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STEROID USE IN PROFESSIONAL 

AND AMATEUR SPORTS 

HEARING 

BEFORE THE

COMMITTEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

UNITED STATES SENATE 

ONE HUNDRED EIGHTH CONGRESS 

SECOND SESSION 

MARCH 10, 2004 

Printed for the use of the Committee on Commerce, Science, and Transportation 

( 

(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED EIGHTH CONGRESS 

SECOND SESSION 

JOHN MCCAIN, Arizona, Chairman 

TED STEVENS, Alaska 

CONRAD BURNS, Montana 

TRENT LOTT, Mississippi 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

SAM BROWNBACK, Kansas 

GORDON H. SMITH, Oregon 

PETER G. FITZGERALD, Illinois 

JOHN ENSIGN, Nevada 

GEORGE ALLEN, Virginia 

JOHN E. SUNUNU, New Hampshire 

ERNEST F. HOLLINGS, South Carolina, 

Ranking 

DANIEL K. INOUYE, Hawaii 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

JOHN B. BREAUX, Louisiana 

BYRON L. DORGAN, North Dakota 

RON WYDEN, Oregon 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK R. LAUTENBERG, New Jersey 

JEANNE BUMPUS, Republican Staff Director and General Counsel 

ROBERT W. CHAMBERLIN, Republican Chief Counsel 

KEVIN D. KAYES, Democratic Staff Director and Chief Counsel 

GREGG ELIAS, Democratic General Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on March 10, 2004 ............................................................................ 1 

Statement of Senator Allen ..................................................................................... 3 

Statement of Senator Breaux ................................................................................. 6 

Statement of Senator Burns ................................................................................... 5 

Statement of Senator Dorgan ................................................................................. 4 

Statement of Senator Fitzgerald ............................................................................ 8 

Statement of Senator Lautenberg .......................................................................... 7 

Statement of Senator McCain ................................................................................. 1 

Statement of Senator Nelson .................................................................................. 50 

Statement of Senator Rockefeller ........................................................................... 2 

Statement of Senator Smith ................................................................................... 8 

Statement of Senator Sununu ................................................................................ 6 

WITNESSES

Biden, Hon. Joseph, U.S. Senator from Delaware ................................................ 9 

Fehr, Donald M., Executive Director, Major League Baseball Players Association ........................................................................................................................ 21

Prepared statement .......................................................................................... 24 

Madden, Terry, Chief Executive Officer, United States Anti-Doping Agency .... 12 

Prepared statement .......................................................................................... 15 

Selig, Allan H., Commissioner, Major League Baseball ....................................... 27 

Prepared statement .......................................................................................... 30 

Sweeney, Hon. John E., U.S. Representative from New York ............................. 11 

Tagliabue, Paul J., Commissioner, National Football League ............................. 20 

Upshaw, Gene, Executive Director, National Football League Players Association ........................................................................................................................ 16

Joint prepared statement of Gene Upshaw and Paul Tagliabue .................. 18 

(1) 

STEROID USE IN PROFESSIONAL 

AND AMATEUR SPORTS 

WEDNESDAY, MARCH 10, 2004 

U.S. SENATE, 

COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m. in room 

SR–253, Russell Senate Office Building, Hon. John McCain, Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. JOHN MCCAIN, 

U.S. SENATOR FROM ARIZONA 

The CHAIRMAN. Good morning. The purpose of this hearing is to 

examine not only whether the drug testing procedures of professional and amateur sports organizations serve the best interest of 

the organizations, their players, and their respective sports, but 

whether they serve the best interest of the public. 

I welcome the witnesses who are appearing before the Committee 

today, and I thank those who made special arrangements to be 

here. 

As Chairman of this Committee, which has oversight authority 

over amateur and professional sports, and, more importantly, as a 

parent, let me be clear, there are real consequences to demanding 

anything less than clean professional and amateur sports. The failure to insist on stringent drug-testing policies damages the integrity of the games, calls into question records set by those suspected 

of using performance-enhancing drugs, and puts in peril the health 

of the athletes who play the games. But most worrisome is the poor 

example set by professional and amateur athletes in the eyes of the 

kids who idolize and emulate them. 

Some may have doubts about the powerful effect that athletes 

have on the lives of kids. Let me remind them of the five-fold increase in the sales of androstenedione, known as andro, that occurred after Mark McGwire admitted to using the substance in 

1998 while chasing Roger Maris’ home-run record. 

As everyone here knows, the health consequences associated with 

the use of steroids and other dangerous performance-enhancing 

substance are dire. Medical experts warn that the effects on kids 

include stunted growth, scarring acne, hormonal imbalances, liver 

and kidney damage, as well as an increased risk of heart disease 

and stroke later in life. Psychologically, steroids have been associated with increased aggression, suicide, and a higher propensity to 

commit serious crimes. 

2 

That said, I am not naive about the pressures of professional and 

world-class amateur sports. Successful athletes are, by their nature, extremely competitive and always on the lookout for what 

gives them a performance edge. Just as important, financial concerns make drug-testing policies a distant second, behind the bottom line of all parties involved. But it’s clear that we’ve reached 

a tipping point in the doping debate, where the use of performanceenhancing drugs can no longer be brushed aside. How exactly we 

deal with this doping epidemic is something I’m looking forward to 

discussing with the witnesses and with others. 

Let me raise one recent example of the type of the activity that 

concerns me. Recently, there have been volumes of press reports 

concerning a small laboratory in San Francisco that was raided by 

law enforcement. The U.S. Attorney’s Office in Northern California 

alleges that the company, known as BALCO, was supplying performance-enhancing substances to prominent professional and 

amateur athletes. It’s been reported that BALCO provided substances to athletes that were specially designed to evade positive 

drug-test results. 

These reports have raised several disturbing questions. For example, should we be concerned that we may be sending an Olympic 

team to Athens later this year that we know is comprised of athletes who cheated? Will the home runs hit this summer owe their 

distance to talent and training, or to steroids? Will we be able to 

look at players who have shrunk noticeably since the end of last 

season without indicting those players in our minds? Will records 

in both professional and amateur sports continue to fall to those 

who covet success over merit, to those who deserve, at the very 

least, an asterisk next to their name in the record books? 

Whatever the answers to these questions are, no reasonable person would disagree that using a performance-enhancing substance 

to gain a competitive edge over an opponent is cheating. Sports organizations that allow athletes to cheat through weak drug-testing 

regimes are aiding and abetting cheaters. This cheating, and the 

negative effect it has on the integrity of our games and our athletes, is shameful. 

Each of you, and particularly major league baseball, has a legitimacy problem. As your athletes get bigger and stronger, the credibility of your product in the eyes of the public gets weaker. I’m 

hopeful that this hearing will be the first step toward clearing the 

cloud of suspicion that moves ominously over your sports. 

I thank the witnesses, again, for being here. I ask the Committee, because we have very important witnesses, to make their 

opening statements brief. 

Senator Rockefeller? Brief opening statements, please. 

STATEMENT OF HON. JOHN D. ROCKEFELLER IV, 

U.S. SENATOR FROM WEST VIRGINIA 

Senator ROCKEFELLER. Mr. Chairman, you said it, Roger Maris 

still holds the home-run record. I’ve been a baseball fan since I was 

6 years old, and there’s no question in my mind about that. 

I’m grateful for the people who are here. I should say, in honesty, 

that my son has the good fortune of being married to the daughter 

of Commissioner Tagliabue, and I’m also—if I said anything about 

3 

him this morning, I was going to praise what the NFL is doing, but 

I’m not going to say that, but I just wanted that record to be clear. 

I agree with the Chairman that what this does is very bad, the 

use of steroids, other performance-enhancing drugs, they have no 

place, at any time, ever, in baseball. It’s interesting that we’ve just 

come to this. It’s like a national explosion all of a sudden. And 

sometimes the Congress is late to that, but when the Congress gets 

to it, it usually is fairly serious about it. 

I know that there are a lot—and most, the great majority of, athletes don’t do that. But, nevertheless, I have to notice that an enormous number of major league baseball players tested positive for 

steroid use. It s about ten times that of the Olympic athletes. The 

NFL’s positive rate is one-tenth of 1 percent, about 10 to 12 players 

a year out of 2,500 tested. And I could go on, on that. 

Major league baseball doesn’t test in the off season. How can 

that possibly be? That’s when the training goes on. Baseball players are tested only twice each year. So, you know, that’s easy to 

work around. 

I blame the union. The union, I think, over the years has been 

very destructive on this. They’re not helpful. I blame management. 

I blame the administration of the league for not cracking down on 

what is such an obvious problem, which is an embarrassment to 

the United States, which is hurtful to fans all over the country, and 

which is a terrible thing for the young people of our country. And 

I also blame the agents and the doctors. 

For those various reasons, I would conclude simply by saying 

that USA Today’s baseball weekly reported that one out of every 

three players who tried out for the 2000 United States Olympic 

baseball team, mostly college and minor league players, tested positive for steroids. That’s disgusting. That’s disgraceful. That’s 

shameful. But it is true. Steroids used by professional Olympic athletes goes down to the college and, as the Chairman said, ‘‘on down 

and down.’’ 

I also believe it is true that minor league baseball has a very different program, and they’re much more aggressive. Major league 

baseball is much more aggressive than minor league baseball. And 

it interests me that the minor league baseball, as far as I know, 

is not represented by the union; hence, my concern on that subject. 

Mr. Chairman, I’ll have more in my questions, but I wanted to 

express my great displeasure, as a fan, as an American, and as a 

Senator, for what is going on, particularly in major league baseball. 

And, obviously, the breaking of a guy’s neck last night in hockey 

is a different subject, but that is not what we’re here for today. 

Senator BROWNBACK. Senator Allen? 

STATEMENT OF HON. GEORGE ALLEN, 

U.S. SENATOR FROM VIRGINIA 

Senator ALLEN. Thank you, Mr. Chairman. I think this is a very 

timely hearing. Yesterday, this Committee was discussing legislation dealing with the halftime show at the Super Bowl. Today, 

we’re dealing with why people care about watching the Super Bowl, 

and that’s actually football, and the integrity of the game. The reason people care about football is they love to see the players, they 

love to see the teams, they love the strategies, the tactics, the ofVerDate Nov 24 2008 11:40 Nov 02, 2012 Jkt 075679 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\DOCS\76456.TXT JACKIE
4 

fensive plays, the defense, and the adjustments, the motivations, 

and the performance. In football, Mr. Chairman, and, indeed, in 

professional sports, since the days of desegregation and integration 

of sports, why Americans love sports and team sports is they are 

a meritocracy. Everyone has an equal opportunity to compete and 

succeed based on their own hard work, their own self discipline. 

The coaches, as far as the judge of talent, the deployment of plays, 

strategies, tactics, and all the rest. But it is all on what everyone 

loves to call a level playing field. 

This issue of steroids, the illegal use of steroids, threatens the essence of the games that we so much admire and love. And, as the 

Chairman said, in your very eloquent, strong remarks, which I 

completely agree with, this is affecting three levels. Number one, 

the integrity of the game, which is absolutely essential for people 

to enjoy it, for it to have credibility. You talked about an asterisk 

next to certain records. You know, you may be a question mark. 

There may be an ‘‘Rx’’ next some of these records, particularly in 

baseball, as Senator Rockefeller mentioned. But really the concept 

of fair play, honesty, and integrity are at stake. 

Second, as the Chairman said, the message to young people. 

Sports are highly competitive, but you want to have it in such a 

way that the young people aspiring to be football players, basketball players, baseball—which ends up being all over the world— 

hockey, any of these sports, it’s important that youngsters recognize the importance of fair play, of self discipline, and doing it 

without performance-enhancing drugs. 

And, third, darn it, the unions, in my view—and I certainly do 

believe the NFL Players Union—the unions ought to care about the 

health of their players, of their members. I cannot imagine any sort 

of a union, supposedly representing the players, who would want 

to shorten, literally shorten, the lives of players because of the competitive edge—in a roundabout way, they are responsible for what 

they take into their bodies, but in competition some of them are 

forced or induced, encouraged, or have to, just to compete, take 

these drugs and, thereby, lessen and shorten their lives. 

We have many great witnesses here, Mr. Chairman. The one 

who’s especially an outstanding one for perspective here is Gene 

Upshaw, an outstanding player, Hall of Fame player. He understands the temptations, the competition, what it means to compete 

and succeed, and he did it the right way. He is also the one, and 

people like him, who will be able to get that message to youngsters 

that this is the way to have a successful career. 

And so I thank you, Mr. Chairman, for having this hearing. I 

thank our witnesses, look forward to their testimony and cross-examination, as well. 

The CHAIRMAN. Thank you very much. 

Senator Dorgan? 

STATEMENT OF HON. BYRON L. DORGAN, 

U.S. SENATOR FROM NORTH DAKOTA 

Senator DORGAN. Mr. Chairman, thank you very much. 

A few years ago, in June, I held a hearing—I chaired a hearing— 

and you, Mr. Chairman, were there at the time. It was a Subcommittee meeting of this Commerce Committee. And we did it on 

5 

this subject. And I must say, regrettably, little has changed in this 

two-year period. 

I went back last evening to re-read the transcript of that hearing, 

because we have some of the same people here today who testified 

2 years ago. And, you know, I almost—you read the papers and 

read the journals about what’s going on with respect to these scandals of performance-enhancing drugs and steroid use, and you remember the little boy’s plaintive cry, ‘‘Say it ain’t so, Joe.’’ 

This is a wonderful game, with remarkably gifted athletes. And 

I don’t, for the life of me, understand why some in baseball, the 

Players Union and others, have—again I get this from my re-reading the testimony last evening—why they have decided that they 

will not test for performance-enhancing drugs, as they do in football. 

We will have, I think, testimony today from some wonderful witnesses. I’m going to ask some questions based on my re-reading of 

the transcript, last year—two years ago. And let me say, again, the 

reason this hearing is important—yes, it’s about the health of athletes, but it’s also about a doctor testifying, 2 years ago at this 

table, who said fifth-graders are now seeking out and using these 

kinds of performance-enhancing drugs—fifth-graders, sixth-graders, eighth-graders. Why? Because they see others do it, and that’s 

the way you get to the big leagues. And the fact is, if we don’t put 

a stop to this, and if we don’t decide to tell the American people, 

and have baseball tell their players, that this is a game that’s free 

of performance-enhancing drugs, it’s free of steroids, then we’ll ruin 

this game, and we’ll ruin the health of a whole lot of kids that look 

up to the stars in this game. 

The CHAIRMAN. Senator Burns? 

STATEMENT OF HON. CONRAD BURNS, 

U.S. SENATOR FROM MONTANA 

Senator BURNS. Thank you, Mr. Chairman. And thanks for this 

hearing. 

Let me associate myself with the remarks of my Chairman. I 

don’t think anybody could have put it any better, and there’s no 

doubt that this issue has risen to the level of intensity of the hearing that we had yesterday. And, of course, everybody knows what 

that was; that was halftime at the Super Bowl this year. 

The CHAIRMAN. We have a lot of fun on this Committee. 

Senator BURNS. Yes, we sure did. 

[Laughter.] 

Senator BURNS. I’ve never seen so much confusion in my life, and 

we all voted that way, too. 

And what I would say, both instances tend to denigrate the dual 

roles that athletes play in our society. It is that that concerns me 

most. Athletes must assume the responsibility of being a role 

model, just as he or she was blessed with great athletic ability, 

they are paid well, way above anything that we can conceive in this 

country, and yet some opt to be thugs. And the responsibilities of 

the role that they have are shirked by the athletes. They disregard 

the message that they send, and they should be denied the access 

to the pedestal that they have sought. 

6 

It just absolutely astounds me sometimes how people can make 

so darn much money, and they say, you know, all the crime that 

we have in our country starts with the poor people, in areas of 

great poverty. Well, you know, I don’t buy that, because I think we 

have the same problem at the highest levels of our income, especially with our paid athletes. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much. 

Senator Breaux? 

STATEMENT OF HON. JOHN B. BREAUX, 

U.S. SENATOR FROM LOUISIANA 

Senator BREAUX. Thank you very much, Mr. Chairman. And 

thank all of our witnesses for being with us. 

Some might ask, well, why is Congress involved in this at all? 

I mean, why not let the industry and the sports authorities take 

care of this problem internally? Why is Congress even looking at 

this? And I think the answer is that when something as important 

as professional sports are in this country, when the subject becomes dominant, not who’s got the best batting average or who’s 

been traded or who’s likely to win, but the subject becomes, obsessively, who’s taking drugs and who’s not, who’s cheating and who’s 

not, who’s doing illegal things and who’s not, then that becomes an 

interest that permeates outside the sport itself. It becomes a national issue. It becomes an issue of concern to the American public 

and the American people. And I think that we have reached a point 

where the discussion of the use of steroids in particular, and enhancing drugs in general, have become so pervasive, particularly in 

professional athletics, like baseball, that it is a true national issue. 

And I think Congress has a responsibility to say that, look, it’s not 

just negotiation between the union and the owners. It’s more than 

that. It’s a national sport that’s televised over the national airways, 

and literally millions and millions of people are affected by the activities of professional athletes and their performance of their duties and their jobs. 

So it is—steroids are cheating, steroids are illegal the way 

they’re being abused and used. And I think the general public has 

an interest, a legitimate interest, in doing what is essentially necessary to prevent this. And I think that this hearing is extremely 

important in that regard. 

Thank you. 

The CHAIRMAN. Thank you, Senator Breaux. 

Senator Sununu? 

STATEMENT OF HON. JOHN E. SUNUNU, 

U.S. SENATOR FROM NEW HAMPSHIRE 

Senator SUNUNU. Thank you, Mr. Chairman. 

The reluctance of the acceptance of a rigorous system of testing 

for steroids, it affects the integrity of the game, it affects the credibility of everyone involved. But to Senator Breaux’s question about 

the national implications, it affects the health of all of the players 

in the professional system. It has significant health impacts in the 

long term on all of those that look to professional athletes as role 

7 

models. And I think that’s the fundamental reason that we’re here 

today. 

The Chairman’s done a great job of putting together a very 

strong panel, and I look forward to the testimony. 

The CHAIRMAN. Senator Lautenberg? 

STATEMENT OF HON. FRANK R. LAUTENBERG, 

U.S. SENATOR FROM NEW JERSEY 

Senator LAUTENBERG. Thanks, Mr. Chairman. 

First of all, I want to make sure that credit is given to the state 

of New Jersey, where baseball was invented. And——— 

Senator BIDEN. Are you claiming steroids? 

[Laughter.] 

Senator LAUTENBERG. Steroids? No, we didn’t have—we ate spaghetti and meatballs, and that did it for us. 

[Laughter.] 

The CHAIRMAN. Senator Lautenberg, we have a five-minute rule 

here. 

Senator LAUTENBERG. Well, if I’m going to debate Senator 

Biden—— 

[Laughter.] 

The CHAIRMAN. That would be a long debate. 

[Laughter.] 

Senator LAUTENBERG. The subject is really a critical one. And, 

Mr. Chairman, I will spare the audience and the Committee by 

asking that my full statement be included in the record. 

The CHAIRMAN. Without objection. 

Senator LAUTENBERG. But I do want to say a couple of things. 

Number one is, while I am shocked, as the rest of my colleagues 

are, at baseball’s apparent leniency to the use of steroids and precursor drugs. And it’s hard to understand why it is we can’t get it 

stopped. And if the union is concerned about the rights of the ballplayers, we ought to talk about that. But, on the other hand, baseball is really a public endeavor, and that’s what we want to do. We 

want to engage the fans and engage television and engage so many 

different parties to watch it. And then we talk about the terrible 

effects of steroids and what it does to children who are induced by 

their view of the glamour of the sport to taking these things. It’s 

an outrage. 

And I know that it’s very hard—I did a lot of anti-smoking legislation—to say, you know, if you start now, it feels good, but if you 

can look ahead a few years, which is very tough, then you put that 

aside and you say, ‘‘Well, we’ll give it a try.’’ And the notion that 

a ballplayer—in any of the sports, a player can extend their contract life by a year or two when the stakes are so high is very 

tough to fight. But it’s a fight we have to win. It’s a fight that we 

can no longer accept as part of the norm. 

And while I would hope that the parties can all agree that we 

ought to get together on this fight, I would say to baseball and our 

friend, Bud Selig, you’ve got to have a program, an education program, just like we did with tobacco, just like we did with other 

things, to inform the players about what, ultimately, harm they do 

to themselves and their families if they continue with this. 

Thank you, Mr. Chairman. 

8 

The CHAIRMAN. Thank you, Senator Lautenberg. 

The CHAIRMAN. Senator Smith? 

STATEMENT OF HON. GORDON H. SMITH, 

U.S. SENATOR FROM OREGON 

Senator SMITH. Thank you, Mr. Chairman. 

I, as with other colleagues, would like to be associated with your 

opening remarks. I’m here at this hearing because of a lifelong love 

of the game of baseball. In fact, as I was reflecting this morning, 

coming to work, one of the earliest memories I have of life was 

watching Mickey Mantle beat my beloved Washington Senators in 

Griffith Stadium, with a home run that he hit out of the park. I 

grew up with these legends, and admired them, and am distressed 

now, having watched so many games with my children, and thrilled 

to watch the great records of Babe Ruth and others fall in our time, 

only to wonder now if those record-breaking feats deserve an asterisk by them. 

I’m deeply concerned about the health of our game. I don’t understand why the minor leagues have a higher standard than the 

major leagues. And I would plead with all who love baseball, players and owners, to respond to this issue of integrity and its impact 

not just on their game, but on the children of this country. I understand the need for privacy. But, in the balance, integrity for this 

game, for the future, I think, is the weightier issue. 

Thank you. 

The CHAIRMAN. Thank you. 

Senator Fitzgerald? 

STATEMENT OF HON. PETER G. FITZGERALD, 

U.S. SENATOR FROM ILLINOIS 

Senator FITZGERALD. Thank you, Mr. Chairman. 

I just want to say that I have a 12-year-old son, whose—well, 

he’s almost 12—whose life, at this stage, is baseball and other 

sports. And he’s heard the rumors of steroid use by some of the 

stars that he admires so much, but he refuses to believe them. He 

always tells me, ‘‘Dad, they’re just lifting weights.’’ And I’m glad 

he thinks that way, because I want him to have heroes in life. 

But I’m not sure that the Players Union, with their position, understands the damage they could be doing by not allowing a tougher drug-testing policy in the major leagues. We have to have it. I 

would think probably 70 or 80 percent of the players themselves 

would favor a tougher drug testing policy. 

And I’m anxious to hear from Mr. Fehr, of the Players Union, 

why it is that he’s taken such a strong stance against a tough drugtesting policy, because I fear he’s really hurting the game of baseball, and I’d like him to reconsider and go down the route that the 

NFL players have. 

So, with that—and thank you, Mr. Chairman, for doing this 

hearing. 

The CHAIRMAN. Thank you, sir. 

We’re pleased to have Congressman Sweeney and Senator Biden. 

And I would remind both that we have a five-minute rule here. 

We’re pleased to have you be here today with us, and we thank 

you. 

9 

And if it’s OK with you, Mr. Sweeney, we always start with the 

oldest witness here. I’m sure you understand. 

[Laughter.] 

The CHAIRMAN. You understand that? 

Senator Biden? 

Mr. SWEENEY. I’m happy to defer. 

STATEMENT OF HON. JOSEPH BIDEN, 

U.S. SENATOR FROM DELAWARE 

Senator BIDEN. Mr. Chairman, Senator Hollings, who I’ve spoken 

to earlier this morning, and my colleagues, thank you for having 

this hearing to examine the use of performance-enhancing drugs in 

professional and in amateur sports. And thank you for allowing me 

to testify. 

In a moment, Mr. Chairman, as I told you yesterday, I—it’s truly 

coincidental, but my university, University of Delaware, my alma 

mater, won the National Football Championship in Division 2, and 

they’re all down here today, and some will be here. And I think it’s 

kind of interesting that, you know, we have, for example, a couple 

young All Americans that are going to be here, a kid named Mondo 

Davis, a kid named Sean Bliler, and a lot of other kids who have 

broken their backs and their necks and are proud of their accomplishments. 

And I think back when I, in 1990, introduced the first anti-steroid bill, back in the days when I was Chairman of the Judiciary 

Committee, and it was to make anabolic steroids illegal. And we 

had the same kind of thing, Mr. Chairman; nobody would come forward, like the Players Union now are the last holdouts, until Joe 

Paterno, who was then in his heyday and winning, was the only 

coach, I might add—the only coach of a major university who was 

willing to come and sit at this table in the Judiciary room and say, 

‘‘This is wrong. This is wrong. There should be a law.’’ None of the 

athletic coaches, the majority of the college coaches didn’t want to 

come forward. They didn’t want to be the ones. And they’d say to 

me, privately, ‘‘Look, if we’re going outlaw these across the board, 

OK, but if I come along and I have a strict policy and I got my kid 

a tackle who busts his rear-end and he’s 275 pounds, and he looks 

across the line and there’s a kid who is 320 pounds and all muscle, 

and looking at him, and he says, ‘I know that kid didn’t work any 

harder than me, and I know he’s going to kick my rear end at the 

snap of the ball, because he’s got 50 pounds on me, and a helluva 

lot more muscle mass, and I’ve done everything I can.’ So what do 

I do? My kid then says, ‘This doesn’t make any sense. I’m going to 

use them, too.’ ’’ 

And so, so far so good, we passed the law, after a lot of screaming and shouting, and, with your help and a number of other people here, voted for it. 

And then what happened? Designer drugs, in effect. Along came 

the precursors, and we found out that there are other ways to get 

around this law. And I was angered by this, as was the Chairman 

of the Committee, Senator Hatch and Senator Stevens and others. 

We all joined together, including Congressman Sweeney, in the 

House, and we introduced legislation to make THG, andro, and a 

number of other substances subject to the same rules that anabolic 

10 

steroids are subject to. And under this legislation, which will— 

using these products to be flat illegal. 

And, Mr. Chairman, we can go through, and I will not—I will not 

bore you with it, because all of you know as well as I do the negative health effects on the continued use of steroids, anabolic 

steroids, and the precursors. And we know how it damages our 

young kids. And so we make the case, and I made the case in 1990, 

this is a health issue. 

But you know what, John? I realize it’s a health issue alone. This 

is a values issue. This is a values issue. My friends in baseball— 

I usually side with the union because, Mr. Selig, I love, but I wish 

the hell he’d get a real commissioner, you know, and I have real 

disagreements with you all, and I have real disagreements about 

how—but the union is wrong here. They’re wrong here. 

Baseball is a national pastime, but it is the repository of the values of this country. When we want to define—when we want to define to a foreign country what we’re about, and you’re going to 

show a film, what would you go show? You’d show the basketball 

film ‘‘Hoosiers’’ or you’d show, you know, ‘‘The Natural’’ or you 

would show something that reflects what every American feels in 

their gut, their being, every fiber of them, that this is the ultimate 

meritocracy, the United States of America. 

You know, Winston Churchill said that England’s future was determined more on the playing fields of Eton than it was at any 

academy, and there’s truth to that, Mr. Chairman. You know it. I 

know you well. I know you well. And this wells up from the tip of 

your toes right to the base of your brain. And all of you know it. 

There’s something simply un-American about this. This is about 

values, it’s about our culture, it’s about who we define ourselves to 

be. 

And, last, I must tell you, I thought, in undergraduate school and 

in college, I was a pretty good athlete. But, you know what? I think 

to myself, as a small kid—I was light at the time, and I was pretty 

good, and I wonder—I now find myself, not only as a Senator, resentful of what some athletes are doing to the sport, but I find myself angry—angry in my gut. Because these are the same guys who 

would have taken me out—taken me out—not because they had 

more God-given natural talent than me, but because they enhanced, with artificial means, their capacity. That is simply wrong. 

That is a blot on the culture of this country. 

And you know all the statistics on health, John, and all of you 

do, and we should talk about that, but just so you know, a Kaiser 

Family study shows that the majority—catch this—that more than 

half the kids in America, the age of your son, Senator, believe now 

that their heroes use steroids. That’s a poll. Half our children believe—believe—that the athletes behind me use steroids. What a 

helluva commentary on what’s happening in this country. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Biden, it’s always entertaining as well 

as enlightening to have you with us. 

[Laughter.] 

The CHAIRMAN. And we appreciate you being here, and we very 

much appreciate your passion and your dedication. We thank you. 

I wish that I could say that I was a good high school athlete. 

11 

Mr. Sweeney? 

STATEMENT OF HON. JOHN E. SWEENEY, 

U.S. REPRESENTATIVE FROM NEW YORK 

Mr. SWEENEY. Thank you, Mr. Chairman. Let me thank you and 

the Members—— 

The CHAIRMAN. Senator Biden, I know you have to leave, so—I 

appreciate the fact that you came. 

Senator BIDEN. Thank you. 

Mr. SWEENEY. Let me thank you and Members of the Committee 

for conducting this hearing, and thank you profusely for allowing 

me to participate. 

I think at the core of this hearing and at the core of this debate 

is the notion of, Where is American sports in our culture? What 

role does it play? And your recognizing that, I think, moves this debate along in a significant fashion, and one that is long overdue. 

I’m not here just as a Member of the other body, who happens 

to, with all due respect, Senator Lautenberg, represent the home 

of baseball, or part of the home of baseball, along with Sherry 

Bohlert, at Cooperstown. I’m not just here as a Member of Congress, who represents the home of the winter Olympic sports movement in Lake Placid, New York. I’m not here as just a Member, 

who represents the home of horse racing in Saratoga. And other 

Members will debate any of those issues, in terms of where they’re 

the home of. I’m really here as a parent. And it is by means of explaining my involvement and how I became the original Member 

of the other body to introduce the Anabolic Steroid Control Act. 

I’ll tell you about a story, about several years ago, in which I was 

in the weight room with one my teenage children, working out, as 

we try to routinely do, he mentioned to me that he was then training for baseball and/or football practice in the off season. And a 

number of his classmates, colleagues, and friends were talking 

about the use of andro and/or another steroid precursor in order to 

build themselves up, to give themselves the edge that they needed 

to make the team, make the starting lineup, and/or become a star 

in that field. And his simple comments to me were, ‘‘Dad, how bad 

can it be? It’s gotta be good; they’re selling it over the counter. I 

can go down to the GNC, I can go to Wal-Mart, I can go anywhere 

where I have to go and buy this stuff. Somebody’s had to have 

checked this out. And how bad could it be? Mark McGwire, after 

all, used it to set the records he set, and we believe many other 

players are involved.’’ 

It started me on a journey in which I went to those experts in 

all of those places that I happen to be lucky enough to represent, 

and the real facts and the real information became more apparent 

as we got involved in the process. It led to the introduction of the 

legislation. We recognized that this wasn’t just about American 

sports; it was about healthcare, it was about the health risks associated with it. And, as Senator Biden pointed out, it is about the 

culture, it is about ethics; and, therefore, it’s pretty critical. 

The lines of fair play are blurred by the prevalence of steroid precursors and designers steroids, which have been developed by manufacturers simply to avert and avoid the good work that you all did 

a decade ago to try to protect the interests of the American public. 

12 

Athletes have become more creative in turning to these substances, 

such as andro, as you pointed out, Mr. Chairman, and its musclebuilding cousins. These performance enhancers are the equivalent 

of illegal steroids—we need to be very clear about that—which you 

have already outlawed, and they should be treated as such. 

The consequences for steroid abuse then, therefore, in my opinion, must become severe enough to act as a deterrent, and that’s 

what your hearing, I think, is all about, and I really want to salute 

you. 

I will conclude, because I’ve got to go over to the other body and 

be involved in a couple of other hearings. But the integrity of 

sports rests on the ability of players to compete fairly, free of suspicion. And athletes that have gained an edge by taking performance-enhanced substances hurt their sport. And, more importantly, 

I hope the message of all of our debate here is that they hurt society. 

Parents in this day and age are looking for influences on their 

children that are positive, and they’re very tough to find, as your 

hearing yesterday certainly pointed out. We need to take action 

here in Congress. We need to step forward. Because this isn’t simply about sports. This is—the emphasis really has to be—that this 

is very much about our kids, the health of our kids, and what kind 

of culture we want to develop. 

Let me conclude by saying the National Institute on Drug Abuse 

pointed out several years ago that about 3 percent of junior high 

school students had already taken steroids. If you can imagine the 

impact on the adult, developed body, imagine the impact on the developing adolescent body of our children. This is a compelling national issue. That’s why there is this attention. And I salute all of 

you for taking the lead this year in moving this bill forward and 

moving this legislation forward. And I thank you for the opportunity. 

The CHAIRMAN. Thank you very much. Thank both of you for 

coming. And we appreciate very much you taking the time to be 

with us. 

Our next panel is Mr. Allan H. Selig, who is the Commissioner 

of Major League Baseball; Mr. Donald Fehr, who is the Executive 

Director and General Counsel of Major League Baseball Players 

Association; Mr. Gene Upshaw, who’s the Executive Director of the 

National Football League Players Association; Mr. Terrence Madden, who is the Chief Executive Officer of the United States AntiDoping Agency; and Mr. Paul J. Tagliabue, who is the Commissioner of the National Football League. Please come forward. 

I’d like to thank the witnesses for taking time from their schedule. I know that this was an inconvenience for all witnesses to be 

here today. I understand that Mr. Fehr is recovering from surgery, 

as well, and we thank you for appearing before this Committee, 

and we feel that your appearance is justified. 

We’ll begin with you, Mr. Madden. 

STATEMENT OF TERRY MADDEN, CHIEF EXECUTIVE OFFICER, 

UNITED STATES ANTI-DOPING AGENCY 

Mr. MADDEN. Thank you, Senator. 

13 

Mr. Chairman, Members of the Committee, good morning. My 

name is Terry Madden. Today, I come to you as the CEO of the 

United States Anti-Doping Agency, which has been recognized by 

Congress as the independent national anti-doping agency for Olympic and Paralympic sport in the United States. 

While USADA has recently received increased attention for our 

role in the BALCO investigation, as many of you know we have 

been working for more than 3 years to protect and preserve the 

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

of sport through the elimination of doping. 

The use of performance-enhancing drugs in sport creates an atmosphere of coercion, where clean athletes who do not want to take 

drugs feel compelled to do so to succeed. In this age of multimillion-dollar rewards for sport success, the siren call of drugs is 

even more alluring. This problem is not confined to a single sport, 

a single country, a small number of athletes, or an isolated group 

of unethical chemists. It affects every sport, and threatens to undermine the integrity of athletics as a whole. It also sends the message that cheating is acceptable, and allows drug users to become 

role models for our Nation’s youth. 

While some claim doping is a victimless violation of the rules, the 

true victims of doping are the athletes who wish to compete in 

clean sport and are denied this opportunity, as well as the public 

who is defrauded by athletic performances dependent on the use of 

drugs. Unfortunately, without a strong anti-doping system in place, 

the accomplishments of clean athletes can be unfairly tainted by 

the doping behavior of a few. 

The purpose of the United States Anti-Doping Agency AntiDoping Program, which was developed with the assistance and approval of Olympic-movement athletes, is to protect all athletes by 

deterring the use of drugs in the 45 Olympic, Paralympic, and Pan 

American game sports. While there are many components to a successful anti-doping program, the most fundamental is the athletes’ 

knowledge that their use of prohibited substances and methods can 

be detected, and that penalties for breaking the rules are significant. 

An effective doping program begins with a sample-collection plan 

that includes appropriately timed, year-round, no-advanced-notice 

testing. The plan must provide for the collection of samples at the 

time that athletes most benefit from doping, and must be flexible 

and responsive to evolving doping techniques. A drug-testing program is ineffective if athletes know during what times of the year 

they will be tested, or are given sufficient notice of the test to take 

steps to alter samples in order to avoid detection. 

An effective program also must be built around a comprehensive 

list of categories of prohibited substances and methods. One lesson 

reinforced by THG in the BALCO investigation is that programs 

must incorporate sufficient flexibility to deal with the creation and 

use of designer drugs. Unlike workplace or drugs-of-abuse testing, 

the Olympic movement list of categories of prohibited substances 

and methods is extensive. Therefore, the continued dedication of resources to the testing laboratories that are charged with developing 

and validating testing methods for this wide array of substances is 

an important aspect of deterrence. 

14 

An effective and credible program also combines defined sanctions of sufficient magnitude to deter drug use with a fair means 

of imposing such sanctions. In the Olympic movement, the sanction 

for a first steroid offense is a two-year suspension. A second steroid 

offense results in a lifetime ban. Because of the severity of these 

sanctions, USADA’s adjudication system includes numerous protections for athletes to ensure that only athletes who are guilty of a 

doping violation are sanctioned. 

Significantly, while USADA believes the privacy rights of individuals accused of doping violations must be respected, no individual’s 

right should outweigh the rights of all athletes to compete in clean 

sport and to be assured that those who break the rules are appropriately sanctioned. USADA also believes that to protect the rights 

of all athletes, an anti-doping program should be transparent by allowing for an independent review of the effectiveness and fairness 

of each aspect of the program. 

Another important component is the education of athletes as to 

why healthy competition is important, and why taking the uninformed health risks associated with prohibited substances is a bad 

choice. The achievements in sport, like the achievements in life, 

should be the result of hard work, commitment, and dedication. We 

agree strongly with the President, who stated, in his State of the 

Union Address, that achieving success through drugs sends the 

message that character doesn’t count. 

In developing our educational materials, USADA has benefited 

from our interaction with Character Counts in their Pursuing Victory With Honor Program. Reaching your goals through strength of 

individual character and by making the right decisions are at the 

core of what USADA has emphasized in our One Hundred Percent 

Me Program for elementary school students. 

Finally, an effective program must devote significant resources to 

research for the detection of new doping substances and techniques, and the pursuit of scientific excellence in doping control. To 

this end, USADA has funded pioneering work in such areas as the 

effort to develop a test for human growth hormone. Our international symposium, in 2002, took a comprehensive approach to 

the issue of increased oxygen transport, and led to research, the results of which are beginning to close all of the approaches to blood 

doping. 

Most recently, USADA has supported research at several laboratories regarding the newly detected designer steroid, THG. USADA 

is also strongly committed to furthering research regarding the 

health risks associated with long-term use of prohibited substances, 

including human growth hormone. 

Since its inception, just over 3 years ago, USADA has worked 

hard to show the world that the United States Olympic movement 

athletes compete clean. We believe that the USADA program contains all of the important elements of a comprehensive and effective testing program, and we continue to work each day to improve 

our system to further protect clean athletes. Specifically, we are focused on increasing the numbers of no-advance-notice tests that we 

perform. We are also seeking to improve our ability to systematically identify and sanction those athletes and other individuals who 

15 

are engaged in the effort to create designer substances, or otherwise gain an advantage over athletes who are competing clean. 

USADA believes that stemming the use of drugs in sports is necessary to preserve the integrity of sport in this Nation. Athletes, 

including America’s children, who dream of athletic stardom, have 

a fundamental right not to be put in a position where they believe 

they must use drugs to effectively compete. USADA is dedicated to 

protecting that right, and welcomes the opportunity to work with 

any sport that is committed to the cause of drug-free sport. 

We thank you, Mr. Chairman and Members of the Committee, 

for this opportunity to share our convictions on this important 

topic. 

[The prepared statement of Mr. Madden follows:] 

PREPARED STATEMENT OF TERRY MADDEN, CHIEF EXECUTIVE OFFICER, 

UNITED STATES ANTI-DOPING AGENCY

Mr. Chairman, members of the Committee, good morning, my name is Terry Madden. Thank you for the opportunity to testify. Today I come to you as the CEO of 

the United States Anti-Doping Agency, which has been recognized by Congress as 

the independent, national anti-doping agency for Olympic and Paralympic sport in 

the United States. While USADA has recently received increased attention for our 

role in the BALCO investigation, as many of you know, we have been working for 

more than three years to protect and preserve the health of athletes, the integrity 

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

The use of performance-enhancing drugs in sport creates an atmosphere of coercion where clean athletes, who do not want to take drugs, feel compelled to do so 

to succeed. In this age of multi-million dollar rewards for sports success, the siren 

call of drugs is even more alluring. This problem is not confined to a single sport, 

a single country, a small number of athletes or an isolated group of unethical chemists. It affects every sport and threatens to undermine the integrity of athletics as 

a whole. It also sends the message that cheating is acceptable, and allows drug 

users to become role models for our Nation’s youth. 

While some claim doping is a victimless violation of the rules, the true victims 

of doping are the athletes who wish to compete in clean sport and are denied this 

opportunity, as well as the public who is defrauded by athletic performances dependent on the use of drugs. Unfortunately, without a strong anti-doping system in 

place, the accomplishments of clean athletes can be unfairly tainted by the doping 

behavior of only a few. 

The purpose of the USADA anti-doping program, which was developed with the 

assistance and approval of Olympic Movement athletes, is to protect all athletes by 

deterring the use of drugs in the 45 Olympic, Paralympic, and Pan American Games 

sports. While there are many components to a successful anti-doping program, the 

most fundamental is the athletes’ knowledge that their use of prohibited substances 

and methods can be detected and that the penalties for breaking the rules are significant. 

An effective program begins with a sample collection plan that includes appropriately timed, year-round, no-advance-notice testing. The plan must provide for the 

collection of samples at the time that athletes most benefit from doping and must 

be flexible and responsive to evolving doping techniques. A drug testing program is 

ineffective if athletes know during what times of the year they will be tested or are 

given sufficient notice of the test to take steps to alter samples in order to avoid 

detection. 

An effective program also must be built around a comprehensive list of categories 

of prohibited substances and methods. One lesson reinforced by THG and the 

BALCO investigation, is that programs must incorporate sufficient flexibility to deal 

with the creation and use of ‘‘designer drugs.’’ Unlike workplace or drugs-of-abuse 

testing, the Olympic Movement list of categories of prohibited substances and methods is extensive. Therefore, the continued dedication of resources to the testing laboratories that are charged with developing and validating testing methods for this 

wide array of substances is an important aspect of deterrence. 

An effective and credible program also combines defined sanctions of sufficient 

magnitude to deter drug use with a fair means of imposing such sanctions. In the 

Olympic Movement the sanction for a first steroid offense is a two-year suspension. 

16 

A second steroid offense results in a lifetime ban. Because of the severity of these 

sanctions, USADA’s adjudication system includes numerous protections for athletes 

to ensure that only athletes who are guilty of a doping violation are sanctioned. Significantly, while USADA believes the privacy rights of individuals accused of a 

doping violation must be respected, no individual’s right should outweigh the rights 

of all athletes to compete in clean sport and to be assured that those who break 

the rules are appropriately sanctioned. USADA also believes that to protect the 

rights of all athletes an anti-doping program should be transparent, by allowing for 

an independent review of the effectiveness and fairness of each aspect of the program. 

Another important component is the education of athletes as to why healthy competition is important and why taking the uninformed health risks associated with 

prohibited substances is a bad choice. The achievements in sport, like the achievements in life, should be the result of hard work, commitment, and dedication. We 

agree strongly with the President who stated in his State of the Union address that 

achieving success through drugs sends the message that character doesn’t count. In 

developing our educational materials, USADA has benefited from our interaction 

with Character Counts and their ‘‘Pursuing Victory with Honor’’ program. Reaching 

your goals through strength of individual character and by making the right decisions, are at the core of what USADA has emphasized in our ‘‘100 percent Me’’ program for elementary school students. 

Finally, an effective program must devote significant resources to research for the 

detection of new doping substances and techniques and the pursuit of scientific excellence in doping control. To this end, USADA has funded pioneering work in such 

areas as the effort to develop a test for human growth hormone. Our international 

symposium in 2002 took a comprehensive approach to the issue of increased oxygen 

transport and lead to research, the results of which are beginning to close all of the 

approaches to blood doping. Most recently, USADA has supported research at several laboratories regarding the newly detected designer steroid THG. USADA is also 

strongly committed to furthering research regarding the health risks associated 

with long term use of prohibited substances, including, human growth hormone. 

Since its inception just over three years ago, USADA has worked hard to show 

the world that United States Olympic Movement athletes compete clean. We believe 

that the USADA program contains all of the important elements of a comprehensive 

and effective testing program and we continue to work each day to improve our system to further protect clean athletes. Specifically, we are focused on increasing the 

numbers of no-advance-notice tests that we perform. We are also seeking to improve 

our ability to systematically identify and sanction those athletes and other individuals who are engaged in the effort to create designer substances or otherwise gain 

an advantage over athletes who are competing clean. 

USADA believes that stemming the use of drugs in sports is necessary to preserve 

the integrity of sport in this Nation. Athletes, including America’s children who 

dream of athletic stardom, have a fundamental right not be put in a position where 

they believe that they must use drugs to effectively compete. USADA is dedicated 

to protecting that right and welcomes the opportunity to work with any sport that 

is committed to the cause of drug-free sport. We thank you, Mr. Chairman and 

members of the Committee, for the opportunity to share our convictions on this important national topic. 

The CHAIRMAN. Thank you, Mr. Madden. In behalf of many 

Americans, we’re deeply appreciative of the outstanding work you 

and your organization do, and we’ll be calling on you in the future, 

because this issue is not going away. 

Welcome, Mr. Upshaw. 

STATEMENT OF GENE UPSHAW, EXECUTIVE DIRECTOR, 

NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION 

Mr. UPSHAW. Thank you, Mr. Chairman. 

Mr. Chairman and Members of this Committee, my name is 

Gene Upshaw. I am the Executive Director of NFL Players Association, the labor union that represents all NFL players in collective 

bargaining. 

17 

As you know, Commissioner Tagliabue and I have submitted a 

joint statement to the Committee, which I understand is being 

made part of the hearing record. 

I want to take this opportunity to emphasize a few points that 

are particularly important to NFL players. Our support of the 

league’s program, including random testing and prompt discipline 

for violators, is not a new development. For more than a decade, 

we have worked closely with the league to rid our game of steroids 

and similar performance-enhancing drugs. 

We have not supported this program because players like taking 

drug tests, or because they like being suspended. We have done so 

because NFL players and the people we represent want to make it 

clear that we believe in a strong and an effective anti-steroid program, that it’s good for players and it’s good for the game. 

Why has this issue been the highest priority for NFL players? 

First, these substances threaten the fairness and integrity of the 

game on the field. To allow the use of steroids and banned stimulants would not only condone cheating, but also compel others to 

use them to remain competitive. 

Second, we have a responsibility to protect our players from the 

demonstrated adverse health effects of steroids and banned substances. Medical literature is replete with linking these substances 

to a wide range of serious health problems. 

Third, we take our role in educating and leading young people 

very seriously. The use of performance-enhancing drugs is dangerous, and sends the wrong message that there are shortcuts to 

success, and that performance at any price is more important than 

integrity. The NFL program tells those involved in football at intercollegiate, high school, and youth levels that the use of performance-enhancing substances is not the way to play and succeed in 

football. 

We have closely worked with the league to ensure that the program involves more than simply testing and discipline; we have insisted that the program retain the leading medical and laboratory 

experts, and that decisions are based on science and fact, and not 

on supposition and whim. 

We have emphasized the importance of education in keeping our 

players from even trying the banned substances. Each year, as part 

of the year-long—I mean, week-long rookie symposium, new NFL 

players receive comprehensive information about the dangers of 

performance-enhancing drugs. We work on our veterans in a yearround training program. 

During the season, all of our players have access to a 24 hour 

800 number, which provides detailed information to players about 

steroids and related substances. And long before the government 

moved to ban ephedra, we worked with the league first to advise 

our players strongly to discourage the use of ephedra, and then we 

banned it altogether. 

Despite the efforts that we have made to eliminate steroids and 

performance-enhancing drugs from football, there are those in 

America and elsewhere who will seek to beat the system by designing and producing illicit substances and inappropriately affect athletic performance while escaping detection. 

18 

THG is the latest substance to attract wide attention. The 

league’s intensive random testing began in early October, through 

the end of the season, and did not identify any player using THG, 

and we have no information suggesting that significant numbers of 

players have used it in the past. We will continue our efforts to 

confirm this belief. 

Today, new challenges are being presented by improper use of 

human growth hormones. We will continue to work with NFL and 

other interested parties to ensure that we have a strong and effective program. 

Mr. Chairman, thank you for your leadership on this issue. I will 

be pleased to answer any questions that you and others may have 

at the end of the hearing. 

[The joint prepared statement of Mr. Upshaw and Mr. Tagliabue 

follow:] 

PREPARED STATEMENT OF PAUL TAGLIABUE, COMMISSIONER, NATIONAL FOOTBALL

LEAGUE AND EUGENE UPSHAW, EXECUTIVE DIRECTOR, NFL PLAYERS ASSOCIATION

Mr. Chairman and members of the Committee: 

We are, respectively, the Commissioner of the National Football League and the 

Executive Director of the NFL Players Association, the labor union that represents 

all NFL players in collective bargaining. 

We have submitted this joint statement to emphasize that, whatever other issues 

management and labor may disagree upon, there is complete agreement between us 

on this: steroids and other performance enhancing substances have no place in our 

game, or anywhere in sports. For many years, we have been committed to keeping 

them out of the NFL, and we will continue to work together and with government 

and private parties to help remove them from American life. 

In recent weeks, this subject has again received renewed attention. The President’s comments in his State of the Union address, combined with the recent indictments in connection with the BALCO case, have focused a wide audience on the use 

of performance enhancing substances in sports, and have brought to the forefront 

what many observers have come to recognize—that this is both an ongoing challenge and one that is likely to be more complex and difficult to address successfully. 

In the NFL, we have been focused on these issues of performance-enhancing substances since the late 1980s. The League’s then-Commissioner, Pete Rozelle, instituted both educational and disciplinary programs in the late 1980s to deter the use 

of performance-enhancing substances by NFL players and to eliminate them from 

our game. 

Educational efforts have led both our teams and our players to support strong 

measures, developed jointly by the League and the Players Association, to eliminate 

these illicit substances from NFL football—and to send a message to others in football at the intercollegiate, high school and youth levels that the use of performanceenhancing substances is not the way to play or succeed in football. 

Against this backdrop, we strongly support S. 1780, the Anabolic Steroid Control 

Act of 2003, which you have co-sponsored, Mr. Chairman. This bill would expand 

the definition of steroids and precursors as controlled substances and increase the 

penalties associated with distribution of these substances. We understand that a 

companion bill has been introduced in the House of Representatives, and we will 

strongly support that bill as well. 

We are pleased to appear today to offer the Committee a description of the NFL’s 

Policy and Program on Anabolic Steroids and Related Substances. That program has 

been in place for more than a decade, and is the most comprehensive in professional 

sports today. Our results confirm that the program is very effective. It reflects a 

strong and ongoing commitment on the part of both our organizations, backed by 

substantial financial investments, top scientific resources, and more than a few 

tough decisions. 

The NFL began testing players for steroids in 1987; started suspending violators 

in 1989; and instituted in 1990 a year-round random testing program, including 

during the off-season, backed by immediate suspensions for any violation. The program has strong features to deter evasion, including suspension for players testing 

positive for masking agents or who attempt to dilute their urine to beat the tests. 

19 

Players who test positive are subject to up to 24 unannounced tests per year, including during the offseason. They remain subject to this frequent, year-round testing 

for the remainder of their careers. 

We also recognize the importance of staying current, and have consistently expanded our own list of prohibited substances—in the past three years, nearly 20 additional substances have been added to the banned list. Those included ephedra, 

which we prohibited three years ago. As the Committee knows, the Federal government is now in the process of banning that dangerous supplement. 

Why has this issue been among the highest priorities of the NFL and its players? 

First, these substances threaten the fairness and the integrity of the game on the 

field. To allow the use of steroids and banned stimulants would not only condone 

cheating, but also compel others to use them to remain competitive. 

Second, we have a responsibility to protect our players from the demonstrated adverse health effects of steroids and other banned substances. Medical literature is 

replete with research linking the use of these substances to a wide range of serious 

health problems. 

Third, we take seriously our role in educating and leading young people. As President Bush said, the use of performance-enhancing drugs is dangerous and sends the 

wrong message that there are shortcuts to success and that performance at any 

price is more important than integrity. 

The key provisions of our policy are: 

• An annual test for all players plus unannounced random testing in and out of 

season. We test players on all teams each week of the season, conducting more 

than 9,000 tests a year for steroids and related substances. 

• A list of more than 70 prohibited substances, including anabolic steroids, steroid 

precursors, growth hormone, stimulants and masking agents. This list is continually revised and expanded. 

• A mandatory four-game suspension (25 percent of the regular season) without 

pay upon a first violation. A second violation would result in a six-game suspension and a third would ban a player for a minimum of one year. Players cannot 

return to the field until they test clean and are cleared for play. 

• Strict liability for players who test positive. Violations are not excused because 

a player says he was unaware that a product contained a banned substance. 

• Education of players and teams about the program through literature, videos, 

a toll-free hotline and mandatory meetings. 

The consistent application of these core tenets has resulted in the recognition of 

the NFL’s policy as the most effective in professional sports. Over the past five seasons, less than 1 percent of our players (a total of 25) have violated our steroid program and been suspended. In short, virtually all of our players get the message and 

participate in the NFL without using anabolic steroids or other performance-enhancing substances. 

When our steroid testing lab—the U.C.L.A. Olympic Analytical Laboratory—our 

banned substance list and started officially testing for it on a uniform basis on Oct. 

6. Since then, we have randomly tested more than 3,000 player urine samples and 

there have been no THG positives. 

We spend $10 million a year on our steroid and drug programs, including the 

funding of research to identify new substances and improve testing. To date, we 

have invested close to $100 million on this initiative. And we are prepared to do 

more if necessary. 

Despite the efforts that we and others in sport have made to eliminate anabolic 

steroids and other performance-enhancing drugs from our athletic competitions, 

there are those in America and elsewhere who will seek to beat the system by designing and producing illicit substances that inappropriately affect athletic performance while escaping detection. THG is only the latest such substance to become a 

controversial issue and attract wide attention. 

Over the years we have worked very hard with specialists and the scientific community to minimize the potential for such evasion, and we believe that our efforts 

have been successful. With respect to THG specifically, our extensive random tests 

during the past football season—from early October through the end of our season 

this January—did not identify any NFL player as using THG, and we have no information suggesting that any significant number of NFL players used THG before this 

past season. But we will continue our efforts to confirm this belief with reliable test 

results. 

As announced earlier this week, we have partnered with the United States AntiDoping Agency to establish a new research and drug testing laboratory at the UniVerDate Nov 24 2008 11:40 Nov 02, 2012 Jkt 075679 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\76456.TXT JACKIE
20 

versity of Utah. This lab will work closely with Utah’s highly respected Center for 

Human Toxicology, which is renowned for its forensic analytical toxicology expertise. 

Today new challenges are being presented by the improper use of human growth 

hormone and the continuing advance of gene therapy and genetic manipulation. 

Both the government and private sectors must aggressively address these challenges. If not, the secret designers of new illicit substances will slog on, and the future will bring more high-profile grand jury investigations, health risks to young 

people and dishonor to sports. 

Mr. Chairman, we in the NFL thank you for your leadership on this issue, and 

we appreciate the opportunity to testify today. 

The CHAIRMAN. Thank you very much, Mr. Upshaw. We appreciate your testimony. 

Mr. Tagliabue, I know you all have a joint statement. Do you 

have any additional comments? 

Mr. TAGLIABUE. I do, Mr. Chairman. I thought I would—— 

The CHAIRMAN. Fine. 

Mr. TAGLIABUE.—describe our program briefly. 

The CHAIRMAN. Sorry you weren’t here yesterday, by the way. 

Mr. TAGLIABUE. Well, I’d be glad to answer questions about that, 

too. 

STATEMENT OF PAUL J. TAGLIABUE, COMMISSIONER, 

NATIONAL FOOTBALL LEAGUE 

Mr. TAGLIABUE. Thank you for inviting us to appear today to discuss what the league is doing to get steroids and other performance-enhancing substances out of football. 

When I say ‘‘the league,’’ I mean the entire league, including, especially, our players. As you know, Mr. Upshaw and I have submitted a joint statement. We’ve done so because there is complete 

agreement between us to enforce our strong program to ensure that 

steroids and other performance-enhancing substances have no 

place in our game. 

We also strongly support S. 1780, the Anabolic Steroid Control 

Act of 2003, which you have cosponsored, Mr. Chairman. This bill 

would expand the definition of steroids and precursors as controlled 

substances, and increase the penalties associated with distribution 

of these drugs. 

The league’s program on anabolic steroids and related substances 

is the most comprehensive in professional sports today. It has been 

in place since the late 1980s. The key provisions, in summary, are 

as follows. 

First, an annual test for all players, plus unannounced random 

testing in and out of the season. We test players on all teams each 

week of the season, conducting more than 9,000 tests a year for 

steroids and related substances. 

Second, a list of more than 70 prohibited substances, including 

not just steroids, but steroid precursors, growth hormone, stimulants, and masking agents. The list is continually revised and expanded. 

Third, a mandatory four-game suspension, 25 percent of our regular season, and 25 percent of a player’s salary without pay upon 

a first violation. A second violation would result in a six-game suspension. We’re happy to say we have not had any repeat offenders 

with a six-game suspension. And a third violation, if it were to 

occur, would ban a player for a minimum of one year. Players susVerDate Nov 24 2008 11:40 Nov 02, 2012 Jkt 075679 PO 00000 Frm 00024 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\76456.TXT JACKIE
21 

pended cannot return to the field until they test clean and are 

cleared for play by professionals. Players testing positive are subject to being tested up to 24 times a year for as long as they remain 

in the National Football League. 

Fourth, we have strict liability for players who test positive. Violations are not excused because a player says he was unaware that 

a product contained a banned substance or that a product was mislabeled. 

Finally, we have education of players and teams about the program through literature, videos, seminars; as Gene said, a toll-free 

hotline throughout the season; and mandatory team meetings. And 

I would say that I think the education has been extremely powerful. And our players, beginning in the late 1980s and the early 

1990s, came to understand the very, very negative aspects of using 

steroids, and they have been among the strongest advocates and 

supporters of a very strict program. 

Our results confirm that our program is very effective. Over the 

past five seasons, just to take one example, we’ve only had 25 players who have violated our program and been suspended. This is far 

below 1 percent. When our steroid testing lab, the UCLA Olympic 

Analytical Lab, informed us last fall of the new designer steroid, 

THG, and also informed us that a test had been developed for 

THG, we immediately added it to our banned list, and started testing for it on a uniform basis in the first week of October. Since 

then, we’ve randomly tested more than 3,000 players for THG, and 

there have been no positives. We spend, currently, $10 million a year on our steroid and drug 

programs, including the funding of research to identify new substances and improved testing. To date, throughout the last decade, 

we have invested close to $100 million on this initiative, and we 

are prepared to do more if necessary. 

We just announced, earlier this week, a program that has been 

in the works for about the past year, where we will partner with 

USADA to establish a new research and drug-testing lab at the 

University of Utah. This lab will work closely with Utah’s highly 

respected Center for Human Toxicology. 

Mr. Chairman, thank you, again, for having us here today, and 

certainly Gene and I will be prepared to answer any questions that 

you or other Members of the Committee might have. 

The CHAIRMAN. Thank you, sir. 

Mr. Fehr, welcome. 

STATEMENT OF DONALD M. FEHR, EXECUTIVE DIRECTOR, 

MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION 

Mr. FEHR. Thank you, Mr. Chairman. 

I apologize in advance if my voice drops, or something else. As 

you indicated, I had surgery a little less than 2 weeks ago. It turns 

out to have been the same problem now confronting the Attorney 

General, for whom I have great sympathy, and certainly hope that 

he is able to recover his strength and equilibrium a little more 

quickly than I have been. But I’ll do my best here this morning. 

I appreciate the Committee’s interest in, and concern about, the 

issue of the unlawful use of steroids, which has led to this hearing. 

So let me begin by restating the position that I articulated in the 

22 

hearing that Senator Dorgan, I believe, referred to in the opening 

statements some 20 months ago, ‘‘We neither condone, nor support, 

the use by players, or by anyone else in this country, of any unlawful substance or the unlawful use of any legal substance. Both are 

wrong.’’ 

Let me also interject, as we begin, a note of caution. Each of us 

should take care not to treat unsubstantiated media reports—a lot 

of us in this room are in the public eye and understand those 

things happen—as if they were proven fact. Unfair accusations 

about individuals can inflict damage which cannot be remedied. 

For that reason, among others, I will not discuss issues with respect to any particular individual, and I would urge the Members 

of the Committee to adopt a similar approach. 

Let me talk a little bit about what’s transpired in baseball, historically, and, in particular, since the hearing that was held in 

June of 2002. As I indicated at that time, the use of unlawful 

steroids—excuse me, the unlawful use of steroids was then a subject of ongoing collective bargaining between the association and 

the clubs. 

The issue of drug treatment and prevention isn’t a new one to 

baseball. It had a joint drug agreement beginning with drugs of 

abuse back in the mid 1980s, until it was terminated by Commissioner Uberroth. And, subsequent to that, we had developed, without a formal agreement, a program dealing with those substances, 

which has, as a practical matter, eliminated those matters as 

issues of contention between the parties. And you haven’t heard 

about them in a very long time. The emphasis of that agreement 

was on treatment and prevention. The provisions were designed to 

encourage and assist players to address any use or misuse problems that they might be experiencing. 

During those early discussions, the subject of what I’ve referred 

to in my written statement as ‘‘suspicion-less testing’’ of players— 

that is to say, testing without cause—was raised by the clubs, and 

opposed by us. We thought then, and believe now, that the testing 

of an individual, not because of anything he or she is suspected to 

have done by anyone, but merely because he or she is a member 

of a particular class, is simply at odds with fundamental principles 

of which we in this country have long and rightly been proud. 

In high school, I think all of us learn that you’re not guilty until 

you prove yourself innocent. It’s the other way around. And we also 

learn that, absent compelling safety considerations, we don’t invade 

the privacy of someone, or do a search or a seizure, without substantial cause related to that individual. Of course, the Fourth 

Amendment’s protection against unreasonable searches and seizures is not directly applicable to the private employment setting, 

but we submit that the principles which lie behind it should not 

lightly be put aside. Nevertheless, as I had indicated, we continued 

to work on those other issues. 

What have we done in the last couple of years? As I indicated 

a moment or two ago, in September of—excuse me, in the summer 

of 2002, we were confronting the issue of allegation of widespread 

use of—unlawful use of anabolic steroids. And the issue of suspicion-less testing was an issue which arose in those discussions. 

That logjam was eventually broken in response to a proposal made 

23 

by the Players Association in what was, I believe, by everyone, regarded as a significant concession. And that was that we would do 

two things. We would, in addition to the educational programs, 

which had been ongoing for an extended period of time, and which 

were made part of the record in the June 2002 hearing, that we 

would do a survey test of players. And if a threshold was met, that 

would translate into identified testing of players. If that threshold 

was not met, it would not. At that time, we were talking about 

newspaper reports of up to 85 percent use of steroids by major 

league players. 

The survey testing was conducted in 2003. Despite some suggestions to the contrary, and some of which were alluded to by opening statements of Members of the Committee, players did not know 

when the tests were to be administered. The timing of the tests 

wasn’t determined by the Commissioner’s office or by our office. 

The results were not even analyzed, much less predetermined, as 

some reporter had suggested; rather, they came back from the lab, 

and, as soon as they did, with an indication that somewhere between 5 and 7 percent of the tests had returned positive, which has 

to do with interpretation, it was promptly announced, and we 

moved to identified testing. 

As a result, in 2004, all players will be tested on an unannounced basis, identified with the use of—the unlawful use of 

steroids, without any requirement that it be shown that the individual being tested—that there is any basis to believe that he has 

committed any inappropriate activity. Any player who tests positive will be evaluated by what we call our Health Policy Advisory 

Committee, or HPAC, which will then follow that individual, and 

can and, I suspect, will subject that individual to periodic further 

testing. If there are any further positive tests, a series of progressive discipline would be imposed. 

In addition to that, players remain, quite apart from this, subject 

to for-cause testing; that is to say, if any club or central office official has information which causes him to believe that a player may 

be unlawfully using steroids, it can refer the matter to HPAC. And 

if HPAC believes that there’s evidence to support those allegations, 

it can order testing, it can order treatment, it can order a series 

of exams for that individual, quite apart from the random testing 

that I have previously referred to. 

We think this agreement is fair, carefully constructed, and balances important interests. It was agreed to after extensive discussion with the players, as I indicated, in June 2002. Over the following 6 weeks, I met with every club to discuss all issues, including this one. 

Will it work to stop it? I think it will. I don’t know whether it 

will. We’ll know. And empirically, we will know the answer to that. 

We won’t have to guess about it. 

Let me just make a couple of closing comments. It’s very easy, 

I think, for people to assert that any clean player should simply announce that he should be—he’s willing to be tested by anybody, 

anytime, anyplace, for anything, including, one supposes, a reporter 

showing up at his door on Christmas morning, which is a suggestion a reporter has made to me. We think that such arguments 

gloss over other interests, serious interests, worthy of attention. 

24 

While it sometimes seems as if considerations get lost in the ever 

louder discussion, every one of us has an interest in preventing unwarranted invasions of privacy, every one of us has an interest in 

making sure we do not turn on its head the fundamental precept 

that someone is innocent until proven guilty, not the other way 

around, and that those who agreed to voluntarily participate in 

testing programs should have some reasonable expectation of privacy and confidentiality, as is the case in virtually all testing programs across the country. Such interests are worthy of protection, 

even in the workplace, and even in the workplace of professional 

athletes. 

And let me conclude by making a couple of comments about the 

Dietary Supplements Act and the current legislation. It’s not part 

of my initial opening remarks, but it’s been raised by the panel 

members and by Senator Biden and Representative Sweeney. 

As I suggested, in June 2002, and repeat here today, the public 

policy of this country, as represented by the laws passed, I believe 

unanimously, 10 or 11 years ago by this Senate and the House of 

Representatives, and signed by President Clinton, is that if a substance is a natural substance, it can be marketed unless and until 

the government decides there’s something wrong with it. That 

turned on its head, as I understand it, previously existing law, 

which suggested, and, I submit, not unreasonably, that before you 

go market something for somebody to take, there ought to be some 

testing to determine whether or not it’s safe and efficacious for the 

purpose for which it’s designed. That’s the public policy of this 

country. 

Major league players are not children, and I’m not their parents. 

They have the same responsibility that others do. But I repeat to 

you what I said then, and I urge you to reconsider the law, top to 

bottom. If that’s not good public policy, change it. That’s all you 

have to do. 

And I suggest further that if the Congress of the United States 

decides, as it has up through and including today, that 

androstenedione is safe enough to be sold freely on the store’s 

shelves anywhere in this country and within blocks of this hearing 

room, then if that’s not appropriate for the safety of Americans, 

change it. If it is, then you can’t expect professional athletes to suggest that they somehow are different than anyone else, and they 

can’t go into a store and buy something that anyone else can buy. 

Change the law. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Fehr follows:] 

PREPARED STATEMENT OF DONALD M. FEHR, EXECUTIVE DIRECTOR, 

MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION

Mr. Chairman and members of the Committee: 

My name is Donald M. Fehr, and, as the members of this Committee know, I am 

privileged to serve as the Executive Director of the Major League Baseball Players 

Association. I appear today in response to the Chairman’s invitation to testify with 

respect to the drug treatment and prevention program in Major League Baseball, 

specifically as it relates to substances which are considered to be performance-enhancing. 

I appreciate the Committee’s interest in and concern about the unlawful use of 

steroids which led to this hearing. Let me begin by re-stating the MLBPA’s position, 

25 

articulated last before this Committee in June, 2002. The Major League Baseball 

Players Association neither condones nor supports the use by players, or by anyone 

else, of any unlawful substance, nor do we support or condone the unlawful use of 

any legal substance. I cannot put it more plainly: both the use of any illegal substance and the illegal use of any lawful substance are wrong. 

Permit me also to offer a note of caution. While there is no dispute that this is 

a very serious issue, each of us should take care not to treat unsubstantiated media 

reports and rumors as if they were proven fact. Anyone who lives in the public eye 

should recognize the damage that an unfair accusation can inflict. For this reason, 

among others, I will not discuss these issues with respect to any particular individual, and I urge the Members of the Committee to adopt a similar approach. 

As I indicated in June of 2002, use of unlawful steroids was then a subject of ongoing collective bargaining between the Players Association and the Major League 

Clubs. That round of bargaining produced a new Basic Agreement between the parties in September of that year. Before turning to that agreement, it may be helpful 

to briefly describe the history of such issues in our bargaining relationship. 

The matter of drug treatment is not new to major league baseball. Nor is the demonstrable willingness of the parties—the Players and the Clubs—to address the 

issue, despite significant differences over the means that may be appropriately employed to confront the shared goal of the elimination of unlawful drug use in the 

sport. Two decades ago, in response to a growing concern about the alleged use of 

cocaine by players, the parties undertook extensive, and at times contentious, negotiations which resulted in the first Joint Drug Agreement in the major professional 

sports. The emphasis of that agreement was on treatment and prevention, and its 

provisions were designed to encourage and assist players to address any chemical 

use or misuse problems they might be experiencing. 

During those negotiations, the subject of suspicionless urine testing of players was 

advocated by the Clubs, and opposed by us. We thought then—and believe now— 

that the testing of an individual, not because of something he is suspected to have 

done, but simply because he is a member of a particular class, is at odds with fundamental principles of which we in this country have long and rightly been proud. It 

is not up to the individual to prove he is innocent, especially of a charge of which 

he is not reasonably suspected. Moreover, one should not, absent compelling safety 

considerations, invade the privacy of someone without a substantial reason—that is, 

without cause—related to that individual. While the 4th Amendment’s protection 

against unreasonable searches and seizures is not directly applicable to the private 

employment setting, the important principles on which it is based should not be 

lightly put aside. The Clubs then, as they do now, articulated a different view 

(echoed by much of the media). 

This fundamental disagreement did not, however, stop the parties from continuing 

to work toward the shared goal of the elimination of the illicit use of drugs by players. Over the years, even in the aftermath of the termination of that first Joint Drug 

Agreement, the parties forged a working relationship that eliminated contested 

cases in this once volatile, highly charged, area. We have been able to do that with 

a program that emphasizes education, not punishment, that includes progressive, 

not draconian, discipline, and that includes individual cause-based, not 

suspicionless, testing—-in other words, a program consistent with basic principles 

of due process. 

This history is notable because it provides a needed context for the latest round 

of bargaining. Coming into the negotiations that produced the September, 2002 

Basic Agreement, the parties sought to respond to a new problem in the sport—reports of widespread use of anabolic steroids. How did the parties bridge the 20 year 

old divide between them on the subject of suspicionless testing? By agreeing to a 

Players Association formulation for what can only fairly be regarded—and I can assure you was regarded by the Clubs—-as a significant concession by the Association. 

In essence, we proposed to break the decades old deadlock on suspicionless testing 

by agreeing to a triggering mechanism; an unannounced anonymous test of not simply every player in the bargaining unit, but 120 percent of them (i.e., 20 percent 

of the players were tested twice). A total of 1438 tests were conducted in an 1198 

player group, a ratio of actual tests to the number of individuals eligible to be tested 

that we understand far exceeds the norm in most other testing regimes. If more 

than 5 percent of those 1438 tests came back positive, the Players Association would 

recede from its decades long opposition to suspicionless testing of all players, which 

would then begin and continue Unless the number of positives fell below 2.5 percent 

over two consecutive years. If, conversely, the trigger was not met, the Clubs would 

recede from their position, with the important qualification that the triggering 

mechanism would remain in place for each successive year of the Agreement. 

26 

A few points should be made about the conduct of the 2003 survey testing. Despite some contrary suggestions in the media, players did not know when the tests 

were to be administered. Nor was the timing of the tests determined by the Commissioner’s Office, or by the Players Association. The 2003 survey results were not 

even analyzed, much less predetermined (as one reporter had suggested) by the parties. Rather, the parties simply received from the testing administrators, through 

the laboratory which conducted the tests, a report of the numerical results. It is in 

the nature of drug testing that test results can sometimes require interpretation by 

the administering scientists, and the 2003 survey presented a few such instances. 

Yet, literally within hours of receipt of the test results as delivered by the laboratory, both parties agreed, and then promptly announced, that somewhere between 

5 and 7 percent of the tests—not of the players, but of the tests -were positive. 

Under the agreement we reached, this result means that, starting in 2004, all 

Players will be tested on an unannounced, identified basis for the unlawful use of 

steroids, without any requirement that cause related to the individual to be tested 

be shown. But, just as the 2003 survey was decried as illegitimate while being undertaken, the 2004 programmatic testing is already being criticized before the first 

test has even been conducted. Much of the criticism may be simply uninformed; in 

other cases it proceeds from dissatisfaction with this or that provision of our agreement. 

A Player who tests positive will be evaluated by the joint Health Policy Advisory 

Committee (HPAC). After that evaluation, HPAC will prescribe a Treatment Program for the Player, which can subject him to further testing. The Player is then 

subject to the progressive discipline set forth in the Basic Agreement, which calls 

for increased levels of suspensions without pay, or substantial fines, for any subsequent positive test result, or violation of his Treatment Program. For example, a 

second positive can result in a suspension of 15 days, which in an average case will 

result in the loss of almost $200,000. It also should be understood that positive tests 

triggering the increased levels of discipline could be tests required by the Treatment 

Program, and not merely the next round of testing for the bargaining unit. 

Moreover, Players are always subject to for-cause testing, in addition to the 

suspicionless testing now in place. If any Club or central office official has information that gives him reason to believe a Player is unlawfully using steroids, it can 

refer the matter to HPAC, which may order diagnostic testing if it believes it appropriate to do so. If HPAC determines the claim has merit, it can prescribe a Treatment Program, and, as noted, that Program may include further testing. 

The Agreement we made is fair, carefully constructed, and balances important interests on both sides. It was agreed to by the Association after a full airing of the 

problem, various possible remedies, and the risks and benefits of each approach. 

Every Player had ample opportunity to voice his views on all sides of the issue. 

We believe the program has worked, is working, and will continue to do so. We 

recognize, however, that it is the passage of time, and only that, which will tell us 

whether our program represents a meaningful and appropriate response to the unlawful use of anabolic steroids in the sport. If it does not, the labor law provides 

avenues to address any shortcomings. 

It is easy, I submit, for someone outside of baseball, or any other sport for that 

matter, to criticize our agreement. There seems to be a notion on the part of some 

that any ‘‘clean’’ player should be willing to be tested at any time or place or in any 

manner and frequency an employer or third party might choose. And, the argument 

continues, the failure to advocate that approach evidences a lack of concern for the 

health of the player, or appropriate concern for the well-being of any youngster who 

may seek to emulate the player. 

Such arguments gloss over other interests at stake worthy of attention. While it 

sometimes seems as if such considerations get lost in the ever louder discussion, 

each of us has an interest in preventing unwarranted invasions of privacy. Every 

one of us has an interest in making sure we do not turn on its head the fundamental precept that people are innocent until proven guilty, not the other way 

around. Moreover, those who agree to voluntarily participate in a testing program, 

especially those in the public eye, are entitled to some expectation of privacy and 

confidentiality. Such interests are worthy of protection, even in the workplace; even 

in the workplace of professional athletes. 

Under the National Labor Relations Act the negotiation of terms and conditions 

of employment is committed to good faith collective bargaining between employers 

and the organizations selected by and representing employees. The agreement 

reached in September, 2002, is a product of that process. (As I indicated to you 

twenty months ago, this issue was discussed and debated by and with the players 

on every club in the several weeks following my appearance here.) We continue to 

believe that collective bargaining is the appropriate forum for consideration and resVerDate Nov 24 2008 11:40 Nov 02, 2012 Jkt 075679 PO 00000 Frm 00030 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\76456.TXT JACKIE
27 

olution of these issues. One of the premises of our labor laws is that solutions devised by the parties in the workplace are more likely to be workable and enduring, 

precisely because forged by those parties, rather than by others outside that relationship, no matter how well intentioned they may be. Though many question our 

choices, the Association exists, in part, to protect and defend those we represent 

against assertions of power over the players as a group, or individually, and to act 

in a manner consistent with a variety of their interests. It is our charge under the 

law, and we take it very seriously. 

But I can hear the shouts now: ‘‘Baseball is different.’’ Because major league baseball players are highly paid, or because baseball is part of the fabric of life in this 

country, talk about basic American principles, including free collective bargaining, 

is considered inappropriate, or misplaced, or simply glossed over, because ‘‘baseball 

is different.’’ I do not decry such notions, because I recognize what prompts them, 

a deep affection for the game itself. So, let me conclude with a couple of observations. 

First, we share, with the owners and the fans, the goal of a game free of the unlawful use of drugs, but we believe this goal not only can be, but must be, attained 

with proper respect, not just for the game, but for the players as well. Now a society 

goes about fulfilling its aspirations may say more about it than the aspirations 

themselves. 

Second, and finally, love it as many fans, owners, and members of this Congress 

do, after representing major league players for nearly 27 years, I can say without 

reservation that no one cares more deeply about the game than those who play it. 

Yes, some fans, some owners, some members of Congress, may care as much about 

baseball as those who have devoted their lives to playing it. But not one cares an 

ounce more. I will be pleased to try to answer any questions. 

The CHAIRMAN. Thank you very much, Mr. Fehr. I probably don’t 

disagree with anything that you said. I’d like to refer you to negotiations between the owners and players in 2002 with respect to a 

drug-testing policy. John Walters, the director of the White House 

Office of National Drug Control Policy, said, quote, ‘‘This seems to 

be a situation where the crucial parties, the players, and the owners don’t seem to want to take responsibility for the part they have 

to play. There’s a way to handle this problem that’s been proven, 

that works, and that’s drug testing, serious drug testing. If you 

don’t want to address it now, you’ll have to address it later. And 

if you don’t address it now or later, the sport becomes a fraud.’’ 

We’re here today because the sport is about to become a fraud 

in the minds of the American people. You have a serious public relations problem here. 

Commissioner Selig, would you commit today to revisit the 2002 

Collective Bargaining Agreement for the purpose of adopting a 

drug-testing policy that is at least as stringent as the NFL policy? 

Mr. SELIG. I’d like to read my—Mr. Chairman, I’d like to read 

my statement first. 

The CHAIRMAN. Would you answer that question first? 

Mr. SELIG. The answer is yes. But I would now like to read my 

statement. Yes. 

The CHAIRMAN. Yes, sir. 

Mr. SELIG. Yes. 

The CHAIRMAN. I’m sorry. I apologize for—— 

Mr. SELIG. OK. 

The CHAIRMAN.—interrupting you. 

Mr. SELIG. The answer is, unequivocally, yes. 

STATEMENT OF ALLAN H. SELIG, COMMISSIONER, 

MAJOR LEAGUE BASEBALL 

Mr. SELIG. Thank you, Mr. Chairman. 

28 

One of my primary policy objectives, as the commissioner of baseball, is to eliminate the use of performance-enhancing substances 

in our great game. I’m committed to the idea that baseball must 

have a program on performance-enhancing substances that is consistent with accepted international standards for sports, so that we 

can remove the cloud that, fairly or unfairly, has been cast over our 

sport and its athletes. 

My commitment on this issue is longstanding. In 1999, long before BALCO or the well-publicized allegations of steroid use by 

former players, I convened a meeting of my senior staff, respected 

experts, and team physicians to discuss the issue of performanceenhancing substances and to develop a strategic approach for dealing with that issue. 

Over a period of a few weeks, we developed and began to implement a four-point strategic plan. First, we felt it was important to 

eliminate steroid use before players reached the major leagues. Because we do not have a collective bargaining obligation in the 

minor leagues, I was able quickly to develop and implement, unilaterally, in the spring of 2001, the first ever minor league drug 

policy. That policy has been amended and updated each year. In its 

present form, it is consistent with the highest international standards, and I hope to have a similar policy in the major leagues. 

The key features of the minor league policy include a comprehensive ban on all performance-enhancing substances, including 

steroids; year-around, unannounced random testing of minor 

league players; immediate 15-game suspensions without pay for 

first-time offenders, and escalating discipline thereafter; a strict liability approach under which athletes are held accountable for any 

substance found in their bodies, regardless of the intent or the 

source. Last year, we conducted nearly 5,000 tests in the minor 

leagues. 

Second, we committed ourselves to a comprehensive educational 

program on performance-enhancing substances. As we speak, baseball’s medical experts are engaged in a tour of all 30 spring-training camps to meet with players and explain the serious health 

issues associated with the use of performance-enhancing substances. This spring, in conjunction with the Partnership for a 

Drug Free America, major league baseball will produce two publicservice announcements that will air on our national broadcast and 

will be made available to all 30 clubs for use in their local market. 

These spots explain the dangers of performance-enhancing substances, especially to young people. 

Third, we decided to become active supporters of legislative efforts to increase the regulation of performance-enhancing substances masquerading as so-called nutritional supplements. Just 

this past week, Congressman John Sweeney, of course, who was 

here this morning, conducted a press conference at my office in 

New York to publicize the introduction of legislation to regulate 

precursors, such as andro, and designer steroids, such as THG. We 

have supported the Hatch-Biden bill, which also regulates precursors and was cosponsored, of course, by Chairman McCain. 

The fourth and most difficult part of our strategy was to make 

the problem of performance-enhancing substances a bargaining priority in our negotiations with the MLBPA. The MLBPA approached 

29 

our 2002 negotiation with a longstanding and deep-rooted philosophical objection to drug testing of any type. Baseball had to deal 

with this opposition in an extraordinarily difficult labor-relations 

environment. As I’m sure you will recall, baseball experienced a 

crippling strike in 1994 and 1995. As the 2002 negotiation approached, the clubs were still feeling the economic effects of the 

strike, and the mere prospect of bargaining caused a number of 

Senators, Congressmen, the media, millions of fans to express 

grave concern about the possibility of another work stoppage. 

In this difficult environment, the clubs held to their commitment 

to address the problem of performance-enhancing substances. Mr. 

Angelos, of the Baltimore Orioles, who was a member of our Labor 

Negotiating Committee, and who is here with me today, can attest 

that the drug testing was probably the most contentious issue 

throughout the process. And the new drug agreement was one of 

the last issues resolved in the hours of continuous bargaining before the MLBPA strike deadline in August 2002. 

Ultimately, the agreement we accepted on drugs was a compromise. We obviously accepted less than we wanted, because, in 

my judgment as the commissioner, we had pushed the MLBPA as 

far as it would go without a strike. And, equally important, the 

clubs, whatever their conviction, were profoundly concerned about 

the impact of another strike. 

Compromise or not, the new joint drug agreement is an important step forward on the issue of performance-enhancing substances. Baseball administered over 1,400 random drug tests in the 

major leagues last year, and we’ll administer a similar number this 

year. There is anecdotal evidence that the testing has had the desired prophylactic effect. Going forward, players will be subject to 

suspensions without pay that will impose tremendous economic 

penalty. 

As important as this step is, I realize we have much work to do. 

We need more frequent and year-around testing of players. We 

need immediate penalties for those caught using illegal substances. 

We need a program that bans all performance-enhancing substances, regardless whether the substances are categorized as 

steroids or nutritional supplements. We need a program that will 

meet accepted international standards and allow for the continued 

internationalization of the game. 

The MLBPA has been made aware of our desire to strengthen 

the joint drug agreement to address growing concerns about performance-enhancing substances. It goes without saying that this 

issue will be a priority in our next negotiation. But I understand 

the need to act now, without sacrificing the rights and protections 

secured by the MLBPA in the last agreement. 

It is imperative that the MLPBA leadership and the players join 

me in a cooperative effort to restore the faith of the fans in our 

game and its great players. 

Thank you very much. 

[The prepared statement of Mr. Selig follows:] 

30 

PREPARED STATEMENT OF ALLAN H. SELIG, COMMISSIONER, 

MAJOR LEAGUE BASEBALL

One of my primary policy objectives as the Commissioner of Baseball is to eliminate the use of performance-enhancing substances in our great game. I am committed to the idea that Baseball must have a program on performance-enhancing 

substances that is consistent with accepted international standards for sport so that 

we can remove the cloud, that fairly or unfairly, has been cast over our sport and 

its athletes. 

My commitment on this issue is long-standing. In 1999, long before BALCO or the 

well-publicized allegations of steroid use by former players, I convened a meeting 

of my senior staff, respected experts and team physicians to discuss the issue of performance-enhancing substances and to develop a strategic approach for dealing with 

that issue. Over a period of a few weeks, we developed and began to implement a 

four-point strategic plan. 

First, we felt it was important to eliminate steroid use before players reach the 

Major Leagues. Because we do not have a collective bargaining obligation in the 

minor leagues, I was able quickly to develop and implement unilaterally in the 

spring of 2001, the first ever minor league drug policy. That policy has been amended and updated each year. In its present form, it is consistent with the highest 

international standards and I hope to have a similar policy in the Major Leagues. 

The key features of the minor league policy include: 

• A comprehensive ban on all performance-enhancing substances including 

steroids, stimulants, ephedra, precursors, masking agents, and diuretics. 

• Year-round unannounced random testing of minor league players. 

• Immediate fifteen (15) game suspensions without pay for first time offenders 

and escalating discipline thereafter. 

• A strict liability approach under which athletes are held accountable for any 

substance found in their bodies regardless of intent or the source. 

Last year, we conducted nearly 5,000 tests in the minor leagues and the program 

is being expanded to cover the Dominican and Venezuelan summer leagues this 

year. 

Second, we committed ourselves to a comprehensive educational program on performance-enhancing substances. At my direction, we assembled an outstanding 

group of medical professionals to supervise our program. As we speak, those professionals are engaged in a tour of all thirty spring training camps to meet with players and explain the serious health issues associated with the use of performanceenhancing substances. This spring, Major League Baseball and the Partnership for 

a Drug Free America have agreed to conduct a campaign to alert young people to 

the dangers of steroids through Public Service commercials to be aired during this 

season on both national and local telecasts of Major League games. An important 

component of our annual Rookie Career Development Program, conducted jointly 

with the Players Association, is an educational session on the dangers of performance-enhancing substances. And, we have partnered with the Center For Drug Free 

Sport to provide our minor league players with access to a 24-hour a day, 7-day a 

week 800 number that deals with questions on performance-enhancing substances. 

Third, we decided to become active supporters of legislative efforts to increase the 

regulation of performance-enhancing substances masquerading as so called ‘‘nutritional supplements.’’ Just this week, Congressman John Sweeney conducted a press 

conference at my office in New York to publicize the introduction of legislation to 

regulate precursors such as androstenedione and designer steroids such as THG. We 

have also supported the Hatch Biden Bill, which is similar legislation co-sponsored 

by Chairman McCain, as well as legislative and administrative efforts to ban 

ephedra. More generally, Major League Baseball has advocated a wholesale overhaul of the Dietary Supplement Health and Education Act so as to create a more 

active role for the Federal government in protecting the American consumer, and 

particularly the youth of America, from dangerous products sold as nutritional supplements. 

The fourth and most difficult part of our strategy was to make the problem of performance-enhancing substances a bargaining priority in our negotiations with the 

Major League Baseball Players Association (‘‘MLBPA’’). The MLBPA approached our 

2002 negotiations with a long-standing, deep-rooted philosophical objection to drug 

testing of any type. Baseball had to deal with this opposition in an extraordinarily 

difficult labor relations environment. As I am sure you will recall, Baseball experienced a crippling strike in 1994—1995 during which I appeared before Congress on 

a number of occasions to address concerns about our private labor dispute and the 

31 

on-going player strike. As the 2002 negotiations approached, the Clubs were still 

feeling the economic effects of the strike and the mere prospect of bargaining caused 

a number of Senators, Congresspersons, the media and millions of fans to express 

grave concern about the possibility of another work stoppage. In fact, I testified in 

hearings before the Subcommittee on Anti-trust of the Senate Judiciary Committee 

on November 21, 2000 and before the Committee on the Judiciary of the House of 

Representatives on December 6, 2001. 

In this difficult environment, the Clubs held to their commitment to address the 

problem of performance-enhancing substances. One of the first written proposals 

made by the Clubs in the winter of 2002 was on drug testing. The topic was probably the most contentious issue throughout the process, and the new drug agreement was one of the last issues resolved in the hours of continuous bargaining before the MLBPA strike deadline in August of 2002. 

Ultimately, the agreement we accepted on drugs was a compromise. We accepted 

less than we wanted because, in my judgment as the Commissioner, we had pushed 

the MLBPA as far as it would go without a strike and, equally important, the Clubs, 

whatever their convictions, were profoundly concerned about the impact of another 

strike. 

Compromise or not, the new joint drug agreement is an important step forward 

on the issue of performance-enhancing substances. The MLBPA abandoned its complete opposition to random testing. Baseball administered over fourteen hundred 

random drug tests in the Major Leagues last year and will administer a similar 

number this year. There is anecdotal evidence that the testing has had the desired 

prophylactic effect. Going forward, players will be subject to suspensions without 

pay that will impose tremendous economic penalties. And, if our legislative efforts 

on precursors and designer steroids are effective, such substances will automatically 

be added to our banned list. 

As important as this step is, I realize that we have work to do. We need more 

frequent and year-round testing of players. We need immediate penalties for those 

caught using illegal substances. We need a program that bans all performance-enhancing substances regardless of whether the substances are categorized as steroids 

or nutritional supplements. We need a program that will meet accepted international standards and allow for the continued internationalization of our game. 

The MLBPA is well-aware of our desire to strengthen the Joint Drug Agreement 

to address growing concerns about performance-enhancing substances. It goes without saying that this issue will be a priority in our next negotiations. But I understand the need to act now and we have suggested to the MLBPA a number of creative ways for the institution to move forward immediately, and without sacrificing 

the rights and protections secured by the MLBPA in the last agreement. I am hopeful that the MLBPA leadership and the players will join me in a cooperative effort 

to restore the faith of the fans in our game and its great players. 

The CHAIRMAN. Thank you very much, Commissioner. And I 

apologize for short-circuiting you there. 

Mr. SELIG. It’s all right. 

The CHAIRMAN. But in response to my question, you are prepared 

to revisit the 2002 collective bargaining agreement for the purpose 

of adopting a drug-testing policy that is at least as stringent as the 

NFL policy? You’re prepared to do that? 

Mr. SELIG. I would like to use our minor league policy, which I 

believe I just articulated, Mr. Chairman. But the answer to you is, 

unequivocally, yes. 

The CHAIRMAN. Mr. Fehr, I’d like to ask you the same question. 

Are you prepared to revisit, immediately, the 2002 collective bargaining agreement, with the owners, for the purposes of adopting 

a drug-testing policy that is at least as stringent as the NFL policy? 

Mr. FEHR. Let me say a number of things in response to that, 

Mr. Chairman. First of all—— 

The CHAIRMAN. You might start out with yes or no. 

Mr. FEHR. Mr. Chairman, the agreement that we now have contains provisions for ongoing review. Those’ll be done. 

32 

Second, if commissioner and the clubs have ideas that they want 

to broach with us, that they would like us to consider. All parties 

are obviously free to do that, and we will be pleased to entertain 

what they have to say. 

Third, I do not now, nor have I ever, predetermined or made prejudgments as to the results of discussions. 

Fourth, I agree with the commissioner that the program we’ve 

adopted, I think, has had, based on anecdotal evidence to date, as 

he just indicated, substantial effect, and I believe we will see, over 

the course of this year, much more dramatic effects. 

No one’s opposed to having continued discussions. We don’t bargain in public, and we don’t predetermine the results of those discussions. 

The CHAIRMAN. I don’t understand why you wouldn’t agree that 

a policy as stringent as the NFL’s would be a standard that you 

wouldn’t commit to adhering to. 

Mr. FEHR. Mr. Chairman, let me try and respond in the following 

way. We believe that things, concepts, principles, like not being required to prove innocence of something about which an individual 

is not suspected, is an important thing. We don’t treat it lightly. 

We don’t treat lightly the notion of searches without cause. 

We have made, I submit, a substantial compromise. If further 

compromises are needed, we’re certainly willing to talk about those, 

and we’ll see. I am not prepared, however—— 

The CHAIRMAN. You don’t believe that further compromises are 

needed? 

Mr. Madden, are you familiar with the drug-testing policy of 

major league baseball? 

Mr. MADDEN. Sir, I’m no expert. I’m familiar with it. 

The CHAIRMAN. Do you think it’s stringent enough? 

Mr. MADDEN. No, sir. I don’t believe it has any of the elements 

I described earlier. They don’t have out-of-competition, year-round 

testing, their list is obviously short. It has to be an illegal item to 

be tested for. It just has none of the elements. It’s not a transparent program. 

The CHAIRMAN. I note that first drug violation for an Olympic 

athlete is a two-year ban; for the National Football League, it’s four 

games without pay; and for major league baseball, I am informed 

it’s counseling, with pay. 

Commissioner Selig, reports indicate, and your testimony confirms, that there was a fear among the owners, during the 2002 

collective bargaining process, that things would break down and 

lead to a strike. In fact, a high-ranking official from your office was 

quoted as saying, quote, ‘‘When it got down to the drug-testing 

issue, we had to decide, ‘Should we take a strike for this,’ which 

would have been deadly to the game.’’ He asserted, on one hand, 

he’d like to see a zero-tolerance policy with result to drug use in 

baseball, but the issue was treated as nothing more than a bargaining chip at the end of your collective bargaining, and ceded to 

the Players Union, for fear of a strike. 

Mr. SELIG. Well, Senator McCain, what happened—there’s a lot 

of history here. We, obviously, had dealt with the problem. We had 

instituted this problem in the minor leagues. We had begun the 

educational program. We had done all the other things. The indusVerDate Nov 24 2008 11:40 Nov 02, 2012 Jkt 075679 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\76456.TXT JACKIE
33 

try and many of its member clubs were, frankly, in a weakened 

state, and I was concerned about that. When we got down to the 

wee hours of the morning, and it was obvious that we were not 

going to get the kind of drug program that I had hoped to get, I 

had to make a judgment. This was a compromise, it was not—it did 

not reflect, at all, using this as a chip. On the contrary, we just felt 

that, at that time, given the pressure on us from many places, including Washington, to not to have a work stoppage, that I felt, at 

that point, that it was time to move on. And hopefully we can make 

that look good by making the necessary adjustments now that we 

have to make. 

The CHAIRMAN. Mr. Upshaw, recently Mr. Orza said, ‘‘Let’s assume steroids are a very bad thing to’’—Mr. Orza is the chief operating officer of major league baseball—quote, ‘‘Let’s assume 

steroids are a very bad thing to take. I have no doubt that they 

are not worse than cigarettes.’’ I’d like you to comment on that. 

And, Mr. Orza was asked—when referring to the harmony that the 

NFL enjoys with its Players Association, Mr. Orza stated, quote, 

‘‘Some other unions do it differently, but they value peace more 

than justice, in my estimation.’’ Would you like to respond to those 

two statements by Mr. Orza? 

And the reason why I ask that, Mr. Upshaw, is because it indicates a certain contempt that is really remarkable. 

Mr. UPSHAW. Well, I would first start by saying I was present 

when he made those comments, and I know why he made them, 

but I don’t agree with them. I believe, in our sport, our players 

were the leaders in this area. They demanded that we get it out 

of football, period, end of discussion. ‘‘We want zero tolerance. We 

don’t want it in the game. We’re not concerned about privacy. 

We’re not concerned about search and seizure. I know the guy over 

there is using it, and I want it out of the game.’’ And that’s what 

we did. 

But we were also doing it in a way that was very, very comprehensive. We wanted testing that was random. We wanted it 

year round. We wanted confidentiality. We felt that was important. 

We wanted education. And we wanted penalties. And together with 

the NFL, we worked out a program that we feel at least we’re addressing the issue in a way that it helps our players, and we’re 

making the right examples for the youth that are watching what 

we do. And it gets right to what makes our game what it is, the 

integrity of the game. And that’s the real reason. 

The CHAIRMAN. Thank you very much, Mr. Upshaw. 

Mr. Fehr and Mr. Selig, all I can say to you is, this issue has 

reached the level where the President of the United States discusses it at a State of the Union message to the American people. 

Your failure to commit to addressing this issue straight on and immediately will motivate this Committee to search for legislative 

remedies. I don’t know what they are, but I can tell you and your 

players that you represent the status quo is not acceptable. And we 

will have to act in some way, unless the players at Major League 

Players Association acts in affirmative and rapid fashion, and I 

very, very, very much regret to say that, because I don’t think we 

have any business doing it. 

34 

But as all Members have stated here, the integrity of the sport, 

and the American people, demand a certain level of adherence and 

standards that, frankly, is not being met at this time. And, again, 

I regret to say that, and I say it with all respect to both you and 

the Commissioner. 

And I’ll be glad to hear a response from you, or move to the next 

Senator. 

Mr. SELIG. Well, from my standpoint and the club’s standpoint, 

Mr. Chairman, I agree with that. This is a problem that needs to 

be addressed for a number of reasons, a myriad of reasons. And as 

I said in my prepared remarks, it needs to be addressed now. I 

think there are health reasons, there are competitive issues, and 

I’m very hopeful that we can address the problem very expeditiously. And I, frankly, can’t disagree with anything you just said. 

The CHAIRMAN. Mr. Fehr? 

Mr. FEHR. Well, just very briefly, let me say again there are provisions in the agreement that call for periodic review. We’ll certainly honor those. We’re certainly willing to sit down and discuss 

any new and different ideas and to look at matters in light of new 

information. 

I believe that the program that we instituted has had some effect, and I believe that over the course of this year, even if no modifications are made, that will be borne out. It’ll be a matter of empirical knowledge. We won’t have to guess about it. If it’s not, that, 

in and of itself, would suggest that the fundamental premise that 

it works is wrong. 

The CHAIRMAN. Thank you, sir. Thank you for appearing today, 

and we hope you get well soon. 

Mr. FEHR. Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Dorgan? 

Senator DORGAN. Mr. Chairman, let me say that I’m profoundly 

disappointed at the news that in the last couple of years we’ve 

made very little progress. I think this testing program is a babystep. Perhaps a baby step in the right direction, but as the Chairman indicated, you can be found in baseball today, through this 

testing program, taking steroids, and you don’t miss a game, as I 

understand it. I mean, you get counseling. I don’t—I just don’t understand why there has been so little progress, and let me ask a 

couple of questions. 

First of all, Mr. Commissioner, did you propose, in the collective 

bargaining process, the type of rigorous testing program that you 

have imposed in the minor leagues? Did you propose that in your 

bargaining with the Players Union? 

Mr. SELIG. The answer, Senator Dorgan, is yes, we did. It was 

probably, if not the most—well, I think it was the most contentious 

issue, and, in fact, I think Mr. Angelos, as I said in my prepared 

remarks today, would certainly agree with that. There was a lot of 

emotion, there was a lot of intensity. And the answer to your question is, we knew then, and I knew, Senator Dorgan, from having 

talked to a lot of the team doctors and many medical people, we 

need a policy like we have in the minor leagues. And so the answer 

to your question is yes, we—— 

35 

Senator DORGAN. So you proposed a policy of the type you have 

in the minor leagues or of the type they have in the NBA or the 

NFL. At this point, let me ask Mr. Fehr a question. 

Mr. McCain asked you a question two years ago in the hearing. 

He said, ‘‘Can you assure this Committee this will be a very, very 

important item of discussion?’’—talking about drug testing. And 

you said, ‘‘I have no hesitancy about doing that, for two reasons, 

one of which is, the players are going to insist on it.’’ 

Here’s a USA Today poll that says ‘‘79 percent of the players 

want drug testing.’’ Now, I would ask, Did you consult with the 

players? And if 79 percent, 80 percent of the players want drug 

testing, how do we end up with a testing program that provides no 

penalties, that is occasional, and that resembles—has no resemblance at all to the NFL or the NBA or others? I don’t understand 

how this happens. 

Mr. FEHR. A couple of things. First of all, the laws provide that 

each bargaining unit and the employers in that industry bargain 

with respect to that industry, and that’s what we do. That’s what 

every organization does. Second, when I left here after that hearing, in June, I met, over the next 6 weeks, more or less, with every 

team, individually, for hours. All issues in collective bargaining 

were discussed. The issue of steroids, in general, and what testing 

program should be negotiated and what should be the elements, in 

particular, was discussed at significant length in every meeting. 

What came out of that was a position to say, OK, we have long 

held the view that there should not be testing without cause. We 

have had testing where cause can be shown, for two decades, but 

that we would recede from that. We’ll take a survey and find out 

if this is right. That’s what we did. The results came back. We 

have—— 

Senator DORGAN. Can you share that survey? 

Mr. FEHR.—receded from that position. 

Senator DORGAN. Would you share the results of that survey 

with this Committee? You said you took a survey. Is that—— 

Mr. FEHR. Sure, that was the survey test that was done in 2003. 

That’s been publicly announced, that I referred to in my earlier testimony. 

Senator DORGAN. Now, let me—you mentioned suspicion-less 

testing. And as you did, Mr. Fehr, I’m thinking to myself, Have you 

just missed most of what I’ve been reading and most of what America has been reading that causes us to believe there’s a serious 

problem? There is a major and growing problem. We all understand 

that. So the discussion about testing is not about suspicion-less 

testing, in my judgment. 

And let me make another point. You said to us about privacy, 

‘‘This is an issue about privacy.’’ And you said, ‘‘We, as’’—you didn’t 

quite say it this way—‘‘We, as public officials, that know about the 

issue of privacy.’’ And we do. No question about that. The standard 

is generally that if what you do in private doesn’t affect your public 

performance, it’s private. But in baseball, in athletics, the taking 

of steroids in private is designed specifically to affect your performance in public. Specifically for that. There cannot possibly be a privacy issue here, in my judgment. 

36 

And so with respect to suspicion-less testing or privacy issues, I 

just don’t understand it. I think, it seems to me, that it is in the 

interest of every baseball player in this country. And I might reference Curt Schilling, for whom I have great admiration. A few of 

them are speaking out, saying, ‘‘We want testing. We don’t want 

this cloud of suspicion hanging over our wonderful sport.’’ I just 

don’t understand why this is even part of collective bargaining. 

With this cloud of suspicion, the answer ought to be, ‘‘Absolutely, 

let’s have testing, remove this cloud and get back to playing baseball and not talking about banned substances and taking of 

steroids.’’ 

Mr. FEHR. Two or three things. First of all, the privacy issue essentially comes about not in the way you suggest. The general philosophical principle, if you will, that I’ve alluded to a couple of years 

ago, and I allude to now, is this. If I have no reason to suspect you, 

as an individual, of having done anything—I have no reason to suspect that, no evidence, no circumstances which would suggest that 

something is there—as an individual, then it’s not up to me to 

make accusations, and it’s not up to me to ask you to prove yourself innocent, and it’s not up to me to do a search of your body or 

your house or your telephone records or anything else that you 

have. 

Where you have cause, of course, that changes. In the Fourth 

Amendment context, when we’re dealing with the government, we 

usually refer to it as probable cause. That’s the context of that 

issue. That’s an important American value. And we ought not to 

lose sight of it, I suspect. 

Second, what happened was that notwithstanding that long-held 

and deeply felt belief—that if you have cause, you should test; and 

otherwise, not; and we have had testing for cause for a long time— 

then what the players agreed to was to recede from that if evidence 

of the problem can be demonstrated. We did the test. We found out 

empirically. We receded from it. And testing without cause is now 

commencing. 

Senator DORGAN. Mr. Fehr, my time is about expired, but I 

think—first of all, all of you have common interest in the success 

of sports and the exhibition of these wonderful athletes who make 

a living playing football or basketball or baseball. I must say that 

I think it will serve the interest of the athletes, serve the interest 

of sport in this country for all us to recognize there is a very significant problem. 

There is a book titled ‘‘The Tipping Point.’’ And I must say that 

we’ve reached a tipping point on this issue. There’s no going back. 

We’ve got a problem. And it seems to me the owners and the players must solve it. 

You said, two years ago, this must be solved by baseball. You 

said that—if I may conclude—that this has to be solved within 

baseball. Well, the difficulty with that is, if, in the collective bargaining process in baseball, they’re trying to impose a system that 

exists in the minor leagues and in many other of the major league 

sports, and you’re saying no, it’s not going to get solved. It’s only 

going to get solved, in my judgment, when the players understand 

it’s in their interest to solve it. If 80 percent of them believe that, 

then that ought to be reflected in the policies of baseball, with reVerDate Nov 24 2008 11:40 Nov 02, 2012 Jkt 075679 PO 00000 Frm 00040 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\76456.TXT JACKIE
37 

spect to testing for steroids and banned substances. And I regret 

that it’s not. And I think the quicker you get to that point, the 

quicker you put this behind you. 

Mr. Chairman, thank you. 

The CHAIRMAN. Senator Allen? 

Senator ALLEN. Thank you, Mr. Chairman. 

Let me first address you, Mr. Fehr. You heard the testimony of 

Gene Upshaw, former football player, who has the perspective of 

the love of the game, who also played the game, understands how 

important that is for the players. And in it he talked about the integrity of the game, the health of the players, and the message that 

there should not be any shortcuts to success, which is important for 

young people. 

Baseball’s a different sport than football, and there’s not the contact and the hitting, so speed matters, and running the bases, and 

hand and eye coordination is very important, but it’s not a collision 

sport and a contact sport, as is football. But would you agree in 

these principles that Mr. Upshaw enunciated and espoused, and 

would you not also agree that using steroids or these substances 

does—it can—can disrupt the natural competitive balance of 

sports? Your sport, in particular, of baseball, that you represent the 

players? 

Mr. FEHR. First of all, I’ve known Gene for—Gene Upshaw for 

a very long time, probably a quarter of a century. We have had, 

and I suspect always will have, an extremely good and respectful 

relationship. He understands, as I do, that his job is to represent 

his players within the confines of whatever collective bargaining 

arises in his sport, as it is mine in mine. 

Second, there is no question, as I said before, as I said in 2002, 

that the use of unlawful steroids or the unlawful use of any substances is inappropriate and ought not to be permitted. There are 

two questions which flow from that. The first one is, If that’s true, 

what is the appropriate way to go about doing it, and what principles are important enough to be considered and looked at, given 

the nature of the problem, the circumstances present, and anything 

else which is relevant to the issue? The second thing you look at 

is the public policy of the United States. 

Now, let me focus on androstenedione for a moment. I am certainly not a doctor, I’m not a research biologist, I don’t have that 

background; nor do I work day to day on this program in baseball, 

as Mr. Selig will tell you, that’s primarily—— 

Senator ALLEN. If you could, speed up your answer. We have 5 

minutes, and—— 

Mr. FEHR. All right. It is—well, go ahead. 

Senator ALLEN. Well—— 

Mr. FEHR. Androstenedione has been demonstrated, I think, by 

the research that I have been made aware of, to be bad, but particularly bad in connection with children. It ought not to be used 

by anyone. It is legal to be used by them and to be purchased by 

them. That’s a decision that was made here. 

Senator ALLEN. All right, but I’m going to—because we’re short— 

I understand, and I understood the—— 

Mr. FEHR. I apologize for the length. 

38 

Senator ALLEN. No, that’s OK, because you made the point 

that—gosh, if something’s so awful, don’t allow regular citizens, 

non-athletes, non-professional athletes, to use it. But if you’d just 

look, it’s such a stark difference in attitude, where, in my view— 

you bring up the Fourth Amendment and the privacy rights and so 

forth, but you do have a responsibility, a contractual responsibility 

as a player to that team franchise, to the business that is organized 

as a league, as well as one that is an ethical one. You look at the 

situation in NFL, and, as Mr. Upshaw said—look, they didn’t wait 

around for the government to fiddle around and go through hearings and debates and procedures and committees to figure out what 

to do with ephedra. They stopped it. They saw it as a problem. 

They didn’t wait for the government to do it. 

Your approach, unfortunately, seems to be a completely different 

one. And I understand, for minor league baseball, as far as the 

Commissioner is concerned, that it is—you’re not under the collective bargaining agreement, understand what you would like to see 

done. 

Now, let me ask you this. In listening to Mr. Upshaw and Commissioner Tagliabue, but particularly Mr. Upshaw, he said the 

players wanted this to be done. Why can you not allow, for example—this may be a solution—all the players in major league baseball to vote on whether they want to have a program—maybe it’s 

like minor league baseball or something commensurate with the 

NFL Players—or the NFL agreement? Why not allow the players, 

who do want to play, who want to make those contracts—they earn 

it, it’s a short time—I make no apologies or—I make no criticism 

of any athlete to get what he or she can get in the marketplace; 

that’s free market, and owners and leagues make a lot of money 

off these TV contracts—but the point is, why not let them vote on 

this so that no one is getting that competitive advantage over them 

with these substances? 

Mr. FEHR. The players approve of every position that we take in 

bargaining in the overall collective bargaining agreements that we 

reach. We couldn’t reach them otherwise. 

Senator SMITH. Well, do you let the players vote? All the players? 

Or just player reps? 

Mr. FEHR. No, all the players vote to ratify the agreements. 

Senator SMITH. Fine. But could you let them vote on the specific 

issue of random drug testing, following the principles that Mr. 

Madden talked—which are logical principles of drug testing. 

Mr. FEHR. We don’t submit to a vote—ideas in the abstract. It 

comes up in the connection with bargaining. But let me assure you, 

Senator, that the notion that somehow the players are divorced 

from the union that represents them is simply wrong. 

Senator SMITH. How can you figure that the NFL players have 

such a view for the integrity of the game, for their own health, and 

also caring a great deal about the message it sends to young people, who they want to keep the game going in future generations, 

how can there be such a divergence in that ethical or that sentiment of the players in major league baseball from what you find 

in the NFL? 

Mr. FEHR. I don’t speak to NFL players, Senator. I understand 

that, you know, you’re right to a certain extent, football is a contact 

39 

sport, and mass times velocity—or mass times acceleration equals 

force. They made the judgments in their collective bargaining relationship they believed were the appropriate ones to make. Players 

in baseball did also. If that mindset changes in the players, they 

will change. If, in discussions we have, either in the short term or 

the long term, suggest otherwise, that will change. If it turns out 

that the program we’ve put into place does not have the effect that 

we thought it would, if the incidence of use does not fall dramatically, as I expect it will, then that would suggest we’ve been wrong, 

and we’ll go and do something else. 

Senator ALLEN. My time is up. I have a lot more questions. 

Thank you. Thank you all for appearing. 

The CHAIRMAN. Senator Breaux? 

Senator BREAUX. Thank you, Mr. Chairman. And thank all of the 

panel witnesses. 

Mr. Fehr, do you think that the use of illegal steroids is cheating? 

Mr. FEHR. Yes. 

Senator BREAUX. Do you think that employers have the right to 

do random, unannounced testing of players that they employ? 

Mr. FEHR. In a non-union situation, management has the right 

to impose whatever it wants to. In a bargaining situation, all terms 

and conditions have to be bargained. The employees have an opportunity to participate in that. That’s what unions are all about. 

That’s why we have the labor laws. 

Senator BREAUX. Is the position of your union to support the random, unannounced testing of your members? 

Mr. FEHR. The position of this union is that we made an agreement which provided, last year on a survey basis, and going forward this year, and into the future, that there would be random, 

unannounced testing of the players. That will take place. 

Senator BREAUX. Is there a limitation on how often it can be— 

they can be tested under the random system you now support? 

Mr. FEHR. Yes. There’s a limitation in the current—there is a 

limitation in the current agreement, for random. There is no limitation for for-cause. 

Senator BREAUX. There’s no limitation what? I’m sorry. 

Mr. FEHR. For for-cause testing. So that, for example——— 

Senator Breaux: Yes, I understand that. But what’s the limit on 

how often you can do the random testing? 

Mr. FEHR. It would be done at an undetermined time, and it will 

be different for everybody. It’ll go on from the beginning of the season to the end—— 

Senator BREAUX. But how many times could a player—— 

Mr. FEHR.—of the season. Once per year. 

Senator BREAUX.—be tested? I’m sorry? 

Mr. FEHR. It’s once per year, although the test is of two parts, 

separated—— 

Senator BREAUX. So a player knows that he could be tested only 

once in an entire year? 

Mr. FEHR. Unless there’s cause, under this agreement. 

Senator BREAUX. Oh, well, sure if there’s cause. My, God, he got 

his hand in the cookie jar; I would hope so. 

40 

What is the difference, Mr. Madden, between the NFL testing 

program and the baseball testing program? I think the Chairman 

went into that, but what would the baseball program have to do 

different in their testing to achieve what the NFL has accomplished? 

Mr. MADDEN. Not being an expert in either program, they’d need 

to do year-round, out-of-competition, no-notice testing. They’d have 

to have significantly more serious sanctions. They’d have to be 

transparent, announcing a ballplayer, when he does test positive 

and they go through their adjudication procedures. And they’d need 

to test for a complete list of prohibited substances. 

Senator BREAUX. Mr. Fehr, the President—thank you, Mr. Madden—the President has called for a summit, I think, of the leaders 

of all of the major sports leagues. The stories that I have read is 

that major league baseball is the only one that has resisted participating in that summit, for the reason, in the press reports, that 

you feel it’s a collective bargaining matter and shouldn’t be the 

proper subject of a summit. I mean, how can you, as representing 

something that is truly a national sport, with all of the national attention given to this, say, ‘‘Look, we’re so insular that we’re going 

to not acknowledge that we have a responsibility to the public, to 

even participate in a public summit called by the President of the 

United States?’’ 

Mr. FEHR. Mr. Chairman—or, sorry, Mr. Senator, there was one 

article to that effect. I believe it was a Washington—— 

Senator BREAUX. And is that correct—— 

Mr. FEHR.—Post article. 

Senator BREAUX.—or not correct? 

Mr. FEHR. I will explain. That article contained a specific quote 

from Gene Orza, saying he couldn’t imagine the circumstances 

under which we would not participate. What we know about a proposed summit of the representatives of all the leagues comes from 

a representative of major league baseball on the Hill. That’s what 

we know. 

Senator BREAUX. Well, you all have not been contacted by anybody—— 

Mr. FEHR. I’ve not been contacted—— 

Senator BREAUX.—in the Administration at all? 

Mr. FEHR.—by anybody at the White House or the Executive Department with respect to attending a meeting of that type. 

Senator BREAUX. OK. Suppose you got an invitation from the 

President to attend, with the other major league sports representatives, a White House summit. Would you do so, without setting out 

any preconditions about even attending a summit on this issue? 

Mr. FEHR. I expect so, sure. 

Senator BREAUX. The answer would be yes? 

Mr. FEHR. Uh-huh. 

Senator BREAUX. Uh-huh? 

Mr. FEHR. Yes. 

Senator BREAUX. OK. It’s hard to write the ‘‘uh-huh’’ down. 

Mr. FEHR. I’m sorry. As I indicated before, if my voice drops, I 

apologize. 

41 

Senator BREAUX. Do you think that it is appropriate for an employer to punish an individual employee if the random test shows 

a positive report on the use of illegal drugs? 

Mr. FEHR. Yes, consistent with two things, one of which is principles of just cause, which are traditional in collective bargaining 

agreements, and, second would be with any agreements that were 

reached as to what the level of discipline would be. 

Senator BREAUX. So if the collective bargaining agreement 

reaches an agreeable standard as to the degree of punishment, 

that’s acceptable, but not outside—— 

Mr. FEHR. Oh, of course. 

Senator BREAUX.—those agreements. Do you think that baseball 

has a problem? I mean, I think you’ve heard, from all of us up 

here, that that has pointed to what we perceive to be a problem 

that is more unique to baseball with the use of illegal steroids than 

in the other professional sports. Do you think that major league 

baseball has a problem that is unique, or do you think that you’re 

not any different from the other major league public sports in this 

country? 

Mr. FEHR. I’m not personally familiar with the circumstances of 

what takes place in the other professional sports, and I don’t want 

to comment on their situations. That’s up to their representatives. 

In baseball, if you will recall 2 years ago, there were suggestions 

of use of 85 percent of the players, or very large numbers. The testing that came back was obviously disappointing. It was more than 

5 percent. That triggered the unannounced testing that we’ll have 

now, which I expect and hope will reduce it drastically, if it doesn’t 

eliminate it altogether. That’s about the best way I can answer it, 

Senator. 

Senator BREAUX. Thank you. 

The CHAIRMAN. Senator Sununu? 

Senator SUNUNU. Thank you, Mr. Chairman. 

Mr. Fehr, do you believe that the use of a corked bat by a major 

league baseball player constitutes cheating? 

Mr. FEHR. It’s against the rules, sure. 

Senator SUNUNU. Do you think that the Federal Government 

should take action to regulate and restrict the production, sale, and 

distribution of cork? 

Mr. FEHR. I don’t know whether they do or not, but, no, I do not 

think they should. But the Federal Government does take action 

with respect to what substances can be sold lawfully. 

Senator SUNUNU. Mr. Madden, how long have you been involved 

in testing for Olympic athletes? 

Mr. MADDEN. Our organization started up in October 2000, the 

day after the Sidney games ended. 

Senator SUNUNU. Is testing done for, and do the regulations that 

you’ve worked to enforce, restrict the use of over-the-counter products, medications, you know, for cold and flu and other elements 

that are found in those medications? 

Mr. MADDEN. Yes. You can test positive in certain situations. The 

penalties are much more lenient. They run, basically, a warning, 

in most sports. So they’re much more lenient for over-the-counter 

medications. If you’re talking the dietary supplements, which can 

involve andro being slipped into the supplement, that, again, would 

42 

fall under the steroid category, and that would be an initial twoyear ban. 

Senator SUNUNU. So there are significant restrictions put in 

place for lawfully sold, over-the-counter products. Just because 

something is lawfully sold doesn’t mean that the U.S. Olympic 

Committee or the International Olympic Committee advocates that 

it be allowed to be used in sport. 

Mr. MADDEN. No, sir. It would be a two-year penalty if you’re 

caught with a steroid in your system. 

Senator SUNUNU. I was struck by the number that Senator Dorgan put out. I think it came from a newspaper article, and we don’t 

believe everything we read in the papers, but it suggested that 

nearly 80 percent of the players wish to have a comprehensive system put in place in baseball. That’s not the current situation, as 

we’ve heard. 

Mr. Fehr, though, for those players that wish to undertake voluntary tests in order to clear their name, show with confidence to 

their public or their fans that they don’t use any performance-enhancing drugs, will the Players Association interfere or discourage 

their undertaking of voluntary testing? 

Mr. FEHR. First of all, any player in our organization that wants 

to say anything is, of course, free to do so. We don’t have any gag 

rules. Any player that wants to go to a physician and be tested for 

anything at a private physician is free to do so. 

Senator SUNUNU. Mr. Selig, it wasn’t clear to me—or I’ve heard 

contradictory things about the knowledge of the timing of the tests 

that were administered. To what extent was the timing of the testing set beforehand? 

Mr. SELIG. I’m sorry, what time—— 

Senator SUNUNU. The timing of the tests. Did the players know 

when the tests were going to be administered, or not? 

Mr. SELIG. No, they did not. It was unannounced, and it was, as 

specifically documented here, one time a year. And then they were 

done. 

Senator SUNUNU. Well, Mr. Fehr, for those players that are concerned about being put at a competitive disadvantage, or being accused falsely, or being tainted by the numbers that came out in the 

testing. If, you know, 5 to 7 percent are testing positive, that casts 

suspicion on every player. Fortunately or unfortunately, this does. 

That’s the facts that we’re dealing with. What is the Players Union 

doing to protect the interests of those that are concerned about either that taint or about the competitive disadvantage clean players 

are being put at? 

Mr. FEHR. What will take place under the current agreement, as 

it now is in place, is that this year there will be unannounced testing, not on a survey basis, on an identified basis. Anyone who is 

positive will be identified. He will then know that he’s in—he’s 

been found, I guess is an appropriate way to put it. I expect that 

will stop it. To the extent that that doesn’t, you then have the progressive penalties that I made mention to, and that the Commissioner referred to in his statement. And I expect that, if there are 

no changes, that what you will see over the course of this year is 

a drastically reduced incidence of positive tests from what we saw 

on the survey last year. 

43 

Senator SUNUNU. And, finally, do you agree with the statements 

of Gene Orza that equated the concerns and severity or risks associated with steroid use with cigarette smoking? 

Mr. FEHR. Mr. Chairman, I was—I’m sorry—Senator, I was not 

present—I was still home recovering when Gene made those alleged remarks. What I have been advised was that he was asked 

a question something like, ‘‘Shouldn’t you prohibit anything that 

might be harmful?’’ And the response was, ‘‘There’s no doubt at all 

that tobacco is harmful.’’ There’s no doubt at all that over—this 

is—I’m speaking now—that over the last period of time, it’s been 

a major public health issue. It’s, nevertheless, lawful, should the 

employer test for tobacco. Beyond that, Mr. Orza will have to speak 

for himself. 

Senator SUNUNU. Well, I think that answer brings us back to two 

fundamental points. One is the suggestion that it should just be a 

question of banning harmful activities, like taking a risk in playing 

off-season basketball, when maybe that’s not best for your career 

in baseball. Or smoking. Those are one set of things that might not 

be healthful to you. And there are another set of things that are 

both unhealthy, but also create a competitive advantage, an inappropriate competitive advantage, and one that undermines the integrity and the credibility of the game and the athletes that are 

participating in that game. Those are two very different things. 

And, second, I will conclude by also underscoring this distinction 

that what should be the guide in administering tests or setting regulations is just what’s legal or not legal, because there are a lot of 

very legal products, situations that still might undermine the integrity of the game, might constitute cheating, and certainly could 

be used in the right way to create a performance enhancement 

that, again, undermines the credibility and the integrity of the 

game. 

Mr. FEHR. It is one thing, I submit, to suggest that the debate 

doesn’t end by a statement that something is lawful or that something is unlawful. It is quite something else, I believe, to suggest 

that that should not be considered. And the question is, Do you 

consider it? And if so, to what extent? And how do you go about 

it? 

I would remind you, Senator, in this country—well, let me go 

back. I don’t remember if you were here at that hearing, but at the 

hearing that Senator Dorgan referred to, 2 years ago, there was an 

individual here—I believe a coach or a doctor from someplace in 

the Southwest, perhaps Arizona—who brought with him bottles 

and bottles and bottles and bottles of what were, under the law, 

nutritional supplements, which he urged and pleaded everyone to 

do something about. And I encouraged people to do that. 

That’s a judgment that Congress will make. But when the Congress says 9-year-olds can walk into a store, and it is legal for a 

pharmacist to buy this, then the question becomes whether it’s the 

role of the labor organization to say to an individual that you somehow can’t do what that child can do. It doesn’t mean that child 

should be allowed to do it. But that’s not a decision that I make 

or that my union makes. That’s a decision which is made here. 

44 

The CHAIRMAN. Could I ask Commissioner Tagliabue to respond 

to that question that was asked? Because this is a very important 

point here that’s being made in this hearing. 

Mr. TAGLIABUE. Yes, I think this is a really fundamental difference between the way we view this and the way Mr. Fehr is 

viewing it. We feel—myself, as the Commissioner, and Mr. Upshaw, as the Executive Director of the Players Association, and my 

constituents, which are owners and coaches, and his constituents, 

who are the players—we recognize that we have a unique universe 

of individuals, both in terms of what they do, in terms of physical 

exertion, playing a game that Senator Allen has described as a collision sport, and what they represent, for themselves and to others, 

and that, to be specific, they engage in extreme physical activity, 

not unlike the military, and we have consulted with the military 

and the Department of Defense scientific community on many of 

these health issues. Second, it’s about integrity of the competition, 

as Mr. Upshaw emphasized and Senator Sununu just alluded to. 

And also it’s the fact that tens of millions of young people are 

watching how they compete and whether the game has integrity. 

So when it comes to substances like andro, like ephedra, like testosterone, and epitestosterone, which appear naturally in the body, 

our medical and scientific advice has been, despite the fact that 

those may be legal for me or Senator Allen to take as a weightloss supplement, for instance, in the case of ephedra, or his wife 

or my wife to take as a weight-loss supplement, it is not safe for 

an NFL player engaged in NFL activities to take those substances, 

so we ban them. 

It’s part of a broader philosophy that we have where we have 

tried—management and the Players Association and the players— 

to identify a wide area where we have a common interest in the 

medical, health, and safety of our players and their game. And we 

view it as a win-win, not as a win-lose. It’s a zero-tolerance, as 

Gene said, not a zero-sum negotiation. 

And what we have done in this area, we are striving to do with 

medical care, generally. There are many, many issues broadly in 

the area of medical care, part and parcel of the healthcare issues 

that Congress has been dealing with, where we’re trying work together, not as adversaries. So I think it’s a set of fundamentally 

different premises that underlies our program. 

The final thing I would say is that, alluding to the question you 

asked Mr. Upshaw, he is second to nobody when it comes to employee rights, civil rights, and privacy rights. He not only heads our 

union, he’s a member of the AFL–CIO Executive Council. And for 

someone in another sport, or another sport union, to have the type 

of innuendo that you alluded to earlier is incredibly unfair. 

The CHAIRMAN. Mr. Upshaw, do you have anything to add in response to Mr. Sununu’s question? 

Mr. UPSHAW. I would just support what Commissioner Tagliabue 

just said. And we might be interested in the labor peace. We’re also 

interested in justice, and it’s not ‘‘just us.’’ 

The CHAIRMAN. Thank you, sir. 

Senator Lautenberg? 

Senator LAUTENBERG. Thank you, Mr. Chairman. 

45 

And there are two things that I want to bring up very quickly. 

One is to reestablish my assertion that baseball was developed in 

the state of New Jersey. It was 1846—no, I don’t remember the 

year, but I read about it—when a game was played at the Elysian 

Field, the first organized baseball game, A. 

B, is that there was a statement made here that I think was a 

little unfair, by a very good friend of mine, about the position of 

the Commissioner of baseball, and the gentleman who sits here and 

who occupies that. As far as I know, and I know Bud Selig quite 

well, and I also know the general arena that baseball is in. I think 

that there has been a substantial enhancement in the interest of 

the game, and I think that the permanency of your position ought 

to be decided by the owners, as it presently is, and not in a Congressional hearing. 

And I would ask you, Mr. Selig, Mr. Fehr said that random testing is now going to be the routine, and going to be done regularly, 

randomly. Hasn’t he made, therefore, a declaration that all’s well 

and that the union is going to—the Players Union is going to get 

into the program as has been requested? 

Mr. SELIG. Well, Senator, thank you for those words. And I—let 

me say about this, the reason we entered a deal, I think has now 

been articulated. I said I had spent a lot of time talking to team 

physicians and others, so I hope the answer to your question is 

that we need to revisit this. 

The thing I’ve worried about—that’s one thing about this job, you 

spend a lot of sleepless nights and wake up a lot in the middle of 

the night worrying about things—I worry, quite candidly, that—I 

think this problem, as has been described to me by people who I 

consider to be medically expert in this field, is so serious that I 

don’t want someday, long after I’m done being Commissioner, 

whenever that is, that people will say, ‘‘You all knew something 

about it, and you didn’t do something about it.’’ And so I’m not 

going to rest, quite frankly, until we’ve dealt with this problem in 

a way that I now think it needs to be dealt with. 

Senator LAUTENBERG. So are you asking just for a more formal 

understanding? If Mr. Fehr said, ‘‘OK, we’ll put it into our contract’’—and I’m not urging you to do anything except to observe 

that you’re out of step with a lot of other people here in the room— 

would you think that would be satisfactory, the random testing 

that Mr. Fehr is—— 

Mr. SELIG. Well, I think what we need is a program, Senator 

Lautenberg, exactly like we have the minor leagues or the NFL 

has. But I keep going back to our own minor league program, because that really deals with everything that’s been said here today. 

You get penalized right off the bat, there is random testing all year 

round. There are so many things. There are health issues that are 

raised. But clearly—and everybody has raised those issues—there 

are integrity issues. 

Look, the athletes of today are magnificent, and they’ve done 

well. And it breaks my heart to see even a shadow of doubt cast. 

That’s why it’s a program that I think, in the end, everybody benefits from. 

Senator LAUTENBERG. I thank you for that. And, again, being 

conscious of the time available here, I would, then, ask Mr. Fehr, 

46 

Does your position against more severe drug testing meet with 

your players’ demand, in general? 

Mr. FEHR. Let me respond to that by beginning with a reaction 

to one of the things that you said in your question to the Commissioner. I did not say, and I don’t want my remarks here to be interpreted as saying ‘‘all’s well.’’ What I have said is that following the 

hearings in 2002, we took a number of steps, which we believe will 

work. That will be determined empirically. We won’t have to guess 

about it. We will know. And if it isn’t, then that would call for 

doing something else. 

With respect to—I’m sorry, Senator, what was the second part of 

your question? 

Senator LAUTENBERG. That’s all right. Would—— 

Mr. FEHR. I apologize. 

Senator LAUTENBERG.—the fact that you offered—and I think I 

heard you correctly, that there would be a program established for 

random testing. And my question to the Commissioner was, ‘‘OK, 

does that meet the’’—— 

Mr. FEHR. Oh. 

Senator LAUTENBERG.—‘‘the requirement?’’ 

Mr. FEHR. I—— 

Senator LAUTENBERG. And, you know, I don’t want to be an arbiter here, and try to make peace among you. But the one thing I 

think that fails to register in your comments, Mr. Fehr, is, you are 

in the public domain, and that changes the rules for the game. And 

I would ask you this, Do you believe that it’s appropriate to go to 

a high school in—pick anyplace—and ask the students to submit 

to drug testing where they know that there is a drug problem in 

the area? Is that a reasonable thing to—— 

Mr. FEHR. Senator, there will be, first of all, in response to your 

first question, as quite agreed, random testing. If there are other 

ideas, or circumstances suggest we ought to go further, you look at 

those. And we’re certainly prepared to sit down and do that. 

With respect to high schools and so on, you have a circumstance 

in which local districts need to decide what’s best for them, and you 

are dealing with children. And there is no doubt at all, as I alluded 

to in my prior statements, that the documented harm from steroids 

or steroid precursors, which are fully lawful in this country, to individuals who are not yet grown is much more pronounced and potentially immediate than it is to adults or adult males. And, of 

course, what steps need to be taken should be taken. I don’t have 

a—— 

Senator LAUTENBERG. Well, is that—— 

Mr. FEHR.—I don’t have a position on—— 

Senator LAUTENBERG. Well, because—— 

Mr. FEHR.—testing of high school students. 

Senator LAUTENBERG. I’ll interrupt you here to speed the process 

along and just say that that is without cause, is it not? Is that an 

appropriate program that has no causal relationship, to go ahead 

and find out what’s happening to these youngsters and what 

they’re—in order to protect their health. To me, it’s akin to the argument you make on the other side that says, ‘‘Well, we don’t want 

to do this without cause.’’ 

47 

I think it’s fair to say that, again, in the public domain you have 

a unique obligation to bring a picture to the young people of the 

country that, yes, sports is not only honorable and a way to make 

a living, a good living, or a helluva lot of money, as Joe Biden 

would have said, but the fact of the matter is, you don’t have the 

liberty of showing an abuse of health effect or something that enhances one’s performance compared to others. You can’t take that 

kind of an advantage. You can’t start before the gun goes off in a 

track event. 

And I will conclude with this question. When you talk about collision sports or contact sports, are track and field in that category, 

of contact or collision? 

Mr. FEHR. Not that I know of. I was referring entirely to—— 

Senator LAUTENBERG. OK. You—— 

Mr. FEHR.—Senator Allen’s comment. 

Senator LAUTENBERG. Do you, therefore, then, approve of what 

the Olympic Committee does to ensure that the athletes that are 

presented don’t use steroids? 

Mr. FEHR. I don’t represent them, and they have to make those 

decisions for themselves. That’s up to them. 

Senator LAUTENBERG. OK. So, Mr. Fehr, what I hear from you— 

and I don’t speak for my colleagues, obviously—is kind of a shadow 

representation here that says, ‘‘Well, we’ve got to obey the players’ 

wishes. We have to protect their privacy.’’ But I don’t hear the public interest being talked about there. I don’t hear you saying, ‘‘Look, 

it’s good for you and your family, in the final analysis.’’ I don’t hear 

you saying that there are programs that warn players about the ultimate consequence of their taking drugs. 

Mr. FEHR. First of all, as the Commissioner indicated, for many 

years educational programs have been in place. And my memory is, 

although it’s a little foggy, that that was put into the record specifically in the hearing that was held in December—sorry, in June 

2002. There’s no question about that. 

Second, my personal advice to players—and while I never discuss 

individual conversations with players, they have a right to keep 

that confidential, but since this is a general advice, has been very 

simple and of long standing and without equivocation. Nobody 

ought to be using anything under any circumstances without a doctor or an appropriate medical professional engaged in providing 

that person care, determining that something should be done, and 

following it, and watching it. And they’re all obligated to do things 

which are legal, and legal only. I have no hesitancy about that, 

across the board. 

Senator LAUTENBERG. Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Fitzgerald? 

Senator FITZGERALD. Mr. Fehr, thank you for coming here today, 

just 2 weeks after surgery. I gather you had your gall bladder removed? You said the same—— 

Mr. FEHR. I sure hope it isn’t there. 

[Laughter.] 

Senator FITZGERALD. OK. Well, we all wish you a speedy recovery. And understand that our tough questions here in no way diminish our hopes for your good health. 

Mr. FEHR. Thank you, Senator. 

48 

Senator FITZGERALD. I did want to follow up on a couple of questions that have been asked. Now, I know when Senator Sununu 

asked you whether you thought it was cheating to use a corked bat, 

you said yes, you thought it was cheating. Do you think it’s cheating to use andro? 

Mr. FEHR. That’s a determination which I think is resolved in 

collective bargaining. The agreement we have, so far—— 

Senator FITZGERALD. Doesn’t ban andro. 

Mr. FEHR.—does not. It does not. Because—— 

Senator FITZGERALD. So you don’t think it’s cheating. 

Mr. FEHR. It is not something that the players have, thus far, 

chosen to ban. That’s correct. 

Senator FITZGERALD. So it wouldn’t be cheating to use andro. 

And you also noted that andro is not banned by Federal statute. 

Is that correct? 

Mr. FEHR. Yes. And our agreement specifically provides, among 

other things, that any anabolic substance which is added to Schedule 3, or any anabolic substance—I think I have this right—which 

may not lawfully be obtained, automatically becomes prohibited. 

Senator FITZGERALD. So your collective bargaining agreement 

makes reference to our Federal statutes. 

Mr. FEHR. In that case, yes. 

Senator FITZGERALD. In that case. But our Federal statutes don’t 

ban cork bats, for example. We have no Federal law against using 

a cork bat, correct? But, nonetheless, that is a violation of your internal rules in major league baseball. So, in that regard, baseball’s—— 

Mr. FEHR. That’s correct. I’m sorry, Senator. 

Senator FITZGERALD.—baseball’s adopting rules that are tougher 

than Federal laws. Is that correct? 

Mr. FEHR. Sure. Of course that’s correct. Now, having said that, 

the one part that’s missing from that equation is that the public 

policy of the United States has, in fact, spoken to this issue. 

Senator FITZGERALD. OK. And you’re saying with respect to cork 

bats, we haven’t spoken, is that right? 

Mr. FEHR. And I don’t believe you should. 

Senator FITZGERALD. OK. And we haven’t spoken with respect to 

whether you can put Vaseline on a baseball when you’re pitching. 

Mr. FEHR. Not to my knowledge. 

Senator FITZGERALD. But that is against your rules, because it’s 

against your internal rules. You have internal rules in baseball, as 

football has internal rules. You don’t look to Congress to decide 

what’s a penalty and what’s not. And you don’t look—baseball 

doesn’t look to Congress to decide what’s a legal pitch or an illegal 

pitch, or a legal bat or an illegal bat. But with the case of drugs, 

you do have this policy that you look to us to adopt some kind of 

public policy to give you guidance. Why the discrepancy on the 

drugs and the rest of your rules? 

Mr. FEHR. The best way I can answer that, I suspect, is as follows. The Congress of the United States unanimously, I believe— 

I know it was unanimous in the Senate—changed the law 10 or 11 

years ago, and it said that we believe, unless the Federal Government, either by Congressional action or administrative rule, decides otherwise, that substances which are called nutritional supVerDate Nov 24 2008 11:40 Nov 02, 2012 Jkt 075679 PO 00000 Frm 00052 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\76456.TXT JACKIE
49 

plements—and androstenedione, I believe, legally is one—may be 

sold and used by anyone. That was a decision this Congress made. 

It is one thing to say we aren’t bound by those rules, that’s correct. 

It’s quite something else again, I believe, to suggest that we should 

not pay attention to them at all, and pretend they aren’t there. 

Senator FITZGERALD. Well, but cork or Vaseline can be sold or 

used by anyone, too, under our statutes, isn’t that correct? 

Mr. FEHR. I think that’s correct, but I suspect that most people 

would agree that dietary supplements act as a more significant 

piece of legislation than something about cork bats would be. 

Senator FITZGERALD. OK. Now, Senator Sununu also asked you 

whether a player could voluntarily submit to his own test, and you 

said that any player could—there would be nothing to stop them 

from going to their physician and having a drug test. Is that correct? 

Mr. FEHR. That’s correct. Any one of us can do that. 

Senator FITZGERALD. Now, in a February 26 article in Newsday, 

John Hamond describes Gary Sheffield’s willingness to take a voluntary test, and his sudden reversal in his desire to take the test. 

In an article published in the New York Post on the same day, 

Gary Orza, speaking on behalf of Major League Baseball Players 

Association, stated, quote, ‘‘I told him there will be no drug test. 

I told him it would be in violation of the collective bargaining 

agreement if he took the test.’’ 

Now, do you stand by Mr. Orza’s statement in the New York 

Post? Is it a violation of the collective bargaining agreement for 

Gary Sheffield to take a test of his own accord? 

Mr. FEHR. No, it is not. The question is, Is it something that is 

insisted upon by management which is inconsistent with the collective bargaining agreement? I would also observe two things. 

Senator FITZGERALD. So Gary Sheffield could go take a test and 

report those results to the press. 

Mr. FEHR. He can do whatever he wants if it’s not coerced. 

And—— 

Senator FITZGERALD. Barry—— 

Mr. FEHR.—having said that—— 

Senator FITZGERALD.—Barry Bonds and everyone else, if the 

press wants to—— 

Mr. FEHR. Having—— 

Senator FITZGERALD.—challenge them to go take a test, they 

could go—— 

Mr. FEHR. Having said that, Senator, let me go back to where I 

came in. There’s a reason I don’t want to discuss individuals. And 

the reason is that Mr. Sheffield, whose name has been publicly reported in connection with the investigation of BALCO in San Francisco, public reports indicate that he’s been—that he is both represented by counsel, and that he has been, along with everyone 

else there, either in conversations with appropriate government officials, or asked to testify before a grand jury. I don’t know what 

his circumstances are. I would not hazard to comment. It would be 

entirely inappropriate for me to do that. 

Senator FITZGERALD. But you have no problem with any player, 

who feels his integrity has been impugned, taking a drug test and 

releasing the results to clear his or her name. 

50 

Mr. FEHR. There is no legal impediment to doing that. The Players Association couldn’t prohibit it if it wanted to. Having said 

that—— 

The CHAIRMAN. Was Mr. Orza wrong, then? 

Mr. FEHR. I don’t know that Mr. Orza said that. It doesn’t sound 

right to me, and I wasn’t there. 

The CHAIRMAN. If Mr. Orza said that, was he wrong? If he said 

it? 

Mr. FEHR. The position is as I’ve just stated it. 

Now, let me make just one further observation. Somebody referred to this as values issues. And I think that, to a large extent, 

that that’s—that there’s a lot to that. Is it an appropriate value to 

say to someone, ‘‘I don’t have any reason to suspect you’ve done 

anything wrong, but I will assume you have, unless you prove to 

me to the contrary’’? That, I suggest, is not an irrelevant question. 

The CHAIRMAN. Thank you. 

Senator Nelson, and then Senator Allen has one additional question. 

In deference to your health situation, we will then conclude the 

hearing. We thank you, and we hope we haven’t done you any permanent damage. 

Mr. FEHR. My doctor said I’m likely to be very tired, but I should 

recover, so thank you. 

The CHAIRMAN. Thank you. 

Senator Nelson? 

STATEMENT OF HON. BILL NELSON, 

U.S. SENATOR FROM FLORIDA 

Senator NELSON. Thank you, Mr. Chairman. And thank you, 

again, for your leadership on important issues facing this country, 

as you have often brought to this Committee. One that comes to 

mind, we always—we don’t always win, but we sure get the subject 

out there and get it discussed, and I’m thinking of global warming. 

So thank you for your leadership. 

I want to—I think this issue has been well discussed, and, Mr. 

Fehr, I think you know where everybody’s coming from, and you 

get the consensus here of the intensity of the feeling. 

Rather than continue the line of questioning, I want to offer, first 

of all, a compliment to Mr. Tagliabue on his strong response to the 

halftime ceremony at the Super Bowl. I have an interest in this, 

in that the Super Bowl’s going to be Jacksonville, Florida, next 

year, and we don’t want that kind of halftime. And what I’m saying 

reflects the values of Florida, and particularly of Jacksonville. And 

so thank you for the strong stand that you’ve taken. 

Mr. TAGLIABUE. Thank you. I was discussing this with the owner 

of the Jaguars yesterday. 

Senator NELSON. And I want to thank Commissioner Selig. We 

have had a meeting, earlier this morning, Mr. Chairman, about an 

issue that I’ve been discussing with him and his representatives for 

now 3 years, having to do with the pension that has not been given 

to the old Negro League baseball players. And the Commissioner 

had taken the initiative, back in 1997, recognizing that—what the 

Negro League players had offered to the game and offered a pension at $10,000 a year, but, in offering that—and this is where I 

51 

have had the discussions with him—because so many of these old 

Negro League players, who were so good, live in Florida—they’re 

now retired, and I have had several meetings with them—but a lot 

of them didn’t get compensated because what was agreed to in 

1997 was that they had had to have played in the major leagues 

after the majors were integrated, in 1947, and they had to have 

played for 4 years; when, in fact, the majors were not integrated 

when Jackie Robinson broke the color barrier. But, instead, it took 

almost 12 years later, until 1959, that all of the teams had integrated. 

And so, in pointing out that inequity, and asking him to address 

this, on what is now only about 120 of these Negro League players 

left. We’re losing them every year. We lost 22 this past year. And 

so Mr. Selig has said to me this morning that he’s coming forth 

within a month, within 30 days, to offer a specific solution that 

these remaining Negro League players will get compensation. And 

I want you to know how much I appreciate that. I look forward to 

seeing it. 

And I want to ask you, who should I continue to meet with over 

the next 4 weeks of this period to get updates on your thinking? 

And what else must I do to help facilitate your proposal, Commissioner Selig? 

Mr. SELIG. Jonathan Mariner and Rob Manford, from our office, 

I think will, in the interim—before you and I get together. They’ll 

be working on it as early as tomorrow, and they’ll give you updates 

in the interim. And I’ll be glad when, frankly, we have this whole 

issue resolved, which we will, hopefully very expeditiously. 

Senator NELSON. Is there anything more that I need to do to help 

facilitate this process as you—— 

Mr. SELIG. Not at—— 

Senator NELSON.—make your final proposal? 

Mr. SELIG. well, not at the moment. There may be some things 

in the interim, but not at the moment. We want to look at all the 

numbers and people, and then—and we’ll be back to you very 

quickly. 

Senator NELSON. Thank you. 

Mr. SELIG. Thank you. 

Senator NELSON. Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Allen has one additional question and 

then we’ll conclude the hearing. 

Senator ALLEN. Thank you. There’s a two-minute warning here. 

Thank you, Mr. Chairman. 

One, I want to very much commend the NFL Players Association 

and the league for their leadership, and the leadership in sending 

the message to young people. You involved the players in it. My 

son has a Jerry Rice jersey and Tim Brown jersey, and his heroes 

are like them, and Derrick Brooks. They are the ones that get the 

message to the kids. Others are a little older, folks like Darryl 

Green and Jim Kelly. When I was a kid, it was Deacon Jones and 

Roman Gabriel and Brig Owens and folks like that. But it’s really 

key, Mr. Chairman, to have the players involved, because they’re 

the ones who are the role models. And I thank you, Mr. Upshaw, 

and the league, for working in that way to get that message to 

young people that this is the way you compete, honestly and fairly. 

52 

On the specific legislation which brought us here on this issue, 

Senate Bill 1780, I have not signed on to it. I’m still a free agent, 

so to speak, on it. Listening to all these arguments, and, gosh, how 

are you going to have a definition of anabolic steroids and provide 

all this research and education activities, my question to you all— 

to you, Mr. Upshaw, and Commissioner Tagliabue—is, I don’t mind 

signing on to things, but you like to do things that are actually 

going to have an impact. Insofar as NFL is concerned, you don’t 

wait around for laws. Passing such a law might actually make people feel like we have done something. But, as a practical matter, 

the passage of this law—and say President Bush signs it into law, 

what impact would that be if the leagues—whether it’s major 

league baseball or whether it’s the National Hockey League, or 

whether it’s the NBA—what difference would that make unless it’s 

actually going to be enforced by the sort of credible random drug 

testing that you all have in the NFL? 

Mr. TAGLIABUE. Well, first of all, I think it would send an equally 

powerful message to—equivalent to the message that a Derrick 

Brooks or a Jerry Rice sends. Second, I think that the potential for 

a criminal sanction for people who are suppliers or distributors or 

inventors or creators of new steroids, would be very important. And 

as we’ve seen recently, that is a current challenge, and it’s going 

to be a future challenge. And so I think it would—it might not have 

significant effect on what we do, because we’ve tried to stay ahead 

of the science and prohibit things that are legal, but I think it 

would be very important. That’s why we support it. 

Mr. UPSHAW. I would just like to add to that since you understand what we’re trying to do in the NFL, I don’t see any reason 

now for you to hesitate about signing on to this bill, because it is 

a winner, and you should be part of it. 

The CHAIRMAN. Mr. Madden, go ahead. 

Mr. MADDEN. Senator, this bill would be for the children and 

women in our nation, the youngsters. We’re already ahead of it 

right now. We’re testing for those substances now. This is to get 

the stuff off the shelves that my 10 year old can go in and buy that 

we don’t know what the health issues are going to be in the future 

for all the children, all the teenagers taking this. This bill is directed to children, to women, and that should be the full brunt of 

the bill. It’s a health issue. 

The CHAIRMAN. Commissioner Selig? 

Mr. SELIG. I would urge you to pass it as soon as possible. Yes, 

it would be helpful to us in everything we’ve discussed today. We 

don’t have to go back over that. But it is a health issue. It is an 

issue that the more of this we do, the more you bring it to the public—yes, it’s helpful to us internally, but it’s helpful to this country, 

and it needs to be done quickly. 

The CHAIRMAN. Mr. Fehr? 

Mr. FEHR. Just very briefly. We certainly have no objection to the 

bill. And I phrase it that way for the following reason. The judgments about the science in connection with safety of sale of products to the general public is committed here, not to us. That objection to the side, my view, personally—and I’m sure it’s shared by 

virtually all, if not all, players—is that there ought to be nothing 

available without the kind of rigorous scientific testing which 

53 

would demonstrate, first of all, that it’s safe, or safe under whatever conditions are appropriate for over-the-counter medicines, if 

that’s the way it goes, and that it actually does what it says it 

does, and doesn’t do something else. 

You have another problem. You have the problem of whether or 

not a lot of nutritional supplements are, in fact, contaminated. 

What I mean is, they have stuff in them that isn’t there. 

If there is opposition to this bill, if there is opposition to that 

general concept, I don’t know where it is. And I’m sort of astonished that it’s still puttering along. Hopefully, it won’t be. I certainly don’t detect any indication from anybody on this Committee 

that they would have any problem. 

The CHAIRMAN. The opposition comes from the people who make 

it. 

Senator ALLEN. Thank you. 

Senator BROWNBACK. I take it that Senator Allen will be a cosponsor. 

Senator ALLEN. When Gene Upshaw says so. He’s calling the 

snap count here. 

Finally, to Mr. Fehr, you wouldn’t mind if there were a major 

league baseball team around here, would you? 

[Laughter.] 

The CHAIRMAN. Senator Smith? 

[Laughter.] 

Senator SMITH. To that point, I believe the national game should 

be in the Nation’s capital. 

Senator ALLEN. Or nearby. 

[Laughter.] 

Senator SMITH. I say that as an Orioles fan, but—— 

Thank you, Mr. Chairman. Just a brief comment. 

Mr. Fehr, I know you don’t feel well, and I wish you a speedy 

recovery. And I know that this hearing has probably not been a lot 

of fun, and a lot of anxiety that goes with it. But I hope, in the 

Chairman’s calling this hearing, that it’ll make your job easier to 

make this change, because I think it’s critical that these other systems, the minor league system in baseball, the NFL example, is a 

worthy one. And I understand, frankly, your feeling of the hypocrisy of a legal product that shouldn’t be available to players, but 

I really think the law is important, but the law is the lowest common denominator of what we can agree on up here. And, frankly, 

our ideals ought to be above the law. And I think, ideally, baseball 

should live up to the standards that will protect the health of the 

players and the integrity of the game. And that’s all I wanted to 

say. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much. 

It’s traditional to ask the witnesses, after a long hearing like 

this, if they’d like to make any closing comments, beginning with 

you, Commissioner Tagliabue. 

Mr. TAGLIABUE. I would only say thank you for your support and 

for giving us the opportunity to be here today. 

The CHAIRMAN. Thank you for being here. 

Mr. Upshaw? 

54 

Mr. UPSHAW. Thanks for your support, and we look forward to 

passage of that bill. 

The CHAIRMAN. Thank you. 

Mr. Madden? 

Mr. MADDEN. Senator, with the President’s leadership and this 

Committee’s leadership, this might be the last best chance to stop 

doping in all sports, Olympic and all the professional leagues. 

Thank you for letting us be here. 

The CHAIRMAN. Mr. Madden, our hopes are with you in the upcoming Olympic games and the preparation for it. And thank you 

for what you do. 

Commissioner Selig? 

Mr. SELIG. Thank you, Mr. Chairman, for this hearing. I have 

hopes that this will lead to a solution to the problems that have 

been so articulated here today. And I can assure you that we will 

not rest until those problems are solved. So we thank you for this 

hearing. 

The CHAIRMAN. Thank you. 

Mr. Fehr? 

Mr. FEHR. Two things. First of all, I appreciate the kind comments of a number of Members of the Committee about my personal situation. 

Second, while I don’t know many of the Members of this Committee very well, that’s not true with respect to the Chairman. He 

and I have known each other for a very—well, I guess it’s a longer 

time than we probably want to acknowledge at this point. 

With respect to your comments, I believe, you know, Senator Nelson, as the Chairman knows, I understand his comments at the beginning of this hearing, and I understand the mood which was reflected by the remainder of the hearing. 

Thank you. 

The CHAIRMAN. Thank you very much. This hearing is adjourned. 

[Whereupon, at 12:35 p.m., the hearing was adjourned.] 

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