any way some immediate conduct and effect on 

your players. Because you never can tell. We might come up with 

some laws that might prohibit—put a ceiling on salaries. You don’t 

want us to get involved in this. You can’t tell what Members of 

Congress will ultimately do once you open up this Pandora’s box. 

So I just would ask that you all try to work this thing out. Ask— 

what’s his name? Rodney—ask Rodney King for some advice. Can’t 

we all get along? 

Thank you so very much. This committee stands adjourned. 

[Whereupon, at 2:28 p.m., the committee was adjourned.] 

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