[Senate Hearing 109-525]
[From the U.S. Government Publishing Office]
S. Hrg. 109-525
S. 1114, THE CLEAN SPORTS ACT OF 2005, AND S. 1334, THE PROFESSIONAL
SPORTS INTEGRITY AND ACCOUNTABILITY ACT
=======================================================================
HEARING
before the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 28, 2005
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
TED STEVENS, Alaska, Chairman
JOHN McCAIN, Arizona DANIEL K. INOUYE, Hawaii, Co-
CONRAD BURNS, Montana Chairman
TRENT LOTT, Mississippi JOHN D. ROCKEFELLER IV, West
KAY BAILEY HUTCHISON, Texas Virginia
OLYMPIA J. SNOWE, Maine JOHN F. KERRY, Massachusetts
GORDON H. SMITH, Oregon BYRON L. DORGAN, North Dakota
JOHN ENSIGN, Nevada BARBARA BOXER, California
GEORGE ALLEN, Virginia BILL NELSON, Florida
JOHN E. SUNUNU, New Hampshire MARIA CANTWELL, Washington
JIM DeMINT, South Carolina FRANK R. LAUTENBERG, New Jersey
DAVID VITTER, Louisiana E. BENJAMIN NELSON, Nebraska
MARK PRYOR, Arkansas
Lisa J. Sutherland, Republican Staff Director
Christine Drager Kurth, Republican Deputy Staff Director
David Russell, Republican Chief Counsel
Margaret L. Cummisky, Democratic Staff Director and Chief Counsel
Samuel E. Whitehorn, Democratic Deputy Staff Director and General
Counsel
Lila Harper Helms, Democratic Policy Director
C O N T E N T S
----------
Page
Hearing held on September 28, 2005............................... 1
Statement of Senator Allen....................................... 5
Statement of Senator Bunning..................................... 3
Statement of Senator Cantwell.................................... 5
Statement of Senator Dorgan...................................... 4
Statement of Senator Lautenberg.................................. 9
Prepared statement........................................... 9
Statement of Senator McCain...................................... 2
Statement of Senator Bill Nelson................................. 8
Statement of Senator Rockefeller................................. 6
Prepared statement........................................... 7
Statement of Senator Smith....................................... 4
Statement of Senator Stevens..................................... 1
Statement of Senator Sununu...................................... 8
Witnesses
Bettman, Gary, Commissioner, National Hockey League.............. 35
Prepared statement........................................... 36
Davis, Antonio, NBA Player and President, National Basketball
Players Association............................................ 32
Prepared statement........................................... 33
Fehr, Donald M., Executive Director, Major League Baseball
Players Association............................................ 16
Prepared statement........................................... 18
Saskin, Ted, Executive Director, National Hockey League Players'
Association.................................................... 45
Prepared statement........................................... 46
Selig, Allan H., Commissioner, Major League Baseball; Accompanied
by Hank Aaron, Lou Brock, Phil Niekro, Robin Roberts, and Ryne
Sandberg, Members, Baseball's Hall of Fame..................... 12
Prepared statement........................................... 14
Stern, David J., Commissioner, National Basketball Association... 29
Prepared statement........................................... 29
Tagliabue, Paul, Commissioner, National Football League.......... 22
Joint prepared statement..................................... 23
Upshaw, Gene, Executive Director, National Football League
Players Association............................................ 28
Joint prepared statement..................................... 23
Appendix
Daly, William L., Deputy Commissioner, National Hockey League,
letters dated, October 25, 2005, to:
Hon. John McCain............................................. 71
Hon. Frank R. Lautenberg..................................... 71
Response to Written Questions Submitted by Hon. Frank R.
Lautenberg to:
Donald M. Fehr............................................... 69
Allan H. Selig............................................... 67
David J. Stern............................................... 70
Paul Tagliabue............................................... 69
Response to Written Questions Submitted by Hon. John D.
Rockefeller IV to:
Donald M. Fehr............................................... 68
Allan H. Selig............................................... 67
Uryasz, Frank D., President, The National Center for Drug Free
Sport, Inc., Prepared statement................................ 65
S. 1114, THE CLEAN SPORTS ACT OF 2005, AND S. 1334, THE PROFESSIONAL
SPORTS INTEGRITY AND ACCOUNTABILITY ACT
----------
WEDNESDAY, SEPTEMBER 28, 2005
U.S. Senate,
Committee Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 10:01 a.m. in
room SH-216 Senate Hart Office Building, Hon. Ted Stevens,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. TED STEVENS
U.S. SENATOR FROM ALASKA
The Chairman. Good morning, I want to thank the witnesses
who have come to be with us today, and the members of the
Baseball Hall of Fame who honor us by coming to this hearing
also. And, for those who believe that professional sports does
not have an impact on the American public and our youth, I
would point out an interesting fact that I just learned this
morning. A member of my staff, Aaron Saunders, was named after
you, Mr. Aaron, after his father witnessed your 714th home run
in Cincinnati in 1974. So, we sort of have a Senate family
connection to you, let's put it that way.
I thank Senator McCain for asking to chair this hearing and
for his commitment to demanding fair competition at all levels
of our sports world. And we welcome as a guest member of this
Committee at this time, Senator Bunning whose baseball career
and dedication to preserving the integrity of our national game
speak for themselves.
As someone who pushed for the creation of the U.S. Olympic
Committee and who has been involved with sports issues in the
Senate for over 37 years, I have become increasingly concerned
with the dramatic increase in doping at all levels of
athletics, particularly among our youth.
In a 2003 survey of over 15,000 high school students, the
U.S. Centers for Disease Control and Prevention found that more
than 6 percent of high school students admitted to using non-
prescription illegal steroids at some point in their lives. And
that is unacceptable to us.
Doping is a stain on all levels of athletics. It taints the
accomplishments of our elite athletes, creates unattainable
expectations for our young athletes, and threatens their
physical well-being.
I want to commend all of the leagues for addressing their
drug problems over the past 18 months. There are two key
elements to an effective drug policy: deterrence and
credibility. Unfortunately I've got to say to you gentlemen, we
would not be holding this hearing if all of your policies
satisfied those threshold elements.
I look forward to working with Senators McCain and Bunning,
and the rest of the Committee, and the Senate to report
legislation, and consider legislation on this subject. John,
thank you very much. I know there are problems in our schedules
today, I don't know what you're going to do. I am going to go
to that meeting at 10:30, but I thank you for taking over, I
think you ought to tell us what your plans are.
STATEMENT OF HON. JOHN McCAIN,
U.S. SENATOR FROM ARIZONA
Senator McCain. Well, thank you very much, Mr. Chairman.
Thank you for your courtesy in allowing me to hold the gavel
this morning, and I appreciate the many courtesies you've
extended to me, but most importantly your continued involvement
in this issue.
I will make a very brief statement. I would ask my
colleagues also to make brief statements and then if it's
agreeable, we have some special witnesses this morning that
were not on the list, that perhaps I would ask to come forward
to make statements as well. So again, I thank you, Senator
Stevens, and we'll just press on with this hearing. Senator
Bunning, welcome, and thank you for your involvement. I'll be
brief.
Today's hearing is about the integrity of professional
sports. It's more importantly, perhaps, about young Americans.
Young Americans who believe that the only way that they would
be able to perform at a Major League professional level is
through the ingestion of performance-enhancing drugs. The House
of Representatives, some time ago had a hearing and some of the
witnesses were the family members of young people who had
committed suicide while under the influence of these
substances, and that's really what it's all about.
There are some people who would say Congress has no
business in this issue. Well, I would make two points. One, we
have not acted--professional sports have not acted. And two, we
have an obligation to young people to do everything in our
power to prevent them from succumbing to this terrible
attraction in the belief that the only way they can perform at
a Major League professional level is if they ingest these
substances. Ask any high school coach in America, as I have,
many high school coaches who have told me the same thing.
I want to finally say, we don't want to have to act
legislatively. We know that this is a labor and management
issue. But we have the additional obligations and the fact that
Major League Baseball, in particular, has still not been able
to act. We also need to examine what's going on with the other
professional sports regarding this issue. I urge my colleagues
to be brief in their opening remarks, and I would ask my friend
and Baseball Hall of Fame member, Senator Bunning to be
recognized.
STATEMENT OF HON. JIM BUNNING,
U.S. SENATOR FROM KENTUCKY
Senator Bunning. Thank you, Mr. Chairman. First, I want to
thank Chairman Stevens and Senator McCain for the opportunity
to be a guest member for this hearing. Second, I and probably
most of the other Members in Congress do not relish the
situation we are in.
That situation is being on the brink of possibly passing
legislation to clean up something that the sports leagues and
players' unions should be able to clean up on their own. But
for whatever reason, you just can't get it done, and you can't
get your act together.
It is impressive and amazing what you all can do. You can
come to agreements on collective bargaining and salaries, and
aspects of free agency and trading, and a host of other issues.
But for whatever reason, some of you just cannot strike a deal
on testing and penalties for illegal drug use. I, and millions
of fans, think that is pathetic.
Since we cannot be in the clubhouse to try and get to the
bottom of all this, we thought we would bring you into this
committee room. We apologize for not having any showers in
here. Lord knows we all may need a shower after this hearing to
cool down, because it just might get a little uncomfortable in
here.
My focus is going to be on baseball, not just because I
once wore the uniform, but because that seems to be the biggest
problem. Baseball's Commissioner has put forward a drug testing
and penalty proposal. While I am not 100 percent in agreement
with it, it is a start.
While I think the Commissioner took too long to put forward
his plan, I realize he had to deal with owners and build
somewhat of a consensus with them. At times I am sure it was
kind of like herding cats for the Commissioner.
But the baseball players' union has not exactly been timely
and pro-active in addressing the steroids issue. I know a bit
about baseball players' unions because I and some of my former
baseball colleagues here, helped start it. Some of them are
here. Robin Roberts is here and Bob Feller and a few others.
Yes, for the record this conservative Republican helped form a
union. Back then, it was all about making sure players had fair
salaries and fair pensions.
These were important issues to help protect active players
and retirees. But now? But now whether it is true or not, the
perception is that the baseball players' union is protecting
players who use steroids and other illegal performance-
enhancing drugs.
Believe me, that was not something we ever envisioned the
players' union doing. And I hope it is not what the union is
doing. I see some of my fellow Hall of Famers here. Thank you
for coming. I spent part of my career in the American League
and did not have to pitch to Henry Aaron very often.
I know they are concerned about steroids and not just how
they affect the integrity of the game and the way they distort
statistical records that took years and years for some members
sitting out there to achieve.
Thank you, Mr. Chairman. I appreciate it, and I'll get with
the questions later on.
Senator McCain. Thank you, Senator Bunning, for everything
that you do on this issue and many others. Senator Dorgan,
brief remarks please, from all of my colleagues.
STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
Senator Dorgan. Mr. Chairman, thank you very much. Three
and half years ago when I chaired the subcommittee that dealt
with among other things, sports, at your request I held the
first hearing, I believe, on baseball steroids in this
Committee. Let me say, that some things have happened since
that time, some positive things. But Mr. Chairman, let me tell
you something that I've told you before many times. Roger Maris
comes from the great State of North Dakota. In 1961 he broke a
34-year record, hit 61 home runs, a record that has stood for
34 years and he did it without steroids.
And Mr. Chairman, some of us think that home run record
still stands. And that's a sad comment about baseball. I regret
to say that, but it's a sad comment about baseball. We held the
hearing three and half years ago as I indicated. We made some
progress, but I still find it unbelievable that not everyone
believes the same thing. There ought not be performance-
enhancing drugs in baseball. There ought not be a question
about a rigorous testing program and there ought not be
questions about penalties.
Let me say, Mr. Fehr, you've been here twice, and in my
judgment the players' union in baseball has given ground only
grudgingly, and in every circumstance only grudgingly, arguing
that this is a part of collective bargaining, and it's a matter
of privacy.
Mr. Fehr, you and the players have lost that argument. It
is not about privacy, and it is not about collective
bargaining. That issue is over. And I hope that finally this
hearing will end the need for future hearings and everyone will
understand there cannot be performance-enhancing drugs in
professional sports. There must be aggressive testing and
aggressive penalties for their use.
STATEMENT OF HON. GORDON H. SMITH,
U.S. SENATOR FROM OREGON
Senator Smith. Thank you, Chairman McCain. Gentlemen, all
of you, thank you for participating in this hearing. I was a
very young boy when my family moved from Oregon to Washington
D.C. and soon I found myself in love with the Washington
Senators. One of the earliest memories of my life was watching
Mickey Mantle beat my Senators, by hitting a home run out of
the park in the old Griffith Stadium. As an adult I have
watched and thrilled as records have fallen by today's great
players and yet now as the father of a 16-year-old, watching
further records that I once watched be created. To watch them
fall, with asterisks by them is very distressing.
It isn't just that. Far more important to 16-year-olds is
the example which Major League players obviously are called
upon to set for our young people. So I would hope, Mr.
Chairman, that the leaders that are at the table today, would
understand the importance of a ``three strikes and you're out''
policy to set a standard that will reverberate far beyond the
majors, but to the little leagues as well. Every time a player
tests positive for drugs, he casts doubt not only on his own
achievements but on the achievements of all players, and I do
respect the players unions' obligations to defend every player.
But I hope it is fully understood that when it protects
cheaters it threatens the rest of the players who are playing
by the rules.
I close, Mr. Chairman, by simply noting a quote from Little
League Baseball's International President to Major League
Baseball, and the Major League Players Association. Said he
``We all must accept the fact that children are affected by the
actions of Major Leaguers...tougher polices in dealing with
steroids among Major Leaguers will help convey to young people
the seriousness with which this problem is regarded by players
and Major League baseball.'' All of us in baseball are counting
on you to do the right thing. Thank you, Mr. Chairman.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman, and I may enter
a longer statement in the record, but just say this.
Senator McCain. Without objection.
Senator Cantwell. Thank you, Mr. Chairman. I'm very
concerned about this issue. Commissioner Selig was in Seattle
in April and gave a speech at a luncheon commemorating and
celebrating Ichiro Suzuki's accomplishments from the last
season.
At the time, he spoke about the ``three strikes and you're
out'' policy. And the Seattle Mariners have taken very swift
action, not only with three Major League players, but eight
Minor League players. I think our franchise has probably taken
very decisive and swift action. But yet I'm left with the
conclusion, after hearing all of this in April and seeing all
these actions in April, that somehow collective bargaining is
stopping us from getting real results on this issue. And it
seems that only will we get movement on a negotiation between
the baseball union and Major League Baseball if Congress and
the United States Senate has hearings. I think we have to have
more progress in this.
Currently steroids have been used not only by professional
athletes but younger athletes, and the fact that so many of
these younger athletes are now finding this acceptable because
Major League Baseball hasn't acted and taken swift action, I
think is a problem. So, Mr. Chairman, thank you for holding
this hearing, and thank you for your continued leadership on
this issue.
Senator McCain. Thank you.
Senator Allen.
STATEMENT OF HON. GEORGE ALLEN,
U.S. SENATOR FROM VIRGINIA
Senator Allen. Thank you, Mr. Chairman. People of America
love sports, and the reason is, is that everyone's got an equal
opportunity to compete and succeed based upon their own hard
work, their strategies and execution.
We look at sports, and I do, and I grew up in sports,
playing it, with my father's teams. But it is a meritocracy,
Mr. Chairman. You don't care about someone's race, their
religion, their ethnicity, all you care about is whether they
can contribute to the team effort. And I think this country
loves sports because it is that meritocracy, it's what we
should aspire to for our society.
There are certain elements of it, it's a level playing
field. It's also something that is admired by young people. As
a pup growing up, I liked Johnny Unitas, and Roman Gabriel, and
Deacon Jones, and later on, Billy Kilmer and Diron Talbert. My
kids admire people like Jerry Rice, and Tim Brown, and Cadillac
Williams. And others in other sports, it was Jerry West and
Elgin Baylor, you know you'd think of them all. Sandy Koufax,
Minnie Minoso, Ernie Banks, and in hockey I loved all the
Montreal Canadiens. And they didn't wear helmets then so you
could see what they looked like on the ice.
The point is people look up to these players. The integrity
of the sport is essential. Statistics matter, that makes it
interesting, but especially young people if they see that they
don't have to work hard, lift weights, run, exercise, whatever
all the training is, and you can get it out of a bottle, it
sends the wrong message.
Now we're going to be looking at legislation here, let's
make sure that this legislation while not perfect, if the
Federal Government is going to act, does not harm what some of
the leagues do. Let's not stereotype every one of the leagues
as being in the same situation. I look at the NFL as one who
doesn't wait around for the Federal Government or the FDA to
act, they work together.
Mr. Upshaw and Mr. Tagliabue, and the players and owners
work well together.
Senator McCain. The Senator's time has expired.
Senator Allen. I hope Mr. Chairman, that we're going to
make sure as we work through here that this meritocracy will
continue to be admired. And I thank you, and our witnesses for
appearing today.
Senator McCain. Senator Stevens.
The Chairman. Mr. Chairman, and the witnesses who have
come, I want to apologize for my conflicts today. We're just
overwhelmed with issues pertaining to Katrina and Rita, and
you'll see Members come and go here while you're here. We
thought about canceling this, but I think this is of
overwhelming importance too, so I congratulate Senator McCain
for wanting to continue. And I hope he does continue, but
there's a series of meetings going on now that many of us will
have to go to. I apologize for leaving.
Senator McCain. Thank you, Senator Stevens.
Senator Rockefeller.
STATEMENT OF HON. JOHN D. ROCKEFELLER IV,
U.S. SENATOR FROM WEST VIRGINIA
Senator Rockefeller. Thank you, Mr. Chairman. I've been a
baseball fan since I was six, and I still am. But I will have
to say that I'm mightily disillusioned by what is taking place.
I agree with Senator Dorgan, that the Major League home run
record, was set by Roger Maris, and has never been broken. I
don't know why it is that we have to keep doing this. We have
these meetings and I, for one, am tired of them. I particularly
single out baseball, and in baseball I particularly single out
those who represent the players. Because I think they, as has
been said, negotiate reluctantly if at all. I think I saw a
letter that was sent the day before yesterday, not to the
Commissioner but to the press. Negotiating through the press,
not with the Commissioner is not a very good idea, and I don't
know from management's point of view, whether they knew
anything about the great chase of Sosa and McGwire, and what
was going on with those folks and whether they were doing that
to bring baseball back to where it belonged. Because baseball
had been suffering on crowds and that really did, in fact,
solve the problem.
But for those of us who absolutely love the sport, who are
fanatically devoted to it, and spend too much time watching it,
as Jim Bunning well knows, we can't go on with this. I have no
hesitation whatsoever in singling out a particular sport, or
all sports. And having Federal legislation that mandates what
they do. That's not what the Congress generally does with free
enterprise, but if that's what it takes to get America, the way
America ought to be, and have kids looking up to athletes the
way they need to, and do, then I'm for it.
Senator McCain. Senator's time has expired.
Senator Rockefeller. So I am impatient, I am angry, I
recognize that most of the sports here are doing the best they
can. But baseball is not. Thank you, Mr. Chairman.
[The prepared statement of Senator Rockefeller follows:]
Prepared Statement of Hon. John D. Rockefeller IV,
U.S. Senator from West Virginia
I want to thank Senator McCain for holding this hearing today,
although I am deeply disappointed that we have to hold another hearing
on this topic. We have a number of Hall of Fame baseball players in
attendance today and I would like to recognize their continuing
commitment to baseball. I know that they care deeply about the future
of the game, as do I.
Before I start, I wanted to mention again at this hearing that my
son has the good fortune of being married to Commissioner Tagliabue's
daughter.
Unfortunately, I am not sure that everyone here today shares our
deep concerns that continuing steroid use in baseball is having a
devastating impact on the game and on the next generation of athletes.
Eighteen months ago, I told almost the exact same group of people
testifying before the Committee that in my opinion Roger Maris still
holds the single season home run record. The news stories of the last
six months certainly reinforce that view for me and millions of other
fans. I will reiterate that is my view that use of steroids and other
performance-enhancing drugs has no place in sports at any level, at any
time.
The NFL has an aggressive testing program and significant penalties
for individuals who test positive for steroids or other banned
substances. The results of the NFL's policies can be seen in the very
small percentage of players who test positive for banned substances.
NFL players and owners recognize that their sport would be better off
if everyone played by the same rules.
I know the National Basketball League and the National Hockey
League have reached agreements with their respective players' unions on
steroid policies. It is my understanding that these policies will go
into effect during the 2006 season. I am pleased to see that these
leagues have endorsed substantially more rigorous testing regimes as
well as much more significant penalties for their players who test
positive for illegal substances.
Unfortunately, Major League Baseball and its players have not
achieved the same level of consensus on this issue, which is outrageous
given the fact that baseball is the sport with the largest problem.
I will also reiterate that I place much of the blame squarely on
the players, who continue to resist meaningful testing and disciplinary
measures. I also blame the owners who have spent more of their energy
managing the public relations aspect of steroids abuse instead of
focusing their energies on cracking down on the problem.
I am a co-sponsor of legislation that would take steroids policy
out of the hands of the leagues. I did not take this step lightly. It
was a sign of my growing frustration with baseball and other leagues'
inability to police themselves. I know the witnesses will offer a
number of criticisms of the bills, many of them are valid. I certainly
do not want Federal rules that are weaker than what the various leagues
have adopted.
I want Major League Baseball and its players to view this hearing
as the second strike. You do not want to make a third appearance before
this Committee explaining why you cannot make a voluntary system work.
I also want to make it clear that I will be closely monitoring how the
NHL and NBA implement their new programs. Too much is at stake. Most
importantly, the health of young people is at risk. You are role
models. You set examples.
You must do the right thing or Congress will step in and make you
do it. If it does not appear that the leagues are making any real
progress in addressing this issue, I will work with Senator McCain,
Senator Bunning, and others to pass legislation.
I look forward to hearing from the panel today.
Senator McCain. Senator Sununu.
STATEMENT OF HON. JOHN E. SUNUNU,
U.S. SENATOR FROM NEW HAMPSHIRE
Senator Sununu. Thank you, Mr. Chairman, I don't have an
opening statement and I appreciate the panel being here. I'm
sure there are zillions of other places you would rather be.
But I do appreciate the NFL and the other professional sports
leagues for providing the model for testing that they have. Of
course I appreciate the Commissioner and those in Major League
Baseball for at least beginning the process of implementing a
testing plan and look forward to hearing how the implementation
of that plan has progressed, how it might be improved, and
appreciate the time.
Thank you, Mr. Chairman.
Senator McCain. Senator Nelson.
STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA
Senator Nelson. Thank you, Mr. Chairman, the consequences
of what we're talking about today are enormous, because we're
seeing the spread of the use of steroids among young athletes
particularly in high school. Their steroid use is up, it's more
than doubled among high school students from 1991 to 2003,
according to the Centers for Disease Control. Last year, one
school district in my state, Polk County, became the first in
Florida to establish random testing for high school athletes.
And then the Florida legislature tried and failed to require
steroid testing for all high school athletes, the schools and
the states push back by saying that it's too costly. So I'm
directing our staff to draft Federal legislation that would
help states with the resources they need to curb the use of
steroids. It would provide Federal grants directly to the
states, so that they can develop and implement steroid testing
programs.
And I think in conclusion I'll say, I think it's time for
all of you to get involved in these kinds of ways, and I ask
each of you testifying today to begin a major multi-sport,
national advertising campaign, and it could be paid for by the
leagues and their players and it could be directed at young
people. Thank you, Mr. Chairman.
Senator McCain. Senator Lautenberg.
STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM NEW JERSEY
Senator Lautenberg. Thank you very much, Mr. Chairman. I
want to have a few words, not strictly as a Senator, but also
as a grandfather. And one of my grandsons who's 9 years old
follows the New York Yankees so ardently that last spring
before baseball season began, he wrote an article that assessed
the Yankees chances of winning their division this year. The
article was very insightful, it revealed the extent of his love
for the game of baseball and his allegiance to that particular
team. Any other team representation here, forgive me. He looks
up to the players, and in his eyes, they truly loom larger than
life. And of course there are millions of young people like my
grandson, they idolize professional athletes who play baseball,
football, basketball, you name it. And I would hate to have to
explain to my grandson or any other young person that this
respect and admiration was misplaced. I'd hate to have to break
his heart by telling him that some of his heroes were cheating.
And I'd hate to----
Senator McCain. I'd like to remind the Senator, we have a
two-minute time limit here this morning.
Senator Lautenberg. OK. We're just about there. And I'd
hate to see a game that's inspired generations of Americans,
become forever tainted by scandal. Mr. Chairman, we've come to
realize that this is really a serious problem. And I commend
you for holding this hearing.
[The prepared statement of Senator Lautenberg follows:]
Prepared Statement of Hon. Frank R. Lautenberg,
U.S. Senator from New Jersey
Mr. Chairman,
I want to speak not as a Senator, but as a grandfather.
One of my grandsons follows the New York Yankees so ardently, that
last spring, before the baseball season began, he wrote an article that
assessed the Yankees' chances of winning their division this year. The
article was very insightful and it revealed the extent of his love for
the game of baseball and his allegiance to the Yankees.
He looks up to the players--in his eyes, they truly loom larger
than life.
Of corse there are millions of young people just like my grandson.
They idolize professional athletes who play baseball, football,
basketball, soccer and hockey.
I would hate to have to explain to my grandson, or any other young
person, that this respect and admiration was misplaced.
I would hate to have to break his heart by telling him that some of
his heroes were cheaters.
And I would hate to see a game that has inspired generations of
Americans become forever tainted by scandal.
Mr. Chairman, I think we have all come to realize that this really
is a serious problem. Now it's time to get serious and agree on a
solution that we can all rally behind.
Senator McCain. Thank you, Senator. Now I understand that
Commissioner Selig has brought five individuals with him this
morning who are amongst the most respected and admired people
in America. And if it's agreeable to you, Commissioner, we'd
ask them to come and sit next to you, one by one and make a
brief statement since they have come here, and we'd like to
begin with Hank Aaron, if that's agreeable, sir. Thank you for
coming this morning, Mr. Aaron, you honor us with your
presence.
Mr. Aaron. Thank you very much, Mr. Chairman. This is the
first time I've been a lead off though.
Senator McCain. I'm sure you'll hit a home run here.
Mr. Aaron. I'm used to cleaning up. But I'm here because of
my involvement with the Boys and Girls Clubs for many years,
and in traveling around the country I think I was saddened by
some of the things that I hear from my colleagues and some
things that I've heard from drug testing, and all the hearings.
And I'm here this morning to support the Commissioner, and also
to support tougher anti-drug action. I think that we need to be
concerned with our young people because they are the ones that
are the future of this country. And if we don't protect them,
are we not going to protect this country. Baseball is just a
small part of all of the things that we are capable of doing in
this country. So I want to applaud the Commissioner, and I also
just want to make sure that whatever we do, we make sure that
we clean up baseball. Thank you very much.
Senator McCain. Sir, may I exercise the prerogative of the
Chair and ask you one question?
Mr. Aaron. Sure.
Senator McCain. What should be done about records that are
set that are tainted by the use of steroids?
Mr. Aaron. I think that's going to be--Mr. Chairman, I
think that's going to be left up to the Commissioner and the
rules committee. They will probably have to go back and look at
some of those things that happened. That's the only answer that
I can give you at this time.
Senator McCain. Thank you, sir, and thank you for your
magnificent work as an outstanding American.
Mr. Aaron. Thank you very much.
Senator McCain. Mr. Brock, welcome.
Mr. Brock. Thank you, Mr. Chairman, my name is Lou Brock,
and I'm here to represent baseball and its fight and its
struggle to confront steroid use in America's sports. I believe
that we have to make some radical move to get the attention of
everyone. Radical, simply meaning that steroids are radical.
And its movement, and it can only move if we touch it with our
hands. So we need to be able to have a radical decision. A
radical decision that points out and states our belief in
America. And that is cheaters can't win. And steroids has put
us in a position that it's OK to cheat. And I think the stiffer
the penalty, the greater the message will be sent. Thank you,
Mr. Chairman.
Senator McCain. Thank you, very much, sir, and thank you
for joining us. Mr. Sandberg. Resident of the great State of
Arizona.
Mr. Sandberg. Thank you, Mr. Chairman. I want to thank you
personally for all that you do for the great State of Arizona.
I enjoy living out there, and I love the golf courses, by the
way.
Senator McCain. We appreciate your taxes.
Mr. Sandberg. I'm here today, because I love the game of
baseball. Exactly two months ago, I gave an induction speech in
Cooperstown and I reflected on my career, and I talked about
players respecting the game. Players playing the game the right
way. To me that's respecting the uniform they wear, respecting
their team, respecting their opponents, the media, and the
fans.
We do have a problem in baseball, and using steroids is not
respecting the game. I'm here today in hope of a strict policy
for baseball that has strict penalties for the cheaters in the
game. Fifty, 100, life, is a strict policy. And what I hope for
the game is players that are respectful. And we here today owe
America's pastime a strict policy. Thank you.
Senator McCain. Thank you very much.
Mr. Niekro.
Mr. Niekro. Thank you, Mr. Chairman.
Senator McCain. Welcome, sir.
Mr. Niekro. I'm here, I had the honor to play the game of
baseball 28 years, 23 in the Majors, and 5 in the Minor
Leagues, I guess we just didn't have those problems back there,
then. If we did, it certainly wasn't recognized. I am here to
support the policy of the Commissioner of Baseball. I do
believe that a first offender--50 games, sometimes I don't
think that's even enough. But that is a starting point. I have
been under the guidance of Don Fehr, and Marvin Miller when
they first brought the union together. And they have done a lot
for the players, extremely a lot. I would not be living in a
house, and driving the cars, or whatever if it wasn't for the
association of, basically, baseball players. But I do believe
that they can step up. I know they have been meeting a lot in
trying to put this problem to an end. And it is a problem. I
would like to see the Association of Players come up and come
to the level of 50 games, at least 50 games. And I am here to
strictly back Mr. Selig's proposal of first time offender, 50
games, and sometimes I don't think that's enough. Thank you.
Senator McCain. Thank you, sir. Thank you for coming today.
And finally Mr. Robin Roberts, who mentioned that his
performances were far superior to Mr. Bunning's.
Mr. Roberts. That's not true, Mr. Chairman. That's not
fair. But welcome to all of you. The last time I was here at a
meeting like this, was when Senator Kefauver called me. And
they were arguing about the reserve clause. And I got a--I get
the same pay this time I think, Bud, don't I?
Mr. Selig. That's correct.
Mr. Roberts. Jim, Senator Bunning. Pardon me, Jimmy. He
mentioned that he and I were very active in starting the
Players Association, and there have been a number of items that
the players have fought for and I disagreed with and everything
else. But I'm not in a position of helping out at all. But I
think, overall, Jim and I can be proud of the fact that the
Players Association and the owners have come up with a
beautiful sport, followed by many great athletes still playing.
And what we're talking about today is certainly something that
has to be reckoned with.
Of all the things that I've agreed with, on Don and the
Players Association, I disagree. I don't believe that with his
power and with his--that he can no longer recognize the fact
that this has got to be something, he's got to say to the
Commissioner, you represent the fans, we represent the fans,
the fans demand this, and I think he'll most important to go
along with what the Commissioner has proposed, and not make you
gentlemen waste your time anymore with that thing.
It is a terrible thing. I do think I would like to see an
amnesty as far as records that have gone behind. Because nobody
knows exactly who did what, and as much as I respect Roger
Maris, and the rest of them. The show they put on, the fact
that Barry Bonds is hitting them right now, and I know he
mustn't be on them now, I don't know. But he's a phenomenal
athlete, probably the greatest hitter that ever lived. And you
can taint him anyway you want, but the guys playing the game
today, they take better care of themselves, they're outstanding
athletes, and I do think that Don is the one that can
straighten this out immediately and you guys and ladies can
work on other things. Thank you for having me.
Senator McCain. Thank you, sir, thank you for being here.
And I know that's a little unusual, but I thought it was
important to hear from these individuals who have done so much
for America's pastime and I appreciate the patience of our
witnesses. And now our panel consists of Allan H. ``Bud''
Selig, Commissioner of Major League Baseball, Don Fehr, the
Executive Director and General Counsel of the Major League
Baseball Players Association, Paul Tagliabue, Commissioner of
the National Football League, Gene Upshaw who is the Executive
Director of the National Football League Players Association,
David Stern, the Commissioner of the National Basketball
Association, Antonio Davis who is the President of the National
Basketball Players Association, Gary Bettman, who is the
Commissioner of the National Hockey League--the newly
resuscitated National Hockey League, and Ted Saskin, who is
Executive Director of the National Hockey League Players
Association. Welcome. We'll begin with you, Mr. Selig.
STATEMENT OF ALLAN H. SELIG, COMMISSIONER, MAJOR LEAGUE
BASEBALL; ACCOMPANIED BY HANK AARON, LOU BROCK, PHIL NIEKRO,
ROBIN ROBERTS, AND RYNE SANDBERG, MEMBERS, BASEBALL'S HALL OF
FAME
Mr. Selig. Thank you, Mr. Chairman. I would like to thank
the Chairman, the Ranking Member and the Committee members for
inviting me to testify today.
I have the distinct privilege of serving as the ninth
Commissioner of Baseball. As Commissioner, the most important
point I want to make this morning is that my top priority is to
eradicate performance-enhancing substances from baseball. That
is why I proposed last April a tough, new 50-games, 100-games,
life suspension discipline schedule for cheaters who use
steroids. Members of the Committee, it is time for this
proposal to be accepted.
As you know now, five members of Baseball's Hall of Fame--
Hank Aaron, Lou Brock, Phil Niekro, Robin Roberts, and Ryne
Sandberg--have joined me today to support my proposal to
toughen Major League Baseball's drug-testing program. I also
have with me a letter from the President of Little League
Baseball urging tougher penalties for those who use steroids.
I have often spoken about baseball's role as a social
institution, and how Jackie Robinson breaking the game's color
barrier on April 15, 1947, was baseball's proudest moment. As
the national pastime, we have social responsibilities that we
take very seriously. But meeting those responsibilities can be
difficult and complex. Baseball presently has a problem with
performance-enhancing substances. This is a problem for several
reasons. First, players who use steroids are cheating which
directly affects the integrity of the game. Second, the use of
steroids presents serious health issues for those who are
taking them. Third--and this directly impacts the social
responsibility that the game has to its fans and to the
communities in which we play--the use of steroids by our
players influences the youth of America. Whether we and our
players like it or not, they are role models and kids who
admire them are likely to emulate what they do. If the young
athletes of our country believe that taking steroids may help
them become Major Leaguers, they will take those substances.
This must not happen. It is my goal as the Commissioner of
Baseball to eradicate the use of performance-enhancing
substances from the game and I won't leave one stone unturned
until that happens.
Before the BALCO investigation and before President Bush
brought up the subject in the State of the Union speech, Major
League Baseball had recognized the seriousness of the steroid
problem and had begun to address it. We banned performance-
enhancing substances throughout the Minor Leagues and began
testing there. But I could not unilaterally impose testing in
the Major Leagues, because drug testing is a matter of
collective bargaining. The Major League Baseball Players
Association had long opposed any kind of testing. During our
2002 labor negotiations, testing for performance-enhancing
substances was a priority and we were successful, for the first
time, in negotiating a testing program. Although it was not as
comprehensive as I would have liked, it was a first step.
But we did not stop there. In March 2004, due in part to
the message from the President and this Committee, we went back
to the Players Association and told them that the program we
had was insufficient. Last January, in an unprecedented move,
Major League Baseball and the Players Association reopened the
basic agreement and devised a tougher, more comprehensive drug-
testing program that was much more effective.
There is no doubt in my mind that the current testing
program is working. But whether or not the program is working
is no longer the issue. The issue is integrity, my integrity,
the players' integrity, the owners' integrity, but most
importantly, the game's integrity. The integrity issue is
transcendent. We must put a stop to the use of steroids and the
best way is to put in place a drug-testing program that has
tough discipline and independent testing. In April, I sent a
letter to Don Fehr, the Executive Director of the Players
Association, proposing that violators of the program be
suspended for 50 games for a first offense, 100 games for a
second, and a lifetime ban for a third. I also proposed an
extension of testing to include amphetamines, increased random
testing, and turning over the administration of the testing
program to an independent authority.
I believe so strongly in this proposal that I have already
implemented the ``three strikes and you're out'' program in the
Minor Leagues for the 2006 season. At the Major League level,
my staff has diligently pressed the Players Association and, in
recent weeks, has negotiated--as required by the National Labor
Relations Act--to effectuate the goals I articulated in my
letter to Mr. Fehr. Unfortunately, the Players Association has
yet to agree to the proposal I made to them five months ago.
This week, I received a letter from Mr. Fehr that moves in the
right direction, but his reply does not go far enough.
Notwithstanding my impatience and profound disappointment, I
refuse to give up and will continue to press to strengthen the
program.
Senator John McCain and Senator and Hall of Famer Jim
Bunning each has introduced legislation that would regulate
drug-testing programs in professional sports. It would be
preferable to handle this issue through collective bargaining,
but after waiting five months I stand ready to support
appropriate Federal legislation if Congress becomes convinced
that the collective bargaining process will not yield an
acceptable drug-testing program.
While this process continues, we have increased our efforts
where we can act unilaterally. For example, in 2005, we
significantly increased our drug testing in the Minor Leagues,
in the Dominican Republic and Venezuelan Summer Leagues. We
conducted more than 7,000 tests and imposed more than 100
suspensions in the Minor Leagues alone for players who tested
positive for performance-enhancing substances. Recognizing the
need to keep the science of drug testing on the cutting edge,
Major League Baseball has committed to fund research by Dr.
Donald Catlin, the renowned scientist who heads the World Anti-
Doping Agency-accredited UCLA Laboratory, in his endeavor to
create a valid urine test for Human Growth Hormone. We are also
active on the educational side of this issue and have joined
forces with the Partnership for a Drug Free America and the
Taylor Hooton Foundation to help warn America's youth and their
parents about the health dangers of steroids and performance-
enhancing drugs.
There can be no question that Major League Baseball takes
this issue very seriously. As I have said many times, the
elimination of steroids and performance-enhancing substances
from our game through a tougher and more effective testing
program is essential to restoring integrity to the game. I
appreciate the attention you are giving this issue and thank
you for allowing me the opportunity to appear before you today.
[The prepared statement of Commissioner Selig follows:]
Prepared Statement of Allan H. Selig, Commissioner, Major League
Baseball; Accompanied by Hank Aaron, Lou Brock, Phil Niekro, Robin
Roberts, and Ryne Sandberg, Members, Baseball's Hall of Fame
I would like to thank the Chairman, the Ranking Member and the
Committee members for inviting me to testify today.
I have the distinct privilege of serving as the ninth Commissioner
of Baseball. As Commissioner, the most important point I want to make
this morning is that my top priority is to eradicate performance-
enhancing substances from baseball. That is why I proposed last April a
tough, new 50-games, 100-games, life suspension discipline schedule for
cheaters who use steroids. Members of the Committee, it is time for
this proposal to be accepted.
Five members of Baseball's Hall of Fame--Hank Aaron, Lou Brock,
Phil Niekro, Robin Roberts, and Ryne Sandberg--have joined me today to
support my proposal to toughen Major League Baseball's drug-testing
program. I also have with me a letter from the President of Little
League Baseball urging tougher penalties for those who use steroids.
I have often spoken about baseball's role as a social institution,
and how Jackie Robinson breaking the game's color barrier on April 15,
1947 was baseball's proudest moment. As the National Pastime, we have
social responsibilities that we take very seriously. But meeting those
responsibilities can be difficult and complex.
Baseball presently has a problem with performance-enhancing
substances. This is a problem for several reasons. First, players who
use steroids are cheating which directly affects the integrity of the
game. Second, the use of steroids presents serious health issues for
those who are taking them. Third--and this directly impacts the social
responsibility that the game has to its fans and to the communities in
which we play--the use of steroids by our players influences the youth
of America. Whether we and our players like it or not, they are role
models and kids who admire them are likely to emulate what they do. If
the young athletes of our country believe that taking steroids may help
them become major leaguers, they will take those substances. This must
not happen. It is my goal as the Commissioner of Baseball to eradicate
the use of performance-enhancing substances from the game and I won't
leave one stone unturned until that happens.
Before the BALCO investigation and before President Bush brought up
the subject in the State of the Union speech, Major League Baseball had
recognized the seriousness of the steroid problem and had begun to
address it. We banned performance-enhancing substances throughout the
Minor Leagues and began testing there. But I could not unilaterally
impose testing in the major leagues, because drug testing is a matter
for collective bargaining. The Major League Baseball Players
Association had long opposed any kind of testing. During our 2002 labor
negotiations, testing for performance-enhancing substances was a
priority and we were successful, for the first time, in negotiating a
testing program. Although it was not as comprehensive as I would have
liked, it was a first step.
But we did not stop there. In March 2004, due in part to the
message from the President and this Committee, we went back to the
Players Association and told them that the program we had was
insufficient. Last January, in an unprecedented move, Major League
Baseball and the Players Association reopened the Basic Agreement and
devised a tougher, more comprehensive drug-testing program that was
much more effective.
There is no doubt in my mind that the current testing program is
working. But whether or not the program is working is no longer the
issue. The issue is integrity . . . my integrity . . . the players'
integrity . . . the owners' integrity . . . and, most importantly, the
game's integrity. The integrity issue is transcendent. We must put a
stop to the use of steroids and the best way is to put in place a drug-
testing program that has tough discipline and independent testing. In
April, I sent a letter to Don Fehr, the Executive Director of the
Players Association, proposing that violators of the program be
suspended for 50 games for a first offense, 100 games for a second, and
a lifetime ban for a third. I also proposed an extension of testing to
include amphetamines, increased random testing, and turning over the
administration of the testing program to an independent authority.
I believe so strongly in the proposal that I have already
implemented the ``three strikes and you're out'' program in the Minor
Leagues for the 2006 season. At the Major League level, my staff has
diligently pressed the Players Association and, in recent weeks, has
negotiated--as required by the National Labor Relations Act--to
effectuate the goals I articulated in my letter to Mr. Fehr.
Unfortunately, the Players Association has yet to agree to the proposal
I made to them five months ago. This week, I received a letter from Mr.
Fehr that moves in the right direction, but his reply does not go far
enough. Notwithstanding my impatience and profound disappointment, I
refuse to give up and will continue to press to strengthen the program.
Senator John McCain and Senator and Hall of Famer Jim Bunning each
has introduced legislation that would regulate drug-testing programs in
professional sports. It would be preferable to handle this issue
through collective bargaining, but after waiting five months I stand
ready to support appropriate Federal legislation if Congress becomes
convinced that the collective bargaining process will not yield an
acceptable drug-testing program.
While this process continues, we have increased our efforts where
we can act unilaterally. For example, in 2005, we significantly
increased our drug testing in the Minor Leagues and in the Dominican
Republic and Venezuelan Summer Leagues. We conducted more than 7,000
tests and imposed more than 100 suspensions in the Minor Leagues alone
for players who tested positive for performance-enhancing substances.
Recognizing the need to keep the science of drug testing on the
cutting edge, Major League Baseball has committed to fund research by
Dr. Donald Catlin, the renowned scientist who heads the World Anti-
Doping Agency-accredited UCLA Laboratory, in his endeavor to create a
valid urine test for Human Growth Hormone. We are also active on the
educational side of this issue and have joined forces with the
Partnership for a Drug Free America and the Taylor Hooton Foundation to
help warn America's youth and their parents about the health dangers of
steroids and performance-enhancing drugs.
There can be no question that Major League Baseball takes this
issue very seriously. As I have said many times, the elimination of
steroids and performance-enhancing substances from our game through a
tougher and more effective testing program is essential to restoring
integrity to the game. I appreciate the attention you are giving this
issue and thank you for allowing me the opportunity to appear before
you today.
Senator McCain. Thank you, Commissioner.
Mr. Fehr.
STATEMENT OF DONALD M. FEHR, EXECUTIVE DIRECTOR, MAJOR LEAGUE
BASEBALL PLAYERS ASSOCIATION
Mr. Fehr. Thank you, Senator, Mr. Chairman. I guess the
Chairman isn't here any longer, but other members of the
Committee, I would like to make a brief opening, and ask that
my written statement be offered for the record.
Senator McCain. Without objection.
Mr. Fehr. I'd also like to introduce Michael Weiner who's
sitting behind me right there. Mike is now the general counsel
of the Players Association. I haven't held that title for 18
months or a little more. He's been principally involved in both
administration and particularly the negotiations that Mr. Selig
has referred to, and if the matters come up in which I need to
get a specific answer, I may ask him to reply on my behalf.
Very briefly, Mr. Chairman, we've made a lot of progress. I
know that it isn't sufficient yet for some. But I'd like to
take a moment and describe it because I think that viewed
fairly, it indicates that an awful lot has been done. Initially
I would like to agree with Commissioner Selig on one very
important point. The program we have now is working. I don't
think that there is any dispute among us in that regard. Very
briefly, at the hearing that we had in 2002 to which I believe
Senator Dorgan referred to in his opening statement, there were
a lot of things said. There were rumors going around of very
high percentages of Major League players that were using
steroids. Remembering however, that a number of steroids were
legal at that point in time, such as Androstenedione. We
reached an agreement with the clubs, in which we would do a
survey test. If positive tests exceeded a certain number we
would go in 2004 to testing with disciplinary consequences. The
2003 tests resulted in just over 5 percent, much higher than I
hoped, but that triggered the next step, and in 2004 there were
disciplinary consequences, and the number of violations dropped
to about 1 percent. There were 12 confirmed violations.
Nevertheless at the hearing in March of 2004, if I recall
the date correctly, you may remember I was ill during that
hearing and I don't--it may be fading a little bit. But in
essence we were asked to do more. So as Commissioner Selig
indicated we reopened the agreement, we worked over that
season, we agreed to more tests, we agreed to off-season tests,
we agreed to increase the penalties, including a suspension for
a first-time positive, and as Senator Dorgan had requested,
public identification of those who indicated that they had
violated the program.
At the time, January of 2005, we had hoped that we had
taken a significant enough step. Players certainly felt good
about it. There were hearings last spring in the House in which
we were asked once again to consider negotiations. The
Commissioner sent me a letter that he referred to in April. I
responded to him the end of that month by indicating that I
would consider what he had to say, meet with the players and
discuss it. We agreed at that time that any changes would be
effective for 2006, and as I indicated to him at the time, I
was going to spend most of the summer and did, meeting with
every team, talking to every player who wanted to talk to me,
hearing all views, conveying the views of this body and its
members and of your counterparts in the House.
I even sent tapes of the House hearings out to all of the
clubs so that players could watch it if they wanted to.
The letter that I sent to the Commissioner earlier this
week, I want to make one thing clear, was not a new proposal.
It was a summary of where our discussions have taken us to
date. And there was nothing new in that letter to the
Commissioner. Senator McCain has suggested to me that I should
have said more things publicly about our position before. He
and I have a disagreement about that. In the past we've been
criticized for negotiating in public. But in any event, I
wanted to make clear what our position was before the hearing
began.
And we have reached agreement on most of the issues that
are between us. We've agreed to vastly increase the number of
tests, approximately doubling it to about 3,000 with every
player tested a minimum of twice. Random, unannounced testing
year round; we have agreed to a structure for the testing of
amphetamines which was a matter raised by Senator McCain after
the last agreement was reached. And we're very close on a
penalty structure. I don't expect that that will be a
significant issue. As the Commissioner said, we've reached
agreement on moving a lot of the administrative functions to an
outside entity so that questions that might be raised about
that would no longer be there. And the last major issue to be
resolved is steroid penalties.
And here again I think we're much closer than people ever
expected us to be. On the second-time penalty we've proposed a
presumptive penalty of 75 games, the Commissioner is at 100,
with the possibility if there are mitigating circumstances it
could be 50, if there are aggravating circumstances it could be
100. The Commissioner is at 80, 100, and 120. With respect to a
third time, we've accepted in principle the ``three strikes and
you're out'' circumstance. Or the ``three strikes and you're
out'' framework, I guess perhaps that's a better word, with the
provision that there be arbitral review of anything as severe
as a lifetime sanction to look at the specifics.
Just to bring everyone up to date with matters which
occurred essentially after my prepared testimony had been
written on Friday, that I noticed over the weekend and I want
to make certain there's no dispute about. Our proposal on a
third penalty, is that the Commissioner may impose whatever
penalty he believes up to and including a permanent ban as is
appropriate under the facts and circumstances, that can be
reviewed by an arbitrator, but it could not be reduced to less
than one year.
The Commissioner's proposal is the same, except that it
could not be reduced to less than two years, which as I
understand it, and Bud will correct me if I'm wrong, has been
the circumstance for about 60 years with someone ineligible as
a result of gambling, or something like that.
On penalties, the last thing I'll say is that we believe
very strongly that the purpose of penalty provisions ought to
be to deter. Not to punish for its own sake. We believe that
the penalty structure we have imposed has demonstrated that it
will. The number of confirmed positives we have so far this
year is nine and one of those was an individual in which the
arbitrator found that the result had--the positive result was
from a prior use, prior to 2005 for which he had already been
disciplined in the Minor Leagues. I don't know if that will be
nine before the end of the year. We still have tests yet to
come and we have off-season testing which will begin this year.
I would expect that our negotiations would continue as they
have been. The atmosphere which in baseball has been for many,
many years contentious on all kinds of issues as the Hall of
Famers will certainly remember from the time they were there.
These discussions have not be conducted in that atmosphere. It
doesn't mean that we agree on everything.
In conclusion, and I don't want to over-extend my time, Mr.
Chairman, we agree that the best way to solve this matter is
through collective bargaining. We believe that we've made a lot
of strides in the program which as the Commissioner indicated
is working and we are prepared to do a lot more. I hope and
expect that when our negotiations resume, which I would expect
to be next week after the Jewish holidays, that we'll be able
in a reasonable period of time to conclude the discussions on
the issues that we have remaining.
Last thing, Senator Cantwell, I believe, referred to the
decisive and swift action taken by the Seattle Mariners, in a
very positive way. The point I would like to make that with
respect to any of those players who were on the 40-man roster,
that decisive and swift action was the result of and operated
under the program that we negotiated last year. It's not
something that was done independently or outside of it.
Thank you, Mr. Chairman. I hope I did not exceed my time.
[The prepared statement of Mr. Fehr follows:]
Prepared Statement of Donald M. Fehr, Executive Director, Major League
Baseball Players Association
Thank you, Mr. Chairman. My name is Donald M. Fehr and I am the
Executive Director of the Major League Baseball Players Association. I
appreciate this opportunity to testify today about what our union has
done and is continuing to do to combat the use of illegal performance-
enhancing substances in Major League Baseball.
The last time I appeared before this Committee, on March 10, 2004,
I explained how the new Joint Drug Agreement contained in our 2002
collective bargaining agreement was working. We had conducted a year of
survey testing in 2003, which produced positive test results for
between 5 and 7 percent of players (I believe the actual number of
positive tests was in the 80s), with the result under our agreement
being that in 2004 we were about to begin the random testing of
individual players with disciplinary consequences. I expressed my
belief that the 2004 testing program would be a significant deterrent
to the use of unlawful performance-enhancing drugs, and that the number
of positive tests would drop dramatically. I also pointed out that by
the end of the season we would have hard data (the 2004 results) by
which to gauge whether our agreement had been effective, and whether my
prediction would prove accurate.
I recognize that not everything I said that day was well received.
Chairman McCain said that he did not disagree with anything in my
opening statement, but nonetheless indicated he thought we needed a
much stronger program. Senator Dorgan said he was disappointed that we
had made so little progress since a Committee hearing in the summer of
2002, and indicated his dissatisfaction that under our 2002 agreement,
players who tested positive for the first time were not suspended or
publicly identified, but instead referred to treatment. Based on these
and other criticisms, the Chairman urged us to commit to revisit the
issue. We did.
We soon began discussions with the clubs to amend our agreement,
even though we had no legal obligation to negotiate, and announced our
new agreement last January. In it, we tried to address each of the
major criticisms which had been leveled at our program: (1) we added
additional tests, and established a program under which a player could
never be certain that he would not be tested again; (2) we added off-
season testing; and (3) we increased the penalties, including the
public identification and suspension of a player who tested positive
for the first time. While reluctant to take this last step, the players
believed that public identification of those who test positive for the
use of unlawful performance-enhancing drugs, with the attendant
necessary consequences of widespread criticism and shame, would be a
significant deterrent.
On the day of the announcement, Mr. Selig praised both the
agreement and the Players Association for agreeing to an unprecedented
mid-term renegotiation of a significant provision in our collective
bargaining agreement. In early March, he said he was ``very confident
that we will effectively rid our sport of steroids'' in 2005. President
Bush said the new agreement was good for baseball and good for society.
Some Members of Congress indicated that they hoped that more would be
done, but still clearly felt that the new agreement was a very positive
step. By all accounts, we had significantly enhanced our program. At
about the same time we learned that the 2004 program was working well.
There were twelve confirmed positive tests, out of more than 1,100
administered.
Both the new agreement we reached and the results in 2004--the hard
data--constitute strong evidence of progress. And yet, only two months
after the announcement of the new agreement, and before we even were
able to implement it, we appeared on March 17, 2005, before the House
Committee on Government Reform. Again, our program received harsh
criticism. I believed then, and continue to believe, that much of that
criticism was not well-founded.
A few weeks after the hearing, despite his previous emphatic
support of the new program, Commissioner Selig publicly called for us
to renegotiate yet again. Members of the House Government Reform
Committee, as well as the House Energy and Commerce Committee which
held a hearing on May 18, also asked us to do so, as did Members of the
Senate. And so, yet again, we have. I informed the Commissioner that we
would discuss the issues with the players, and I spent much of the
summer traveling to meet with all of the players on all 30 teams to
give each player an opportunity to hear and discuss these difficult
issues. During and subsequent to my meetings with the players, we have
been actively negotiating with the clubs to see what additional
agreement we may be able to reach. \1\
---------------------------------------------------------------------------
\1\ Both sides agreed that it would be unfair to implement new
testing rules during the 2005 season. Indeed. Mr. Selig said he thought
it was unfair to do so in the Minor Leagues, where the program is
unilaterally implemented by the owners. We also believed that the
results of our 2005 testing program would be helpful to our
discussions.
---------------------------------------------------------------------------
Meanwhile, we now have results from the 2005 testing program. Some
believed there might be far more positive test results in 2005 than in
2004 for one simple reason: many substances which were perfectly legal
until last January are now illegal, as a result of the passage of the
Anabolic Steroid Control Act of 2004. The substances covered in the
bill were automatically added to our program. As a practical matter,
what this meant was that a player could test positive this year merely
by continuing to use something he had legally purchased as recently as
New Years Day 2005. And, of course, we have a very diverse membership,
some of whom live in countries in which I believe some of those
products can still be legally obtained.
Those concerns were not realized. The 2005 results demonstrate that
the players take our program seriously. So far this year we have
conducted more than 1,400 tests. Only nine players have been suspended
for testing positive, of which only five were full-time Major Leaguers
in 2004, and only four of whom will have a full year of major league
service in 2005. Two of the nine had no Major League service through
2004; two had less than two months. And one of the nine players
suspended did not use steroids in 2005 at all. The arbitrator found
that the low level detected in his urine was the result of a prior use,
before the 2004 season, for which this player had already been
disciplined twice, under the Minor League program. It was for that
reason that the Players Association believed, and still believes, that
this third suspension was fundamentally unfair and inappropriate,
representing a kind of double jeopardy.
Clearly these results are very encouraging, and one can hope that
the final results will demonstrate that Mr. Selig's prediction (that we
will effectively rid the game of steroids in 2005) will turn out to be
accurate. \2\
---------------------------------------------------------------------------
\2\ The incidence of positive test results is at a very low level,
and while zero is our goal, it may be unrealistic to expect that it
will be reached. No testing program has been entirely free of positive
tests. But we are already very close to that goal.
---------------------------------------------------------------------------
Of course, as everyone here is well aware, one of the players
suspended does have substantial Major League service. Senator McCain
has indicated that the suspension of Rafael Palmeiro brought this issue
to the forefront again. To an extent, I feel as if we are caught in a
catch-22. Before the Palmeiro suspension, a primary criticism leveled
at our program had been that it could not be working because no well-
known players had been suspended. After the Palmeiro suspension we hear
that the program cannot be working because Rafael Palmeiro was found to
be in violation of the program. But you can't have it both ways. With
all due respect, our program is working well. It has resulted in a
dramatically reduced incidence of steroid use, and applies to all
players equally, without regard to seniority, ability or status in the
game. Nor does the Palmeiro suspension demonstrate that our penalties
are inadequate. The consequences of making this suspension public have
been devastating for the player.
Let me turn now to our current discussions with the owners.
Unfortunately, as of the time that this is written, we have not yet
reached a comprehensive new agreement, and, in labor negotiations, no
final agreement is made until all outstanding issues have been
resolved. But we have made significant progress in each of the areas of
concern identified by Mr. Selig, and have reached or are very near
agreement on several of the key issues which we have been discussing.
We have agreed to conduct significantly more tests. The number of tests
performed each year would double, and the new annual number of tests
would be approximately 3,000. We have agreed upon a framework for
testing for amphetamines, something that baseball has never before
tried to do, and have essentially agreed on a penalty structure for
amphetamine positives. We have offered to move more of our testing and
administrative functions to an outside entity in order satisfy a
criticism--even if, as we believe, it is uninformed--that we need to
create more transparency and independence. We also have agreed to
clarify the language regarding governmental investigations.
However, we have yet to reach agreement on a new penalty structure
to be applicable to players who are found to have used unlawful
steroids. Although the Players Association has made a proposal for
enhanced penalties, we have been unable to meet the Commissioner's
demands, particularly with respect to penalties for a first-time
offender. Specifically, the agreement we entered into in January calls
for a 10-day suspension for a first positive. The MLBPA has proposed
doubling that to a presumptive 20-game suspension. The Commissioner
would have the right to impose a suspension which could under certain
circumstances become 30 games, and the player would be able to argue
that the circumstances were such that the penalty should be reduced
(but not below 10 games). Mr. Selig's proposal presumes a 50-game
penalty, with the possibility that he could increase it to 60 games,
and the player could argue that it should be reduced to 40. For a
second violation, the current agreement calls for a 30-day suspension.
The MLBPA has proposed that this be increased to a presumptive 75-game
suspension, with circumstances under which the Commissioner could
impose 100 games, and the player having the right to argue to an
arbitrator for a reduced penalty, but at least 50 games. Mr. Selig's
proposed presumptive penalty is 100 games, although he could impose up
to 120 games, and the player could argue for a lower penalty of 80
games. And for a third positive test result, the current agreement
calls for a 60-day suspension. We have proposed that the new agreement
give the Commissioner the right to impose whatever suspension he
believes is appropriate and consistent with just cause, including a
permanent ban, with the player having the right to argue to an
arbitrator that the penalty is not warranted under the facts of his
particular case. Mr. Selig's position is that after a third violation,
a player should be permanently banned, without arbitral review or any
other review, or even an examination of the particular facts and
circumstances of the individual case.
The clubs' position in this bargaining seems to be that the players
must give the clubs what they want or an even more punitive result will
follow by legislation. But, clearly, Mr. Selig does not believe that
stiffer penalties are needed in order to have an effective program. He
has said on a number of occasions that the program is in fact working
well, but that, somehow, this is not the issue and that does not
matter.
We think it does matter. We think that the facts do matter, or they
should. It is the very role and function of the Players Association, as
it is of every union, to effectively represent its members to the best
of its ability, and that includes individuals who will be tested and,
if appropriate, punished. So we do believe, and we must believe, that
fundamental fairness matters, and that the penalties should be designed
for effective deterrence, not for punishment for its own sake. The
penalties the clubs are asking for, and the ones provided in the bills
being discussed today, do not meet that standard.
Consider our current program. While we do not have a system of
absolute strict liability, we have agreed that once a player tests
positive the burden shifts to the player to show why he did not violate
the program. This obviously puts the player in the nearly impossible
situation of having to attempt to demonstrate how something got into
his body weeks or months earlier. If he did not put it there, he will
not know. Clearly there may well be results which are unfair to the
player. And while some will say that a system like this is necessary in
order to have an effective policy, it is also a reason that first time
penalties should not be overly severe--that is, more punitive than is
necessary to deter use.
There is also the possibility that a player will test positive as
the result of a mistake. The player may take a single pill, not knowing
what it is or thinking it is something else, and test positive. And,
however unlikely we hope that it is, there certainly is also the
possibility of a player being set up by someone who puts something in
his food or beverage. A Major League player is not in a position to do
what I have heard some cyclists do, i.e., take everything he is going
to consume with him whenever he travels. And there is also the question
of the science, and its limitations. We may be using the best science
available but, it will likely evolve. For example, we know things now
that we did not know until very recently. It used to be thought that
the metabolites of nandrolone were not naturally found in humans; now
we know that in certain circumstances they can be. We also did not know
that the metabolites could grow in a test tube; now we know otherwise.
As time goes on we will likely learn other things of which we are not
now aware. Scientific mistakes will be made, and a just program must
account for that reality.
If this Committee does proceed to consider legislation, be it one
of the bills currently before it or one of the measures under
consideration in the House of Representatives, we ask that it address
several issues which to date have not received serious attention. This
is especially true since different legal and regulatory concerns arise
when a testing program is mandated by the Federal Government as opposed
to one created and administered through collective bargaining. For
example, what is the basis for covering some professional athletes and
not others? Will covered athletes be afforded traditional due process
rights? Will covered athletes be provided the same legal protections
and due process rights afforded Federal employees who are subject to
random, suspicionless testing? What is the appropriate standard to
judge the adequacy and effectiveness of an existing penalty structure?
What is the mechanism for redressing the injuries suffered by a
professional athlete who is incorrectly identified as testing positive?
What scientific standards will be followed concerning the development
and implementation of new testing methodologies or replacing those
found to be out-dated or inaccurate? And, how will the Committee ensure
a proposed program is Constitutional?
There are serious questions as to whether the bills before the
Committee are consistent with the Constitution. See, for example,
Chandler v. Miller, 520 U.S. 305 (1997). In that case the Supreme Court
held unconstitutional, as a violation of the Fourth Amendment, a
Georgia law requiring drug testing of candidates for public office. The
Federal Government recognized the principles set forth in Chandler in
1999 when it clarified which Federal employees could be subjected to
mandatory random drug testing. Concerns regarding public safety or
national security can justify such testing, the Fourth Amendment
notwithstanding. Concerns regarding public trust, reputation for
integrity, honesty or responsibility, cannot. \3\
---------------------------------------------------------------------------
\3\ See Memorandum from the Interagency Coordinating Group
Executive Committee to Federal Agencies, Guidance for Selection of
Testing Designated Positions III(D)(1) (August 2, 1999). This can be
found at http://dwp.samhsa.gov/FedPgms/Files/TDPs.aspx.
---------------------------------------------------------------------------
Clearly, the considerations which might or might not justify
federally mandated testing of professional athletes may be different
than those which pertain to State or Federal officials or employees,
and no one can be certain what the result of any litigation would be.
But given the doubt that any such legislation would be Constitutionally
valid, along with the evidence that the agreement reached by the
parties in collective bargaining is successfully dealing with the
problem, legislation at this time is not warranted. Under the
circumstances, the bargaining parties have a program whose
effectiveness should at the very least be tested over time before
Congress wrests control of this issue from private hands.
As I said, we have not yet reached final agreement with the clubs
on a new program, but we have on a number of important issues.
Hopefully we will be able to close on the remaining issues.
Senator McCain. Thank you very much.
Welcome, Commissioner Tagliabue.
STATEMENT OF PAUL TAGLIABUE, COMMISSIONER, NATIONAL FOOTBALL
LEAGUE
Commissioner Tagliabue. Thank you very much, Mr. Chairman,
Senator Bunning and Members of the Committee. The issues that
the Committee is considering today are very important and
clearly merit the attention of Congress. Mr. Upshaw and I last
appeared before this Committee some 18 months ago, we've again
submitted a joint statement because while there are issues on
which we disagree in other areas, at times quite sharply, this
is not one of them.
We currently have strong and effective programs in place to
rid our locker rooms and playing fields of performance-
enhancing drugs. These policies were put in place as long as 18
or 20 years ago. We have worked since then with leading
institutions and scientists, both in and out of government and
continue to do so to have very strong programs and policies to
deal with these issues.
We recognize that one of the Committee's critical concerns
is the extent of steroid and other substance abuse, or use
among young people. We have been working with topnotch
universities and medical organizations to create materials
distributed on the Internet and elsewhere for some years to
discourage the use of steroids, supplements and other drugs of
abuse by young people. We have shared with the Committee our
``Play Safe'' medical series, our Coaching Academy publications
and now in conjunction with the National Institute of Drug
Abuse, we are airing anti-steroid advertisements on all of our
network telecasts, on other programming of our network partners
and on our own NFL Network.
I've been involved with youth sports my entire life. I was
fortunate enough to go to college on an athletic scholarship,
basketball to be specific. I wouldn't be here today, I wouldn't
have the education I had if I hadn't been inspired by my heroes
in basketball, football, baseball, hockey, track and field and
other areas. So I fully support--and we fully support as you
know, Mr. Upshaw has been involved in sports his whole life,
and he's more successful than I, but we both strongly support
what the Committee is doing.
I could comment on specific aspects of the bills, but I
think our policies are in sync with all of the critical
elements of the bills. Both bills call for random testing
throughout the year; we have that. Both bills call for a
comprehensive list of banned substances and methods; we have
that. Both bills call for independent administration of a
testing program; under our program as you know, Mr. Chairman,
no representative of the League, the Players Association, or
any NFL member team has any role whatsoever in determining who
will be tested, when a player will be tested, or how often he
will be tested. It's all institutionalized with outside
parties, and in large measure computerized and randomized with
computer technology.
Both bills require the use of an independent certified
laboratory, we do that. And we have funded those laboratories
and are continuing to fund new laboratories in this field.
Both bills call for tough sanctions for violators. Our
program embodies a strict liability approach under which
players are strictly responsible for whatever is in their
bodies that's a violation, and suspensions without pay are
mandatory for all offenders.
We strongly believe in the strict liability approach rather
than a subjective intent approach. Consistent with the strict
liability approach a four-game suspension, 25 percent of the
season without pay is an effective sanction for a first
offense. We have had in the almost 20 years of our program only
two repeat offenders, and both of those players retired from
the game before they were suspended a second time.
I believe this is a very telling measure of the
effectiveness of both our testing and our discipline.
In our prepared statement we emphasize that we fully
respect Congress' desire and prerogative to legislate, and we
would urge that that legislation have a certification program
that would recognize in advance the effectiveness of collective
bargaining programs that serve and meet the policies and goals
of the statute. And that there would be--that is a feature that
is in some other areas of Federal law so that we can know in
advance that what we're doing complies with the Congressional
mandate.
I'll be pleased to take questions, as will Mr. Upshaw, Mr.
Chairman, and we thank you again for your focus on this issue.
[The joint prepared statement of Mr. Tagliabue and Mr.
Upshaw follows:]
Joint Prepared Statement of Paul Tagliabue, Commissioner, National
Football League and Eugene Upshaw, Executive Director, NFL Players
Association
Chairman Stevens, Chairman McCain, and Members of the Committee:
The issue that the Committee is considering today--the use of
steroids and other performance-enhancing drugs in professional sports--
is an important one that merits thoughtful attention by the Congress.
It is an issue that addresses a wide range of concerns: the health of
athletes who use these substances, the values that are promoted or
debased by the use of these substances, and the proper roles of
government and the private sector in combating their use.
In recent months this subject has commanded considerable time and
attention in both Houses of Congress. It also has for us, but it is not
a new subject in the NFL. For two decades, we have had very strong
programs in place to rid our locker rooms and playing fields of
performance-enhancing drugs, and League programs have been a positive
force in helping football at all levels to address these issues. We
have not had all the answers but we have worked with leading
institutions and scientists, both in and out of government, to stay
ahead of an ever-changing curve. Our policies, which have included
prompt and stiff sanctions for violators, have addressed these issues
in a firm and constructive way. And we intend to continue to have very
strong policies and programs to deal with the scientific, medical,
ethical and legal questions surrounding the use of these substances
both within and outside of professional sports.
We last appeared before this Committee on this subject some 18
months ago. Then, as today, we submitted a joint statement. We do so
because while there are issues on which we disagree--at times sharply--
this is not one of them.
We have previously furnished to the Committee detailed information
about the structure and operation of our program, how it works, and the
results to date.
To summarize, more than 20 years ago, in 1983, Commissioner Pete
Rozelle notified all NFL players that anabolic steroids fell squarely
within the League's prohibition against drug abuse and that steroids
had serious adverse health effects. In 1987 and 1988, the League began
testing for steroids to obtain a documented understanding of the extent
of steroid use among NFL players. And in 1989, the NFL instituted
discipline for steroid use with suspensions on players testing positive
for prohibited substances. In testimony given in May of 1989 to the
Senate Judiciary Committee, Commissioner Rozelle outlined the basis for
the League's more stringent approach:
``The fundamental responsibility of [the Commissioner] is to
protect, as best he can, the integrity of the game he oversees
and the public's confidence in it. In my view, steroid use both
threatens that integrity and confidence and presents other
significant problems as well.
``Our measures are designed to promote common sense, fair play,
and good health. If they do no more than generate an increased
awareness among athletes at all levels of the potential risks
of using steroids, our program will have been a modest success
. . . . [But] we hope our new measures will be a much larger
success and a significant step toward eradicating these drugs
from our sport.''
Shortly after taking office in late 1989, Commissioner Tagliabue
instituted a number of changes in the League's program, to take account
of the need for greater investment in specialized resources and
increasingly varied and sophisticated testing techniques to deal with a
growing array of substances. Those changes included year-round random,
unannounced testing for all players, new medical and scientific
advisors, and moving all testing to laboratories certified by the
International Olympic Committee. Since 1993, we have had a jointly
administered program by the NFL and NFL Players Association. And the
League and the NFLPA have met regularly to review the workings of the
program and to ensure that we are continuing to be pro-active in
responding to developments of science and technology, doping control
research, and the policies of other organizations. For many years, we
were the only professional league that tested for these substances and
imposed significant discipline for a positive test. And our program,
while not perfect, has worked and worked well.
In this respect, it is important to understand what a four-game
suspension means in the NFL. It takes the player entirely out of the
lineup for one quarter of our season. In other leagues, this would be
the equivalent of a 20 or 40 game suspension. If the suspension begins
late in the season, it will carry into the playoffs. Any suspended
player likewise loses a quarter of his regular season salary and may
also forfeit some or all of his signing or performance bonus. By any
measure, it is a significant penalty, but not a vindictive one.
It is against this background that we offer comments on S. 1114 and
S. 1334, the two bills presently pending before the Committee. We fully
endorse the goals of these bills. In many respects, the principal
points set forth in the bills have long been part of our own program.
Both bills call for random testing of athletes throughout
the year. Our program has relied on this kind of random,
unannounced testing for more than 15 years. We currently
conduct more than 9,000 unscheduled tests every year on NFL
players, which occur throughout the season, during the
playoffs, and during our off-season. Every player is tested,
but no player knows when or how often he will be tested.
Earlier this year, we increased by a factor of three the number
of off-season tests to which a player is subject--at a time
when the Olympic drug testing authority cut in half the number
of off-season, or out-of-competition, tests that it performed.
Both bills call for a comprehensive list of banned
substances and doping methods. While our list of prohibited
substances and methods may differ in some respects from the
Olympic list, there can be no serious question that our list is
broad and comprehensive. It is reviewed every year and
frequently supplemented. We have banned substances like
androstenedione, DHEA, and ephedra well before other sports or
even the Federal Government did so. Indeed, when we appeared
before this Committee last year it was to testify in support of
a bill that would prohibit the use of certain steroids and
steroid precursors--each of which had already been banned in
the NFL through our collective bargaining process.
Both bills call for independent administration of the
testing program. The random selection of players to be tested
in the NFL is supervised by a medical advisor retained jointly
by the NFL and NFLPA, Dr. John Lombardo, who is a recognized
expert in this field. Dr. Lombardo uses a computer-based
selection system specially designed for this purpose.
Administration of the testing program is independent. No
representative of the NFL, the NFLPA, or any NFL member club
has any role whatsoever in determining who will be tested, when
a particular player will be tested, or how often he will be
tested.
Both bills require that a testing program use an
independent, certified laboratory. Our program has always
complied with this requirement. All of our tests are performed
at the UCLA Olympic Analytical Laboratory, which fully
satisfies any standard of independence and expertise. And we
have partnered with the U.S. Anti-Doping Agency to finance and
develop a second certified lab to perform testing and research
on steroids and other substances. This new lab will be based at
the University of Utah and is expected to begin operations
later this year.
Both bills call for tough sanctions for violators. Our
program embodies a strict liability approach, with mandatory
suspensions for first offenders. Our sanctions are clear,
significant and effective. And, consistent with both bills, we
have from the beginning included a collectively-bargained
appeal process.
In short, our current program satisfies all of the key requirements
of the two bills pending before the Committee. We also incorporate one
more significant feature that makes our collectively-bargained program
superior to a government program--the ability to respond quickly to
changes in substance use for doping technology. For example, when the
designer steroid THG was identified in 2003, we retested more than
2,000 urine samples--every sample in our possession--to determine the
extent to which NFL players may have used this drug. And our policy has
from the outset incorporated a ``related substances'' provision, to
ensure that minor chemical changes do not allow users to escape the
prohibitions of our program.
This process of continual examination and improvement has continued
into 2005. Before hearings began in the current session, the NFL and
NFLPA agreed as part of the regular review of the program to implement
the following improvements:
To reduce the threshold for a positive testosterone test
from the previous 6:1 testosterone-epitestosterone ratio to a
ratio of 4:1. This is the same standard used for Olympic tests.
To increase from two to six the maximum number of times
players can be tested during the off-season.
To add additional substances to the list of banned
substances.
The development and operation of this program, and our common
commitment to continual examination and improvement, has never required
a prod from Congress. Rather, it reflects our shared commitment to
protecting the integrity of our game, preserving the health of our
players, and promoting proper values among young people.
Where we differ from the pending bills is in our belief that a
Federally-imposed solution is not required in all cases. To the
contrary, we believe that the government should recognize and encourage
private sector solutions through collective bargaining, and that those
solutions are preferable, particularly where--as here--there is a
substantial track record of effectiveness. Accordingly, we do not
believe either of these bills should be enacted into law without
providing for a certification mechanism that permits the continued
operation of collectively-bargained programs that meet Congressional
policy goals.
Our specific concerns are as follows:
First, we do not believe there is any demonstrated basis for
supplanting in all circumstances collective bargaining as the
appropriate means for addressing these issues. Instead, we believe that
any bill should expressly recognize collectively-bargained solutions
and provide that effective collectively-bargained programs satisfy the
requirements of the statute.
This is not a new concept. On numerous occasions, Congress has
specifically recognized the wisdom of deferring to solutions reached by
management and labor in collective bargaining, and has provided for
specific exemptions from otherwise-applicable Federal law. These
examples include the treatment of collectively-bargained employee
benefit plans, overtime and severance pay, use of immigrant workers,
and grievance procedures. In each of these and other cases, generally-
applicable Federal law has given way to the terms of a collective
bargaining agreement. And we have substantial concerns about a
regulatory approach displacing and potentially weakening a demonstrably
effective program.
Finally, a collectively-bargained approach will have greater player
acceptance than would be the case with a government-imposed solution.
Second, a uniform system for all sports may actually lower
standards in the NFL and reduce the effectiveness of our program. One
obvious example is the in-season/out-of-season distinction that is
drawn in the bills. This concept, which is found in the Olympic anti-
doping code, may be appropriate in Olympic sports, which are almost
entirely individual, and where the competition is largely limited to a
number of high profile events over a two-to-four year period. In the
NFL, that distinction has no place and would weaken our program in a
significant way. Rather, we believe that there should be one set of
rules that applies throughout the year. The in-season/out-of-season
distinction would needlessly confuse players, send mixed messages to
young people, and create significant and unnecessary administrative
complexities in the program.
Another problem with a uniform regulatory regime is that it will be
slower and more cumbersome than our collectively bargained approach,
which allows for a more rapid and certain response to developments in
doping and anti-doping technology. As one example, in 1997, the NFL and
NFLPA agreed to include androstenedione as a banned substance. Players
testing positive for andro were suspended. Had we been required to wait
for the FTC, or for the Director of the Office of National Drug Control
Policy to make this determination, NFL players might have continued to
use andro without penalty.
In addition, and unlike a government program, our program is not
subject to collateral court challenges. The example of ephedra is
instructive here. We determined that ephedra should be a prohibited
substance at the beginning of the 2001 season. The FDA eventually
implemented a ban on ephedra in 2004, but its rules were sharply
limited by a Federal judge's decision earlier this year. By contrast,
agreements between the NFL and the NFLPA are not subject to these kinds
of court challenges since the National Labor Relations Act requires
courts to give great deference to these kinds of employer-employee
agreements.
Regulations issued by a government body are, by nature of the
notice and comment and judicial review provisions in the Administrative
Procedure Act, necessarily subject to lengthy administrative
procedures, court challenges, and potential revision or invalidation by
a single Federal judge. And once Congress federalizes drug testing in
sports, and replaces collective bargaining under the National Labor
Relations Act with statutory and regulatory mandates, there can be no
assurance that even agreed-upon provisions that exceed Federal minimums
will be respected by the courts. Nor would the anti-injunction
provisions of the Norris-LaGuardia Act necessarily continue to apply.
Third, the penalties required by the bills are excessive and
disproportionate in the context of professional football. There is no
evidence that current penalties in the NFL are too low, insufficient to
deter use, or somehow perceived as insubstantial or not credible by
players, teams and fans. From any perspective--financial, competitive,
and reputational--a mandatory four game suspension without pay,
combined with ongoing testing, is a substantial penalty that works.
The central feature of penalties in the NFL system is that of
strict liability. Players are told and clearly understand that they are
responsible for what is in their bodies. There are no issues of
inadvertent use or tainted supplements. Questions of intent are simply
not relevant. Long experience confirms that it is difficult if not
impossible to administer the sort of intent-based system embodied in
the proposed legislation.
The strict liability standard that we have agreed to serves a
number of important purposes. It provides clarity for athletes, teams
and fans. It is a simple and straightforward principle that places the
responsibility where it belongs--on the player.
It also promotes fairness and even-handedness. All players are
subject to the same rules and procedures, and players know that they
will all be treated the same way under the program. Finally, the strict
liability standard promotes efficient administration of the appeal
process. Hearing officers do not have discretion to reduce the penalty.
If the positive test is confirmed, the discipline follows
automatically.
We believe our current system of limited suspensions and strict
liability is preferable to a system of much longer suspensions combined
with a series of intent-based reductions or exemptions.
One important measure of whether a penalty structure is effective
is the extent to which there are repeat offenders. In the NFL, there
have only been two repeat positives in 15 years, both of whom retired
from the game rather than face a longer suspension. And the low number
of repeat offenders is not because we were looking the other way. NFL
players who test positive are tested as often as 24 times a year for
the rest of their career, meaning that there is very little prospect of
escaping detection.
Two other matters related to the scope and effectiveness of the
League's testing programs also deserve mention.
The first is the subject of human growth hormone (``HGH''). We have
prohibited this substance since 1991. Currently, there is no readily
available test or testing laboratory in the United States for HGH, and
there is still no urine-based test for growth hormone. A blood test was
first used at last summer's Olympic games in Athens, where 300 of the
more than 11,000 athletes who competed in the Games were tested. No
athlete tested positive. We are currently evaluating our next steps
with respect to growth hormone and will continue to consult with
experts in the field, including those associated with government and
other leading sports organizations. When scientific developments
warrant, we will act quickly to adjust our own policies as we have
consistently done in the past.
The second is testosterone, which we are addressing in two
respects. First, to take account of the evolving consensus as to test
protocols for the testosterone-epitestosterone ratio, we have lowered
the threshold for a positive test from a ratio of 6:1 to a ratio of
4:1. Second, we have developed procedures to review player tests over
time to identify unusual changes in player t:e ratios, even when below
the 4:1 threshold, which would then result in more detailed medical
review, reasonable cause testing, and discipline.
We recognize that one of the Committee's primary concerns is the
extent to which young people are using steroids today. As Commissioner
Rozelle's remarks to the Senate Judiciary Committee more than 15 years
ago demonstrate, this has been one of the primary factors underlying
the NFL's program as well.
Among athletes and coaches, where we can influence behavior, we
make an aggressive effort to discourage the use of steroids,
supplements and drugs of abuse. As one example of this, we have worked
with leading institutions in medicine and sports to create reliable
guides on fitness, nutrition, safety and conditioning--entitled the
``Play Safe! The NFL Youth Football Health and Safety Series.'' This
four-volume series gives players, coaches, parents and the public
general information on football-specific health and safety issues in a
clear, easy-to-understand format. Needless to say, this series
emphasizes that the use of performance-enhancing substances, and/or
other drugs of abuse, is unacceptable.
By partnering in the publication of this series with leading
academic and public service organizations, we have sought to ensure
that this series will be regarded as definitive and independent and
also widely distributed and used. The series editor is the Director of
Sports Medicine at Yale University Health Services and Clinical
Professor of Pediatrics at Yale University School of Medicine, Dr.
Barry Goldberg. The series is produced in partnership with the American
College of Sports Medicine, the American Red Cross, the National
Athletic Trainers' Association, and the Institute for the Study of
Youth Sports at Michigan State University.
Two of the four volumes of this series deal with the matters of
direct interest to this Committee. One volume specifically discusses
``Strength and Conditioning'' and offers practical, step-by-step
techniques to build strength, endurance and flexibility; improve
performance; and decrease risk of injury--all without steroids or other
illegal substances. Another volume in the series, entitled ``Health
Concerns for Young Athletes'' includes an entire section on substance
abuse and specific warnings about steroids, including the following:
``There should not be any controversy about steroid use in
sports; nonmedical use is illegal and banned by most, if not
all, major sports organizations.''
``The use of anabolic-androgenic steroids to enhance
performance is not only illegal, it is dangerous.''
This series has been distributed nationwide in both print and on-
line editions and has been furnished to the Committee. It has been
furnished to all high school football programs, and to our NFL National
Youth Football Partners network, which includes the Boys and Girls
Clubs of America, Jewish Community Centers Association, Police Athletic
Leagues, Pop Warner, and the YMCA, among others. The entire series is
available free of charge on NFLHS.com, a high school football website
presented by the NFL. The site also includes articles and Q&A sessions
between a former NFL coach and high school players on various topics,
including the dangers of steroids and drug use. Among these messages:
``Coaches: Please Know What Your Athlete is Taking.'' NFL
representatives and other professionals also address these issues at
our annual NFL Youth Football Summit, and high school and youth
football coaches throughout the country receive our NFL Coaching
Academy Playbook. This publication includes a chapter devoted to health
and safety issues that gives specific advice to football coaches on the
dangers of steroids and steps coaches can take to detect and deter drug
use by their players. This, too, has been furnished to the Committee.
USA Football, a not-for-profit advocacy and educational
organization jointly endowed by the NFL and the NFLPA, has made a wide
array of resources available to parents, coaches and players across the
Nation. The USA Football website contains articles on steroids and
drugs of abuse, and USA Football made this a key focus of its health
and safety efforts for 2005, including at its Huddle 2005 national
conference last June. The message is always the same--to play football
in a way that is safe, within the rules, and without use of artificial
performance-enhancing products.
In conjunction with the National Institute on Drug Abuse, we have
also produced a series of ``anti-steroids'' public service
announcements, which are being shown during telecasts of NFL games
throughout the season.
In sum, Mr. Chairman, we support the goals of the legislation. Our
record over the last 15 years makes that clear. We will continue to
work closely with each other, with this Committee, and with those
outside of the NFL to keep our game as free of performance-enhancing
substances as we can. Our challenge going forward will be to ensure
that our research is current, that adequate resources are available to
support programs proven to be effective with young people, including
non-athletes, and that football organizations maintain their commitment
to clean competition at all levels. We recognize that there are
significant challenges ahead and we are prepared to do our part to meet
them, along with you and this Committee and others in Congress who are
concerned about this issue.
Thank you for inviting us to appear today and we will be pleased to
answer any questions.
Senator McCain. Thank you very much, Commissioner.
Welcome back, Mr. Upshaw.
STATEMENT OF GENE UPSHAW, EXECUTIVE DIRECTOR, NATIONAL FOOTBALL
LEAGUE PLAYERS ASSOCIATION
Mr. Upshaw. Thank you, Mr. Chairman. I join with the
Commissioner, and we submitted a joint statement, simply to
emphasize how strongly we feel about this. And why there is
really no disagreement whatsoever when it comes to this issue
of steroids and performance-enhancing drugs.
I would only like to add a couple of points to the
Commissioner's statement and that is, the players in the
National Football League strongly endorse this program, support
this program, and continue to believe that this program has
been effective as it relates to the National Football League.
We looked at the legislation, and when we see one-size-fits-all
we see that the legislation should really address each
individual sport, but also allowing the collective bargaining
process to come up with a solution that works. If it meets with
what Congress has, as the Commissioner stated, we think we're
doing a very good job in the National Football League. We have
stayed on the cutting edge of change and changed our program.
We do not wait for anyone else to act. We want it off the field
because our players believe that anyone that uses drugs are
really cheaters. There is no room for cheaters in sports. And
it also affects the integrity of the game and integrity of the
contest. We do not want cheaters in our sport, and will do
whatever we have to do to keep it out. We have had unanimous
support from players on this issue. Anytime that a player has
tested positive, you can't find one player in the National
Football League, and I'll challenge you to do that, that
supports having a cheater in the sport.
I will be welcome and here to answer any questions that you
might have. Thank you.
Senator McCain. Thank you, sir.
Welcome, Commissioner Stern.
STATEMENT OF DAVID J. STERN, COMMISSIONER, NATIONAL BASKETBALL
ASSOCIATION
Commissioner Stern. Thank you, Mr. Chairman and other
Members of the Committee for focusing on this very important
problem. I appeared before two different House committees, with
my counterpart from our Players Association in May, and we
represented to them that we were in the midst of collective
bargaining and although we didn't know, didn't think, and our
knowledge was that this was not a major problem, we understood
our obligation as a sport that had role models. Out of that
collective bargaining, and really the least contentious part of
it, came an agreement that may sound--begin to sound--familiar
to you, that has four random unannounced tests, that has an
expanded list of prohibited substances, all of those that were
declared illegal by Congress, plus additional ones that the
World Anti-Doping Association has put on the list. We clearly
decided that it was better and more effective to turn this over
to a third party so that the League and the Players Association
have nothing to do with the randomized unannounced tests and of
course the results will be provided by a WADA approved
laboratory and they will be announced, with respect to the
player and the drug, if there are any positive tests.
Our penalties were moved up to 10 games, 25 games, a year
and you're out. We think that the strict liability that we
impose actually is stricter than the liability under WADA,
which allows for appeals and other delays and omission of
penalty. And we think that collective bargaining has been
effective for us. If you nevertheless find it necessary to
legislate in this area, my statement which I submit for the
record lists some areas that we think could bear some
additional focus, and we look forward to either your acceptance
of the collective bargaining process, or such legislation as
you care to propose. And we think that your focus on this has
been very helpful to us, as has the House's focus on this. And
we thank you for your attention.
[The prepared statement of Mr. Stern follows:]
Prepared Statement of David J. Stern, Commissioner, National Basketball
Association
Chairman Stevens, Chairman McCain and distinguished Members of the
Committee:
On behalf of the National Basketball Association (``NBA''), I
appreciate the opportunity to testify before the Committee regarding S.
1114, the ``Clean Sports Act of 2005,'' and S. 1334, the ``Professional
Sports Integrity and Accountability Act.''
The NBA supports the efforts of this Committee and the Congress to
confront and address the issue of steroids and performance-enhancing
substances in professional sports. These drugs undermine the
fundamental integrity of all athletic competition; they pose serious
health risks to the players involved; and their use in major league
sports sends a harmful and potentially destructive message to countless
young fans who emulate professional athletes. Steroids and performance-
enhancing drugs have no place in the NBA.
The NBA has appeared before Congress twice this year in connection
with this issue. On those occasions, we made clear our intention to
work with the players' union during then-ongoing collective bargaining
negotiations to strengthen our existing drug program. Those
negotiations have now concluded, with the successful execution of a new
labor contract in July 2005. As part of that new contract, the NBA and
the Players Association did in fact agree to substantially strengthen
and expand our drug program, particularly with respect to steroids and
performance-enhancing substances.
Important elements of this program now include the following:
All players (veterans and rookies) will be tested at random
4 times during the season, from October 1 through June 30 (a
period that includes, but is not limited to, training camp, the
regular season and the playoffs). Players also remain subject
to reasonable cause testing at any time.
Penalties for violators have increased as follows: first
offense--10-game suspension; second offense--25-game
suspension; third offense--1-year suspension; and fourth
offense--dismissal and disqualification from the NBA.
The list of banned substances has been expanded to include
all steroids made illegal by the Anabolic Steroids Control Act
of 2004, plus additional steroids, stimulants and other
performance-enhancing drugs banned by WADA, and a provision has
been added requiring that any substance declared illegal by
Congress will automatically be added to the NBA's banned
substances list.
Random drug tests will be scheduled by, and the urine
specimens will be collected by, an independent testing
organization, without notice to the NBA or the Players
Association.
When a player is suspended for a violation of the Program,
the substance for which he tested positive will be publicly
announced. (Previously, only the player's suspension was
publicly announced.)
The program maintains the involvement of a Prohibited
Substances Committee, which is comprised of three independent
experts in the field of performance-enhancing substances, and
one representative from both the NBA and the Players
Association. The Committee is charged with meeting twice per
year to review the list of Prohibited Substances and propose
any additions or changes.
Other technical changes have been made to the program, such
as lowering the threshold for a positive testosterone test from
a ratio of 6:1 to a ratio of 4:1, as WADA did earlier this
year, and changing the NBA's testing laboratory to one
accredited by WADA in order to take advantage of the most
advanced laboratory science.
As a result of these changes, the NBA and the Players Association
now have in place a comprehensive, effective, and fair policy for
steroids and performance-enhancing substances. Further, because the
parties arrived at this policy by agreement--through the traditional
collective bargaining process--we are both invested in its success. The
NBA, therefore, does not believe that legislation in this area is
necessary or appropriate. Nevertheless, if this Committee and the
Congress feels that legislation must be enacted, we offer the following
observations on the specific proposals contained in the Clean Sports
Act of 2005 and the Professional Sports Integrity and Accountability
Act.
First, while we believe it is important to prohibit a broad list of
steroids and performance-enhancing substances and, as a result, have
agreed with the Players Association to significantly expand our list of
banned drugs, we do not believe that the entire WADA list of prohibited
substances is appropriate for the NBA. The sport of basketball
emphasizes a specialized set of physical abilities--particularly
quickness, agility, and basketball skill--that are distinct from those
required in a number of other sports. Accordingly, illicit substances
that could assist athletes in strength sports (such as weightlifting or
football), power sports (such as baseball), or endurance sports (such
as cycling or marathon running) are not likely to be of benefit to NBA
players. We therefore do not believe it would be appropriate to require
the NBA to test players for these substances, or for the NBA to be
required to incur the substantial cost of such testing.
Second, while stiff penalties are necessary for the legitimacy of
any anti-drug program, we believe that the penalties contained in our
new labor contract--and not the more excessive penalties set forth in
the proposed Acts--are fair and appropriate for our sport. A first-time
offender of our steroids and performance-enhancing drugs policy will be
suspended from his team for ten games. Because the average NBA player
now earns approximately $4.5 million per season, a ten-game suspension
would result, on average, in a financial penalty to the player of more
than $400,000. In addition, the player's suspension and the prohibited
substance used by the player will be publicly announced, which will
appropriately diminish the player's reputation and off-the-court
financial prospects. A second offense will result in a suspension of 25
games, resulting in an average financial penalty of over $1 million,
and significantly affecting a player's ability to obtain any
performance-based bonuses in his contract or prove his value for
purposes of obtaining a subsequent contract. For the third offense, the
player will be suspended for one year. As noted above, that would
result in the average loss of income of $4.5 million and the loss of
one year in a career that, on average, lasts for less than 5 years.
After the fourth strike, the player would be dismissed and disqualified
from the NBA.
The foregoing penalties, we submit, are strict enough to punish
violators appropriately, deter the use of steroids and performance-
enhancing drugs in the NBA, and provide fair opportunities for players
to conform their conduct.
In addition, the Professional Sports Integrity and Accountability
Act, like the NBA's current drug policy, contains a ``strict
liability'' standard--that is, a player can commit a violation
unknowingly by, for example, ingesting a tainted nutritional supplement
that is legally sold over the counter. Under those circumstances, a
two-year ban (if the violation was the player's first) or a lifetime
ban (if the violation was the player's second) are unduly harsh.
Indeed, even the WADA Code does not provide for strict adherence to the
penalties proposed in the bill, and instead makes clear (in Section
10.5 of the Code) that special circumstances--such as a contaminated
supplement--should be taken into account and could result in a reduced
(or even no) penalty. Fundamental fairness to athletes whose
livelihoods are at stake should require no less.
Third, both Acts would require that testing for steroids and
performance-enhancing substances be ``independently administered.''
While we believe the NBA's drug program would meet this standard--
because the scheduling of tests and collection of samples for all
players will now be handled by a third-party testing organization
without the participation of the NBA or the Players Association--that
conclusion is not completely clear. The parties, of course, must pay
for the services performed by the third-party testing organization, and
neither Act indicates whether this fact would compromise the
``independence'' of the relationship. In addition, the NBA and the
Players Association will continue to have an active role in overseeing
our drug program, monitoring the testing, providing input for testing
protocols, imposing discipline, and making improvements--a role that
fosters confidence among NBA players that the program is legitimate,
impartial, and fair, which in turn helps the program run smoothly. The
NBA would oppose any legislation that did not allow for this continuing
involvement.
Fourth, neither Act clearly indicates the forum for the
adjudication of player appeals. (The Clean Sports Act suggests, but
does not state, that the forum would be the Court of Arbitration for
Sport, which is used by USADA. The Professional Sports integrity and
Accountability Act suggests, but does not state, that the forum would
be selected by each professional sports league.) In the NBA, any
disputes arising under the drug program are to be heard and resolved by
an independent grievance arbitrator, and we believe that practice
should be continued.
Fifth, while both Acts set forth certain baseline standards
regarding testing, substances, and penalties, the particulars of those
standards are left up to the Federal Trade Commission. Without knowing
the specifics of the regulations, of course, it is not possible for us
to react fully to the proposed legislation, or to anticipate its effect
on the NBA.
Sixth, Section 4(b)(7)(B) of the Act authorizes lesser penalties
for players who provide information about the steroid or performance-
enhancing drug use of other players. We respectfully submit that this
is an inappropriate policy in a team--or any--sport.
Seventh, both Acts include the concept of a ``therapeutic use
exemption'' for players with valid medical prescriptions. Currently,
the NBA handles this issue through the medical review process, which
takes place after an adverse analytical finding is reported by the
laboratory, not prior to the collection of a sample as is required by
WADA. Such a medical review process is used by employers nationwide,
including the Federal Government. In addition, we believe that the
adoption of a WADA-like therapeutic use exemption may conflict with the
Americans with Disabilities Act.
Finally, Section 5 of the Act sets forth penalties that would apply
only to professional sports leagues if they fail to implement drug
testing programs that meet or exceed the applicable minimum standards.
We assume, therefore, that the bill would allow a sports league simply
to impose such a program without bargaining its provisions with the
players' union or otherwise complying with the Federal labor laws. If
that is not the case, we would suggest that the penalties contained in
the Act be made applicable to both management and labor, thereby
providing incentives for both parties to reach an agreement in
collective bargaining that meets the proposed Federal standard.
In summary, the NBA believes it has a strong and effective drug
testing program in place for steroids and performance-enhancing
substances, and does not perceive a need for Federal involvement in
this area. If Congress nonetheless sees fit to establish minimum
standards for such a program, we suggest that they be flexible enough
to account for characteristics that distinguish one professional sport
from another, reasonable with respect to penalties, and consistent with
all other applicable laws. In all events, we appreciate the Committee's
effort and attention to this important matter, and look forward to
providing any additional information or assistance as necessary.
I thank the Committee for considering the views of the NBA on this
legislation.
Senator McCain. Thank you, Mr. Commissioner.
Mr. Davis, welcome.
STATEMENT OF ANTONIO DAVIS, NBA PLAYER AND PRESIDENT, NATIONAL
BASKETBALL PLAYERS ASSOCIATION
Mr. Davis. Thank you, Mr. Chairman and Members of the
Committee. As President of the National Basketball Players
Association, I accept this invitation from Chairman Stevens to
testify in place of our Executive Director, Billy Hunter, who
is recovering from surgery.
As a professional athlete for over 15 years, I am
appreciative of the Committee's concern about the use of
steroids by professional athletes and others, particularly
young adults and children, as evidenced by the legislation
introduced by several members of this Committee.
I would like to begin by clearly stating the position of
the NBPA. While we are confident in our belief that the use of
steroids and other performance-enhancing drugs is virtually
non-existent in the NBA, we are committed to ensuring that the
use of these drugs does not ever become an issue or concern.
To that end, in the recently concluded negotiations for the
current Collective Bargaining Agreement between the NBPA and
NBA, we greatly strengthened the testing protocol for steroids,
masking agents and performance-enhancing drugs that was
established in the 1999 Agreement.
It is vitally important that the list of banned substances
for which players are tested remains current. Accordingly, in
our program that list is updated regularly by our Prohibited
Substances Committee, and comprised of three independent drug
testing experts and a representative from both the NBPA and
NBA.
While our anti-drug program has always had a strong
emphasis on education and treatment rather than punishment,
with a standard of progressive discipline for violators, the
program does provide for substantial penalties, which have been
significantly increased under our new agreement, for those who
are caught using steroids and other performance-enhancing
drugs.
In addition to severe penalties and increased frequency of
testing, our anti-drug policy is focused on education,
treatment and counseling. During each season, every NBA player
is required to attend and participate in meetings where the
dangers of steroid and performance-enhancing drug use are
discussed by drug counselors. Also, all rookie players are
required to attend a week-long Rookie Transition Program,
before the start of their first NBA season.
Finally, the program's Medical Director supervises a
national network of medical professionals, located in every NBA
city, available to provide counseling and treatment to players.
We wanted to, and feel that we have, sent a strong and
unequivocal message to society in general and our young fans in
particular that we do not condone, support or accept the use of
steroids and performance-enhancing drugs in our sport. Our
willingness to significantly increase the frequency of testing
that our players undergo, and increase the penalties imposed
upon violators shows the utmost concern that we have for this
societal problem.
We continue to believe that a collective bargaining
agreement is the most appropriate forum for the resolution of
these issues and are confident that the changes made address in
a meaningful way the concerns of the Committee, as embodied in
the pending legislation.
Congress has long given deference to parties operating
under collective bargaining agreements to develop their own
solutions to problems, properly recognizing that the parties
bound by a collective bargaining agreement have a longstanding
relationship with unique problems and problem-solving methods
that are often difficult to comprehend by those outside the
relationship.
While we fully believe in and support the Committee's and
Congress's goal of eliminating the use of steroids and
performance-enhancing drugs in sports, we believe this goal is
best accomplished by the leagues and players working together
to accomplish this universal objective. We think that the
players, supported by the leagues, are best able to demonstrate
to everyone, especially our young fans, that the only way to
become a professional athlete is by cultivating and nurturing
their talent, determination, and desire, and by working harder
than everyone else.
I thank the Committee for the opportunity to appear before
you today.
[The prepared statement of Mr. Davis follows:]
Prepared Statement of Antonio Davis, NBA Player and President, National
Basketball Players Association
Mr. Chairman and Members of the Committee:
My name is Antonio Davis and I am the starting power forward for
the Chicago Bulls as well as the President of the National Basketball
Players Association, the labor union that represents all NBA players in
collective bargaining. I appear today in response to the invitation of
Chairman Stevens to testify.
As a professional athlete for over 15 years, I am appreciative of
the Committee's interest in and concern about the use of steroids by
professional athletes and others, particularly young adults and
children, as evidenced by the legislation, S. 1114 and S. 1334,
introduced by several members of this Committee.
I would like to begin by clearly stating the position of the NBPA.
While we are confident in our belief that the use of steroids and other
performance-enhancing drugs are virtually non-existent in the NBA, we
are committed to ensuring that the use of such drugs does not ever
become an issue of concern.
To that end, in the recently concluded negotiations for the current
Collective Bargaining Agreement between the NBPA and NBA we greatly
strengthened the testing protocol for steroids, masking agents and
performance-enhancing drugs that was established in the 1999 Agreement.
Our new Agreement signed two months ago today provides for random
testing for all players of up to four (4) times during the NBA season,
which covers the period from the start of training camp in October
through the NBA Finals in late June. This new testing protocol is a
significant change from the prior policy, which provided for random
testing of all incoming players four (4) times during their rookie
season and testing of veteran players once during the training camp
period.
Additionally, all players remain subject to reasonable cause
testing at any time. If an independent expert finds reasonable cause to
believe that a player is using steroids the player may be tested up to
four (4) times during the following six week period. The testing during
this period may be administered at any time, without any prior notice
to the player.
It is vitally important in the efforts to control the usage of
steroids and other performance-enhancing drugs that the list of banned
substances for which players are tested remains current. Accordingly,
in our Program that list is updated regularly by our Prohibited
Substances Committee, comprised of three independent drug testing
experts and a representative from both the NBPA and NBA. The Committee
may be convened at any time to ban a substance that is either declared
illegal by the Federal Government or is or reasonably likely to be
physically harmful to players and is or is reasonably likely to be
improperly performance-enhancing. I believe you will find our list of
prohibited substances to be extremely comprehensive.
While our Anti-Drug Program has always had a strong emphasis on
education and treatment rather than punishment, with a standard of
progressive discipline for violators, the Anti-Drug Program does
provide for substantial penalties, which have been significantly
increased under our new agreement, for those who are caught using
steroids and other performance-enhancing drugs. A first time offender
is automatically suspended for ten (10) games and is required to enter
an education, treatment and counseling program established by the
Program's Medical Director. For a second violation the player is
suspended for twenty-five (25) games and required to re-enter the
education, treatment and counseling program. For a third violation, the
player is suspended for one (1) year from the date of the offense and
is again required to enter the education, treatment and counseling
program. If there is a fourth violation, the player is immediately
dismissed and disqualified from the NBA. Also, any player who is
disciplined for conduct involving steroids, performance-enhancing drugs
or masking agents, will have his identity, the particular drug used,
and the penalty publicly disclosed.
In addition to severe penalties and increased frequency of testing,
our Anti-Drug Policy is focused on education, treatment and counseling.
During each season, every NBA player is required to attend and
participate in a meeting where the dangers of steroid and performance-
enhancing drug use are discussed by drug counselors. Also, all rookie
players are required to attend a week long Rookie Transition Program,
before the start of their first NBA season, during which numerous
topics are addressed in detail, including the dangers of using steroids
and performance-enhancing drugs. Finally, the program's Medical
Director supervises a national network of medical professionals,
located in every NBA city, available to provide counseling and
treatment to players.
Since testing for steroids and other performance-enhancing drugs
was instituted in 1999 there have been approximately 4,200 tests
conducted, with only 23 initial laboratory positive tests (less than
one (1) percent). Of the 23 tests that were initially laboratory
positives, only 3 satisfied the additional steps that are required for
a sample to be confirmed as positive under our Anti-Drug Program,
either because the player was terminated from employment prior to
confirmation of his test result or because the Medical Director found a
reasonable medical explanation for the test result. The three (3)
players who had confirmed positive tests were immediately suspended.
Recognizing the increased scrutiny that steroid and other
performance-enhancing drug use has received in society, and
particularly in professional sports, since our ground breaking
agreement was reached in 1999, we have implemented significant and
wholesale modifications in our new Anti-Drug Program to deal with the
growing societal problem of the use of steroids and other performance-
enhancing drugs. We wanted to, and feel that we have, sent a strong and
unequivocal message to society in general and our young fans in
particular that we do not condone, support or accept the use of
steroids and performance-enhancing drugs in our sport. Our willingness
to significantly increase the frequency of testing that our players
undergo, and increase the penalties imposed upon violators evidences
the utmost concern that we have for this societal problem.
We continue to believe that collective bargaining is the most
appropriate forum for the resolution of these issues and are confident
that the changes made address in a meaningful way the concerns of the
Committee, as embodied in the pending legislation, S. 1114 and S. 1334.
Congress has long given deference to parties operating under collective
bargaining agreements to develop their own solutions to problems,
properly recognizing that the parties bound by a collective bargaining
agreement have a longstanding relationship with unique problems and
problem solving methods that are often difficult to comprehend by those
outside the relationship. While we fully believe in and support the
Committees' and Congress' goal of eliminating the use of steroids and
performance-enhancing drugs in sports, we believe this goal is best
accomplished by the leagues and players working together to accomplish
this universal objective. We think that the players, supported by the
leagues, are best able to demonstrate to everyone, especially our young
fans, that the only way to become a professional athlete is by
cultivating and nurturing their talent, determination, and desire, and
by working harder than everyone else.
I want to thank the Committee for the opportunity to appear before
you today.
Senator McCain. Thank you, Mr. Davis, an excellent
statement. Thank you.
Commissioner Bettman.
STATEMENT OF GARY BETTMAN, COMMISSIONER, NATIONAL HOCKEY LEAGUE
Commissioner Bettman. Thank you, Mr. Chairman, Members of
the Committee, the National Hockey League appreciates being
given the opportunity to offer comments regarding the proposed
legislation. The NHL will cooperate in any way it can with the
effort to eliminate performance-enhancing drugs from
professional and amateur athletics.
While it is the leagues' firm belief that the performance-
enhancing drug issue is not a problem in the NHL, the league is
committed to providing its fans with outstanding athletic
competition with the assurance that our game is being conducted
in an environment free of performance-enhancing substances. The
NHL's active pursuit of this objective is reflected in the
creation of a program we just incorporated into our new
collective bargaining agreement.
The primary elements of this program focus on the education
of players regarding the health risk posed by the use of
prohibited performance-enhancing substances, the treatment of
players who have used prohibited substances, and the deterrence
and prevention of such use through random, no-notice testing up
to twice per season for the substances designated on the out of
competition list compiled by the World Anti-Doping Agency. In
addition, the program provides for ``reasonable cause'' testing
of players. Players who test positive will incur severe
disciplinary penalties. A first positive test results in a
suspension of 20 games, one quarter of the season, without pay.
A second positive test results in a suspension of 60 games,
three quarters of a season, without pay. And a third positive
test results in a permanent suspension without pay. A player so
suspended can apply for discretionary reinstatement after a
minimum period of 2 years.
In the experience of the doctors who administer our
program, the primary alleged benefit of steroid use,
significant large muscle development, is not consistent with
playing our sport at the highest levels. The bulkiness
attributable to steroid use simply is not a desired
characteristic of NHL players. To the extent there might be
some limited usage of performance-enhancing substances in the
NHL, we believe that our program will eradicate any such use.
For this reason the NHL does not see the need for the
proposed legislation as it applies or relates to our sport.
However, should Congress proceed along the lines contemplated
by the legislation, we have set out our comments in my written
statement and we are certainly prepared to cooperate.
I would like to briefly make the following points. We
believe that minimal doping control standards, testing
protocols, and processes should be established by the Director
of the Office of National Drug Control Policy, in consultation
with the National Institute on Drug Abuse, NIDA, which has
particular expertise in addressing substance abuse, the United
States Department of Transportation, which is one of the
largest workplace-testing entities in the world, the United
States Anti-Doping Agency, USADA, which has expertise in the
non-workplace testing area, to be specific, amateur
competitions, and the subject sport's professional league. This
process would provide the Director with the information,
resources and practical experience necessary to develop an
appropriate workplace, and this is a workplace, testing policy
for each of the sports.
As pertaining to the NHL we'd ask the Committee to please
bear in mind that we have certain unique issues. A third of our
players come from outside of North America, 85 percent of our
players come from outside the United States, so issues relating
to which physicians need to be licensed by which jurisdiction,
where testing might be legal or illegal in the off-season,
therapeutic use exemptions, and testing labs are all things
that we think need to be reconciled, particularly with Canada,
as it relates to the fact that we play over 200 of our games
there. And so with respect to off-season testing and the like,
we think that indicates why a one-size-fits-all solution
doesn't work. We believe that the USADA model of penalties of 2
years for a first test violation, and lifetime for a second
violation are unduly harsh when applied in the context of the
players in the NHL. Unlike International sports events, such as
the World Championships and Olympics which are generally
conducted on an annual or bi-annual or quadrennial basis, the
NHL season consists of 82 regular season games, plus playoffs.
Identical penalties in these two distinctly different
environments would result in a disparate and unduly harsh
impact on NHL players.
Finally, in the event this legislation is passed, we also
recommend that players are provided in-person education and
training on an annual basis regarding prohibited substances,
the nature and application of the testing program and the
penalties associated with violations.
The NHL believes the public is entitled to have confidence
in the integrity of our sport and to be assured that our
athletes are not using performance-enhancing drugs. Every
professional athlete does serve as a role model and with that
comes a corresponding responsibility.
Thank you for your attention to this important matter.
[The prepared statement of Mr. Bettman follows:]
Prepared Statement of Gary Bettman, Commissioner, National Hockey
League
On behalf of the National Hockey League, and in response to the
request of the Senate Committee on Commerce, Science, and
Transportation (hereinafter the ``Senate Committee''), this shall
constitute my written statement regarding the NHL/National Hockey
League Players' Association performance-enhancing Substances Program
and S. 1114 and S. 1334. At the outset, I would like to express the
NHL's appreciation for being afforded the opportunity to provide the
Senate Committee with our comments regarding the proposed legislation.
The NHL undertakes to cooperate in any way it can in the effort to
eliminate the use of performance-enhancing drugs in professional and
amateur athletics.
NHL/NHLPA Agreement Regarding Future Testing for Performance-
Enhancing Drugs "
It is our conviction that, as a general matter, performance-
enhancing drugs are not a pervasive problem in the NHL. Nevertheless,
we believe that fans in particular, and the public at large, are
entitled--and deserve--to have confidence that our games are being
played in a steroid-free environment. Accordingly, the NHL and its
Players' Association have recognized the need for a modernized drug
testing and performance-enhancing substances control policy that is
specifically directed to the prevention of the use of performance-
enhancing drugs in our sport and, in conjunction with the recently
concluded Collective Bargaining Agreement between the NHL and the
NHLPA, have established a jointly-administered performance-enhancing
Substances Program (the ``Program'').
The primary purposes of the Program include:
the education of Players regarding the health risks posed by
the use of prohibited performance-enhancing substances
(``Prohibited Substances'');
the treatment of Players who have used Prohibited
Substances; and
the deterrence and prevention of such use through education,
random no-notice testing and the imposition of disciplinary
penalties where appropriate.
(Attachment I--2005 CBA, Section 47.1) The CBA provides that the
Program shall be jointly administered by a Program Committee comprised
of representatives of the League and the NHLPA, and consulting expert
doctors. \1\ The responsibilities of the Program Committee include:
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\1\ The League and the NHLPA have retained Dr. Dave Lewis of
Visions Residential Treatment Program, California, and Dr. Brian Shaw
of Toronto Hospital and the Hospital for Sick Children, to serve on the
Committee as consulting expert doctors. Drs. Lewis and Shaw have
extensive experience in treating problems related to substance abuse,
including among professional athletes, and have served as the NHL/NHLPA
Substance Abuse and Behavioral Health (``Substance Abuse Program'' or
``SABH'') Program Doctors since the inception of the SABH Program in
1995.
(a) to establish a comprehensive educational program for
Players on the dangers of Prohibited Substances and the nature
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of the Program;
(b) to select, and contract with, an appropriate sample
collecting authority;
(c) to select, and contract with, an appropriate testing
laboratory;
(d) to review the WADA list of prohibited performance-enhancing
substances and make recommendations to the NHL and NHLPA as to
which performance-enhancing substances on the WADA list are
relevant to the sport of hockey and should be deemed Prohibited
Substances under the Program;
(e) to develop Player and Club notification procedures for
positive test results;
(f) to oversee the administration of Player evaluation and
treatment following positive test results; and
(g) to establish standards for the administration of
``reasonable cause'' testing. (Attachment I--2005 CBA, Section
47.2)
Based on the recommendations of the Program Committee, the NHL and
the NHLPA have agreed that NHL players will be subject to testing under
the terms of the performance-enhancing Substances Program for the
performance-enhancing drugs designated on the WADA out-of-competition
list. It is our view that this list reflects those drugs that could
theoretically affect the integrity of our competition, our paramount
concern. A copy of the list of banned performance-enhancing substances
is attached hereto. (Attachment II--Prohibited List) The Program
provides for up to two (2) no-notice tests during the period from the
start of Training Camp through the end of the Regular Season. \2\
Positive tests for performance-enhancing substances will result in
mandatory discipline as follows:
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\2\ Given the relatively short time frame between the ratification
of the new CBA and the start of the 2005/2006 NHL season, the NHL and
the NHLPA have agreed that, with respect to the 2005/2006 season only,
players will be subject to testing beginning on January 15, 2006, after
the consulting expert doctors have provided all Players with an
orientation session regarding the Program.
(1) for the first positive test, a suspension of twenty (20)
NHL Games without pay, and mandatory referral to the SABH for
---------------------------------------------------------------------------
evaluation and possible treatment;
(2) for the second positive test, a suspension of sixty (60)
NHL Games without pay, and mandatory referral to the SABH
program for evaluation and possible treatment;
(3) for the third positive test, a ``permanent'' suspension
without pay, although a Player so suspended may reapply for
discretionary reinstatement after a minimum period of two (2)
years by making an application to the Committee.
(Attachment I--2005 CBA, Section 47.7) The Program also provides an
opportunity for a Player to challenge the imposition of any discipline
in the event he is able to establish an applicable therapeutic use
exemption, a testing error, mistaken use, or the use of a tainted
supplement or other product (i.e., where the Player could not have
reasonably ascertained the presence of the Prohibited Substance).
(Attachment I--2005 CBA, Section 47.8)
The Program incorporates a mandatory educational component which
provides that the Players shall receive: education on Prohibited
Substances and the nature of the Program each League Year during
Training Camp, provided, however, that no testing shall take place and
no discipline shall be imposed under the Program until the Committee
has provided a Player with an orientation session regarding the
Program, which shall include an in-person presentation on the Program
and the distribution of informational materials describing all relevant
aspects of the Program, including the list of Prohibited Substances,
testing procedures and disciplinary penalties. Education and training
on the details of the Program will also be provided to Club Athletic
Trainers and Club physicians. Over time, and to the extent feasible,
the Committee will endeavor to develop an ``approved list'' of
nutritional supplements, which will have been tested and certified as
being free of Prohibited Substances.
(Attachment I--2005 CBA, Section 47.4) This provision reflects the
comprehensive nature of the Program, and the belief of the NHL and the
NHLPA that education regarding the dangers of illegal substances (both
performance-enhancing and otherwise) is, perhaps, the most effective
tool in preventing use and abuse.
NHL/NHLPA Substance Abuse and Behavioral Health Program
Prior to the creation and implementation of the Program, the NHL
and the NHLPA addressed problems of substance abuse (including abuse of
performance-enhancing substances) through the NHL/NHLPA Substance Abuse
Program (Attachment III), * which was jointly developed and implemented
in 1995 in conjunction with the parties' prior collective bargaining
agreement. The Substance Abuse Program was designed to be a
``comprehensive effort to address substance abuse among NHL players and
their families, to treat those with a substance abuse problem in a
confidential, fair and effective way, and to deter such abuse in the
future.'' (Attachment III, SABH Program Section 1) In order to
accomplish these goals, the Substance Abuse Program incorporates
education, counseling, inpatient and outpatient treatment, follow-up
care, and where appropriate, punitive sanctions, up to and including
permanent suspension from play in the League. On a going-forward basis,
those players who are found to be using performance-enhancing
substances will be subject to mandatory discipline as outlined above
under the performance-enhancing Substances Program, and will also be
referred to the Substance Abuse Program for evaluation and treatment.
---------------------------------------------------------------------------
* The information referred to has been retained in Committee files.
---------------------------------------------------------------------------
Historically, the players who have been treated under the Substance
Abuse Program have exhibited problems associated with alcohol and/or
``recreational'' drug use, rather than steroid (or steroid precursor)
use. The experience of our Substance Abuse Program in this regard is
not surprising when one considers that primary of the alleged benefits
of steroid use--significant large muscle development--is not consistent
with playing hockey at the highest levels of the sport, and the
resulting bulkiness attributable to steroid use simply is not a desired
characteristic of skilled NHL players. \3\ Nevertheless, in the event
NHL players were to exhibit symptoms associated with abuse of
performance-enhancing drugs, the Substance Abuse Program was broad
enough in scope to provide treatment (and if appropriate, discipline)
for such players and the Substance Abuse Program Doctors were empowered
to intervene in any manner they felt was appropriate.
---------------------------------------------------------------------------
\3\ Our belief that steroid use is not desired by or prevalent
among skilled hockey players is seemingly confirmed by the fact that
there have been only eight positive results in approximately 3,100
tests of NHL and non-NHL players administered at the World Hockey
Championships (conducted by the International Ice Hockey Federation
(``IIHF'')) since 1993/94.
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Drug Testing of NHL Players in International Hockey Competitions
The frequent and consistent participation of NHL players in
international competitions, and the drug testing NHL players undergo in
connection therewith, provide objective support for our belief that the
use of performance-enhancing drugs by NHL players is negligible, to the
extent it exists at all. \4\ Over the past ten years, NHL players have
represented their nations of origin annually in connection with the
IIHF World Championships, twice in Olympic competitions in 1998 and
2002, and just this past year in the 2004 World Cup of Hockey, which
the NHL and the NHLPA organized and sponsored. In connection with
international play, the NHL and its players are held to and abide by
the international standards of the World Anti-Doping Agency (``WADA''),
which have been adopted by the IIHF.
---------------------------------------------------------------------------
\4\ We are aware of recent statements by Dave Morissette and Andrew
Peters regarding their use of performance-enhancing drugs, but for the
reasons set forth above, do not believe that their experiences are
representative of the vast majority of NHL players. Indeed, Dave
Morissette played in only 11 NHL games in his career. We further note
that Mr. Peters' assertion that he stopped taking andro after the U.S.
Department of Health and Human Services issued a report about the
health risks associated with taking the substance provides further
support for our assertion that it is essential to provide training and
education on the dangers of performance-enhancing drugs.
---------------------------------------------------------------------------
In the past ten years, of the nearly 1,000 NHL players who have
participated in the IIHF World Championships, the Olympics, and the
World Cup of Hockey competitions, and were subject to drug testing in
connection therewith, we are aware of only three positive tests for
performance-enhancing drugs. \5\ And of the three, one of the players
tested positive for salbutamol, a drug that is also used for asthma as
a Proventil inhaler, and which may be used with a Therapeutic Use
Exemption. A second player tested positive for tramadol, a substance
which is designated as an ``allowed narcotic'' ( i.e., a prescribed
painkiller). The third player established a ``mistaken use'' defense in
connection with his use of over-the-counter nutritional supplements.
---------------------------------------------------------------------------
\5\ In connection with international competitions in which NHL
players have participated over the past ten years, the Program Doctors
along with the USOC administered the pre-competition drug testing for
the Olympics, and the IOC administered the in-competition testing. The
Program Doctors administered the out-of-competition and in-competition
testing for the World Cup of Hockey. The IIHF administered the in-
competition testing for the World Championships. With respect to the
tests administered by the IIHF, the IOC and the USOC, it is our
understanding that no NHL player had a positive test result for
performance-enhancing drugs; however, we do not have access to specific
data or testing results.
---------------------------------------------------------------------------
S. 1114, The Clean Sports Act of 2005
The National Hockey League has reviewed the proposed Clean Sports
Act of 2005 and, as stated above, is supportive of a program featuring
mandatory testing and discipline imposed in connection with an
athlete's use of performance-enhancing drugs. The NHL remains of the
belief that, given the mandatory and effective Program agreed to by the
NHL and the NHLPA, which has been designed to eradicate the use of all
performance-enhancing drugs from our game, we do not see a need for the
proposed legislation as it would relate to the NHL. However, should
Congress decide to proceed in this area and legislate along the lines
that this proposed legislation contemplates, the NHL's specific
comments regarding the provisions of the proposed legislation are as
follows:
The proposed legislation provides that professional sports
leagues shall be subject to the minimum doping control
standards established by the United States Anti-Doping Agency
Protocol (``USADA'') for Olympic Movement Testing, and shall
consult with USADA in the development of its test distribution
plan, its drug testing protocols, and its adjudication process.
We believe that the Director of the Office of National Drug
Control Policy shall be responsible for establishing minimum
doping control standards for each sport, as well as test
distribution plans, testing protocols and adjudication
procedures, and that the Director shall establish the foregoing
after consultation with: (1) the National Institute on Drug
Abuse (``NIDA''), which has particular expertise in addressing
substance abuse; (2) the United States Department of
Transportation, which is one of the largest workplace-testing
entities in the world; (3) USADA, which has expertise in the
non-workplace testing arena of amateur competitions; and (4)
the subject professional sports league. We believe that the
foregoing entities together would provide the Director with the
information, resources, and practical experience necessary to
develop an appropriate workplace testing policy and procedure
applicable to the employees ( i.e., the players) for each
professional sport. We do not believe it is appropriate for the
standards set by USADA to set a floor for the minimum
requirements applicable for the professional sports leagues, by
default. ( See Section 4(b)) We believe that the foregoing
process shall also apply in the context of the annual
certifications outlined in Sections 4(b)(2) and 4(b)(3).
Section 4(b)(1)(A) of the proposed legislation provides for
``each professional athlete [to be] tested a minimum of 5 times
each calendar year that such athlete is competing in games
organized by the major professional league.'' Section
4(b)(1)(B) provides that each athlete shall be tested ``(i) at
least 3 times, each with no advance notice, during each season
of play; and (ii) at least 2 times, each with no advance
notice, during the off-season.'' The National Hockey League
plays its games in two different countries and features
athletes hailing from twenty-two countries around the globe.
One-third of NHL players are from outside of North America and
eighty-five percent are from outside the United States. For
this reason, and giving appropriate consideration to the fact
that the NHL does not have a pervasive problem with its players
using performance-enhancing substances, in-season testing makes
particular sense. While we do not object to subjecting NHL
players to random no-notice testing during the off-season, we
would not advocate that it be mandatory for sports leagues in
general, and the NHL in particular, to conduct off-season
testing given the logistical difficulties that would arise in
connection with testing players scattered throughout the world.
The standard adopted by the NHL and the NHLPA, requiring up to
two (2) in-season tests, was designed to insure the
effectiveness of the Program while recognizing the realities of
professional hockey. In the event legislation is passed
requiring more than two tests per calendar year, we would
advocate that there be no more than four tests required
annually, and that it be permissible to evenly distribute such
tests once per calendar quarter.
Section 4(b)(4) provides that ``a major professional league
may make exceptions for any prohibited substances that have
been properly prescribed by a doctor of medicine licensed in
the United States for legitimate and documented therapeutic
purposes.'' We would recommend that this provision be clarified
to provide that the exception may be granted retroactively by a
medical review officer, after a player has tested positive for
a banned substance in the event an investigation reveals that
the substance was properly prescribed for a legitimate and
documented therapeutic purpose. In addition, the fact that
there are six (6) Canadian-based NHL teams would necessitate
that Canadian licensed physicians also be authorized to
prescribe medications qualifying for a therapeutic use
exemption. \6\
---------------------------------------------------------------------------
\6\ Canadian NHL team physicians also may treat and prescribe
medications to visiting teams' players--including United States-based
teams--who suffer an injury while playing in one of the 246 NHL games
played in Canada.
Section 4(b)(5) provides for the samples to be analyzed by a
laboratory approved by USADA. We would recommend that Canadian-
based laboratories approved by the World Anti-Doping Agency
---------------------------------------------------------------------------
(``WADA'') also be authorized to analyze the samples.
Section 4(b)(6) provides that a ``refusal by a professional
athlete to submit to a test or a failure of a professional
athlete to submit to a test without compelling justification
shall also be considered a positive test.'' If the requirement
regarding mandatory offseason testing is maintained, we would
recommend that the legislation address the testing of players
in foreign countries (of course, any such testing, if allowed
at all, would need to be performed in accordance with
applicable laws in the local jurisdiction), or alternatively,
recognize as a compelling justification the absence of a player
from the United States at the time of a requested test, thus
recognizing the international makeup of NHL players and the
fact that many such players return to their native countries
during the off-season.
Section 4(b)(7) of the proposed legislation provides for a
minimum suspension of two (2) years for an athlete who tests
positive for their first violation, and for the ``lifetime ban
of the professional athlete from all major professional
leagues'' for an athlete who commits a second violation. The
NHL agrees that a player who tests positive for performance-
enhancing drugs should be subject to a significant punishment,
and further agrees that progressive discipline should be
imposed for a player who tests positive more than once. We
believe that the USADA model penalties are unduly harsh when
applied in the context of professional hockey players in the
National Hockey League. The proposed legislation incorporates a
significant and meaningful penalty of a two-year ban for a
first-time offender in the context of international ``amateur''
competitions that take place relatively infrequently, as
compared to NHL games. In the international sports environment,
events are generally conducted on an annual, bi-annual or
quadrennial basis (e.g., Olympics, World Championships), while
in the NHL, there are 82 regular season games each season in
addition to playoff games for eligible clubs. Imposition of
identical penalties in these two distinct environments would
result in a disparate, and in our opinion, unduly harsh impact
on NHL players. Further, given the limited career length of a
professional athlete, we believe a two (2) year suspension for
a first-time offender is too harsh, resulting in an excessive
impact on the athlete's ability to earn a ``livelihood.''
Section 4(b)(9) of the proposed legislation provides that a
positive test shall result in the public disclosure of the
``identity of any professional player who has tested positive
as well as the prohibited substance or prohibited method for
which he tested positive not later than 30 days after receiving
the test results.'' The NHL agrees that it would be appropriate
to publicly disclose the name of an athlete who has tested
positive for the use of a performance-enhancing drug, but
believe that prior to such disclosure--and even in the event an
appeal is not filed--it would be prudent to implement a process
that would require a medical review officer to contact the
player who tested positive to determine whether there is an
legitimate medical explanation \7\ for the player's use of the
banned substance. If so, and the player has a proper medical
prescription authorizing the use of the substance, the positive
test results should be considered cancelled, penalties should
not be imposed, and no public disclosure of the test result
should be made. If, however, a legitimate medical explanation
for the player's use of the banned substance does not exist, it
would then be appropriate to make the positive test results
public and impose discipline, in addition to providing
counseling and treatment.
---------------------------------------------------------------------------
\7\ See 49 CFR Sec. 40.137 (2003) (Department of Transportation
Procedures for Transportation Workplace Drug Testing Programs).
Section 6 of the proposed legislation provides that the
Commission may seek a civil penalty of not more than $1,000,000
for each violation of section 4. We would advocate that any
such penalty be assessed to the parties administering the
---------------------------------------------------------------------------
collective bargaining relationship.
In the event legislation is passed regarding performance-
enhancing substances, we would recommend that such legislation
include an obligation on the professional sports leagues to
provide in-person education and training to its players on an
annual basis regarding prohibited substances and the nature of
the applicable testing program, including the penalties
associated with violations of the program.
S. 1334, Professional Sports Integrity and Accountability Act
To the extent S. 1334 has provisions identical to S. 1114, the
NHL's comments regarding the proposed legislation are set forth above.
The NHL's specific comments regarding the provisions of S. 1334 that
are materially different from S. 1114 are as follows:
Section 5(d)(1) of the proposed legislation provides for
``each professional athlete [to be] tested for the use of
prohibited substances and methods no less than 3 times in each
calendar year that the athlete competes in a professional
sports league.'' Section 5(d) further provides for tests to be
conducted ``at random intervals throughout the entire calendar
year . . . '' As stated above, in-season testing makes
particular sense for the NHL. The proposed legislation seems to
permit such testing to occur at random intervals in each
``third'' of the calendar year, thus effectively addressing the
impracticalities associated with off-season testing of non-
North American based NHL players. We would recommend that each
team's entire roster of players be tested at the same time
during the NHL season on a no-notice basis.
Section 5(e) of the proposed legislation provides that a
professional sports league shall publicly disclose the name of
any violator, the penalty imposed, and a description of the
violation ``not later than 10 days after receiving notice of a
violation . . . '' As stated above, it is our view that public
disclosure would not be appropriate until after a medical
review officer has contacted the player who tested positive to
determine whether there is a legitimate medical explanation for
the player's use of the banned substance, and any appeal
process has been fully adjudicated.
The public is entitled to have confidence in the integrity of
competition in the game of hockey and in all professional sports, and
to watch the exceptional athletes of today compete on a level playing
field, free of the influence of performance-enhancing drugs. Every
professional athlete serves as a role model, and with that comes a
corresponding responsibility to engage exclusively in conduct that will
bring honor to himself, his team, and the game in which he earns his
livelihood. For these reasons, we support the requirement that the NHL
and the other professional sports leagues conduct mandatory testing on
athletes for performance-enhancing drugs.
______
Attachment I--Article 47--performance-enhancing Substances Program
47.1 Introduction. The parties agree to the establishment of a
jointly-administered performance-enhancing Substances Program
(``Program''), which shall have as its primary purposes the education
of Players regarding the health risks posed by the use of prohibited
performance-enhancing substances (``Prohibited Substances''); the
treatment of Players who have used Prohibited Substances; and the
deterrence and prevention of such use through education, random no-
notice testing and the imposition of disciplinary penalties where
appropriate.
47.2 Program Committee. The Program shall be jointly administered
by a Program Committee (``Committee'') comprised of an equal number of
League and NHLPA representatives and one (1) consulting expert doctor
nominated by each party. The responsibilities of the Committee shall
include, among other things:
(a) to establish a comprehensive educational program for
Players on the dangers of Prohibited Substances and the nature
of the Program;
(b) to select, and contract with, an appropriate sample
collecting authority;
(c) to select, and contract with, an appropriate testing
laboratory;
(d) to review the WADA list of prohibited performance-enhancing
substances and make recommendations to the NHL and NHLPA as to
which performance-enhancing substances on the WADA list are
relevant to the sport of hockey and should be deemed Prohibited
Substances under the Program;
(e) to develop Player and Club notification procedures for
positive test results;
(f) to oversee the administration of Player evaluation and
treatment following positive test results; and
(g) to establish standards for the administration of
``reasonable cause'' testing.
The Committee shall endeavor to render unanimous decisions with
respect to matters committed to it pursuant to this Article. In the
absence of a unanimous decision, a decision by the majority of
Committee members shall govern. When a majority decision cannot be
reached, the two (2) consulting expert doctors shall select an ad hoc
expert doctor who shall cast the deciding vote with respect to the
matter at issue.
47.3 Scope of Program. The Program shall be limited to addressing
the testing for and use of prohibited performance-enhancing substances
(Prohibited Substances). All other forms of ``substance abuse'' and
behavioral and domestic issues requiring employee assistance will
continue to be handled through the NHL/NHLPA Program for Substance
Abuse and Behavioral Health (the ``SABH Program'').
47.4 Educational Initiatives. Players shall receive education on
Prohibited Substances and the nature of the Program each League Year
during Training Camp, provided, however, that no testing shall take
place and no discipline shall be imposed under the Program until the
Committee has provided a Player with an orientation session regarding
the Program, which shall include an in-person presentation on the
Program and the distribution of informational materials describing all
relevant aspects of the Program, including the list of Prohibited
Substances, testing procedures and disciplinary penalties. Education
and training on the details of the Program will also be provided to
Club Athletic Trainers and Club physicians. Over time, and to the
extent feasible, the Committee will endeavor to develop an ``approved
list'' of nutritional supplements, which will have been tested and
certified as being free of Prohibited Substances.
47.5 Prohibited Substances. The NHL and the NHLPA shall be
responsible for maintaining the list of Prohibited Substances (the
``Prohibited Substances List''). Upon receiving the Committee's
recommendations made pursuant to Section 47.2(d) above, the parties
shall confer and agree upon the Prohibited Substances to be included on
the List. Changes to substances on the List may only be as negotiated
by the NHL and the NHLPA. There shall be no retesting of samples based
on newly discovered substances not included on the Prohibited
Substances List at the time of the original testing.
47.6 Testing Procedures. Every NHL Player who has participated in
an orientation session pursuant to Section 47.4 will be subject to up
to two (2) no-notice tests during the period from the start of Training
Camp through the end of the Regular Season. All such tests will be
conducted at the Clubs' facility on the day of a scheduled practice, as
opposed to on a game day.
47.7 Disciplinary Penalties. Positive tests for performance-
enhancing substances will result in mandatory discipline as follows:
(a) for the first positive test, a suspension of twenty (20)
NHL Games without pay, and mandatory referral to the SABH
Program for evaluation and possible treatment;
(b) for the second positive test, a suspension of sixty (60)
NHL Games without pay, and mandatory referral to the SABH
Program for evaluation and possible treatment;
(c) for the third positive test, a ``permanent'' suspension
without pay, although a Player so suspended can reapply for
discretionary reinstatement after a minimum period of two (2)
years by making an application to the Committee.
47.8 Appeal Procedures. The NHLPA may, on a Player's behalf, appeal
a positive test to the Impartial Arbitrator on an expedited basis,
utilizing the procedures set forth in Article 17 of the Agreement. A
strict liability standard will be employed with respect to all positive
tests. Notwithstanding the above, the Player shall be entitled to
challenge the imposition of any discipline in the event he is able to
establish an applicable therapeutic use exemption (as described in
Section 47.9 hereof), a testing error, mistaken use, or the use of a
tainted supplement or other product ( i.e., where the Player could not
have reasonably ascertained the presence of the Prohibited Substance).
To the extent a Player successfully establishes a defense to a positive
test, he may avoid the mandatory suspension, but will in all cases be
referred to the SABH Program for evaluation and possible treatment. A
Player who files a timely appeal may not be suspended pursuant to
Section 47.7 until a decision on the appeal has been rendered by the
Impartial Arbitrator.
47.9 Therapeutic Use Exemption. A Player may apply to the Committee
for a therapeutic use exemption with respect to a particular Prohibited
Substance. The Committee shall consider and act upon such Player's
application expeditiously and approval of the application shall not be
unreasonably withheld.
47.10 Confidentiality. Test results will be kept confidential,
subject to the following limited exception: once a positive test has
been confirmed after appeal to the Impartial Arbitrator, or if no
appeal is taken, the Player suspended will be identified, and it will
be announced that the Player `` has been suspended for violating the
terms of the NHL/NHLPA Program for performance-enhancing Substances.''
47.11 Program Funding. Any salary forfeited by a Player by reason
of a suspension imposed pursuant to Section 47.7 will be utilized to
help defer the costs of both the Program and the SABH Program. All
costs of administering the Program, including the costs associated with
mandatory no-notice testing, shall be the responsibility of the NHL.
47.12 Mandatory Legislation. The parties agree that to the extent
mandatory and binding legislation goes into effect that requires
material changes to the Program, the provisions of the Program will
become null and void and the parties will endeavor to collectively
bargain over a revised Program that complies with such legislation and
that is agreeable to both parties.
______
Attachment II--The 2005 Prohibited List--World Anti-Doping Code (Valid
1 January 2005)
The Use of Any Drug Should be Limited To Medically Justified
Indications
Prohibited Substances
S1. Anabolic Agents
Anabolic agents are prohibited.
1. Anabolic Androgenic Steroids (AAS)
a. Exogenous* AAS, including:
18a-homo-17b-hydroxyestr-4-en-3-one; bolasterone; boldenone;
boldione; calusterone; clostebol; danazol; dehydrochloromethyl-
testosterone; delta1-androstene-3,17-dione; delta1-androstenediol;
delta1-dihydro-testosterone; drostanolone; ethylestrenol;
fluoxymesterone; formebolone; furazabol; gestrinone; 4-
hydroxytestosterone; 4-hydroxy-19-nortestosterone; mestanolone;
mesterolone; metenolone; methandienone; methandriol; methyldienolone;
methyltrienolone; methyltestosterone; mibolerone; nandrolone; 19-
norandrostenediol; 19-norandrostenedione; norbolethone; norclostebol;
norethandrolone; oxabolone; oxandrolone; oxymesterone; oxymetholone;
quinbolone; stanozolol; stenbolone; tetrahydrogestrinone; trenbolone
and other substances with a similar chemical structure or similar
biological effect(s).
b. Endogenous** AAS:
androstenediol (androst-5-ene-3b,17b-diol); androstenedione
(androst-4-ene-3,17-dione); dehydroepiandrosterone (DHEA);
dihydrotestosterone; testosterone.
and the following metabolites and isomers:
5a-androstane-3a,17a-diol; 5a-androstane-3a,17b-diol; 5a-
androstane-3b,17a-diol; 5a-androstane-3b,17b-diol; androst-4-ene-
3a,17a-diol; androst-4-ene-3b,17a-diol; androst-4-ene-3b,17a-diol;
androst-5-ene-3a,17a-diol; androst-5-ene-3a,17b-diol; androst-5-ene-
3b,17a-diol; 4-androstenediol (androst-4-ene-3b,17b-diol); 5-
androstenedione (androst-5-ene-3,17-dione); epi-dihydrotestosterone;
3a-hydroxy-5a-androstan-17-one; 3b-hydroxy-5a-androstan-17-one; 19-
norandrosterone; 19-noretiocholanolone.
Where a Prohibited Substance (as listed above) is capable of being
produced by the body naturally, a Sample will be deemed to contain such
Prohibited Substance where the concentration of the Prohibited
Substance or its metabolites or markers and/or any other relevant
ratio(s) in the Athlete's Sample so deviates from the range of values
normally found in humans that it is unlikely to be consistent with
normal endogenous production. A Sample shall not be deemed to contain a
Prohibited Substance in any such case where the Athlete proves by
evidence that the concentration of the Prohibited Substance or its
metabolites or markers and/or the relevant ratio(s) in the Athlete's
Sample is attributable to a physiological or pathological condition. In
all cases, and at any concentration, the laboratory will report an
Adverse Analytical Finding if, based on any reliable analytical method,
it can show that the Prohibited Substance is of exogenous origin.
If the laboratory result is not conclusive and no concentration as
referred to in the above paragraph is found, the relevant Anti-Doping
Organization shall conduct a further investigation if there are serious
indications, such as a comparison to reference steroid profiles, for a
possible Use of a Prohibited Substance.
If the laboratory has reported the presence of a T/E ratio greater
than four (4) to one (1) in the urine, further investigation is
obligatory in order to determine whether the ratio is due to a
physiological or pathological condition, except if the laboratory
reports an Adverse Analytical Finding based on any reliable analytical
method, showing that the Prohibited Substance is of exogenous origin.
In case of an investigation, it will include a review of any
previous and/or subsequent tests. If previous tests are not available,
the Athlete shall be tested unannounced at least three times within a
three month period.
Should an Athlete fail to cooperate in the investigations, the
Athlete's Sample shall be deemed to contain a Prohibited Substance.
2. Other Anabolic Agents, Including but not Limited to: Clenbuterol,
Zeranol, Zilpaterol.
For purposes of this section:
*``exogenous'' refers to a substance which is not capable of
being produced by the body naturally.
**``endogenous'' refers to a substance which is capable of
being produced by the body naturally.
S2. Hormones and Related Substances
The following substances, including other substances with a similar
chemical structure or similar biological effect(s), and their releasing
factors, are prohibited:
1. Erythropoietin (EPO);
2. Growth Hormone (hGH), Insulin-like Growth Factor (IGF-1),
Mechano Growth Factors (MGFs);
3. Gonadotrophins (LH, hCG);
4. Insulin;
5. Corticotrophins.
Unless the Athlete can demonstrate that the concentration was due
to a physiological or pathological condition, a Sample will be deemed
to contain a Prohibited Substance (as listed above) where the
concentration of the Prohibited Substance or its metabolites and/or
relevant ratios or markers in the Athlete's Sample so exceeds the range
of values normally found in humans so that it is unlikely to be
consistent with normal endogenous production.
The presence of other substances with a similar chemical structure
or similar biological effect(s), diagnostic marker(s) or releasing
factors of a hormone listed above or of any other finding which
indicate(s) that the substance detected is of exogenous origin, will be
reported as an Adverse Analytical Finding.
S3. Beta-2 Agonists
All beta-2 agonists including their D- and L-isomers are
prohibited. Their use requires a Therapeutic Use Exemption.
As an exception, formoterol, salbutamol, salmeterol and
terbutaline, when administered by inhalation to prevent and/or treat
asthma and exercise-induced asthma/broncho-constriction require an
abbreviated Therapeutic Use Exemption.
Despite the granting of a Therapeutic Use Exemption, when the
Laboratory has reported a concentration of salbutamol (free plus
glucuronide) greater than 1000 ng/mL, this will be considered as an
Adverse Analytical Finding unless the athlete proves that the abnormal
result was the consequence of the therapeutic use of inhaled
salbutamol.
S4. Agents With Anti-Estrogenic Activity
The following classes of anti-estrogenic substances are prohibited:
1. Aromatase inhibitors including, but not limited to,
anastrozole, letrozole, aminogluthetimide, exemestane,
formestane, testolactone.
2. Selective Estrogen Receptor Modulators (SERMs) including,
but not limited to, raloxifene, tamoxifen, toremifene.
3. Other anti-estrogenic substances including, but not limited
to, clomiphene, cyclofenil, fulvestrant.
S5. Diuretics and Other Masking Agents
Diuretics and other masking agents are prohibited. Masking agents
include but are not limited to: Diuretics*, epitestosterone,
probenecid, alpha-reductase inhibitors (e.g. finasteride, dutasteride),
plasma expanders (e.g. albumin, dextran, hydroxyethyl starch).
Diuretics include: acetazolamide, amiloride, bumetanide, canrenone,
chlortalidone, etacrynic acid, furosemide, indapamide, metolazone,
spironolactone, thiazides (e.g. bendroflumethiazide, chlorothiazide,
hydrochlorothiazide), triamterene, and other substances with a similar
chemical structure or similar biological effect(s).
*A Therapeutic Use Exemption is not valid if an Athlete's urine
contains a diuretic in association with threshold or sub-
threshold levels of a Prohibited Substance(s).
Prohibited Methods
M1. Enhancement of Oxygen Transfer
The following are prohibited:
a. Blood doping, including the use of autologous, homologous or
heterologous blood or red blood cell products of any origin,
other than for medical treatment.
b. Artificially enhancing the uptake, transport or delivery of
oxygen, including but not limited to perfluorochemicals,
efaproxiral (RSR13) and modified haemoglobin products (e.g.
haemoglobin-based blood substitutes, microencapsulated
haemoglobin products).
M2. Chemical and Physical Manipulation
The following is prohibited:
Tampering, or attempting to tamper, in order to alter the integrity
and validity of Samples collected in Doping Controls.
These include but are not limited to intravenous infusions*,
catheterisation, and urine substitution.
*Except as a legitimate acute medical treatment, intravenous
infusions are prohibited.
M3. Gene Doping
The non-therapeutic use of cells, genes, genetic elements, or of
the modulation of gene expression, having the capacity to enhance
athletic performance, is prohibited.
Senator McCain. Thank you.
Mr. Saskin.
STATEMENT OF TED SASKIN, EXECUTIVE DIRECTOR, NATIONAL HOCKEY
LEAGUE PLAYERS' ASSOCIATION
Mr. Saskin. Mr. Chairman, and Committee Members. I want to
at the outset, clearly and emphatically state to this Committee
that the NHLPA membership and officials in our organization,
including myself, are strongly opposed to the use of
performance-enhancing substances by anyone in our sport. There
are three main reasons for this position. First, the NHLPA is
keenly concerned with protecting its members personal health.
Second, NHLPA members want to protect the competitive integrity
and fairness of their sport. And third, because NHLPA members
are seen by young aspiring hockey players and fans around the
world as important role models, they want to leave no doubt
about their opposition to performance-enhancing substances.
To further the Committee goal today to obtain information
through testimony in an efficient manner, I will avoid further
describing details of our new program. It has been adequately
explained by Commissioner Bettman, I support everything he has
said in describing our program.
I would, however, refer you to our written submissions
which have some additional background on that. However, I think
it would be appropriate to make just a few comments on your
proposed legislation, because--and this is given with the
greatest of respect to the good intentions behind the
legislation, it is an area in our view that is best left for
individual sports leagues and players associations to address
as we have recently done through our collective bargaining
process, particularly so that the specific and different
circumstances of each sport can be taken into account.
There are a number of points I've detailed in my written
submission from how to address frequency of testing when over
85 percent of our members are not American citizens and how
that relates to off-season testing. There are other points with
respect to the actual list of prohibited substances, the WADA
code, which we've had much experience with when we participate
in the Olympics, has specific provisions for hockey, and you
have to look at what is particular to hockey, which our program
doctors have recently done in developing our program.
On the therapeutic use exemptions, there is a reference to
American doctors being the ones who have to provide those use
exceptions. With six clubs in Canada, and Canadian doctors,
allowances would have to be made so that Canadian doctors
properly registered medical practitioners could provide those
therapeutic use exemptions for Canadian players.
In short, the one-size-fits-all aspect of the legislation
would be very problematic for hockey with the international
nature and constitution of our membership.
Those are my comments, thank you.
[The prepared statement of Mr. Saskin follows:]
Prepared Statement of Ted Saskin, Executive Director, National Hockey
League Players' Association
Mr. Chairman and Members of the Committee:
My name is Ted Saskin and I serve as the Executive Director and
General Counsel of the National Hockey League Players' Association
(NHLPA). I appreciate the opportunity to provide this Committee with
our perspective on the proposed S. 1114 Clean Sports Act of 2005 (S.
1114) and S. 1334 Professional Sports Integrity and Accountability Act
(S. 1334).
Given that this is my first opportunity to appear before your
Committee, I thought it would be useful for me to spend a few minutes
providing some background on how we have addressed substance abuse and
the use of steroids and other performance-enhancing drugs in our sport.
I will then provide my comments on your proposed legislation.
However, before I address those two matters I want to clearly and
emphatically state to the Committee that the NHLPA membership, and
officials in our organization including myself, are strongly opposed to
the use of performance-enhancing substances by anyone in our sport.
There are three main reasons for this position. First, the NHLPA is
keenly concerned with protecting its members' personal health. Second,
NHLPA members want to protect the competitive integrity and fairness of
their sport. Third, because NHLPA members are seen by young aspiring
hockey players and fans around the world as important role models, they
want to leave no doubt about their opposition to performance-enhancing
substances.
NHLPA/NHL Performance-Enhancing Substances Program
The strong commitment of the NHLPA membership to keep hockey free
of performance-enhancing substances is best evidenced by the testing
program that was recently adopted as part of the new Collective
Bargaining Agreement (CBA) between the NHLPA and the National Hockey
League (NHL). The performance-enhancing Substances Program (the
Program), which went into effect with the execution of the CBA on July
15, 2005, is the first attempt to deal specifically with the issue of
performance-enhancing substances through a system of testing and
discipline. It is my firm belief that when this Program is fully
developed and operational, it will serve as an effective deterrent to
the use of performance-enhancing substances. The Program features a
comprehensive educational component, the prohibition of substances that
would actually enhance performance in the sport of hockey and strong
sanctions designed to rid the sport of these substances. We believe
that by tailoring the Program to the specific circumstances of
professional hockey, including the unique realities of playing in the
NHL and the international nature of the sport, we have significantly
enhanced the Program's effectiveness.
To further the Committee's goal today to obtain information through
testimony in an efficient manner I will avoid further describing
details of the Program's purposes, design and operation. Instead I will
refer you to the NHL's submission on the Program because I understand
that information to be accurate.
NHLPA/NHL Substance Abuse and Behavioural Health Program
While the Program represents a dramatic and important new step in
dealing with performance-enhancing substances, it should be noted that
the NHLPA and the NHL have a long-standing commitment to addressing the
issues of substance abuse and the use of performance-enhancing
substances. In 1995, in conjunction with the negotiation of our
previous CBA, the NHLPA and NHL jointly implemented the ``NHL/NHLPA
Substance Abuse and Behavioral Health Program (SABH Program). The SABH
Program was broadly designed to address any potential substance abuse
among NHL players and their families and to treat those problems in a
confidential, fair and effective way. The SABH Program incorporates
education, counseling, inpatient and outpatient treatment and testing,
follow-up care and, where appropriate, punitive sanctions, up to and
including permanent suspension from play.
Our SABH Program has worked very well for the purposes it was
designed for. Both the NHLPA and NHL have been pleased with its
operation and results. However, over the past 10 years, and
particularly in recent years, the issue of performance-enhancing drugs
in sport has become more prominent. In response to this change, our
SABH Program Doctors developed and presented educational materials to
the players specifically highlighting the dangers of steroid use in at
least 4 of the last 7 years. Our SABH Program Doctors have confirmed to
us that there is virtually no steroid use in hockey, which is not
surprising when one considers that the alleged benefits of such steroid
use (enhanced bulk muscle mass) do not benefit elite hockey players.
The purported benefits of steroid use are simply not applicable to
skilled NHL players. This viewpoint is strongly supported by the fact
that we are not aware of a single instance over the last 10 years in
which an NHL player has tested positive for performance-enhancing drugs
during any of the many International Ice Hockey competitions our
players have participated in where there has been mandatory testing.
Specifically, in the past 10 years, hundreds of NHL players have
participated in the International Ice Hockey Federation World
Championships, the 1998 and 2002 Olympics and the 2004 World Cup of
Hockey Competition. These NHL players were subject to the drug testing
protocols in connection with their participation in these events. These
protocols utilized a substance list and testing procedures equivalent
to the current WADA Code. We are aware of only 3 positive tests for
performance-enhancing drugs. Of these 3, one of the players tested
positive for Salbutamol, a drug that was being used for asthma as a
Proventil inhaler and may be used with a therapeutic use exemption. A
second player tested positive for Tramadol, a substance which is
designated as an ``allowed narcotic.'' The third player established a
``mistaken use defense'' in connection with his use of over the counter
nutritional supplements.
In short, we have been fortunate to have no issue to date with the
use of performance-enhancing drugs by elite hockey players. Having said
that, I can give this Committee my complete assurance that our new
Program is designed to prevent the use of performance-enhancing
substances by any Players, however rare and isolated those cases may
be. We fully recognize the importance of an effective Program. The
players I represent see no place for the use of performance-enhancing
substances in our sport and are sensitive to their position as role
models to many aspiring hockey players and fans around the world.
Comments on S. 1114, The Clean Sports Act of 2005 and S. 1334, The
Professional Sports Integrity and Accountability Act
My initial comment, which is given with the greatest of respect to
the good intentions behind the proposed legislation, is that this is an
area that is best left for the individual sports leagues and player
associations to address through collective bargaining so that the
specific and different circumstances of each sport can be taken into
account. We believe that the recently adopted NHLPA/NHL Program offers
strong support for the proposition that collective bargaining is the
appropriate avenue for producing effective and workable programs in
professional sports.
Now, with respect to the specifics of the proposed legislation, I
would make the following comments:
Frequency of testing. Consistent with the NHL/NHLPA Program, both
S. 1114 and S. 1334 provide for random, no-notice testing. With respect
to testing frequency, Section 4(b)(1)(A) of S. 1114 mandates 5 tests in
each calendar year that a player competes and Section 5(d)(1)(A) of S.
1334 mandates 3 such tests. These requirements would not be practicable
in our sport given the unique nature of hockey and the way Players pass
in and out of the League over the course of a season. For example,
during the 2003-04 season there were 1,433 Players under contract to an
NHL Club, but only 1,105 actually competed in an NHL game. Of these
Players, 32 played in only one game, 145 played in 5 or less games and
205 played in 10 or less games. These numbers reflect the reality that
Players under NHL contract may spend the entire season in the Minor
Leagues, play only a handful of NHL games or come up to play in a
single game as a fill-in before flying right back to the Minor League
club the next day. It is difficult to see how a program mandating three
to five tests for such Players could be implemented. It is with this
reality in mind that the NHLPA and NHL adopted a more flexible policy
on frequency of testing--a policy that will allow regular NHL Players
to be tested with sufficient frequency to ensure the effectiveness of
the Program.
Timing of testing. With respect to timing, both pieces of proposed
legislation mandate testing during the off-season, with Section
4(b)(1)(B)(ii) of S. 1114 requiring at least 2 such tests. Once again,
the reality of NHL hockey would render these requirements unworkable.
More than four fifths of NHL Players are from outside the United States
and many of these Players return to their home countries in the off-
season, making year-round testing impracticable. In addition, we
believe that timing parameters should take into account the scheduling
difficulties faced by Players and Clubs. For example, it can often
times take several hours to provide a urine sample after a player has
become dehydrated following completion of a hockey game. Travel
requirements to upcoming games will often require that players leave an
arena within one hour of completing a game to board a flight to their
next city. The newly adopted NHLPA/NHL Program prohibits game day
testing in recognition of these hockey-specific challenges.
Prohibited substances. Section 4(b) of S. 1114 and Section 5(b) of
S. 1334 specify that the list of prohibited substances should be
equivalent to the list established by the United States Anti Doping
Agency (USADA). It is our view that the list of substances prohibited
in the NHL should be developed on a basis that is relevant to the
particular sport and not simply by adopting the list formulated by
USADA or the World Anti Doping Agency (WADA) for Olympic competitions.
Some of the substances prohibited on the USADA/WADA lists are not
performance-enhancing and should not be included as part of any testing
regimen governing hockey players.
Penalties. Section 4(b)(7)(A)(i) of S. 1114 and Section
(5)(e)(1)(A) of S. 1334 contemplate a minimum 2 year suspension for a
first offense. We believe that 2 years is an unreasonably long
punishment for a professional hockey player. Unlike the Olympics, which
take place every 4 years, and are mainly a forum for amateur athletes,
the National Hockey League represents a career opportunity that can
only be obtained after many years of hard work and a substantial amount
of good fortune. A 2-year suspension would effectively end a hockey
player's career, stripping him of his livelihood on the basis of a
first offence. We agree that meaningful punishment is an important part
of any testing regimen and we believe that our recently adopted Program
finds the correct balance. The prescribed 20-game suspension for a
first-time offender, coupled with the negative public coverage such an
individual will receive, will have a significant effect on the
offender's future behavior and the behavior of all players. In
addition, the 60-game suspension for a second offense and the lifetime
ban for a third offense are very substantial penalties that should
operate to prevent repeat offenses.
Public Disclosure. Both pieces of legislation call for public
disclosure of an offending player's identity within a defined time
period from the date of a positive test or notice of a positive test
(30 days under Section 4(b)(9) of S. 1114 and 10 days under Section
5(e)(2)(A) of S. 1334). We believe that in the interests of due
process, no disclosure should be made until the applicable appeal
process has run its full course. A Player who is able to exonerate
himself should not be subject to premature and possibly mistaken
identification as an offender.
Therapeutic use exemptions. Both pieces of proposed legislation
provide for therapeutic use exemptions (TUE's), which are also an
important component of the NHLPA/NHL Program. However, Section 4(b)(4)
of S. 1114 and Section 5(d)(3)(B)(iii) of S. 1334 require that the
substance in question be prescribed by a doctor licensed in the United
States. This requirement would not be appropriate for the NHL, where
the six Clubs based in Canada employ Canadian doctors, who administer
to mostly Canadian and European Players. These Players should be able
to seek TUE's on the basis of their Canadian doctors' prescriptions.
Once again, we believe that the collective bargaining process provides
parties with the ability to achieve the same goals as the proposed
legislation, but in a manner that is consistent with the unique
realities of their sports.
To close I want to again share the NHLPA members' sentiment that
they want to do their part to maintain the public's confidence that our
sport is free of the use of performance-enhancing drugs.
Thank you for inviting us to appear today.
Senator McCain. Well, Mr. Saskin, if they play in the
United States of America, if they're paid in the United States
of America, and it's Americans that patronize their games, I am
not sympathetic to some problem that may be caused by the fact
that they live overseas. I don't think anyone has put a gun to
their heads and asked them, or forced them to come and play
here. If they're going to play in the United States of America,
they should play by our rules.
Mr. Fehr, you and I have known each other for many years,
and we have been friends for many years. It was April 25th,
more than 5 months ago that Commissioner Selig made his
proposal. More than 5 months ago. And you came here today and
said well, we're close but we have to observe the Jewish
holidays and we hope to have an agreement by then. Are you and
the players living in such a rarified atmosphere that you do
not appreciate that this is a transcendent issue. It was also
intimated in your remarks that this is tied to other collective
bargaining issues. Don't you get it? Don't you get it, that
this is an issue which is greater than the issue of collective
bargaining as I tried to say in my opening statement? It's
about young Americans who are tempted to take these substances
and some of them commit suicide.
Don't you understand that this is an issue of such
transcendent importance that you should have acted months ago?
There should have been some agreement months ago. We wouldn't
be having this hearing I believe, the Palmiero case aside, if
you had come to some agreement. The patience of this body,
reflected by our constituents, is at an end. Now could you give
me a definitive date when you will reach a final agreement with
Mr. Selig, not associated with any other collective bargaining
issue?
Mr. Fehr. A number of things, Mr. Chairman. First of all,
we have known each other and been friends for many years, and I
certainly hope that will continue.
Second, our bargaining is not tied to other issues if I
inadvertently made that suggestion that was incorrect and I was
not speaking precisely. I was referring to a process of
bargaining in prior years, and criticism about whether we said
things publicly or whether we didn't, with the press around the
negotiations.
Third, after the hearings on the House side in March, and
after receiving the Commissioner's letter, we had discussions
both before and after that. There was an agreement at the
beginning that it would be unfair to have a change in the
middle of the season. That's why the Commissioner had the Minor
League changes take effect in 2006.
Senator McCain. Did that preclude you from reaching an
agreement?
Mr. Fehr. No, no. Let me finish Mr. Chairman, please. I
then went--sent the tapes of the hearings to all of the players
and I have an obligation to meet with them all. Which I did. It
was always known and understood that we would get back to it.
There were ongoing discussions all summer long. And although
more intensively after my meetings with the players ended. Now
in answer to your specific question about a time deadline. Can
I give you a precise date, no. Do I expect to know within the
reasonably near future whether that will done, yes. Would I
expect it to be by the end of the World Series, I would
certainly hope so.
Senator McCain. Well, the last thing that the Senator from
Kentucky and I and members of this Committee want to do, is
pass legislation. But we're at the end of the line, Mr. Fehr.
We're at the end of the line here. How many more Rafael
Palmieros are there going to be? How many statements by David
Wells saying that ``I'm sure that there are still plenty of
guys in this game using steroids?'' We're at the end here, and
I don't want to do it, but we need an agreement and we need it
soon. It's not complicated. All sports fans understand it. So I
would, in all due respect to the Jewish holidays, or any other
logistical problems you might have, I suggest you act, and act
soon.
Commissioner Tagliabue, there was a program called ``Costas
Now'' on HBO. On August 12, 2005, they interviewed Dr. James
Shortt. Dr. James Shortt said that he gave a number of NFL
players anabolic steroids according to Arman Keteyian, who was
the one who interviewed him. ``The NFL laws are such that it's
prohibited to take anabolic steroids while you're playing in
the NFL. Are you aware of that?'' ``Yes, absolutely.'' ``But
were you aware of it at the time were you prescribing anabolic
steroids to NFL players?'' ``Possibly at some point.'' ``How
many NFL players did you work with?'' ``Let's say one to two
dozen.'' Arman Keteyian says, ``I've heard 18, Dr. Shortt.''
``That would be somewhere in that range. (Smile.)'' If that's
true why haven't we had some detection of this kind of anabolic
steroid use, Commissioner?
Commissioner Tagliabue. Well, those players, Mr. Chairman,
were engaged in a course of conduct to evade detection. This is
a unique substance, testosterone, it's a naturally appearing
substance, with a very complicated test. And they were staying
under the radar screen, in effect. And we have a report on
this, a comprehensive report done by our investigators. We'd be
glad to give it to you. Dr. Shortt has now been indicted. We
are now addressing the other issue that comes up in that
situation which is----
Senator McCain. Including the players that were implicated
in BALCO. There were a number of baseball players that were
implicated there as well.
Commissioner Tagliabue. You mean football?
Senator McCain. I mean football players.
Commissioner Tagliabue. Yes, that was a substance for which
there was no test known at the time. As soon as the test was
known, we applied the test not only to current players, but to
one year's worth of samples, I believe that we had been holding
from the prior year and we found no other violations of that
THG substance. We were very aggressive there in going back to
tests that were taken, I believe, as long as a year earlier.
Senator McCain. Senator Bunning.
Senator Bunning. Thank you, Mr. Chairman. First of all, if
you wonder why we're really pushing this, this letter will
indicate to you why. This is from a Boy Scout, from the State
of Kentucky. ``My name is Joseph Mattingly. I am a Boy Scout
from Troop 327. At this year's summer camp, I am working on a
merit badge that requires me to write a letter to a Member of
Congress, representing my state, Kentucky. This letter was
required to be about a national issue which I share the same
view with you. I wrote to you because I am a fan of Major
League Baseball and would agree that Congress should get
involved in the steroids scandal. I say this for many reasons.
One is that Major League Baseball needs some help. If they
can't clear up this problem, Congress could. Another reason is
that taking performance-enhancing drugs is cheating. Cheating
should not be the American way of doing things. A third reason
is that steroids are drugs. Performance-enhancing drugs should
be made illegal without a prescription.'' And then it goes into
the Hall of Fame and things like that. That's the reason that
we're here today. Whether you like it, or whether you don't
like it. Now, Don Fehr, I've known you for longer than John
McCain has.
Mr. Fehr. That's certainly correct, probably about a decade
longer.
Senator Bunning. Now do you believe that there is a problem
with steroids and amphetamines in baseball?
Mr. Fehr. I believe with respect to steroids that there has
been, the data we compiled in 2003 demonstrated that. I believe
it is well on the way to being eradicated. And I think that the
agreement that I hope to be able to reach and that I'm certain
that the players will ratify will make that beyond question.
Senator Bunning. Do you think players who use steroids are
cheaters?
Mr. Fehr. I was asked and answered that question
affirmatively at the Government Reform Hearing last month.
Senator Bunning. Do you think cheaters should be allowed to
stay in the game?
Mr. Fehr. I think that with respect to penalties, two
things have to apply. That you have to look at the facts and
circumstances of every case. You have to make a judgment as to
what level of penalty should be applied in every case, and the
players should have an opportunity to tell his story if he
thinks there are mitigating circumstances----
Senator Bunning. Even though they test positive?
Mr. Fehr. Yes. And that's--and I don't understand Senator
one thing, with respect to a lot of the criticism. It's
traditional in this country that when someone is accused of
something that they have an opportunity to tell their story, to
a neutral. To somebody who's----
Senator Bunning. That's why an independent----
Mr. Fehr. That's right, to a neutral, to an independent.
And to say, this is why you shouldn't find that I did whatever
it is they're accused of and if you find that I do, this is why
it shouldn't be treated as seriously as you otherwise might.
And the prosecutor, or in our business, the clubs, the
Commissioner's office would certainly have the right to say,
well that evidence isn't very persuasive, but not only that, we
think the penalties ought to be increased beyond the
presumptive penalty. And the structure we've proposed, does
that.
Senator Bunning. Let me ask both of you, Comissioner Fehr
and you----
Mr. Fehr. I don't quite have the title, but thank you.
Senator Bunning. Commissioner Selig, and you, Don. It's
obvious to everyone in this room that baseball and the players
only act when Congress threatens you. Unless we hit you, you
don't do anything. So why should we believe you're serious now,
instead of just passing a new law and making a meaningful drug
test for your players and for the integrity of baseball.
Mr. Fehr. Let me respond first, since it was directed at
the players, I think. And I would say two things. First of all
we've renegotiated a number of times in response to specific
criticisms and to changing events and we're in the process of
doing it again. Second, within the reasonably forseeable
future, I believe we will have a new agreement and that can be
judged on it's own merits. Third, in the end, you and your
colleagues, and your colleagues in the House will make a
decision as to whether or not its sufficient. Part of the
reason, although far from the only reason that I went to meet
with the players this summer was to explain to them, and to
every one of them individually that wanted to come to the
meetings exactly what the reaction----
Senator Bunning. Do they understand how serious a problem
it is in the public?
Mr. Fehr. I think they do, although as you know like with
any group----
Senator Bunning. You're taking all my time, and I don't
have time.
Mr. Fehr. I apologize.
Senator Bunning. That's OK.
Mr. Fehr. I apologize.
Senator Bunning. But in your written statement, your
legalese in your written statement, there are serious questions
as to whether the bills before the Committee are consistent
with the Constitution. And then you cite Chandler versus
Miller, a case in which the Supreme Court held unconstitutional
as a violation of the Fourth Amendment. I think that's very
interesting. Commissioner, would you like to answer that?
Commissioner Selig. Thank you, Senator Bunning, I would.
There's no question that from the late 1990s when I began to
believe that there was a problem I think we did everything we
could, and I know people have said that we've been slow to
react and that's a fair criticism. Although, as I look back
retrospectively, I'm not sure there's any more we could have
done. The Minor League program is now five years old. We're
testing all over everywhere we can. In 2002 we got the first
drug testing program the sport had ever had, albeit not strong
enough. And I made a conscientious decision at that time at
6:30 in the morning that the sport couldn't take another
lockout or strike. And while I wanted a tougher program, it
wasn't there. There's no question that I wish we were in a
different position than we're in today. I've meant what I've
said here, I've said it all over the country. I think Senator
Cantwell heard me say this in Seattle. This is an integrity
issue.
Senator Bunning. You'll have a chance to prove yourself by
the end of the World Series according to the Director.
Commissioner Selig. Well, you know I have been as everybody
around me knows very restless, it's been five months. Some
people have even been critical that these penalties aren't
severe. But I think they fit our sport. I really do. I think
the independent testing is important. Frankly I'm anxious to
get our people out of it. There should never be a scintilla of
doubt whether the program is working--I've said this many times
but just sitting here again, just the fact that we're sitting
here and discussing this, we need to have tougher penalties,
independent testings, so we have established once and for all
that we are really serious about this.
Senator McCain. Senator Dorgan.
Senator Dorgan. Mr. Chairman, thank you. Mr. Fehr, you
appeared at the hearing I chaired in 2002, and many of the same
points of discussion occurred then, and I indicated in my
opening statement I think obviously there's been some progress.
But Mr. Fehr, you still speak as if this is negotiable. I
submit, that if you listen carefully to Senator McCain's
opening statement and other statements from the House and
Senate, I think this is non-negotiable at this point. I think
you waited too long.
And by that I simply mean that we've gone way past the
point now of no return. It's quite clear, Congress is simply
going to slap on a routine here, or an approach to testing, and
penalties unless the Commissioner and you do it first, and so
you might respond to this, but you still sound this morning as
if this is something that's part of your negotiation. I submit,
I think it's non-negotiable at this point.
Mr. Fehr. Senator, first of all I appreciate your comments
and the sense of the hearings that you've referred to. Some
other ones on the House side have been conveyed to the players,
it's part of what I did. In some fashion when tapes are
available of this hearing, I'm going to make those available to
the players too, although it will be the off-season and a
little more difficult to reach everybody. I think that the
majority of the players understand what the sense of the
Congress is, I can't speak for every single one, but that's my
sense meeting with them. That's why we're engaged in this
process. And when I use the term negotiation, what I mean by it
is this. My obligation as a representative of the players, both
generally and under the National Labor Relations Act, is to
negotiate on their behalf what they believe to be an
appropriate and fair agreement under all circumstances, and
that's what I'm trying to do.
Senator Dorgan. Well, then, perhaps I was too personal.
Maybe it's just the message to the players, that they've waited
too long. They've waited too long. It's over. I mean this is
not in my judgment negotiable. And I think that Chairman McCain
and others have made that point. Let me just ask Commissioner
Selig. As I understand it, you have a Minor League program that
you put in place.
Commissioner Selig. Yes, that is correct.
Senator Dorgan. And tell me about that program, just a
thumbnail sketch very quickly.
Commissioner Selig. We put it in effect in 2001, and it has
worked well. I've toughened the penalties up once I began to
really understand the dimension of the integrity problem. So
next year the very penalties that I'm asking the Major League
Players Association to do, are in effect in the Minor Leagues
and everybody is tested.
Senator Dorgan. Why did you put that in place in 2001, in
the Minor Leagues?
Commissioner Selig. Because I was very concerned, I thought
that baseball already had a very significant problem.
Senator Dorgan. And you had the authority unilaterally to
do that in 2001?
Commissioner Selig. I did have the authority to
unilaterally do it.
Senator Dorgan. Minor League only?
Commissioner Selig. In the Minor Leagues, yes Senator.
Senator Dorgan. And did you propose that to the Major
League Ball Players in the----
Commissioner Selig. It was the last very contentious issue
in the 2002 negotiation and I, of course, yes, I was very
hopeful we could do that. But as I said to Senator Bunning, I
made a decision, which I think I would make again as tough as
it was, that we couldn't get that program. We got the first
testing program, but obviously it didn't have the same teeth,
and it wasn't able to produce what we know we must pursue.
Senator Dorgan. If you could have imposed it unilaterally
as you did for the Minor Leagues, would you have for the Major
Leagues?
Commissioner Selig. Oh, of course I would have, absolutely.
Senator Dorgan. Same program?
Commissioner Selig. Same program absolutely.
Senator Dorgan. Mr. Chairman, you know this is the third
hearing we've had and frankly, with all sports I think we had
some pediatric physicians testify at the first hearing, talking
about 12, 13, 14 year old kids that are out looking for things
that will build their bodies and enhance their performance.
Why? Because they read about others doing it. So this has a
profound influence in our country, the issue of drugs and
sports. And I know some of the other professional sports have
taken great strides. Mr. Upshaw made the point that I'd written
down somewhere that the football players believe taking these
drugs is cheating and they want cheaters out of football.
I would assume that baseball players would feel exactly the
same way and if they don't, I'm surprised. If they do feel the
same way, it's strange that we haven't gotten to the point
where this is solved, so that you don't have to come to the
Congress about it, or that we don't have to call you in.
Mr. Fehr. Would you like me to respond?
Senator Dorgan. Yes I'd be happy to.
Mr. Fehr. Thank you, Senator. A couple of things, first of
all, the players of course feel that way, they always have.
That's why we have been engaged in this process. That's why I
was given the authority to enter into the negotiations. I don't
have that authority on my own.
Senator Dorgan. But you see my point, sorry for
interrupting you, but now you're talking about your
negotiations. My point is, I think its over. So you're still
negotiating on what this might be. I think the Commissioner and
the owners have told you what it has to be, the Congress has
told you what it has to be, and you're still negotiating.
That's why I think the game is up here. I'm sorry to interrupt
you.
Mr. Fehr. Senator, I will certainly convey your feelings as
I have in the past and your colleagues in the House, and the
other members of this body. That's something that I not only do
I have an obligation to do, but is very important to do. And
very important for everybody to understand.
As I indicated in my opening statement. I think we're very
close to an agreement. I'll be surprised if we can't work it
out. You'll be in a position to make judgment as to the
appropriate role of the Congress when you see the results of
that.
Senator Dorgan. Mr. Chairman, as my final comment let me
just say that I am thrilled as a young boy from a town of 300
people to see these Hall of Famers here today. And I hope every
baseball player in America, every baseball player in America,
from little kids on up to the Major Leagues will understand
what they said. This is an important and really interesting
national pastime. It's a wonderful game. They said it very
clearly. The first five statements made to this Committee said
it all. And I hope everyone takes notice of that.
Senator McCain. Thank you, Senator.
Senator Allen.
Senator Allen. Thank you, Mr. Chairman. I want to commend
the NBA, and the NHL for your recent strong action against and
putting in a program to combat drugs, the NHL in particular in
the midst of all sorts of other negotiations. The model, if you
look at past performance, is the National Football League and
the joint statement of Mr. Upshaw and Mr. Tagliabue points that
out. As I understand it, and I'll address you, too, Mr. Upshaw
and Commissioner Tagliabue, as I understand it, the NFL banned
Andro, they banned Ephedra, before the FTC, before the Office
of Drug Control Policy, before the FDA, or most recently we
passed a law last year, which I've co-sponsored on Ephedra, but
you did that before Congress, or all these agencies acted. And
isn't that true?
Commissioner Tagliabue. Yes, we banned Andro seven years
before it was banned by the Federal Government. We banned
Ephedra years before it was banned by anybody else, and we have
maintained our ban in light of Federal court rulings that have
challenged the FDA's ban. So we have been very proactive in
those areas and others.
Senator Allen. In your testimony, your joint testimony, you
talked about this legislation that in this legislation could
actually lower the standards in the NFL and reduce the
effectiveness of your drug program, could you elaborate
specifically how this legislation could weaken it.
Commissioner Tagliabue. Well, I feel as I said earlier,
that the strict liability approach is very important here. And
a player is responsible for anything in his body. And any
approach which gets into I didn't know, I didn't intend, I was
told otherwise, I felt the doctor was reliable, fill in the
blank, is very problematic. I've been in hearings over the
years where it was my sister the registered nurse who doped the
NyQuil or it was my girlfriend who put the Ephedra in my beer.
It was this guy who came into my apartment to rob my stereo who
put the Andro in my Wheaties. You can't have that. And I notice
that Commissioner Stern referred to their program as a strict
liability program and that's what our standard is, you are
charged with knowing its wrong. Kids know it's wrong, high
school coaches know it's wrong, college people know it's wrong.
You're obligated as an NFL player getting paid hundreds of
thousands of dollars a year to know it's wrong. And that's what
are penalties are geared to, and I think that is the most
effective approach and I think we can mesh our approach with
the legislation. And that's why we've suggested that a program
like ours could be certified hopefully if it served all of the
purposes, even though maybe every individual element might not
be exactly the same. But we are comfortable with this
legislation on the basis set forth in our statement.
Senator Allen. Your statement, Mr. Upshaw, your joint
statement said a concept, I assume it would be like what we've
done in welfare reform, Mr. Chairman, to set certain standards
and states meet it and they're certified, so they do their own
approach and those who do not meet the standard would be under
the Federal laws and dictates. Is that your understanding of
not wanting to lower your standards, because you all feel in
the NFL that you exceed what's in this legislation?
Mr. Upshaw. I think our statement points that out, that we
would be very comfortable with a certification procedure that
allowed us to continue doing what we do, because we strongly
feel that it's working. So if we met all of the standards, we
should be able to be certified out of it.
Senator Allen. I heard your motivation previously and why
you all wanted to act, let me finish off here with Mr. Fehr,
and Major League Baseball, and this is the main reason that
we're here and looking at legislation. We've heard from the NFL
and others and why they want to do this, their motivations in a
variety of ways of acting before Congress acts. I read on page
five of your testimony you say that you've now banned--one
reason that you waited, is that there were perfectly legal
substances until last January, now illegal as a result of the
passage of the Anabolic Steroid Control Act of 2004. And before
then they were legal, and then they were illegal, and then you
banned them. Note what Mr. Upshaw was working with Mr.
Tagliabue, Commissioner Tagliabue have done. For the sake of
the players health--in other words their point is they didn't
wait for Congress, or the Federal Drug Administration to act,
they realized that it was not a level playing field it was
cheating, they banned it. Now for the sake of the health of the
players, for the integrity of the game, the message it sends to
young people, and there's a matter of your attitude and
motivation, Mr. Fehr? Why can't you be more like Gene Upshaw?
Mr. Fehr. Well, let me say a couple of things. First of
all, I would love to have been able to play any sport at the
level that he did.
Senator Allen. I was saying attitude and motivation, I
don't expect you to be an offensive tackle.
Mr. Fehr. I grew up in Kansas City, Senator, and Mr. Upshaw
had the pleasure I'm sure from his standpoint, of making my
rooting for the Kansas City Chiefs miserable on numerous
occasions, and so I am very familiar with him, both before and
now. Let me just say two things about what you've said. First
of all, given what has transpired, would we have made the same
judgments retrospectively about Androstenedione that were made
at the time, I'm not sure. But I think there is a respectable
and important argument that a lot of players felt should be
seriously considered. And I just basically want to mention what
it is. It was that if the Congress of the United States and the
appropriate Federal agencies in their wisdom say that
Androstenedione is perfectly legal, that anyone can go into the
store and buy it. There isn't even an age restriction on it.
Then the question becomes, should someone because he's employed
in this particular industry be prohibited from doing that which
any other person in the country could do. You may disagree with
it, as I said in retrospect I'm not sure we would have the same
view, but I don't think it's an inappropriate view. One of the
things that I liked very much----
Senator McCain. Senator Cantwell.
Mr. Fehr. I apologize, Mr. Chairman.
Senator Cantwell. Thank you, Mr. Chairman. Mr. Fehr, that,
I've read your letter, I've read it several times. It seems to
me that Major League Baseball has gotten the message. But the
players union hasn't. And when I read your letter I don't think
you're so close to an agreement. It seems to me that Major
League Baseball is saying clearly, ``three strikes and you're
out.'' You're saying ``three strikes and you might be safe.''
Mr. Fehr. No, I don't think that's right.
Senator Cantwell. Can I finish?
Mr. Fehr. I apologize.
Senator Cantwell. My colleagues here, on the Committee and
other committees are saying it should be two strikes and you're
out. If you go to the individual issues at debate here, first
time offense, Major League Baseball is saying 50-game ban. You
want less than that, a 20-game ban. My colleagues are saying 2
years. You go to the second time, again Major League Baseball
has a 100-game ban, again my colleagues here are saying that's
it. You're done. So to me it seems like you are at a much
different place. It seems like Major League Baseball said we're
serious about this, and they went out and got serious about it
in this proposal. This response that we just got, I'm assuming
it just came out in the last couple of days. So we had 5 months
of not hearing a lot, now we have this proposal. And so I don't
get it--I don't understand what is your sticking point about
``three strikes and you're out.'' I don't understand how you
want to carve something out, that guess what, you might have
violated it, but now you can stay in Major League Baseball,
because the whole point here is a zero-tolerance policy that we
want to get to. And it's very hard to get to a zero-tolerance
policy. You can't have one and 16 teenagers using illegal
steroids and say that the Major League Baseball philosophy is
``three strikes and you still might be able to play baseball.''
Mr. Fehr. Let me try and respond succinctly. I don't want
to respond to everything you said. I'm sure that would be far
too long for purposes of this hearing. But I'll be glad to talk
with you at a later time if you would hope, or if you would
like me to. Basically we have accepted the framework of ``three
strikes and you're out.'' Our proposal is and this is not--
because the specific proposal is not reflected in that letter.
Our proposal on the table at the moment is----
Senator Cantwell. So this letter that just came out on
September 26th, does not reflect the current proposal?
Mr. Fehr. That letter was a summary of bargaining positions
that have been taken over the summer. As I indicated in my
opening statement, the current proposals on the table are
these, for a third violation the Commissioner may impose
whatever penalty he believes is appropriate, that the facts and
circumstances justify. Provided it's reviewed, the player has
an opportunity to tell his story and indicate why he believes
it shouldn't be, and that includes permanent ineligibility. The
difference between us at the moment is this. The Commissioner
believes that an arbitrator should not be able to reduce the
penalty below 2 years, our position is that the arbitrator
should not be able to reduce it below 1 year. One year for a
third violation is the penalty in some of the other sports that
you have heard today.
When I indicated in my opening statement that I thought we
were very close to an agreement, I think that's an indication
of it.
Senator Cantwell. Mr. Selig, does that sound like an
agreement to you? It seems to me if the primary premise here is
to say that we're going to have a zero tolerance, and your
third time of using a substance that is banned you're supposed
to gone from Major League Baseball, it's pretty hard to say,
well you know what we'll have somebody and they can decide at
their discretion. Those are two different approaches.
Commissioner Selig. Well, Senator Cantwell, as you know, I
have been very specific all over this country in the last 5
months about my proposal and I really believe--it is that. Thus
50 games, 100 games, and life. And anything less than that I
don't believe deals with the integrity problem of the sport
which I've described before. The independent testing, it also
cleans up that. But the penalties have to be severe enough, not
because I don't believe the current program is working. I think
we've established that. But for people to understand that we
really get it. And that this is an integrity question, and as
far as I'm concerned this and I've said this to our own people
and I've said it to the owners who are very supportive, there's
no dissent at all. One of the few subjects in my long tenure
where there's no dissent, that it's 50, 100 and life. And
that's exactly what it is.
Senator Cantwell. Well, I may have a little chip on my
shoulder because when I get up in the morning I can't always
find the Seattle Mariners sports scores. But I can tell you
that we've had some very positive sports news in the Northwest,
when Ichiro broke an 84-year single hit record, and we retired
a Seattle Mariner who spent his entire life, not shopping
around for higher salaries, but his entire life playing for the
Seattle Mariners, Edgar Martinez, and had a very great career,
a seven time all-star who won two batting titles. But those
stories don't get coverage, this story is what gets coverage.
It's very frustrating that we're not moving faster. And I'd
love to see Mr. Fehr, your latest, but I just have a feeling
that you're a lot farther apart on this than your letter or
even your testimony will acknowledge today. Thank you, Mr.
Chairman.
Mr. Fehr. Well, I hope that turns out not to be true.
Senator McCain. Senator Lautenberg.
Senator Lautenberg. Thanks, Mr. Chairman. And I hope that
something I might ask not be redundant and if it is please call
it to my attention so we don't waste any time. Mr. Fehr, there
used to be an old song, ``I Stand Alone.'' You obviously are
standing alone in the face of what looks like an easy one for
me. Because your resistance suggests that well, this isn't so
severe after all. I mean the problem isn't really that violent.
That it scares all of us who worry about the future generations
and about the sport that all of us are committed to. I'm old
enough that I'd be embarrassed to tell you the players that I
knew in my day. One of them I went to high school with was
Larry Dobie, from Patterson and he's a great hero. But so why
is there any resistance? This sounds like a reasonable thing.
It's punishment fits the crime, period. And rather than ask the
Commissioner of Baseball, whoever that might be at the time, to
levy a punishment, how does the Commissioner feel when, if he's
got a hitter who's broken all the records, and has his team up
on the edge, why shouldn't it be a pro forma, perfunctory kind
of thing that says, that's it, brother, there's no question
about it.
Mr. Fehr. Let me just say a couple of things in response to
that, and try and articulate our position. I'll try again not
to repeat my prior comments also. I'm mindful of your
suggestions about redundancy. Fundamentally we believe this.
That where someone is accused of wrongdoing there needs to be
an examination of what happened. Not generally, not in the
abstract, but in the individual case. And we believe you should
have a presumptive penalty. That's our proposal and that
structure is the one the Commissioner's office is working with.
But that if the player can demonstrate to an arbitrator, that
you know in my circumstance there are things which you don't
know, which aren't apparent, which I think ought to influence a
decision, could be reduced a little bit. If the Commissioner
believes there are things which aggravate it, it could be
increased. In terms of the other sports and in standing alone,
let me just say as follows: I think if you look at the penalty
levels under our proposal, putting aside the Commissioner's
proposal for a moment I don't think that's accurate. Our
proposal is for a presumptive 20-game penalty. Twenty-game
suspension for a first positive. That's the fractional
equivalent of 10 games in the National Basketball Association
because they half as many games as we do. Our proposal that a
presumptive 75 games for a second penalty exceeds I believe by
some percentage, with the possibility of 100 games what the
NFL's is for second, and we have if the facts warrant it, the
possibility of a lifetime ban on a third, which I believe is
sooner than in some of the other sports.
Senator Lautenberg. You know, Mr. Fehr, I think the
question revolves around, whether or not this is a serious
thing that we're discussing. And instead of trying to
arbitrate, well, is this one tough, or is that one tough. Why
not give it the maximum penalty required? It looks like
baseball has gotten the message over the years and why not just
close that door once and for all. I ask----
Mr. Fehr. I'm sorry.
Senator Lautenberg. Well, I'd like to ask the other----
Mr. Fehr. Mr. Chair, I have a specific comment I'd like to
make if I may?
Senator McCain. OK.
Mr. Fehr. OK. I'll be brief and I apologize, but let me
draw a deliberately grossly exaggerated analogy for purposes of
making the point, and perhaps this will inform you as to what
our thinking is on this matter.
Suppose you have two individuals, with a first violation.
One of them is a 36-year-old with a college degree, who went
and sought out Jose Conseco, and asked who is your supplier and
got his stuff that way, and the other one is a 19-year-old who
was hurt and ended up taking something that somebody gave his
mother that she gave him, because they thought it would help
him rehabilitate faster. I'm not sure those two people ought to
be treated the same way. And they ought to have an opportunity
to tell their story. I don't know why we're afraid to have
people tell their story and let somebody decide.
Senator Lautenberg. Well, I assume that there isn't a
single person doing the test that's saying, hey, this guy had
this, this guy had that. If the 19-year-old that you talk about
is top drawer enough to play in the Major Leagues with the
accompanying salary, with the accompanying opportunities, he
ought to know darn well the difference between right and wrong.
Mr. Fehr. I agree. Let me read to you the standard we have.
Senator Lautenberg. No, but I think what you want to do is
kind of negotiate around the edges. And in my view that doesn't
sound like it's a real assessment of how serious this problem
is.
Senator McCain. Senator's time has expired.
Senator Lautenberg. Just when I was getting so interesting.
Thank you, Mr. Chairman.
Mr. Fehr. Thank you, Senator.
Senator McCain. Mr. Fehr, you say you want to probably get
an agreement by the World Series. One of your excuses for not
doing it is that players are spread all over the world. Are you
going to be able to do that?
Mr. Fehr. One of the things that came about as a result of
my meeting with the players is I think I know what agreement
will be passed and be ratified, and I would expect to do that,
get the executive order to ratify it. And then work on some
sort of a procedure to get the players to ratify it off-season.
Obviously that will be more cumbersome than in season.
Senator McCain. So in the intervening 5 months we have been
unable to reach an agreement. And by the way, Commissioner
Selig, I don't agree with your decision that you made at the
last round of bargaining to discard the steroid performance-
enhancing drugs issue. I think it was a mistake. Commissioner
Stern, why have you decided not to conduct random testing in
the off-season?
Commissioner Stern. Senator, because as Commissioner
Bettman has said, it was also our belief that the muscle mass
and bulking up that steroids provide was not a problem in our
sport, it wasn't an issue in the NBA and that explained why we
didn't have an issue. We've also--we've been so accused of
having the longest season. Which we do. We concluded with our
players that testing within the nine-month season, rather than
chasing the players all over during the summertime was an
appropriate response to the level of our concern.
Senator McCain. Your policy allows for discretionary
reinstatement after a fourth positive test. What's the
rationale for that?
Commissioner Stern. Well, you know, we always been of the
view that the quality of mercy is never strained.
Senator McCain. Well, that's an interesting statement but
it's--I don't think----
Commissioner Stern. Well, Shakespeare I think made it
first, and I just associate myself with it. It's been our
experience that the suspension--a lifetime suspension with the
possibility of reinstatement has usually been a lifetime
suspension. But if there is some exception, some example for
the world, for the kids, for the very reasons that we're
talking about, we don't want to rule out the possibility that
it's appropriate in the precise circumstances.
Senator McCain. The organization that has great credibility
with those who are familiar with the all aspects of this issue
as you sought, is the United States Anti-Doping Agency. By the
way, before I say that, the Congressional Research Service has
reported the anti-doping policies for the Olympic movement are
more independent of the sports they regulate, than are the
policies of Major League Baseball, NBA, and the NFL. They
didn't include the NHL because they didn't have any regimen at
that time. USADA argues that in order to have a truly
independent and therefore truly effective performance-enhancing
drug testing policy, four basic components are necessary: one,
independent development and management of the drug testing
program; two, independent sample collectors; three, independent
analysis of the samples; and four, an independent adjudication.
All of you have some elements probably. The NFL may argue that
they have all those components. I'd like you to respond in
writing as to how you are in compliance with those four
criteria for the Committee and I would appreciate that. I've
kept you here way too long. Mr. Fehr, when you contact your
players you might include a letter that was written to you and
to Commissioner Selig, by the President of Little League
Baseball, and I quote from this letter. ``We all must accept
the fact that children that are affected by the actions of
Major Leaguers. In the vast majority of cases professional
athletes provide fine role models, but as we have seen, a few
highly publicized cases can cause the public to perceive a
stain on the national pastime.'' I hope you will include that
letter, along with the testimony of these five initial
witnesses we had before this Committee and perhaps it can
motivate you to act in a more expeditious fashion than you have
in the last five months.
Senator Bunning.
Senator Bunning. Thank you, Mr. Chairman. You know Congress
has had within its power to do something that nobody really
wants to do, and that is to bring up the fact that Major League
Baseball has had an exemption, for over I guess 80 years now,
from the Sherman Antitrust Act. The only part of it that is not
exempt is labor negotiations. The use of collective bargaining
in labor negotiations is under the Sherman Antitrust Act, by
mutual agreement. You both agreed that. You look puzzled.
Mr. Fehr. I look puzzled Senator, because I guess, three
things. The Major League Baseball has long had the exemption,
the Congress changed that with respect to players and said that
our players have the same rights that players in the other
professional sports do in the late 1990s, in the Curt Flood
Act, but then the Supreme Court in the middle 1990s, I believe
it was the Brown case essentially said, that if you're
operating as a union, the antitrust laws have no role. That's
my understanding of the current state of the law.
Senator Bunning. But you did have a mutually-bargained
agreement between owners and players to exempt all labor
negotiations?
Mr. Fehr. We don't get to determine what the law is, as
you've been reminding us all morning. That's the general law
applicable as I understand it to all labor negotiations.
Senator Bunning. But you did collectively bargain that?
Wrong or right?
Mr. Fehr. We bargain collectively----
Senator Bunning. Because I was with Bob----
Mr. Fehr.--under the National Labor Relations Act, yes.
Senator Bunning. Donald, do you really believe that after a
third positive test, there's a chance that a player is not
using some banned substances?
Mr. Fehr. I think two things. I think it's very unlikely,
and I think the stipulation we have that even that would apply
to a first case on what the strict liability is demonstrates
our view on that. Which I'll be glad to share with you, or read
into the record. Second, however, in response to your direct
question, I believe that when anyone is accused of wrongdoing
he has to have an opportunity as every American does anywhere
to tell his side of the story, and to say if he believes----
Senator Bunning. You've made that perfectly clear to
everybody on the panel.
Mr. Fehr. That's my view.
Senator Bunning. Mr. Selig, or Mr. Commissioner, do you
think it's possible to work something out before the end of the
World Series?
Commissioner Selig. I think it's imperative, Senator
Bunning, I hope we can, this has been a long journey, and I'm
hopeful that we can because frankly, the consequences of not
doing it are really troubling. And you've articulated it and so
has Senator McCain, but I've worried about that, so the answer
is that I don't see that we have a choice. But I would say this
to you again----
Senator Bunning. Well, we're watching with bated breath
almost.
Commissioner Selig. And nobody understands that better than
I do.
Senator Bunning. You talked about international positions
of your players. What do you think we have at the Major League
Baseball level? We have Japanese, we have Puerto Rican, we have
Dominicans, we have Venezuelans, we have Nicaraguans, we have
all kinds of different nationalities represented at the Major
League Baseball level. So your exceptions fit Major League
Baseball also. And we don't think that has a darn thing to do
with exceptions to the laws of this country.
Mr. Bettman. Actually I don't think we're seeking to be
exempt from the laws of this country. I think it's more a
question of the practicalities of administering the testing in
the off-season.
Senator Bunning. They have the same problem and they have
made a commitment to make sure that they can test in the off-
season in those various countries.
Mr. Bettman. Although 85 percent of our players are from
outside of the United States.
Senator Bunning. I don't know what the numbers are anymore
at the Major League Baseball level, but there are more and more
international players.
Commissioner Selig. A very significant number, yes.
Mr. Bettman. Senator, the only point that I was seeking to
make that as the possibility of legislation moves forward,
individual circumstances of the respective leagues.
Senator Bunning. We would love to make the one size not
fits all. If the penalties involved fit the problem.
Mr. Bettman. We support that view. Our program has stiff
penalties. We're not looking to exempt our players from the
penalties because of national origin, although we do have a
practical issue in terms of the proposed legislation limiting,
for example, the therapeutic use exemption to licensed U.S.
physicians since our players play as home teams and visiting
teams in Canada. We think Canadian doctors, licensed Canadian
physicians, should be able to submit the therapeutic use
exemption. We think that a WADA-sanctioned lab in Canada should
be appropriate as a WADA-sanctioned U.S. lab is appropriate for
testing. Again we're not looking to exempt ourselves from the
legislation, we want to hopefully be in a position where it
makes sense because our business needs are a little bit
different than the other sports.
Senator Bunning. Thank you, Mr. Chairman.
Senator McCain. Senator Allen.
Senator Allen. Thank you, Mr. Chairman and Senator Bunning
for your leadership on this issue, it's one that I share your
concern with. I thank all our witnesses for being here, the
bottom line is that there are different ways that that each of
these leagues operate, and I don't know how many of the Major
League Baseball players, while they may come from the Dominican
Republic, or Panama or Venezuela, or other countries, how many
become U.S. citizens versus those that are Canadians, or Czechs
or Swedes. Regardless, here's the message that all of you--I
think most of the leagues have understood this, and I think the
Commissioner's understood it in Major League Baseball and that
is, that you ought to care as union leaders for the health of
your players. For the image, the integrity, the honesty, of a
level playing field over your sport, you should care about
that. And I know the leagues are all trying to get young people
interested in every one of your sports. And it is important for
a lot of these young folks and to the extent that you are
international, recognize that it is also affecting a lot of
young people. And they look at sport as a ticket out of the
situation they're in. It's an opportunity to live a better
life. Not only to get a home for themselves, but actually maybe
buy a home for their mother, and so it is very important when
you understand the competitiveness of sports, the motivation of
athletes, that if you told athletes that if you didn't sleep,
you'll be better, they would try to stay awake all night long.
Some of them do for the fun of it, but regardless the point of
the matter is you do have a responsibility, and I think three
of the four leagues here are addressing it, and I hope that,
Mr. Fehr, you understand, that as far as this Committee and the
patience, and I'm not one who likes the Federal Government
meddling in things that are best decided by the private sector
and collective bargaining should be respected. There's going to
be a third strike for you all, if you don't listen to what Hank
Aaron and Robin Roberts, and Lou Brock said. Those are powerful
words from the greats of the sport. And as far as Hank Aaron is
concerned, if a certain player breaks his home run record, it's
not a question of an asterisk, there's going to be a lot of
debate. There probably ought to an Rx next to it, if Hank
Aaron's record is broken by a certain individual. But thank
you, Mr. Chairman, for this hearing, I hope the pressure will
be on, we'll be watching the World Series not just for the--on
the diamond, but hopefully getting a reasonable drug testing
program for Major League Baseball. Thank you.
Senator McCain. I know that all the witnesses who came here
today had very busy schedules. We're very appreciative that you
would take the time to be with us, and I sincerely hope that
this is the last hearing that we will ever have on this
particular issue. And again, I am very appreciative of a lot of
the progress that has already been made. And I look forward,
being an eternal optimist, that we will soon see a resolution
of this issue without necessity or requirement of legislation.
I thank the witnesses for being here today. And this hearing is
adjourned.
[Whereupon, at 12:05 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Frank D. Uryasz, President, The National Center
for Drug Free Sport, Inc.
My name is Frank D. Uryasz, President of The National Center for
Drug Free Sport, Inc.
Drug Free Sport, a private company based in Kansas City, Missouri,
administers sports drug-testing programs throughout the United States.
Our staff also provides drug and dietary supplement education programs
for high schools and colleges and sponsors a ``drug information
hotline'' through our Resource Exchange Center (REC) (
www.drugfreesport.com/rec).
I have been involved in managing national drug-testing programs for
athletes for nearly 20 years. In July 1986, I was hired by The National
Collegiate Athletic Association (NCAA) to establish its first drug-
testing program. While at the NCAA, I was also responsible for
administration of all collegiate health and safety programs under the
guidance of the NCAA's medical committee. Under my guidance, the NCAA
drug-testing program grew from a post-season program involving about
1,200 tests per year to a year-round, short-notice testing program that
included about 10,000 tests annually.
In the late 1990s, I was also serving on the U.S. Olympic Committee
Anti-Doping Committee, which was looking for a new model for Olympic
drug-testing program administration. This preceded the formation of the
World Anti-Doping Agency (WADA) and the U.S. Anti-Doping Agency
(USADA). The impetus for a new model was the desire for sports
organizations to avoid the actual and perceived conflicts of interests
that existed by operating their own testing programs. Critics believed
such testing programs when operated in house were lacking the necessary
impartiality that would prevent preferential treatment of high-profile
athletes. Some embarrassing cases involving sports stars supported this
belief. It was at this time that sports drug testing began to embrace
concepts such as harmonization, externalization and transparency and
independent entities such as USADA and WADA were formed.
In 1999, I left the NCAA to start The National Center for Drug Free
Sport. The NCAA externalized its drug-testing program to Drug Free
Sport that year. At that time, many colleges and universities also
began to see the value of outside administration for their drug-testing
programs. Today, Drug Free Sport runs the NCAA's testing programs,
testing programs for over 150 colleges and universities. testing for
AAU Powerlifting and as of March 2005, the testing for the Minor
Leagues through Major League Baseball.
When Drug Free Sport administers an organization's testing program,
the organization agrees to allow Drug Free Sport to select when and
where athletes will be tested and agrees to follow our strict protocol
on collection and management of positive results.
The National Football League and Major League Baseball (for the
Minor Leagues) utilize Drug Free Sport's ``drug hotline'' for its
athletes and medical personnel.
Drug Free Sport supports the Committee's desire to deter the use of
banned anabolic steroids at all levels of sport. The public debate of
the anabolic steroid use problem in the United States has prompted many
communities to begin a dialogue on how best to keep young people from
using these drugs. I have been involved in community forums in Texas,
Illinois and other states, which would never have occurred if Congress
hadn't brought the problem to a greater level of awareness. The
National Federation of State High School Associations developed an
excellent steroid-education campaign. This, too, grew out of Congress'
actions to bring attention to the fact that high school students use
steroids to enhance their appearance and to improve athletic
performance.
There is no question in my mind that the Federal Government has an
important role to play in helping sport deter the use of anabolic
steroids and other performance-enhancing drugs such as growth hormone.
My twenty years of experience in athletics drug-use deterrence has
convinced me that the government's resources are best utilized in two
areas: reducing access to and the supply of anabolic steroids and other
performance-enhancing drugs in the U.S. and funding research into the
detection of growth hormone and other dangerous banned drugs.
Despite the best intentions of members of this Committee, the
provisions of S. 1114, the Clean Sports Act of 2005, and S. 1334, the
Professional Sports Integrity and Accountability Act, are flawed.
Although the intent of this proposed legislation--drug free
professional sports--is laudable and no doubt supported by anyone who
cares about sport and the athletes who participate, the legislation
itself will not lead to the desired outcome.
Sport drug-testing programs are complicated to operate. The drugs
change, the patterns of use change, athletes can be hard to find, some
athletes try to cheat, high profile athletes surround themselves with
people who enable their drug use and an entire industry exists to
develop performance-enhancing drugs that cannot be detected. All of
this can be managed, but this management requires approaches that are
appropriate to the population of athletes being served. What works for
the colleges probably doesn't work for the Olympic athletes and what
works for Olympic athletes in all likelihood will not work for the
pros.
It is not possible for me within the constraints of this written
statement to thoroughly outline what needs to happen in the U.S. to rid
all levels of sport of the use of performance-enhancing drugs including
steroids. However, I hope the members of this Committee consider the
following as they proceed with Federal legislation to deter athletes'
use of drugs:
1. We lack evidence that the drug-testing models implemented in
Olympic sport over the past five years have reduced the use of
drugs in that population. It is simply too soon to tell and to
my knowledge there is no known plan to measure this.
2. The creation of WADA and USADA have ameliorated many of the
problems associated with adjudication of Olympic doping cases
but their processes and protocols are extremely expensive to
operate and to use them as a model for other levels of sport
will lead to fewer resources being used for testing and
research.
3. The goal of a sports drug-testing program is to deter drug
use. The achievement of this goal cannot be measured by the
number of people ``caught.'' Sports entities should be required
to develop tools to measure whether their testing programs are
reducing drug use and should be required to publish this
information.
4. It is too soon to evaluate the effectiveness of MLB's
revised drug-deterrence programs and to force an Olympic
testing model on that population at this point is without
merit.
5. Although we do not know with certainty the extent of growth
hormone use at the collegiate and professional sport level, we
know that it is being used. The Federal Government must get
research dollars directly to the scientists who can best solve
this problem quickly.
6. My extensive experience with college football players has
convinced me that the NCAA's and NFL's steroid testing programs
have significantly reduced the use of anabolic steroid use in
the college football population. The NCAA's published national
drug use studies support my position.
7. Even after working in the sports drug-testing field for
nearly twenty years, I remain uncomfortable with the title
``sports drug-testing expert'' when associated with my name.
However, there are many people who enjoy having this term
associated with their work, even though they have never run a
sports drug-testing program, have never collected a urine
specimen from an athlete, have never done the analytical work
on a urine or blood specimen from an athlete, have never spent
a week in a courtroom trying to explain to a judge the
complexities of steroid chemistry nor have they done any
original research in the anti-doping field. These so called
``experts'' criticism of existing drug-testing programs in
sport undermine the public's trust in what we do and the
Federal Government should be careful when considering the
accuracy of what they say.
8. The Federal Government must help sport by reducing the
supply of anabolic steroids and growth hormone. The flow of
anabolic steroids and growth hormone across the borders and
their availability for purchase over the Internet are problems
sport cannot solve.
Thank you for the opportunity to get my thoughts before the
Committee.
______
Response to Written Questions Submitted by Hon. John D. Rockefeller IV
to Allan H. Selig
Question 1. Commissioner Selig, it occurs to me that you may be a
late convert to the anti-steroids fold. In the last 10-15 years, when
players who had never hit more than a few home runs a year suddenly
were hitting 30, 40, or more home runs, didn't Major League Baseball
look the other way at what could very well have been evidence of the
abuse of performance-enhancing drugs?
Answer. The change in home run totals became obvious in the 1990s.
Baseball followers, including members of the media, offered a number of
explanations for the change, including expansion, weak pitching and
smaller ballparks. There was little or no mention in the press or
otherwise of performance-enhancing substances as a possible cause. Late
in the 1990s, Baseball--as a result of the McGwire revelations of Andro
use and other developments--became concerned that drugs might be a
factor. At that time, Baseball, under my leadership, began an
aggressive effort to deal with steroids. My staff gathered information
on steroids and how they worked. Educational programs were developed at
the Major and Minor League level. We also developed and implemented the
industry's first Minor League testing program. Progress at the Major
League level was slower due to our collective bargaining obligations,
but Baseball was certainly not ``looking the other way.'' In fact, in
2002, Baseball was able to negotiate our first ever drug testing
program for the Major Leagues by making that topic a key priority in
collective bargaining.
Question 2. What do you have to say about MLB's marketing during
that period? Did you market the home run? Didn't you use the McGwire-
Sosa home run race to ``save'' Baseball? Did it ever occur to you to
make sure that all these home runs--and I don't mean to single out just
these two players--but did it ever occur to you to make sure that the
numbers people were putting up were not tainted?
Answer. As an initial matter, it is important to point out that
Baseball had no centralized marketing effort based on the popularity of
the home run. The home run race occurred, it captured the imagination
of our fans, and therefore, generated tremendous interest. The great
growth of the game in recent years is due to an array of reasons more
fundamental than the appeal of home runs.
In terms of investigating whether home run numbers were tainted,
one must begin with the proposition that the only way to determine
accurately steroid use is through testing. In 1998, Baseball was in the
middle of a collective bargaining agreement that did not allow random
testing for steroids.
Question 3. Even if it was the official policy of MLB to ban
steroids and other performance-enhancing drugs--if you weren't
technically condoning their use--why isn't it fair for observers to
accuse you of being willfully blind to what was going on?
Answer. Major League Baseball cannot fairly be accused of being
willfully blind to steroid use. In the 1990s people were not talking or
writing about steroid use in Baseball. Over the period in question,
Baseball gradually became aware of the problem with steroids. As that
awareness grew, Baseball took steps to combat the problem. Educational
materials were prepared outlining the dangers of steroid use. Major and
Minor League players were required to attend training sessions on
steroids. Major League Baseball developed and implemented the first
ever drug policy covering Minor League players.
Federal labor laws, of course, prevented Baseball from unilaterally
implementing a similar policy at the Major League level. Consistent
with its collective bargaining obligations, Baseball proposed a new
policy in the next round of bargaining that occurred in 2001-2002. That
policy was ultimately agreed upon in 2002 and, for the first time,
Baseball had testing. The policy has been improved twice since that
time.
Baseball believes that this course of conduct is inconsistent with
an assertion of willful blindness.
______
Response to Written Questions Submitted by Hon. Frank R. Lautenberg to
Allan H. Selig
Question 1. Isn't there an advantage to having uniformity in
testing for all the major league sports teams?
Answer. It is very difficult to develop a uniform program that is
applicable to all sports because each sport has unique issues. For
example, on penalties, a fixed period has different ramifications in
different sports. In track and field, a two-year ban would probably
cause the athlete to miss less than 10 important competitions. In
Baseball, a two-year ban would cover at least 324 games, not including
the post-season. A better approach would be collectively bargained
policies designed to address the unique circumstances of each sport,
assuming the policies are each strong enough to deter use.
Question 2. The current testing method doesn't detect all
performance-enhancing substances. Why don't you use blood tests which
are better at detecting substances like human growth hormone?
Answer. The short answer is that the Major League Baseball Players
Association has been unwilling to agree to blood tests. Blood testing
is obviously more intrusive than urine testing and, in fact, urine
testing is very accurate for all substances, except human growth
hormone. Major League Baseball has funded a three-year grant for Dr.
Donald Catlin, of the UCLA Laboratory, directed at developing a urine
test for human growth hormone. It is also important to note that there
is no definitive proof as to scientific validity of the available blood
test for human growth hormone. No governing body of a sport has
disciplined an athlete based on that test.
______
Response to Written Questions Submitted by Hon. John D. Rockefeller IV
to Donald M. Fehr
Question 1. In your testimony before this Committee in 2004, you
stated that the Players Association ``neither condones nor supports the
use by players, or by anyone else, of any unlawful substance...'' In
your testimony this year, you seem to imply the only reason that the
MLB Players Association agreed to negotiate a stronger steroids testing
regime was because of Congressional pressure. I do not get the feeling
that you believe that steroid or unlawful substance abuse constitutes a
real problem. Mr. Fehr, your previous testimony before this Committee
and your written statement today hardly gives a strong impression that
the Players Union is particularly concerned about illegal substance use
and its impact on the game. What is the Players Association doing
internally to prevent its members from cheating? I know it is a strong
word, but let's call it what it is. What are the union's internal
policies to prevent use of illegal substances before it occurs?
Answer. It is simply counterintuitive to suggest that anyone or any
entity cares more about the health of the players than those people who
have dedicated their professional careers to their protection. We have
long been concerned with the potential consequences of illegal
substances. Indeed, it was our concern with the use of substances
Congress said can be legally purchased that led to our groundbreaking
study of andostendione, a copy of which was provided to the Committee
in conjunction with prior testimony. Every year, the Players
Association meets with its constituents during spring training to talk
about, among other things, information concerning the use, abuse and
potential consequences of steroids, nutritional supplements, and other
substances believed to augment or enhance training routines or
performance. In addition, every year each player is given written
materials, prepared in cooperation with Major League Baseball,
concerning these substances. To ensure our information is as current as
possible, we also employ the services of a highly qualified, licensed
medical practitioner to review existing medical literature that may be
pertinent to our members. Moreover, at meetings with players, during
spring training and throughout the year, we also discuss with players
the importance of exercising care before taking any substance reported
or claimed to improve training capacity, to increase strength and
endurance, or to improve performance. Finally, players are reminded
that they can contact the Association at any time if they have
questions about a product, our program, or where they can receive
additional information if needed.
Question 2. In your testimony, you do not even mention the impact
that your players' conduct has on younger athletes. In fact, your
testimony does not even condemn the use of these illegal substances as
all of the other player's testimony does. Given the fact that so many
young baseball players are taking steroids, do you not feel an
obligation to lead on this issue rather than be obstructionist?
Answer. That is not the record. I have repeatedly made it clear
that we are committed to dispelling any notion that the route to
becoming a Major League athlete somehow includes taking illegal
performance-enhancing substances like steroids. I have stated in both
written and oral testimony before Congress that playing Major League
Baseball requires talent, drive, intelligence, determination, and grit,
and that steroids have no place in the equation. As I have noted in
past testimony to this same Committee, neither the Players Association
nor its constituents condone nor support the use of any unlawful
substance, nor do they support or condone the unlawful use of any legal
substance. We recognize our role in this issue and have repeatedly
taken, and continue to take, steps to eliminate the presence of illegal
substances in our sport and to dispel the myth that steroids and other
illegal performance-enhancing substances are the key to athletic
success. We also believe we have a responsibility to our members and
those who hope to play baseball in the future to ensure that our
testing program is as accurate as is scientifically possible, that its
administration is fair and just, and that the penalties are designed to
deter use and prevent repeat offenses, as opposed to simply punishing
for punishment's sake.
Question 3. Isn't your strong opposition a potent signal to young
baseball players that these products are not really harmful and imply
that they may even be necessary?
Answer. Our testing program and our members' support for it are, in
fact, evidence that we strongly oppose the use of illegal performance-
enhancing substances by anyone, especially young people. We do believe,
however, that eliminating the presence of performance-enhancing
substances in professional sports is only part of what needs to be done
to combat the growing use and abuse of both legal and illegal
substances by our Nation's youth. I hope the Committee will not limit
its attention to a top-down review of just testing programs, but will
also focus on other components of the problem. For example, attention
needs to be given to the unfortunate reality that for many young
people, steroids are still only a mouse click away on the Internet. We
are now seeing that use of these products is not limited to individuals
seeking athletic success. And, as I have testified before, it is
unfortunate that our culture does not have a uniformly negative image
of steroids, as evidenced in the marketing campaigns of corporate
giants like 3-M and Saab, or by the promotion of the new video game,
Blitz: The League. I hope Congress will focus on these issues as well.
Response to Written Questions Submitted by Hon. Frank R. Lautenberg to
Donald M. Fehr
Question. What is it about baseball players that justifies more
lenient penalties for taking steroids than athletes of other sports?
Answer. Nothing. The penalties in baseball are not more lenient.
They are simply tailored, as they are in other leagues, to the
particular circumstances in the sport. The Players Association believes
the goal of our program is--and should be--to deter use of illegal
substances and to prevent repeat offense. Today, in baseball, our
players are tested throughout the year on an unannounced, random basis,
which is not the case in other sports. They are tested for all the
substances that the United States has determined to be illegal steroids
and steroid precursors. The tests are administered by independent,
qualified experts. The evidence so far indicates that our current
penalties are sufficient to deter initial use and repeat offenses
without destroying careers. Nonetheless, as evidenced by our current
negotiations, we are continuing to work to strengthen our program. The
penalty structure for steroids we have proposed to the owners, and
shared with the Committee, is more restrictive than the NFL's program
with regard to repeat offenders, and it is either equal to or more
stringent than the existing programs for steroids in the NBA and the
NHL.
______
Response to Written Questions Submitted by Hon. Frank R. Lautenberg to
Paul Tagliabue
Question 1. Isn't there an advantage to having uniformity in
testing for all the major league sports teams?
Answer. As between the member teams of an individual sports league,
we strongly agree that there is an advantage to uniformity and that is
a key element of the NFL's program. No individual team selects players
for testing, conducts or schedules tests, reviews test data, represents
the player on appeal, or makes disciplinary decisions. This
centralization of administration is critical in ensuring that the
testing program operates fairly and consistently for all teams and all
players.
As among sports leagues, there is substantial consistency in
testing but there are important differences among the sports that
warrant tailored administration. For example, some leagues have adopted
a distinction between so-called ``in season'' and ``out-of-
competition'' testing. Under that model, certain substances are
prohibited only when used during a particular competition, and athletes
are free to use those substances, without fear of penalty, during the
``off-season'' in that sport. The NFL has never embraced that
distinction, believing instead that a single set of rules should apply
to all players throughout the year. Accordingly, our testing program
insists upon uniform testing for all substances on our prohibited list
throughout the year, both in season and out-of-season. Indeed, at a
time when the Olympic testing program has reduced its out-of-
competition testing program by as much as fifty percent, the NFL and
NFL Players Association have agreed to increase--by a factor of three--
the number of off-season tests to which NFL players are subject. We
believe that within certain parameters, leagues should be able to
determine the testing program that best fits the needs of that
particular sport.
Question 2. The current testing method doesn't detect all
performance-enhancing substances. Why don't you use blood tests which
are better at detecting substances like human growth hormone?
Answer. Until the 2004 summer Olympic Games in Athens, human growth
hormone was not tested for in any sport--amateur, professional or
Olympic. At the Athens Olympics, 300 athletes--out of more than
11,000--gave blood samples that were tested for human growth hormone.
No positives were reported. We have reviewed closely the results of
those tests and other efforts to identify testing methods for growth
hormone and other substances. Our own advisors, many of whom have
consulted closely with the Olympic movement and other sports
organizations for years, do not believe that the blood test used last
year is sufficiently validated and reliable to use on a widespread
basis in the NFL. Moreover, no lab in the United States is yet
certified to perform the blood test used at the Athens Olympics. We do
not believe it would be sound policy to extract blood samples from NFL
players and ship them across the ocean for testing in a lab in
Australia or Europe. Moreover, blood test results have often been
highly controversial and at times inconclusive. One example is the
recent suspension of American cyclist Tyler Hamilton, whose appeal was
lengthy, contentious and subject to continuing debate.
Equally important, converting to blood testing would not strengthen
the overall effectiveness of doping policies. With respect to the vast
majority of performance-enhancing drugs including steroids and
stimulants, urine testing is scientifically more accurate, efficient
and reliable. The arguable benefits of blood testing relate only to
growth hormones and blood doping. Notwithstanding, we will continue to
work both independently and in conjunction with the United States Anti-
Doping Agency and other organizations to develop better methods of
testing for performance-enhancing substances, including. human growth
hormone. As part of that effort, we have partnered with USADA to fund
the development of a new laboratory, the Sports Medicine Research and
Testing Laboratory, which is based at the University of Utah.
______
Response to Written Questions Submitted by Hon. Frank R. Lautenberg to
David J. Stern
Question 1. Isn't there an advantage to having uniformity in
testing for all the Major League sports teams?
Answer. The NBA does not believe that a ``one-size-fits-all''
approach is sensible for a drug testing policy. NBA players are
different from athletes in other sports. Their bodies are different
(tall and lean); their skill sets are different (quickness, leaping
ability); their training regimens and schedules are different.
Substances that may be of substantial advantage to athletes in other
sports--such as football or baseball players--may provide no advantage
to basketball players.
A drug testing regime that was designed for, among others, cyclists
and weightlifters (such as the WADA Code) is certainly not appropriate
for basketball players.
There are also other relevant differences between the sports. For
example, some leagues (such as the NBA) have longer seasons than
others, making off-season testing less important. Some leagues play
games every day; some only play once a week. Each individual league
needs the flexibility to design a drug policy and testing program that
is correctly tailored to its unique circumstances.
The NBA believes that collective bargaining is the best method for
accomplishing this. The parties to the collective bargaining
relationship--here, the NBA and the National Basketball Players
Association--are most knowledgeable about their particular issues and
needs. Moreover, a policy that is the product of agreement is almost
always superior to one imposed from the outside, as the parties will be
invested in its success. This is certainly true in the NBA, where the
collective bargaining process has led to a strong and effective policy
against steroids and performance-enhancing drugs in our sport.
Question 2. The current testing method doesn't detect all
performance-enhancing substances. Why don't you use blood tests which
are better at detecting substances like human growth hormone?
Answer. Blood testing is more invasive than urine testing, and it
raises health and safety issues that are not present with urine
testing. Further, blood testing is only useful for a select number of
specialized substances, such as EPO. (It is our understanding that
there is no universally accepted blood test, for example, for human
growth hormone.) Urine testing picks up all of the substances on the
NBA's broad list of prohibited drugs. Since there is scant evidence of
even minimal use of steroids and illicit performance-enhancing drugs in
the NBA, much less any evidence of the use of EPO, there no substantial
justification for changing our accepted method of drug testing.
______
National Hockey League
October 25, 2005
Hon. John McCain,
Senate Committee on Commerce, Science, and Transportation
Washington, DC.
Re: NHL Drug Testing Program
Dear Senator McCain:
Commissioner Bettman requested that I respond to your request for
an explanation as to whether the National Hockey League/National Hockey
League Players' Association's performance-enhancing Substances Program
(the ``Program'') features the following four basic components:
1. Independent Development and Management of the Drug Testing Program:
The Program will be managed by an independent entity that will be
responsible for hiring independent collectors and determining when
random no-notice testing will occur. The independent entity will also
coordinate with a WADA-certified testing laboratory to create reports
of the test results.
The Program was developed jointly by the NHL and the NHLPA, and is
jointly administered by a Program Committee comprised of an equal
number of League and NHLPA representatives and two (2) consulting
expert doctors, one (1) nominated by each party. (The Program Committee
determined that an independent entity shall manage the Program, as
described above.) The NHL and the NHLPA strongly believe that our
collective knowledge regarding our sport, including but not limited to
our intimate familiarity with our schedule (in-season and off-season,
game day and non-game day), the international make-up of our player
population, and the history (or lack thereof) of performance-enhancing
drug use had enabled us to develop an effective and meaningful Program.
We also believe that our active management of the Program will enable
us to jointly monitor its effectiveness and to modify it, as necessary,
over time, to ensure that it functions to address and eliminate the
use, however negligible, of performance-enhancing substances in our
sport.
2. Independent Sample Collectors:
The Program will provide for independent, third-party sample
collectors.
3. Independent Analysis of the Sample:
The samples will be independently analyzed by a WADA-approved
laboratory.
4. Independent Adjudication:
The Program provides for the independent adjudication of appeals of
positive test results. Specifically, the Program provides the ``NHLPA
may, on a Player's behalf, appeal a positive test to the Impartial
Arbitrator on an expedited basis, utilizing the procedures set forth in
Article 17 of the Agreement.'' Article 17 of the Collective Bargaining
Agreement between the National Hockey League and National Hockey League
Players' Association provides for the parties to jointly appoint an
Impartial Arbitrator who serves for a period of at least one (1) year
and hears and issues decisions regarding disputes involving the CBA.
We appreciate the opportunity to express our views regarding the
issues and questions set forth above. We look forward to continuing to
work with you on this important matter.
Sincerely,
William L. Daly,
Deputy Commissioner
______
National Hockey League
October 25, 2005
Hon. Frank R. Lautenberg
Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
Re: NHL Drug Testing Program
Dear Senator Lautenberg:
Please accept this letter as the National Hockey League's response
to the following questions raised by you regarding testing for
performance-enhancing substances:
Question 1. Is there an advantage to having uniformity in testing
for all the Major League sports teams?
Answer. We believe that it would only be advantageous to impose
uniform standards on all major league professional sports if such
standards were to appropriately recognize and reflect the unique
circumstances and traits applicable to each particular sport, without
unduly lowering or raising the bar applicable to all sports. The major
league professional sports are not ``uniform,'' and indeed, have
numerous and significant differences in, inter alia, the length of and
number of games in their playing seasons and the corresponding length
of their off-seasons, the national or international make-up of their
players and teams, the average age and career length of each league's
players, and significantly, the history of problems associated with the
use of performance-enhancing drugs in the sport. For example, with
respect to NHL players, the applicable standards would need to
recognize and reflect the practicalities and legalities that would
arise from mandatory off-season testing of NHL players, given that our
players come from twenty-two (22) countries across the globe, and
eighty-five (85) percent of our players come from outside the United
States, many of whom return to their country of origin during the off-
season. Other sports simply may not need to address these
circumstances. In addition, while it may be appropriate to spend the
financial resources necessary to test players five (5) times during the
calendar year in a sport that has a suspected or confirmed history of
performance-enhancing drug use, it may not be necessary or appropriate
to do so in a sport such as hockey which has no such historical
experience. \1\ Reducing the attributes of the testing program to the
least common denominator may result in an insufficient program in
certain sports, and rising to the highest common denominator may be
unduly burdensome on other sports, without justification. For these
reasons, we are not convinced that it would be advantageous to impose
uniform standards on all sports.
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\1\ Our belief that steroid use is not desired by or prevelant
among skilled hockey players is seemingly confirmed by the fact that
there have been only eight positive results in approximately 3,100
tests of NHL and non-NHL players administered at the World Hockey
Championships (conducted by the International Ice Hockey Federation
(IIHF)) since 1993/1994.
Question 2. Why doesn't the League use blood tests, which are
better at detecting substances like the human growth hormone?
Answer. First, we have not seen scientific evidence that the blood
tests currently administered do, in fact, materially enhance the
ability to accurately and reliably detect substances such as the human
growth hormone. Second, we believe that administering 3,500 blood tests
annually (five tests per player for 700 NHL players) would be
excessively invasive, costly and time-consuming. Notably, WADA will
conduct a total of only 88 in-competition blood tests during the 2006
Olympic Games, which involve numerous different competitions and many
hundreds of athletes. To the extent blood tests are used at all outside
of the context of international athletic competitions, we believe it is
similarly appropriate to do so only in very limited circumstances.
We appreciate the opportunity to express our views regarding the
issues and questions set forth above. We look forward to continuing to
work with you on this important matter.
Sincerely,
William L. Daly,
Deputy Commissioner.