[Senate Hearing 108-944]
[From the U.S. Government Publishing Office]
S. Hrg. 108-944
STEROID USE IN PROFESSIONAL
AND AMATEUR SPORTS
=======================================================================
HEARING
before the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
MARCH 10, 2004
__________
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Transportation
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska ERNEST F. HOLLINGS, South
CONRAD BURNS, Montana Carolina, Ranking
TRENT LOTT, Mississippi DANIEL K. INOUYE, Hawaii
KAY BAILEY HUTCHISON, Texas JOHN D. ROCKEFELLER IV, West
OLYMPIA J. SNOWE, Maine Virginia
SAM BROWNBACK, Kansas JOHN F. KERRY, Massachusetts
GORDON H. SMITH, Oregon JOHN B. BREAUX, Louisiana
PETER G. FITZGERALD, Illinois BYRON L. DORGAN, North Dakota
JOHN ENSIGN, Nevada RON WYDEN, Oregon
GEORGE ALLEN, Virginia BARBARA BOXER, California
JOHN E. SUNUNU, New Hampshire BILL NELSON, Florida
MARIA CANTWELL, Washington
FRANK R. LAUTENBERG, New Jersey
Jeanne Bumpus, Republican Staff Director and General Counsel
Robert W. Chamberlin, Republican Chief Counsel
Kevin D. Kayes, Democratic Staff Director and Chief Counsel
Gregg Elias, Democratic General Counsel
C O N T E N T S
----------
Page
Hearing held on March 10, 2004................................... 1
Statement of Senator Allen....................................... 3
Statement of Senator Breaux...................................... 6
Statement of Senator Burns....................................... 5
Statement of Senator Dorgan...................................... 4
Statement of Senator Fitzgerald.................................. 8
Statement of Senator Lautenberg.................................. 7
Statement of Senator McCain...................................... 1
Statement of Senator Nelson...................................... 50
Statement of Senator Rockefeller................................. 2
Statement of Senator Smith....................................... 8
Statement of Senator Sununu...................................... 6
Witnesses
Biden, Hon. Joseph, U.S. Senator from Delaware................... 9
Fehr, Donald M., Executive Director, Major League Baseball
Players Association............................................ 21
Prepared statement........................................... 24
Madden, Terry, Chief Executive Officer, United States Anti-Doping
Agency......................................................... 12
Prepared statement........................................... 15
Selig, Allan H., Commissioner, Major League Baseball............. 27
Prepared statement........................................... 30
Sweeney, Hon. John E., U.S. Representative from New York......... 11
Tagliabue, Paul J., Commissioner, National Football League....... 20
Upshaw, Gene, Executive Director, National Football League
Players Association............................................ 16
Joint prepared statement of Gene Upshaw and Paul Tagliabue... 18
STEROID USE IN PROFESSIONAL
AND AMATEUR SPORTS
----------
WEDNESDAY, MARCH 10, 2004
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m. in
room SR-253, Russell Senate Office Building, Hon. John McCain,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN McCAIN,
U.S. SENATOR FROM ARIZONA
The Chairman. Good morning. The purpose of this hearing is
to examine not only whether the drug testing procedures of
professional and amateur sports organizations serve the best
interest of the organizations, their players, and their
respective sports, but whether they serve the best interest of
the public.
I welcome the witnesses who are appearing before the
Committee today, and I thank those who made special
arrangements to be here.
As Chairman of this Committee, which has oversight
authority over amateur and professional sports, and, more
importantly, as a parent, let me be clear, there are real
consequences to demanding anything less than clean professional
and amateur sports. The failure to insist on stringent drug-
testing policies damages the integrity of the games, calls into
question records set by those suspected of using performance-
enhancing drugs, and puts in peril the health of the athletes
who play the games. But most worrisome is the poor example set
by professional and amateur athletes in the eyes of the kids
who idolize and emulate them.
Some may have doubts about the powerful effect that
athletes have on the lives of kids. Let me remind them of the
five-fold increase in the sales of androstenedione, known as
andro, that occurred after Mark McGwire admitted to using the
substance in 1998 while chasing Roger Maris' home-run record.
As everyone here knows, the health consequences associated
with the use of steroids and other dangerous performance-
enhancing substance are dire. Medical experts warn that the
effects on kids include stunted growth, scarring acne, hormonal
imbalances, liver and kidney damage, as well as an increased
risk of heart disease and stroke later in life.
Psychologically, steroids have been associated with increased
aggression, suicide, and a higher propensity to commit serious
crimes.
That said, I am not naive about the pressures of
professional and world-class amateur sports. Successful
athletes are, by their nature, extremely competitive and always
on the lookout for what gives them a performance edge. Just as
important, financial concerns make drug-testing policies a
distant second, behind the bottom line of all parties involved.
But it's clear that we've reached a tipping point in the doping
debate, where the use of performance-enhancing drugs can no
longer be brushed aside. How exactly we deal with this doping
epidemic is something I'm looking forward to discussing with
the witnesses and with others.
Let me raise one recent example of the type of the activity
that concerns me. Recently, there have been volumes of press
reports concerning a small laboratory in San Francisco that was
raided by law enforcement. The U.S. Attorney's Office in
Northern California alleges that the company, known as BALCO,
was supplying performance-enhancing substances to prominent
professional and amateur athletes. It's been reported that
BALCO provided substances to athletes that were specially
designed to evade positive drug-test results.
These reports have raised several disturbing questions. For
example, should we be concerned that we may be sending an
Olympic team to Athens later this year that we know is
comprised of athletes who cheated? Will the home runs hit this
summer owe their distance to talent and training, or to
steroids? Will we be able to look at players who have shrunk
noticeably since the end of last season without indicting those
players in our minds? Will records in both professional and
amateur sports continue to fall to those who covet success over
merit, to those who deserve, at the very least, an asterisk
next to their name in the record books?
Whatever the answers to these questions are, no reasonable
person would disagree that using a performance-enhancing
substance to gain a competitive edge over an opponent is
cheating. Sports organizations that allow athletes to cheat
through weak drug-testing regimes are aiding and abetting
cheaters. This cheating, and the negative effect it has on the
integrity of our games and our athletes, is shameful.
Each of you, and particularly major league baseball, has a
legitimacy problem. As your athletes get bigger and stronger,
the credibility of your product in the eyes of the public gets
weaker. I'm hopeful that this hearing will be the first step
toward clearing the cloud of suspicion that moves ominously
over your sports.
I thank the witnesses, again, for being here. I ask the
Committee, because we have very important witnesses, to make
their opening statements brief.
Senator Rockefeller? Brief opening statements, please.
STATEMENT OF HON. JOHN D. ROCKEFELLER IV,
U.S. SENATOR FROM WEST VIRGINIA
Senator Rockefeller. Mr. Chairman, you said it, Roger Maris
still holds the home-run record. I've been a baseball fan since
I was 6 years old, and there's no question in my mind about
that.
I'm grateful for the people who are here. I should say, in
honesty, that my son has the good fortune of being married to
the daughter of Commissioner Tagliabue, and I'm also--if I said
anything about him this morning, I was going to praise what the
NFL is doing, but I'm not going to say that, but I just wanted
that record to be clear.
I agree with the Chairman that what this does is very bad,
the use of steroids, other performance-enhancing drugs, they
have no place, at any time, ever, in baseball. It's interesting
that we've just come to this. It's like a national explosion
all of a sudden. And sometimes the Congress is late to that,
but when the Congress gets to it, it usually is fairly serious
about it.
I know that there are a lot--and most, the great majority
of, athletes don't do that. But, nevertheless, I have to notice
that an enormous number of major league baseball players tested
positive for steroid use. It s about ten times that of the
Olympic athletes. The NFL's positive rate is one-tenth of 1
percent, about 10 to 12 players a year out of 2,500 tested. And
I could go on, on that.
Major league baseball doesn't test in the off season. How
can that possibly be? That's when the training goes on.
Baseball players are tested only twice each year. So, you know,
that's easy to work around.
I blame the union. The union, I think, over the years has
been very destructive on this. They're not helpful. I blame
management. I blame the administration of the league for not
cracking down on what is such an obvious problem, which is an
embarrassment to the United States, which is hurtful to fans
all over the country, and which is a terrible thing for the
young people of our country. And I also blame the agents and
the doctors.
For those various reasons, I would conclude simply by
saying that USA Today's baseball weekly reported that one out
of every three players who tried out for the 2000 United States
Olympic baseball team, mostly college and minor league players,
tested positive for steroids. That's disgusting. That's
disgraceful. That's shameful. But it is true. Steroids used by
professional Olympic athletes goes down to the college and, as
the Chairman said, ``on down and down.''
I also believe it is true that minor league baseball has a
very different program, and they're much more aggressive. Major
league baseball is much more aggressive than minor league
baseball. And it interests me that the minor league baseball,
as far as I know, is not represented by the union; hence, my
concern on that subject.
Mr. Chairman, I'll have more in my questions, but I wanted
to express my great displeasure, as a fan, as an American, and
as a Senator, for what is going on, particularly in major
league baseball.
And, obviously, the breaking of a guy's neck last night in
hockey is a different subject, but that is not what we're here
for today.
Senator Brownback. Senator Allen?
STATEMENT OF HON. GEORGE ALLEN,
U.S. SENATOR FROM VIRGINIA
Senator Allen. Thank you, Mr. Chairman. I think this is a
very timely hearing. Yesterday, this Committee was discussing
legislation dealing with the halftime show at the Super Bowl.
Today, we're dealing with why people care about watching the
Super Bowl, and that's actually football, and the integrity of
the game. The reason people care about football is they love to
see the players, they love to see the teams, they love the
strategies, the tactics, the offensive plays, the defense, and
the adjustments, the motivations, and the performance. In
football, Mr. Chairman, and, indeed, in professional sports,
since the days of desegregation and integration of sports, why
Americans love sports and team sports is they are a
meritocracy. Everyone has an equal opportunity to compete and
succeed based on their own hard work, their own self
discipline. The coaches, as far as the judge of talent, the
deployment of plays, strategies, tactics, and all the rest. But
it is all on what everyone loves to call a level playing field.
This issue of steroids, the illegal use of steroids,
threatens the essence of the games that we so much admire and
love. And, as the Chairman said, in your very eloquent, strong
remarks, which I completely agree with, this is affecting three
levels. Number one, the integrity of the game, which is
absolutely essential for people to enjoy it, for it to have
credibility. You talked about an asterisk next to certain
records. You know, you may be a question mark. There may be an
``Rx'' next some of these records, particularly in baseball, as
Senator Rockefeller mentioned. But really the concept of fair
play, honesty, and integrity are at stake.
Second, as the Chairman said, the message to young people.
Sports are highly competitive, but you want to have it in such
a way that the young people aspiring to be football players,
basketball players, baseball--which ends up being all over the
world--hockey, any of these sports, it's important that
youngsters recognize the importance of fair play, of self
discipline, and doing it without performance-enhancing drugs.
And, third, darn it, the unions, in my view--and I
certainly do believe the NFL Players Union--the unions ought to
care about the health of their players, of their members. I
cannot imagine any sort of a union, supposedly representing the
players, who would want to shorten, literally shorten, the
lives of players because of the competitive edge--in a
roundabout way, they are responsible for what they take into
their bodies, but in competition some of them are forced or
induced, encouraged, or have to, just to compete, take these
drugs and, thereby, lessen and shorten their lives.
We have many great witnesses here, Mr. Chairman. The one
who's especially an outstanding one for perspective here is
Gene Upshaw, an outstanding player, Hall of Fame player. He
understands the temptations, the competition, what it means to
compete and succeed, and he did it the right way. He is also
the one, and people like him, who will be able to get that
message to youngsters that this is the way to have a successful
career.
And so I thank you, Mr. Chairman, for having this hearing.
I thank our witnesses, look forward to their testimony and
cross-examination, as well.
The Chairman. Thank you very much.
Senator Dorgan?
STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
Senator Dorgan. Mr. Chairman, thank you very much.
A few years ago, in June, I held a hearing--I chaired a
hearing--and you, Mr. Chairman, were there at the time. It was
a Subcommittee meeting of this Commerce Committee. And we did
it on this subject. And I must say, regrettably, little has
changed in this two-year period.
I went back last evening to re-read the transcript of that
hearing, because we have some of the same people here today who
testified 2 years ago. And, you know, I almost--you read the
papers and read the journals about what's going on with respect
to these scandals of performance-enhancing drugs and steroid
use, and you remember the little boy's plaintive cry, ``Say it
ain't so, Joe.''
This is a wonderful game, with remarkably gifted athletes.
And I don't, for the life of me, understand why some in
baseball, the Players Union and others, have--again I get this
from my re-reading the testimony last evening--why they have
decided that they will not test for performance-enhancing
drugs, as they do in football.
We will have, I think, testimony today from some wonderful
witnesses. I'm going to ask some questions based on my re-
reading of the transcript, last year--two years ago. And let me
say, again, the reason this hearing is important--yes, it's
about the health of athletes, but it's also about a doctor
testifying, 2 years ago at this table, who said fifth-graders
are now seeking out and using these kinds of performance-
enhancing drugs--fifth-graders, sixth-graders, eighth-graders.
Why? Because they see others do it, and that's the way you get
to the big leagues. And the fact is, if we don't put a stop to
this, and if we don't decide to tell the American people, and
have baseball tell their players, that this is a game that's
free of performance-enhancing drugs, it's free of steroids,
then we'll ruin this game, and we'll ruin the health of a whole
lot of kids that look up to the stars in this game.
The Chairman. Senator Burns?
STATEMENT OF HON. CONRAD BURNS,
U.S. SENATOR FROM MONTANA
Senator Burns. Thank you, Mr. Chairman. And thanks for this
hearing.
Let me associate myself with the remarks of my Chairman. I
don't think anybody could have put it any better, and there's
no doubt that this issue has risen to the level of intensity of
the hearing that we had yesterday. And, of course, everybody
knows what that was; that was halftime at the Super Bowl this
year.
The Chairman. We have a lot of fun on this Committee.
Senator Burns. Yes, we sure did.
[Laughter.]
Senator Burns. I've never seen so much confusion in my
life, and we all voted that way, too.
And what I would say, both instances tend to denigrate the
dual roles that athletes play in our society. It is that that
concerns me most. Athletes must assume the responsibility of
being a role model, just as he or she was blessed with great
athletic ability, they are paid well, way above anything that
we can conceive in this country, and yet some opt to be thugs.
And the responsibilities of the role that they have are shirked
by the athletes. They disregard the message that they send, and
they should be denied the access to the pedestal that they have
sought.
It just absolutely astounds me sometimes how people can
make so darn much money, and they say, you know, all the crime
that we have in our country starts with the poor people, in
areas of great poverty. Well, you know, I don't buy that,
because I think we have the same problem at the highest levels
of our income, especially with our paid athletes.
Thank you, Mr. Chairman.
The Chairman. Thank you very much.
Senator Breaux?
STATEMENT OF HON. JOHN B. BREAUX,
U.S. SENATOR FROM LOUISIANA
Senator Breaux. Thank you very much, Mr. Chairman. And
thank all of our witnesses for being with us.
Some might ask, well, why is Congress involved in this at
all? I mean, why not let the industry and the sports
authorities take care of this problem internally? Why is
Congress even looking at this? And I think the answer is that
when something as important as professional sports are in this
country, when the subject becomes dominant, not who's got the
best batting average or who's been traded or who's likely to
win, but the subject becomes, obsessively, who's taking drugs
and who's not, who's cheating and who's not, who's doing
illegal things and who's not, then that becomes an interest
that permeates outside the sport itself. It becomes a national
issue. It becomes an issue of concern to the American public
and the American people. And I think that we have reached a
point where the discussion of the use of steroids in
particular, and enhancing drugs in general, have become so
pervasive, particularly in professional athletics, like
baseball, that it is a true national issue. And I think
Congress has a responsibility to say that, look, it's not just
negotiation between the union and the owners. It's more than
that. It's a national sport that's televised over the national
airways, and literally millions and millions of people are
affected by the activities of professional athletes and their
performance of their duties and their jobs.
So it is--steroids are cheating, steroids are illegal the
way they're being abused and used. And I think the general
public has an interest, a legitimate interest, in doing what is
essentially necessary to prevent this. And I think that this
hearing is extremely important in that regard.
Thank you.
The Chairman. Thank you, Senator Breaux.
Senator Sununu?
STATEMENT OF HON. JOHN E. SUNUNU,
U.S. SENATOR FROM NEW HAMPSHIRE
Senator Sununu. Thank you, Mr. Chairman.
The reluctance of the acceptance of a rigorous system of
testing for steroids, it affects the integrity of the game, it
affects the credibility of everyone involved. But to Senator
Breaux's question about the national implications, it affects
the health of all of the players in the professional system. It
has significant health impacts in the long term on all of those
that look to professional athletes as role models. And I think
that's the fundamental reason that we're here today.
The Chairman's done a great job of putting together a very
strong panel, and I look forward to the testimony.
The Chairman. Senator Lautenberg?
STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM NEW JERSEY
Senator Lautenberg. Thanks, Mr. Chairman.
First of all, I want to make sure that credit is given to
the state of New Jersey, where baseball was invented. And------
Senator Biden. Are you claiming steroids?
[Laughter.]
Senator Lautenberg. Steroids? No, we didn't have--we ate
spaghetti and meatballs, and that did it for us.
[Laughter.]
The Chairman. Senator Lautenberg, we have a five-minute
rule here.
Senator Lautenberg. Well, if I'm going to debate Senator
Biden----
[Laughter.]
The Chairman. That would be a long debate.
[Laughter.]
Senator Lautenberg. The subject is really a critical one.
And, Mr. Chairman, I will spare the audience and the Committee
by asking that my full statement be included in the record.
The Chairman. Without objection.
Senator Lautenberg. But I do want to say a couple of
things. Number one is, while I am shocked, as the rest of my
colleagues are, at baseball's apparent leniency to the use of
steroids and precursor drugs. And it's hard to understand why
it is we can't get it stopped. And if the union is concerned
about the rights of the ballplayers, we ought to talk about
that. But, on the other hand, baseball is really a public
endeavor, and that's what we want to do. We want to engage the
fans and engage television and engage so many different parties
to watch it. And then we talk about the terrible effects of
steroids and what it does to children who are induced by their
view of the glamour of the sport to taking these things. It's
an outrage.
And I know that it's very hard--I did a lot of anti-smoking
legislation--to say, you know, if you start now, it feels good,
but if you can look ahead a few years, which is very tough,
then you put that aside and you say, ``Well, we'll give it a
try.'' And the notion that a ballplayer--in any of the sports,
a player can extend their contract life by a year or two when
the stakes are so high is very tough to fight. But it's a fight
we have to win. It's a fight that we can no longer accept as
part of the norm.
And while I would hope that the parties can all agree that
we ought to get together on this fight, I would say to baseball
and our friend, Bud Selig, you've got to have a program, an
education program, just like we did with tobacco, just like we
did with other things, to inform the players about what,
ultimately, harm they do to themselves and their families if
they continue with this.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Lautenberg.
The Chairman. Senator Smith?
STATEMENT OF HON. GORDON H. SMITH,
U.S. SENATOR FROM OREGON
Senator Smith. Thank you, Mr. Chairman.
I, as with other colleagues, would like to be associated
with your opening remarks. I'm here at this hearing because of
a lifelong love of the game of baseball. In fact, as I was
reflecting this morning, coming to work, one of the earliest
memories I have of life was watching Mickey Mantle beat my
beloved Washington Senators in Griffith Stadium, with a home
run that he hit out of the park. I grew up with these legends,
and admired them, and am distressed now, having watched so many
games with my children, and thrilled to watch the great records
of Babe Ruth and others fall in our time, only to wonder now if
those record-breaking feats deserve an asterisk by them.
I'm deeply concerned about the health of our game. I don't
understand why the minor leagues have a higher standard than
the major leagues. And I would plead with all who love
baseball, players and owners, to respond to this issue of
integrity and its impact not just on their game, but on the
children of this country. I understand the need for privacy.
But, in the balance, integrity for this game, for the future, I
think, is the weightier issue.
Thank you.
The Chairman. Thank you.
Senator Fitzgerald?
STATEMENT OF HON. PETER G. FITZGERALD,
U.S. SENATOR FROM ILLINOIS
Senator Fitzgerald. Thank you, Mr. Chairman.
I just want to say that I have a 12-year-old son, whose--
well, he's almost 12--whose life, at this stage, is baseball
and other sports. And he's heard the rumors of steroid use by
some of the stars that he admires so much, but he refuses to
believe them. He always tells me, ``Dad, they're just lifting
weights.'' And I'm glad he thinks that way, because I want him
to have heroes in life.
But I'm not sure that the Players Union, with their
position, understands the damage they could be doing by not
allowing a tougher drug-testing policy in the major leagues. We
have to have it. I would think probably 70 or 80 percent of the
players themselves would favor a tougher drug testing policy.
And I'm anxious to hear from Mr. Fehr, of the Players
Union, why it is that he's taken such a strong stance against a
tough drug-testing policy, because I fear he's really hurting
the game of baseball, and I'd like him to reconsider and go
down the route that the NFL players have.
So, with that--and thank you, Mr. Chairman, for doing this
hearing.
The Chairman. Thank you, sir.
We're pleased to have Congressman Sweeney and Senator
Biden. And I would remind both that we have a five-minute rule
here. We're pleased to have you be here today with us, and we
thank you.
And if it's OK with you, Mr. Sweeney, we always start with
the oldest witness here. I'm sure you understand.
[Laughter.]
The Chairman. You understand that?
Senator Biden?
Mr. Sweeney. I'm happy to defer.
STATEMENT OF HON. JOSEPH BIDEN,
U.S. SENATOR FROM DELAWARE
Senator Biden. Mr. Chairman, Senator Hollings, who I've
spoken to earlier this morning, and my colleagues, thank you
for having this hearing to examine the use of performance-
enhancing drugs in professional and in amateur sports. And
thank you for allowing me to testify.
In a moment, Mr. Chairman, as I told you yesterday, I--it's
truly coincidental, but my university, University of Delaware,
my alma mater, won the National Football Championship in
Division 2, and they're all down here today, and some will be
here. And I think it's kind of interesting that, you know, we
have, for example, a couple young All Americans that are going
to be here, a kid named Mondo Davis, a kid named Sean Bliler,
and a lot of other kids who have broken their backs and their
necks and are proud of their accomplishments.
And I think back when I, in 1990, introduced the first
anti-steroid bill, back in the days when I was Chairman of the
Judiciary Committee, and it was to make anabolic steroids
illegal. And we had the same kind of thing, Mr. Chairman;
nobody would come forward, like the Players Union now are the
last holdouts, until Joe Paterno, who was then in his heyday
and winning, was the only coach, I might add--the only coach of
a major university who was willing to come and sit at this
table in the Judiciary room and say, ``This is wrong. This is
wrong. There should be a law.'' None of the athletic coaches,
the majority of the college coaches didn't want to come
forward. They didn't want to be the ones. And they'd say to me,
privately, ``Look, if we're going outlaw these across the
board, OK, but if I come along and I have a strict policy and I
got my kid a tackle who busts his rear-end and he's 275 pounds,
and he looks across the line and there's a kid who is 320
pounds and all muscle, and looking at him, and he says, `I know
that kid didn't work any harder than me, and I know he's going
to kick my rear end at the snap of the ball, because he's got
50 pounds on me, and a helluva lot more muscle mass, and I've
done everything I can.' So what do I do? My kid then says,
`This doesn't make any sense. I'm going to use them, too.' ''
And so, so far so good, we passed the law, after a lot of
screaming and shouting, and, with your help and a number of
other people here, voted for it.
And then what happened? Designer drugs, in effect. Along
came the precursors, and we found out that there are other ways
to get around this law. And I was angered by this, as was the
Chairman of the Committee, Senator Hatch and Senator Stevens
and others. We all joined together, including Congressman
Sweeney, in the House, and we introduced legislation to make
THG, andro, and a number of other substances subject to the
same rules that anabolic steroids are subject to. And under
this legislation, which will--using these products to be flat
illegal.
And, Mr. Chairman, we can go through, and I will not--I
will not bore you with it, because all of you know as well as I
do the negative health effects on the continued use of
steroids, anabolic steroids, and the precursors. And we know
how it damages our young kids. And so we make the case, and I
made the case in 1990, this is a health issue.
But you know what, John? I realize it's a health issue
alone. This is a values issue. This is a values issue. My
friends in baseball--I usually side with the union because, Mr.
Selig, I love, but I wish the hell he'd get a real
commissioner, you know, and I have real disagreements with you
all, and I have real disagreements about how--but the union is
wrong here. They're wrong here.
Baseball is a national pastime, but it is the repository of
the values of this country. When we want to define--when we
want to define to a foreign country what we're about, and
you're going to show a film, what would you go show? You'd show
the basketball film ``Hoosiers'' or you'd show, you know, ``The
Natural'' or you would show something that reflects what every
American feels in their gut, their being, every fiber of them,
that this is the ultimate meritocracy, the United States of
America.
You know, Winston Churchill said that England's future was
determined more on the playing fields of Eton than it was at
any academy, and there's truth to that, Mr. Chairman. You know
it. I know you well. I know you well. And this wells up from
the tip of your toes right to the base of your brain. And all
of you know it. There's something simply un-American about
this. This is about values, it's about our culture, it's about
who we define ourselves to be.
And, last, I must tell you, I thought, in undergraduate
school and in college, I was a pretty good athlete. But, you
know what? I think to myself, as a small kid--I was light at
the time, and I was pretty good, and I wonder--I now find
myself, not only as a Senator, resentful of what some athletes
are doing to the sport, but I find myself angry--angry in my
gut. Because these are the same guys who would have taken me
out--taken me out--not because they had more God-given natural
talent than me, but because they enhanced, with artificial
means, their capacity. That is simply wrong. That is a blot on
the culture of this country.
And you know all the statistics on health, John, and all of
you do, and we should talk about that, but just so you know, a
Kaiser Family study shows that the majority--catch this--that
more than half the kids in America, the age of your son,
Senator, believe now that their heroes use steroids. That's a
poll. Half our children believe--believe--that the athletes
behind me use steroids. What a helluva commentary on what's
happening in this country.
Thank you, Mr. Chairman.
The Chairman. Senator Biden, it's always entertaining as
well as enlightening to have you with us.
[Laughter.]
The Chairman. And we appreciate you being here, and we very
much appreciate your passion and your dedication. We thank you.
I wish that I could say that I was a good high school
athlete.
Mr. Sweeney?
STATEMENT OF HON. JOHN E. SWEENEY,
U.S. REPRESENTATIVE FROM NEW YORK
Mr. Sweeney. Thank you, Mr. Chairman. Let me thank you and
the Members----
The Chairman. Senator Biden, I know you have to leave, so--
I appreciate the fact that you came.
Senator Biden. Thank you.
Mr. Sweeney. Let me thank you and Members of the Committee
for conducting this hearing, and thank you profusely for
allowing me to participate.
I think at the core of this hearing and at the core of this
debate is the notion of, Where is American sports in our
culture? What role does it play? And your recognizing that, I
think, moves this debate along in a significant fashion, and
one that is long overdue.
I'm not here just as a Member of the other body, who
happens to, with all due respect, Senator Lautenberg, represent
the home of baseball, or part of the home of baseball, along
with Sherry Bohlert, at Cooperstown. I'm not just here as a
Member of Congress, who represents the home of the winter
Olympic sports movement in Lake Placid, New York. I'm not here
as just a Member, who represents the home of horse racing in
Saratoga. And other Members will debate any of those issues, in
terms of where they're the home of. I'm really here as a
parent. And it is by means of explaining my involvement and how
I became the original Member of the other body to introduce the
Anabolic Steroid Control Act.
I'll tell you about a story, about several years ago, in
which I was in the weight room with one my teenage children,
working out, as we try to routinely do, he mentioned to me that
he was then training for baseball and/or football practice in
the off season. And a number of his classmates, colleagues, and
friends were talking about the use of andro and/or another
steroid precursor in order to build themselves up, to give
themselves the edge that they needed to make the team, make the
starting lineup, and/or become a star in that field. And his
simple comments to me were, ``Dad, how bad can it be? It's
gotta be good; they're selling it over the counter. I can go
down to the GNC, I can go to Wal-Mart, I can go anywhere where
I have to go and buy this stuff. Somebody's had to have checked
this out. And how bad could it be? Mark McGwire, after all,
used it to set the records he set, and we believe many other
players are involved.''
It started me on a journey in which I went to those experts
in all of those places that I happen to be lucky enough to
represent, and the real facts and the real information became
more apparent as we got involved in the process. It led to the
introduction of the legislation. We recognized that this wasn't
just about American sports; it was about healthcare, it was
about the health risks associated with it. And, as Senator
Biden pointed out, it is about the culture, it is about ethics;
and, therefore, it's pretty critical.
The lines of fair play are blurred by the prevalence of
steroid precursors and designers steroids, which have been
developed by manufacturers simply to avert and avoid the good
work that you all did a decade ago to try to protect the
interests of the American public. Athletes have become more
creative in turning to these substances, such as andro, as you
pointed out, Mr. Chairman, and its muscle-building cousins.
These performance enhancers are the equivalent of illegal
steroids--we need to be very clear about that--which you have
already outlawed, and they should be treated as such.
The consequences for steroid abuse then, therefore, in my
opinion, must become severe enough to act as a deterrent, and
that's what your hearing, I think, is all about, and I really
want to salute you.
I will conclude, because I've got to go over to the other
body and be involved in a couple of other hearings. But the
integrity of sports rests on the ability of players to compete
fairly, free of suspicion. And athletes that have gained an
edge by taking performance-enhanced substances hurt their
sport. And, more importantly, I hope the message of all of our
debate here is that they hurt society.
Parents in this day and age are looking for influences on
their children that are positive, and they're very tough to
find, as your hearing yesterday certainly pointed out. We need
to take action here in Congress. We need to step forward.
Because this isn't simply about sports. This is--the emphasis
really has to be--that this is very much about our kids, the
health of our kids, and what kind of culture we want to
develop.
Let me conclude by saying the National Institute on Drug
Abuse pointed out several years ago that about 3 percent of
junior high school students had already taken steroids. If you
can imagine the impact on the adult, developed body, imagine
the impact on the developing adolescent body of our children.
This is a compelling national issue. That's why there is this
attention. And I salute all of you for taking the lead this
year in moving this bill forward and moving this legislation
forward. And I thank you for the opportunity.
The Chairman. Thank you very much. Thank both of you for
coming. And we appreciate very much you taking the time to be
with us.
Our next panel is Mr. Allan H. Selig, who is the
Commissioner of Major League Baseball; Mr. Donald Fehr, who is
the Executive Director and General Counsel of Major League
Baseball Players Association; Mr. Gene Upshaw, who's the
Executive Director of the National Football League Players
Association; Mr. Terrence Madden, who is the Chief Executive
Officer of the United States Anti-Doping Agency; and Mr. Paul
J. Tagliabue, who is the Commissioner of the National Football
League. Please come forward.
I'd like to thank the witnesses for taking time from their
schedule. I know that this was an inconvenience for all
witnesses to be here today. I understand that Mr. Fehr is
recovering from surgery, as well, and we thank you for
appearing before this Committee, and we feel that your
appearance is justified.
We'll begin with you, Mr. Madden.
STATEMENT OF TERRY MADDEN, CHIEF EXECUTIVE OFFICER, UNITED
STATES ANTI-DOPING AGENCY
Mr. Madden. Thank you, Senator.
Mr. Chairman, Members of the Committee, good morning. My
name is Terry Madden. Today, I come to you as the CEO of the
United States Anti-Doping Agency, which has been recognized by
Congress as the independent national anti-doping agency for
Olympic and Paralympic sport in the United States.
While USADA has recently received increased attention for
our role in the BALCO investigation, as many of you know we
have been working for more than 3 years to protect and preserve
the health of athletes, the integrity of competition, and the
well-being of sport through the elimination of doping.
The use of performance-enhancing drugs in sport creates an
atmosphere of coercion, where clean athletes who do not want to
take drugs feel compelled to do so to succeed. In this age of
multimillion-dollar rewards for sport success, the siren call
of drugs is even more alluring. This problem is not confined to
a single sport, a single country, a small number of athletes,
or an isolated group of unethical chemists. It affects every
sport, and threatens to undermine the integrity of athletics as
a whole. It also sends the message that cheating is acceptable,
and allows drug users to become role models for our Nation's
youth.
While some claim doping is a victimless violation of the
rules, the true victims of doping are the athletes who wish to
compete in clean sport and are denied this opportunity, as well
as the public who is defrauded by athletic performances
dependent on the use of drugs. Unfortunately, without a strong
anti-doping system in place, the accomplishments of clean
athletes can be unfairly tainted by the doping behavior of a
few.
The purpose of the United States Anti-Doping Agency Anti-
Doping Program, which was developed with the assistance and
approval of Olympic-movement athletes, is to protect all
athletes by deterring the use of drugs in the 45 Olympic,
Paralympic, and Pan American game sports. While there are many
components to a successful anti-doping program, the most
fundamental is the athletes' knowledge that their use of
prohibited substances and methods can be detected, and that
penalties for breaking the rules are significant.
An effective doping program begins with a sample-collection
plan that includes appropriately timed, year-round, no-
advanced-notice testing. The plan must provide for the
collection of samples at the time that athletes most benefit
from doping, and must be flexible and responsive to evolving
doping techniques. A drug-testing program is ineffective if
athletes know during what times of the year they will be
tested, or are given sufficient notice of the test to take
steps to alter samples in order to avoid detection.
An effective program also must be built around a
comprehensive list of categories of prohibited substances and
methods. One lesson reinforced by THG in the BALCO
investigation is that programs must incorporate sufficient
flexibility to deal with the creation and use of designer
drugs. Unlike workplace or drugs-of-abuse testing, the Olympic
movement list of categories of prohibited substances and
methods is extensive. Therefore, the continued dedication of
resources to the testing laboratories that are charged with
developing and validating testing methods for this wide array
of substances is an important aspect of deterrence.
An effective and credible program also combines defined
sanctions of sufficient magnitude to deter drug use with a fair
means of imposing such sanctions. In the Olympic movement, the
sanction for a first steroid offense is a two-year suspension.
A second steroid offense results in a lifetime ban. Because of
the severity of these sanctions, USADA's adjudication system
includes numerous protections for athletes to ensure that only
athletes who are guilty of a doping violation are sanctioned.
Significantly, while USADA believes the privacy rights of
individuals accused of doping violations must be respected, no
individual's right should outweigh the rights of all athletes
to compete in clean sport and to be assured that those who
break the rules are appropriately sanctioned. USADA also
believes that to protect the rights of all athletes, an anti-
doping program should be transparent by allowing for an
independent review of the effectiveness and fairness of each
aspect of the program.
Another important component is the education of athletes as
to why healthy competition is important, and why taking the
uninformed health risks associated with prohibited substances
is a bad choice. The achievements in sport, like the
achievements in life, should be the result of hard work,
commitment, and dedication. We agree strongly with the
President, who stated, in his State of the Union Address, that
achieving success through drugs sends the message that
character doesn't count.
In developing our educational materials, USADA has
benefited from our interaction with Character Counts in their
Pursuing Victory With Honor Program. Reaching your goals
through strength of individual character and by making the
right decisions are at the core of what USADA has emphasized in
our One Hundred Percent Me Program for elementary school
students.
Finally, an effective program must devote significant
resources to research for the detection of new doping
substances and techniques, and the pursuit of scientific
excellence in doping control. To this end, USADA has funded
pioneering work in such areas as the effort to develop a test
for human growth hormone. Our international symposium, in 2002,
took a comprehensive approach to the issue of increased oxygen
transport, and led to research, the results of which are
beginning to close all of the approaches to blood doping.
Most recently, USADA has supported research at several
laboratories regarding the newly detected designer steroid,
THG. USADA is also strongly committed to furthering research
regarding the health risks associated with long-term use of
prohibited substances, including human growth hormone.
Since its inception, just over 3 years ago, USADA has
worked hard to show the world that the United States Olympic
movement athletes compete clean. We believe that the USADA
program contains all of the important elements of a
comprehensive and effective testing program, and we continue to
work each day to improve our system to further protect clean
athletes. Specifically, we are focused on increasing the
numbers of no-advance-notice tests that we perform. We are also
seeking to improve our ability to systematically identify and
sanction those athletes and other individuals who are engaged
in the effort to create designer substances, or otherwise gain
an advantage over athletes who are competing clean.
USADA believes that stemming the use of drugs in sports is
necessary to preserve the integrity of sport in this Nation.
Athletes, including America's children, who dream of athletic
stardom, have a fundamental right not to be put in a position
where they believe they must use drugs to effectively compete.
USADA is dedicated to protecting that right, and welcomes the
opportunity to work with any sport that is committed to the
cause of drug-free sport.
We thank you, Mr. Chairman and Members of the Committee,
for this opportunity to share our convictions on this important
topic.
[The prepared statement of Mr. Madden follows:]
Prepared Statement of Terry Madden, Chief Executive Officer,
United States Anti-Doping Agency
Mr. Chairman, members of the Committee, good morning, my name is
Terry Madden. Thank you for the opportunity to testify. Today I come to
you as the CEO of the United States Anti-Doping Agency, which has been
recognized by Congress as the independent, national anti-doping agency
for Olympic and Paralympic sport in the United States. While USADA has
recently received increased attention for our role in the BALCO
investigation, as many of you know, we have been working for more than
three years to protect and preserve the health of athletes, the
integrity of competition, and the well-being of sport through the
elimination of doping.
The use of performance-enhancing drugs in sport creates an
atmosphere of coercion where clean athletes, who do not want to take
drugs, feel compelled to do so to succeed. In this age of multi-million
dollar rewards for sports success, the siren call of drugs is even more
alluring. This problem is not confined to a single sport, a single
country, a small number of athletes or an isolated group of unethical
chemists. It affects every sport and threatens to undermine the
integrity of athletics as a whole. It also sends the message that
cheating is acceptable, and allows drug users to become role models for
our Nation's youth.
While some claim doping is a victimless violation of the rules, the
true victims of doping are the athletes who wish to compete in clean
sport and are denied this opportunity, as well as the public who is
defrauded by athletic performances dependent on the use of drugs.
Unfortunately, without a strong anti-doping system in place, the
accomplishments of clean athletes can be unfairly tainted by the doping
behavior of only a few.
The purpose of the USADA anti-doping program, which was developed
with the assistance and approval of Olympic Movement athletes, is to
protect all athletes by deterring the use of drugs in the 45 Olympic,
Paralympic, and Pan American Games sports. While there are many
components to a successful anti-doping program, the most fundamental is
the athletes' knowledge that their use of prohibited substances and
methods can be detected and that the penalties for breaking the rules
are significant.
An effective program begins with a sample collection plan that
includes appropriately timed, year-round, no-advance-notice testing.
The plan must provide for the collection of samples at the time that
athletes most benefit from doping and must be flexible and responsive
to evolving doping techniques. A drug testing program is ineffective if
athletes know during what times of the year they will be tested or are
given sufficient notice of the test to take steps to alter samples in
order to avoid detection.
An effective program also must be built around a comprehensive list
of categories of prohibited substances and methods. One lesson
reinforced by THG and the BALCO investigation, is that programs must
incorporate sufficient flexibility to deal with the creation and use of
``designer drugs.'' Unlike workplace or drugs-of-abuse testing, the
Olympic Movement list of categories of prohibited substances and
methods is extensive. Therefore, the continued dedication of resources
to the testing laboratories that are charged with developing and
validating testing methods for this wide array of substances is an
important aspect of deterrence.
An effective and credible program also combines defined sanctions
of sufficient magnitude to deter drug use with a fair means of imposing
such sanctions. In the Olympic Movement the sanction for a first
steroid offense is a two-year suspension. A second steroid offense
results in a lifetime ban. Because of the severity of these sanctions,
USADA's adjudication system includes numerous protections for athletes
to ensure that only athletes who are guilty of a doping violation are
sanctioned. Significantly, while USADA believes the privacy rights of
individuals accused of a doping violation must be respected, no
individual's right should outweigh the rights of all athletes to
compete in clean sport and to be assured that those who break the rules
are appropriately sanctioned. USADA also believes that to protect the
rights of all athletes an anti-doping program should be transparent, by
allowing for an independent review of the effectiveness and fairness of
each aspect of the program.
Another important component is the education of athletes as to why
healthy competition is important and why taking the uninformed health
risks associated with prohibited substances is a bad choice. The
achievements in sport, like the achievements in life, should be the
result of hard work, commitment, and dedication. We agree strongly with
the President who stated in his State of the Union address that
achieving success through drugs sends the message that character
doesn't count. In developing our educational materials, USADA has
benefited from our interaction with Character Counts and their
``Pursuing Victory with Honor'' program. Reaching your goals through
strength of individual character and by making the right decisions, are
at the core of what USADA has emphasized in our ``100 percent Me''
program for elementary school students.
Finally, an effective program must devote significant resources to
research for the detection of new doping substances and techniques and
the pursuit of scientific excellence in doping control. To this end,
USADA has funded pioneering work in such areas as the effort to develop
a test for human growth hormone. Our international symposium in 2002
took a comprehensive approach to the issue of increased oxygen
transport and lead to research, the results of which are beginning to
close all of the approaches to blood doping. Most recently, USADA has
supported research at several laboratories regarding the newly detected
designer steroid THG. USADA is also strongly committed to furthering
research regarding the health risks associated with long term use of
prohibited substances, including, human growth hormone.
Since its inception just over three years ago, USADA has worked
hard to show the world that United States Olympic Movement athletes
compete clean. We believe that the USADA program contains all of the
important elements of a comprehensive and effective testing program and
we continue to work each day to improve our system to further protect
clean athletes. Specifically, we are focused on increasing the numbers
of no-advance-notice tests that we perform. We are also seeking to
improve our ability to systematically identify and sanction those
athletes and other individuals who are engaged in the effort to create
designer substances or otherwise gain an advantage over athletes who
are competing clean.
USADA believes that stemming the use of drugs in sports is
necessary to preserve the integrity of sport in this Nation. Athletes,
including America's children who dream of athletic stardom, have a
fundamental right not be put in a position where they believe that they
must use drugs to effectively compete. USADA is dedicated to protecting
that right and welcomes the opportunity to work with any sport that is
committed to the cause of drug-free sport. We thank you, Mr. Chairman
and members of the Committee, for the opportunity to share our
convictions on this important national topic.
The Chairman. Thank you, Mr. Madden. In behalf of many
Americans, we're deeply appreciative of the outstanding work
you and your organization do, and we'll be calling on you in
the future, because this issue is not going away.
Welcome, Mr. Upshaw.
STATEMENT OF GENE UPSHAW, EXECUTIVE DIRECTOR, NATIONAL FOOTBALL
LEAGUE PLAYERS ASSOCIATION
Mr. Upshaw. Thank you, Mr. Chairman.
Mr. Chairman and Members of this Committee, my name is Gene
Upshaw. I am the Executive Director of NFL Players Association,
the labor union that represents all NFL players in collective
bargaining.
As you know, Commissioner Tagliabue and I have submitted a
joint statement to the Committee, which I understand is being
made part of the hearing record.
I want to take this opportunity to emphasize a few points
that are particularly important to NFL players. Our support of
the league's program, including random testing and prompt
discipline for violators, is not a new development. For more
than a decade, we have worked closely with the league to rid
our game of steroids and similar performance-enhancing drugs.
We have not supported this program because players like
taking drug tests, or because they like being suspended. We
have done so because NFL players and the people we represent
want to make it clear that we believe in a strong and an
effective anti-steroid program, that it's good for players and
it's good for the game.
Why has this issue been the highest priority for NFL
players? First, these substances threaten the fairness and
integrity of the game on the field. To allow the use of
steroids and banned stimulants would not only condone cheating,
but also compel others to use them to remain competitive.
Second, we have a responsibility to protect our players
from the demonstrated adverse health effects of steroids and
banned substances. Medical literature is replete with linking
these substances to a wide range of serious health problems.
Third, we take our role in educating and leading young
people very seriously. The use of performance-enhancing drugs
is dangerous, and sends the wrong message that there are
shortcuts to success, and that performance at any price is more
important than integrity. The NFL program tells those involved
in football at intercollegiate, high school, and youth levels
that the use of performance-enhancing substances is not the way
to play and succeed in football.
We have closely worked with the league to ensure that the
program involves more than simply testing and discipline; we
have insisted that the program retain the leading medical and
laboratory experts, and that decisions are based on science and
fact, and not on supposition and whim.
We have emphasized the importance of education in keeping
our players from even trying the banned substances. Each year,
as part of the year-long--I mean, week-long rookie symposium,
new NFL players receive comprehensive information about the
dangers of performance-enhancing drugs. We work on our veterans
in a year-round training program.
During the season, all of our players have access to a 24
hour 800 number, which provides detailed information to players
about steroids and related substances. And long before the
government moved to ban ephedra, we worked with the league
first to advise our players strongly to discourage the use of
ephedra, and then we banned it altogether.
Despite the efforts that we have made to eliminate steroids
and performance-enhancing drugs from football, there are those
in America and elsewhere who will seek to beat the system by
designing and producing illicit substances and inappropriately
affect athletic performance while escaping detection.
THG is the latest substance to attract wide attention. The
league's intensive random testing began in early October,
through the end of the season, and did not identify any player
using THG, and we have no information suggesting that
significant numbers of players have used it in the past. We
will continue our efforts to confirm this belief.
Today, new challenges are being presented by improper use
of human growth hormones. We will continue to work with NFL and
other interested parties to ensure that we have a strong and
effective program.
Mr. Chairman, thank you for your leadership on this issue.
I will be pleased to answer any questions that you and others
may have at the end of the hearing.
[The joint prepared statement of Mr. Upshaw and Mr.
Tagliabue follow:]
Prepared Statement of Paul Tagliabue, Commissioner, National Football
League and Eugene Upshaw, Executive Director, NFL Players Association
Mr. Chairman and members of the Committee:
We are, respectively, the Commissioner of the National Football
League and the Executive Director of the NFL Players Association, the
labor union that represents all NFL players in collective bargaining.
We have submitted this joint statement to emphasize that, whatever
other issues management and labor may disagree upon, there is complete
agreement between us on this: steroids and other performance enhancing
substances have no place in our game, or anywhere in sports. For many
years, we have been committed to keeping them out of the NFL, and we
will continue to work together and with government and private parties
to help remove them from American life.
In recent weeks, this subject has again received renewed attention.
The President's comments in his State of the Union address, combined
with the recent indictments in connection with the BALCO case, have
focused a wide audience on the use of performance enhancing substances
in sports, and have brought to the forefront what many observers have
come to recognize--that this is both an ongoing challenge and one that
is likely to be more complex and difficult to address successfully.
In the NFL, we have been focused on these issues of performance-
enhancing substances since the late 1980s. The League's then-
Commissioner, Pete Rozelle, instituted both educational and
disciplinary programs in the late 1980s to deter the use of
performance-enhancing substances by NFL players and to eliminate them
from our game.
Educational efforts have led both our teams and our players to
support strong measures, developed jointly by the League and the
Players Association, to eliminate these illicit substances from NFL
football--and to send a message to others in football at the
intercollegiate, high school and youth levels that the use of
performance-enhancing substances is not the way to play or succeed in
football.
Against this backdrop, we strongly support S. 1780, the Anabolic
Steroid Control Act of 2003, which you have co-sponsored, Mr. Chairman.
This bill would expand the definition of steroids and precursors as
controlled substances and increase the penalties associated with
distribution of these substances. We understand that a companion bill
has been introduced in the House of Representatives, and we will
strongly support that bill as well.
We are pleased to appear today to offer the Committee a description
of the NFL's Policy and Program on Anabolic Steroids and Related
Substances. That program has been in place for more than a decade, and
is the most comprehensive in professional sports today. Our results
confirm that the program is very effective. It reflects a strong and
ongoing commitment on the part of both our organizations, backed by
substantial financial investments, top scientific resources, and more
than a few tough decisions.
The NFL began testing players for steroids in 1987; started
suspending violators in 1989; and instituted in 1990 a year-round
random testing program, including during the off-season, backed by
immediate suspensions for any violation. The program has strong
features to deter evasion, including suspension for players testing
positive for masking agents or who attempt to dilute their urine to
beat the tests. Players who test positive are subject to up to 24
unannounced tests per year, including during the offseason. They remain
subject to this frequent, year-round testing for the remainder of their
careers.
We also recognize the importance of staying current, and have
consistently expanded our own list of prohibited substances--in the
past three years, nearly 20 additional substances have been added to
the banned list. Those included ephedra, which we prohibited three
years ago. As the Committee knows, the Federal government is now in the
process of banning that dangerous supplement.
Why has this issue been among the highest priorities of the NFL and
its players? First, these substances threaten the fairness and the
integrity of the game on the field. To allow the use of steroids and
banned stimulants would not only condone cheating, but also compel
others to use them to remain competitive.
Second, we have a responsibility to protect our players from the
demonstrated adverse health effects of steroids and other banned
substances. Medical literature is replete with research linking the use
of these substances to a wide range of serious health problems.
Third, we take seriously our role in educating and leading young
people. As President Bush said, the use of performance-enhancing drugs
is dangerous and sends the wrong message that there are shortcuts to
success and that performance at any price is more important than
integrity.
The key provisions of our policy are:
An annual test for all players plus unannounced random
testing in and out of season. We test players on all teams each
week of the season, conducting more than 9,000 tests a year for
steroids and related substances.
A list of more than 70 prohibited substances, including
anabolic steroids, steroid precursors, growth hormone,
stimulants and masking agents. This list is continually revised
and expanded.
A mandatory four-game suspension (25 percent of the regular
season) without pay upon a first violation. A second violation
would result in a six-game suspension and a third would ban a
player for a minimum of one year. Players cannot return to the
field until they test clean and are cleared for play.
Strict liability for players who test positive. Violations
are not excused because a player says he was unaware that a
product contained a banned substance.
Education of players and teams about the program through
literature, videos, a toll-free hotline and mandatory meetings.
The consistent application of these core tenets has resulted in the
recognition of the NFL's policy as the most effective in professional
sports. Over the past five seasons, less than 1 percent of our players
(a total of 25) have violated our steroid program and been suspended.
In short, virtually all of our players get the message and participate
in the NFL without using anabolic steroids or other performance-
enhancing substances.
When our steroid testing lab--the U.C.L.A. Olympic Analytical
Laboratory--our banned substance list and started officially testing
for it on a uniform basis on Oct. 6. Since then, we have randomly
tested more than 3,000 player urine samples and there have been no THG
positives.
We spend $10 million a year on our steroid and drug programs,
including the funding of research to identify new substances and
improve testing. To date, we have invested close to $100 million on
this initiative. And we are prepared to do more if necessary.
Despite the efforts that we and others in sport have made to
eliminate anabolic steroids and other performance-enhancing drugs from
our athletic competitions, there are those in America and elsewhere who
will seek to beat the system by designing and producing illicit
substances that inappropriately affect athletic performance while
escaping detection. THG is only the latest such substance to become a
controversial issue and attract wide attention.
Over the years we have worked very hard with specialists and the
scientific community to minimize the potential for such evasion, and we
believe that our efforts have been successful. With respect to THG
specifically, our extensive random tests during the past football
season--from early October through the end of our season this January--
did not identify any NFL player as using THG, and we have no
information suggesting that any significant number of NFL players used
THG before this past season. But we will continue our efforts to
confirm this belief with reliable test results.
As announced earlier this week, we have partnered with the United
States Anti-Doping Agency to establish a new research and drug testing
laboratory at the University of Utah. This lab will work closely with
Utah's highly respected Center for Human Toxicology, which is renowned
for its forensic analytical toxicology expertise.
Today new challenges are being presented by the improper use of
human growth hormone and the continuing advance of gene therapy and
genetic manipulation.
Both the government and private sectors must aggressively address
these challenges. If not, the secret designers of new illicit
substances will slog on, and the future will bring more high-profile
grand jury investigations, health risks to young people and dishonor to
sports.
Mr. Chairman, we in the NFL thank you for your leadership on this
issue, and we appreciate the opportunity to testify today.
The Chairman. Thank you very much, Mr. Upshaw. We
appreciate your testimony.
Mr. Tagliabue, I know you all have a joint statement. Do
you have any additional comments?
Mr. Tagliabue. I do, Mr. Chairman. I thought I would----
The Chairman. Fine.
Mr. Tagliabue.--describe our program briefly.
The Chairman. Sorry you weren't here yesterday, by the way.
Mr. Tagliabue. Well, I'd be glad to answer questions about
that, too.
STATEMENT OF PAUL J. TAGLIABUE, COMMISSIONER, NATIONAL FOOTBALL
LEAGUE
Mr. Tagliabue. Thank you for inviting us to appear today to
discuss what the league is doing to get steroids and other
performance-enhancing substances out of football.
When I say ``the league,'' I mean the entire league,
including, especially, our players. As you know, Mr. Upshaw and
I have submitted a joint statement. We've done so because there
is complete agreement between us to enforce our strong program
to ensure that steroids and other performance-enhancing
substances have no place in our game.
We also strongly support S. 1780, the Anabolic Steroid
Control Act of 2003, which you have cosponsored, Mr. Chairman.
This bill would expand the definition of steroids and
precursors as controlled substances, and increase the penalties
associated with distribution of these drugs.
The league's program on anabolic steroids and related
substances is the most comprehensive in professional sports
today. It has been in place since the late 1980s. The key
provisions, in summary, are as follows.
First, an annual test for all players, plus unannounced
random testing in and out of the season. We test players on all
teams each week of the season, conducting more than 9,000 tests
a year for steroids and related substances.
Second, a list of more than 70 prohibited substances,
including not just steroids, but steroid precursors, growth
hormone, stimulants, and masking agents. The list is
continually revised and expanded.
Third, a mandatory four-game suspension, 25 percent of our
regular season, and 25 percent of a player's salary without pay
upon a first violation. A second violation would result in a
six-game suspension. We're happy to say we have not had any
repeat offenders with a six-game suspension. And a third
violation, if it were to occur, would ban a player for a
minimum of one year. Players suspended cannot return to the
field until they test clean and are cleared for play by
professionals. Players testing positive are subject to being
tested up to 24 times a year for as long as they remain in the
National Football League.
Fourth, we have strict liability for players who test
positive. Violations are not excused because a player says he
was unaware that a product contained a banned substance or that
a product was mislabeled.
Finally, we have education of players and teams about the
program through literature, videos, seminars; as Gene said, a
toll-free hotline throughout the season; and mandatory team
meetings. And I would say that I think the education has been
extremely powerful. And our players, beginning in the late
1980s and the early 1990s, came to understand the very, very
negative aspects of using steroids, and they have been among
the strongest advocates and supporters of a very strict
program.
Our results confirm that our program is very effective.
Over the past five seasons, just to take one example, we've
only had 25 players who have violated our program and been
suspended. This is far below 1 percent. When our steroid
testing lab, the UCLA Olympic Analytical Lab, informed us last
fall of the new designer steroid, THG, and also informed us
that a test had been developed for THG, we immediately added it
to our banned list, and started testing for it on a uniform
basis in the first week of October. Since then, we've randomly
tested more than 3,000 players for THG, and there have been no
positives.
We spend, currently, $10 million a year on our steroid and
drug programs, including the funding of research to identify
new substances and improved testing. To date, throughout the
last decade, we have invested close to $100 million on this
initiative, and we are prepared to do more if necessary.
We just announced, earlier this week, a program that has
been in the works for about the past year, where we will
partner with USADA to establish a new research and drug-testing
lab at the University of Utah. This lab will work closely with
Utah's highly respected Center for Human Toxicology.
Mr. Chairman, thank you, again, for having us here today,
and certainly Gene and I will be prepared to answer any
questions that you or other Members of the Committee might
have.
The Chairman. Thank you, sir.
Mr. Fehr, welcome.
STATEMENT OF DONALD M. FEHR, EXECUTIVE DIRECTOR,
MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION
Mr. Fehr. Thank you, Mr. Chairman.
I apologize in advance if my voice drops, or something
else. As you indicated, I had surgery a little less than 2
weeks ago. It turns out to have been the same problem now
confronting the Attorney General, for whom I have great
sympathy, and certainly hope that he is able to recover his
strength and equilibrium a little more quickly than I have
been. But I'll do my best here this morning.
I appreciate the Committee's interest in, and concern
about, the issue of the unlawful use of steroids, which has led
to this hearing. So let me begin by restating the position that
I articulated in the hearing that Senator Dorgan, I believe,
referred to in the opening statements some 20 months ago, ``We
neither condone, nor support, the use by players, or by anyone
else in this country, of any unlawful substance or the unlawful
use of any legal substance. Both are wrong.''
Let me also interject, as we begin, a note of caution. Each
of us should take care not to treat unsubstantiated media
reports--a lot of us in this room are in the public eye and
understand those things happen--as if they were proven fact.
Unfair accusations about individuals can inflict damage which
cannot be remedied. For that reason, among others, I will not
discuss issues with respect to any particular individual, and I
would urge the Members of the Committee to adopt a similar
approach.
Let me talk a little bit about what's transpired in
baseball, historically, and, in particular, since the hearing
that was held in June of 2002. As I indicated at that time, the
use of unlawful steroids--excuse me, the unlawful use of
steroids was then a subject of ongoing collective bargaining
between the association and the clubs.
The issue of drug treatment and prevention isn't a new one
to baseball. It had a joint drug agreement beginning with drugs
of abuse back in the mid 1980s, until it was terminated by
Commissioner Uberroth. And, subsequent to that, we had
developed, without a formal agreement, a program dealing with
those substances, which has, as a practical matter, eliminated
those matters as issues of contention between the parties. And
you haven't heard about them in a very long time. The emphasis
of that agreement was on treatment and prevention. The
provisions were designed to encourage and assist players to
address any use or misuse problems that they might be
experiencing.
During those early discussions, the subject of what I've
referred to in my written statement as ``suspicion-less
testing'' of players--that is to say, testing without cause--
was raised by the clubs, and opposed by us. We thought then,
and believe now, that the testing of an individual, not because
of anything he or she is suspected to have done by anyone, but
merely because he or she is a member of a particular class, is
simply at odds with fundamental principles of which we in this
country have long and rightly been proud.
In high school, I think all of us learn that you're not
guilty until you prove yourself innocent. It's the other way
around. And we also learn that, absent compelling safety
considerations, we don't invade the privacy of someone, or do a
search or a seizure, without substantial cause related to that
individual. Of course, the Fourth Amendment's protection
against unreasonable searches and seizures is not directly
applicable to the private employment setting, but we submit
that the principles which lie behind it should not lightly be
put aside. Nevertheless, as I had indicated, we continued to
work on those other issues.
What have we done in the last couple of years? As I
indicated a moment or two ago, in September of--excuse me, in
the summer of 2002, we were confronting the issue of allegation
of widespread use of--unlawful use of anabolic steroids. And
the issue of suspicion-less testing was an issue which arose in
those discussions. That logjam was eventually broken in
response to a proposal made by the Players Association in what
was, I believe, by everyone, regarded as a significant
concession. And that was that we would do two things. We would,
in addition to the educational programs, which had been ongoing
for an extended period of time, and which were made part of the
record in the June 2002 hearing, that we would do a survey test
of players. And if a threshold was met, that would translate
into identified testing of players. If that threshold was not
met, it would not. At that time, we were talking about
newspaper reports of up to 85 percent use of steroids by major
league players.
The survey testing was conducted in 2003. Despite some
suggestions to the contrary, and some of which were alluded to
by opening statements of Members of the Committee, players did
not know when the tests were to be administered. The timing of
the tests wasn't determined by the Commissioner's office or by
our office. The results were not even analyzed, much less
predetermined, as some reporter had suggested; rather, they
came back from the lab, and, as soon as they did, with an
indication that somewhere between 5 and 7 percent of the tests
had returned positive, which has to do with interpretation, it
was promptly announced, and we moved to identified testing.
As a result, in 2004, all players will be tested on an
unannounced basis, identified with the use of--the unlawful use
of steroids, without any requirement that it be shown that the
individual being tested--that there is any basis to believe
that he has committed any inappropriate activity. Any player
who tests positive will be evaluated by what we call our Health
Policy Advisory Committee, or HPAC, which will then follow that
individual, and can and, I suspect, will subject that
individual to periodic further testing. If there are any
further positive tests, a series of progressive discipline
would be imposed.
In addition to that, players remain, quite apart from this,
subject to for-cause testing; that is to say, if any club or
central office official has information which causes him to
believe that a player may be unlawfully using steroids, it can
refer the matter to HPAC. And if HPAC believes that there's
evidence to support those allegations, it can order testing, it
can order treatment, it can order a series of exams for that
individual, quite apart from the random testing that I have
previously referred to.
We think this agreement is fair, carefully constructed, and
balances important interests. It was agreed to after extensive
discussion with the players, as I indicated, in June 2002. Over
the following 6 weeks, I met with every club to discuss all
issues, including this one.
Will it work to stop it? I think it will. I don't know
whether it will. We'll know. And empirically, we will know the
answer to that. We won't have to guess about it.
Let me just make a couple of closing comments. It's very
easy, I think, for people to assert that any clean player
should simply announce that he should be--he's willing to be
tested by anybody, anytime, anyplace, for anything, including,
one supposes, a reporter showing up at his door on Christmas
morning, which is a suggestion a reporter has made to me. We
think that such arguments gloss over other interests, serious
interests, worthy of attention.
While it sometimes seems as if considerations get lost in
the ever louder discussion, every one of us has an interest in
preventing unwarranted invasions of privacy, every one of us
has an interest in making sure we do not turn on its head the
fundamental precept that someone is innocent until proven
guilty, not the other way around, and that those who agreed to
voluntarily participate in testing programs should have some
reasonable expectation of privacy and confidentiality, as is
the case in virtually all testing programs across the country.
Such interests are worthy of protection, even in the workplace,
and even in the workplace of professional athletes.
And let me conclude by making a couple of comments about
the Dietary Supplements Act and the current legislation. It's
not part of my initial opening remarks, but it's been raised by
the panel members and by Senator Biden and Representative
Sweeney.
As I suggested, in June 2002, and repeat here today, the
public policy of this country, as represented by the laws
passed, I believe unanimously, 10 or 11 years ago by this
Senate and the House of Representatives, and signed by
President Clinton, is that if a substance is a natural
substance, it can be marketed unless and until the government
decides there's something wrong with it. That turned on its
head, as I understand it, previously existing law, which
suggested, and, I submit, not unreasonably, that before you go
market something for somebody to take, there ought to be some
testing to determine whether or not it's safe and efficacious
for the purpose for which it's designed. That's the public
policy of this country.
Major league players are not children, and I'm not their
parents. They have the same responsibility that others do. But
I repeat to you what I said then, and I urge you to reconsider
the law, top to bottom. If that's not good public policy,
change it. That's all you have to do.
And I suggest further that if the Congress of the United
States decides, as it has up through and including today, that
androstenedione is safe enough to be sold freely on the store's
shelves anywhere in this country and within blocks of this
hearing room, then if that's not appropriate for the safety of
Americans, change it. If it is, then you can't expect
professional athletes to suggest that they somehow are
different than anyone else, and they can't go into a store and
buy something that anyone else can buy. Change the law.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Fehr follows:]
Prepared Statement of Donald M. Fehr, Executive Director,
Major League Baseball Players Association
Mr. Chairman and members of the Committee:
My name is Donald M. Fehr, and, as the members of this Committee
know, I am privileged to serve as the Executive Director of the Major
League Baseball Players Association. I appear today in response to the
Chairman's invitation to testify with respect to the drug treatment and
prevention program in Major League Baseball, specifically as it relates
to substances which are considered to be performance-enhancing.
I appreciate the Committee's interest in and concern about the
unlawful use of steroids which led to this hearing. Let me begin by re-
stating the MLBPA's position, articulated last before this Committee in
June, 2002. The Major League Baseball Players Association neither
condones nor supports the use by players, or by anyone else, of any
unlawful substance, nor do we support or condone the unlawful use of
any legal substance. I cannot put it more plainly: both the use of any
illegal substance and the illegal use of any lawful substance are
wrong.
Permit me also to offer a note of caution. While there is no
dispute that this is a very serious issue, each of us should take care
not to treat unsubstantiated media reports and rumors as if they were
proven fact. Anyone who lives in the public eye should recognize the
damage that an unfair accusation can inflict. For this reason, among
others, I will not discuss these issues with respect to any particular
individual, and I urge the Members of the Committee to adopt a similar
approach.
As I indicated in June of 2002, use of unlawful steroids was then a
subject of ongoing collective bargaining between the Players
Association and the Major League Clubs. That round of bargaining
produced a new Basic Agreement between the parties in September of that
year. Before turning to that agreement, it may be helpful to briefly
describe the history of such issues in our bargaining relationship.
The matter of drug treatment is not new to major league baseball.
Nor is the demonstrable willingness of the parties--the Players and the
Clubs--to address the issue, despite significant differences over the
means that may be appropriately employed to confront the shared goal of
the elimination of unlawful drug use in the sport. Two decades ago, in
response to a growing concern about the alleged use of cocaine by
players, the parties undertook extensive, and at times contentious,
negotiations which resulted in the first Joint Drug Agreement in the
major professional sports. The emphasis of that agreement was on
treatment and prevention, and its provisions were designed to encourage
and assist players to address any chemical use or misuse problems they
might be experiencing.
During those negotiations, the subject of suspicionless urine
testing of players was advocated by the Clubs, and opposed by us. We
thought then--and believe now--that the testing of an individual, not
because of something he is suspected to have done, but simply because
he is a member of a particular class, is at odds with fundamental
principles of which we in this country have long and rightly been
proud. It is not up to the individual to prove he is innocent,
especially of a charge of which he is not reasonably suspected.
Moreover, one should not, absent compelling safety considerations,
invade the privacy of someone without a substantial reason--that is,
without cause--related to that individual. While the 4th Amendment's
protection against unreasonable searches and seizures is not directly
applicable to the private employment setting, the important principles
on which it is based should not be lightly put aside. The Clubs then,
as they do now, articulated a different view (echoed by much of the
media).
This fundamental disagreement did not, however, stop the parties
from continuing to work toward the shared goal of the elimination of
the illicit use of drugs by players. Over the years, even in the
aftermath of the termination of that first Joint Drug Agreement, the
parties forged a working relationship that eliminated contested cases
in this once volatile, highly charged, area. We have been able to do
that with a program that emphasizes education, not punishment, that
includes progressive, not draconian, discipline, and that includes
individual cause-based, not suspicionless, testing---in other words, a
program consistent with basic principles of due process.
This history is notable because it provides a needed context for
the latest round of bargaining. Coming into the negotiations that
produced the September, 2002 Basic Agreement, the parties sought to
respond to a new problem in the sport--reports of widespread use of
anabolic steroids. How did the parties bridge the 20 year old divide
between them on the subject of suspicionless testing? By agreeing to a
Players Association formulation for what can only fairly be regarded--
and I can assure you was regarded by the Clubs---as a significant
concession by the Association. In essence, we proposed to break the
decades old deadlock on suspicionless testing by agreeing to a
triggering mechanism; an unannounced anonymous test of not simply every
player in the bargaining unit, but 120 percent of them (i.e., 20
percent of the players were tested twice). A total of 1438 tests were
conducted in an 1198 player group, a ratio of actual tests to the
number of individuals eligible to be tested that we understand far
exceeds the norm in most other testing regimes. If more than 5 percent
of those 1438 tests came back positive, the Players Association would
recede from its decades long opposition to suspicionless testing of all
players, which would then begin and continue Unless the number of
positives fell below 2.5 percent over two consecutive years. If,
conversely, the trigger was not met, the Clubs would recede from their
position, with the important qualification that the triggering
mechanism would remain in place for each successive year of the
Agreement.
A few points should be made about the conduct of the 2003 survey
testing. Despite some contrary suggestions in the media, players did
not know when the tests were to be administered. Nor was the timing of
the tests determined by the Commissioner's Office, or by the Players
Association. The 2003 survey results were not even analyzed, much less
predetermined (as one reporter had suggested) by the parties. Rather,
the parties simply received from the testing administrators, through
the laboratory which conducted the tests, a report of the numerical
results. It is in the nature of drug testing that test results can
sometimes require interpretation by the administering scientists, and
the 2003 survey presented a few such instances. Yet, literally within
hours of receipt of the test results as delivered by the laboratory,
both parties agreed, and then promptly announced, that somewhere
between 5 and 7 percent of the tests--not of the players, but of the
tests -were positive.
Under the agreement we reached, this result means that, starting in
2004, all Players will be tested on an unannounced, identified basis
for the unlawful use of steroids, without any requirement that cause
related to the individual to be tested be shown. But, just as the 2003
survey was decried as illegitimate while being undertaken, the 2004
programmatic testing is already being criticized before the first test
has even been conducted. Much of the criticism may be simply
uninformed; in other cases it proceeds from dissatisfaction with this
or that provision of our agreement.
A Player who tests positive will be evaluated by the joint Health
Policy Advisory Committee (HPAC). After that evaluation, HPAC will
prescribe a Treatment Program for the Player, which can subject him to
further testing. The Player is then subject to the progressive
discipline set forth in the Basic Agreement, which calls for increased
levels of suspensions without pay, or substantial fines, for any
subsequent positive test result, or violation of his Treatment Program.
For example, a second positive can result in a suspension of 15 days,
which in an average case will result in the loss of almost $200,000. It
also should be understood that positive tests triggering the increased
levels of discipline could be tests required by the Treatment Program,
and not merely the next round of testing for the bargaining unit.
Moreover, Players are always subject to for-cause testing, in
addition to the suspicionless testing now in place. If any Club or
central office official has information that gives him reason to
believe a Player is unlawfully using steroids, it can refer the matter
to HPAC, which may order diagnostic testing if it believes it
appropriate to do so. If HPAC determines the claim has merit, it can
prescribe a Treatment Program, and, as noted, that Program may include
further testing.
The Agreement we made is fair, carefully constructed, and balances
important interests on both sides. It was agreed to by the Association
after a full airing of the problem, various possible remedies, and the
risks and benefits of each approach. Every Player had ample opportunity
to voice his views on all sides of the issue.
We believe the program has worked, is working, and will continue to
do so. We recognize, however, that it is the passage of time, and only
that, which will tell us whether our program represents a meaningful
and appropriate response to the unlawful use of anabolic steroids in
the sport. If it does not, the labor law provides avenues to address
any shortcomings.
It is easy, I submit, for someone outside of baseball, or any other
sport for that matter, to criticize our agreement. There seems to be a
notion on the part of some that any ``clean'' player should be willing
to be tested at any time or place or in any manner and frequency an
employer or third party might choose. And, the argument continues, the
failure to advocate that approach evidences a lack of concern for the
health of the player, or appropriate concern for the well-being of any
youngster who may seek to emulate the player.
Such arguments gloss over other interests at stake worthy of
attention. While it sometimes seems as if such considerations get lost
in the ever louder discussion, each of us has an interest in preventing
unwarranted invasions of privacy. Every one of us has an interest in
making sure we do not turn on its head the fundamental precept that
people are innocent until proven guilty, not the other way around.
Moreover, those who agree to voluntarily participate in a testing
program, especially those in the public eye, are entitled to some
expectation of privacy and confidentiality. Such interests are worthy
of protection, even in the workplace; even in the workplace of
professional athletes.
Under the National Labor Relations Act the negotiation of terms and
conditions of employment is committed to good faith collective
bargaining between employers and the organizations selected by and
representing employees. The agreement reached in September, 2002, is a
product of that process. (As I indicated to you twenty months ago, this
issue was discussed and debated by and with the players on every club
in the several weeks following my appearance here.) We continue to
believe that collective bargaining is the appropriate forum for
consideration and resolution of these issues. One of the premises of
our labor laws is that solutions devised by the parties in the
workplace are more likely to be workable and enduring, precisely
because forged by those parties, rather than by others outside that
relationship, no matter how well intentioned they may be. Though many
question our choices, the Association exists, in part, to protect and
defend those we represent against assertions of power over the players
as a group, or individually, and to act in a manner consistent with a
variety of their interests. It is our charge under the law, and we take
it very seriously.
But I can hear the shouts now: ``Baseball is different.'' Because
major league baseball players are highly paid, or because baseball is
part of the fabric of life in this country, talk about basic American
principles, including free collective bargaining, is considered
inappropriate, or misplaced, or simply glossed over, because ``baseball
is different.'' I do not decry such notions, because I recognize what
prompts them, a deep affection for the game itself. So, let me conclude
with a couple of observations.
First, we share, with the owners and the fans, the goal of a game
free of the unlawful use of drugs, but we believe this goal not only
can be, but must be, attained with proper respect, not just for the
game, but for the players as well. Now a society goes about fulfilling
its aspirations may say more about it than the aspirations themselves.
Second, and finally, love it as many fans, owners, and members of
this Congress do, after representing major league players for nearly 27
years, I can say without reservation that no one cares more deeply
about the game than those who play it. Yes, some fans, some owners,
some members of Congress, may care as much about baseball as those who
have devoted their lives to playing it. But not one cares an ounce
more.
I will be pleased to try to answer any questions.
The Chairman. Thank you very much, Mr. Fehr. I probably
don't disagree with anything that you said. I'd like to refer
you to negotiations between the owners and players in 2002 with
respect to a drug-testing policy. John Walters, the director of
the White House Office of National Drug Control Policy, said,
quote, ``This seems to be a situation where the crucial
parties, the players, and the owners don't seem to want to take
responsibility for the part they have to play. There's a way to
handle this problem that's been proven, that works, and that's
drug testing, serious drug testing. If you don't want to
address it now, you'll have to address it later. And if you
don't address it now or later, the sport becomes a fraud.''
We're here today because the sport is about to become a
fraud in the minds of the American people. You have a serious
public relations problem here.
Commissioner Selig, would you commit today to revisit the
2002 Collective Bargaining Agreement for the purpose of
adopting a drug-testing policy that is at least as stringent as
the NFL policy?
Mr. Selig. I'd like to read my--Mr. Chairman, I'd like to
read my statement first.
The Chairman. Would you answer that question first?
Mr. Selig. The answer is yes. But I would now like to read
my statement. Yes.
The Chairman. Yes, sir.
Mr. Selig. Yes.
The Chairman. I'm sorry. I apologize for----
Mr. Selig. OK.
The Chairman.--interrupting you.
Mr. Selig. The answer is, unequivocally, yes.
STATEMENT OF ALLAN H. SELIG, COMMISSIONER,
MAJOR LEAGUE BASEBALL
Mr. Selig. Thank you, Mr. Chairman.
One of my primary policy objectives, as the commissioner of
baseball, is to eliminate the use of performance-enhancing
substances in our great game. I'm committed to the idea that
baseball must have a program on performance-enhancing
substances that is consistent with accepted international
standards for sports, so that we can remove the cloud that,
fairly or unfairly, has been cast over our sport and its
athletes.
My commitment on this issue is longstanding. In 1999, long
before BALCO or the well-publicized allegations of steroid use
by former players, I convened a meeting of my senior staff,
respected experts, and team physicians to discuss the issue of
performance-enhancing substances and to develop a strategic
approach for dealing with that issue.
Over a period of a few weeks, we developed and began to
implement a four-point strategic plan. First, we felt it was
important to eliminate steroid use before players reached the
major leagues. Because we do not have a collective bargaining
obligation in the minor leagues, I was able quickly to develop
and implement, unilaterally, in the spring of 2001, the first
ever minor league drug policy. That policy has been amended and
updated each year. In its present form, it is consistent with
the highest international standards, and I hope to have a
similar policy in the major leagues.
The key features of the minor league policy include a
comprehensive ban on all performance-enhancing substances,
including steroids; year-around, unannounced random testing of
minor league players; immediate 15-game suspensions without pay
for first-time offenders, and escalating discipline thereafter;
a strict liability approach under which athletes are held
accountable for any substance found in their bodies, regardless
of the intent or the source. Last year, we conducted nearly
5,000 tests in the minor leagues.
Second, we committed ourselves to a comprehensive
educational program on performance-enhancing substances. As we
speak, baseball's medical experts are engaged in a tour of all
30 spring-training camps to meet with players and explain the
serious health issues associated with the use of performance-
enhancing substances. This spring, in conjunction with the
Partnership for a Drug Free America, major league baseball will
produce two public-service announcements that will air on our
national broadcast and will be made available to all 30 clubs
for use in their local market. These spots explain the dangers
of performance-enhancing substances, especially to young
people.
Third, we decided to become active supporters of
legislative efforts to increase the regulation of performance-
enhancing substances masquerading as so-called nutritional
supplements. Just this past week, Congressman John Sweeney, of
course, who was here this morning, conducted a press conference
at my office in New York to publicize the introduction of
legislation to regulate precursors, such as andro, and designer
steroids, such as THG. We have supported the Hatch-Biden bill,
which also regulates precursors and was cosponsored, of course,
by Chairman McCain.
The fourth and most difficult part of our strategy was to
make the problem of performance-enhancing substances a
bargaining priority in our negotiations with the MLBPA. The
MLBPA approached our 2002 negotiation with a longstanding and
deep-rooted philosophical objection to drug testing of any
type. Baseball had to deal with this opposition in an
extraordinarily difficult labor-relations environment. As I'm
sure you will recall, baseball experienced a crippling strike
in 1994 and 1995. As the 2002 negotiation approached, the clubs
were still feeling the economic effects of the strike, and the
mere prospect of bargaining caused a number of Senators,
Congressmen, the media, millions of fans to express grave
concern about the possibility of another work stoppage.
In this difficult environment, the clubs held to their
commitment to address the problem of performance-enhancing
substances. Mr. Angelos, of the Baltimore Orioles, who was a
member of our Labor Negotiating Committee, and who is here with
me today, can attest that the drug testing was probably the
most contentious issue throughout the process. And the new drug
agreement was one of the last issues resolved in the hours of
continuous bargaining before the MLBPA strike deadline in
August 2002.
Ultimately, the agreement we accepted on drugs was a
compromise. We obviously accepted less than we wanted, because,
in my judgment as the commissioner, we had pushed the MLBPA as
far as it would go without a strike. And, equally important,
the clubs, whatever their conviction, were profoundly concerned
about the impact of another strike.
Compromise or not, the new joint drug agreement is an
important step forward on the issue of performance-enhancing
substances. Baseball administered over 1,400 random drug tests
in the major leagues last year, and we'll administer a similar
number this year. There is anecdotal evidence that the testing
has had the desired prophylactic effect. Going forward, players
will be subject to suspensions without pay that will impose
tremendous economic penalty.
As important as this step is, I realize we have much work
to do. We need more frequent and year-around testing of
players. We need immediate penalties for those caught using
illegal substances. We need a program that bans all
performance-enhancing substances, regardless whether the
substances are categorized as steroids or nutritional
supplements. We need a program that will meet accepted
international standards and allow for the continued
internationalization of the game.
The MLBPA has been made aware of our desire to strengthen
the joint drug agreement to address growing concerns about
performance-enhancing substances. It goes without saying that
this issue will be a priority in our next negotiation. But I
understand the need to act now, without sacrificing the rights
and protections secured by the MLBPA in the last agreement.
It is imperative that the MLPBA leadership and the players
join me in a cooperative effort to restore the faith of the
fans in our game and its great players.
Thank you very much.
[The prepared statement of Mr. Selig follows:]
Prepared Statement of Allan H. Selig, Commissioner,
Major League Baseball
One of my primary policy objectives as the Commissioner of Baseball
is to eliminate the use of performance-enhancing substances in our
great game. I am committed to the idea that Baseball must have a
program on performance-enhancing substances that is consistent with
accepted international standards for sport so that we can remove the
cloud, that fairly or unfairly, has been cast over our sport and its
athletes.
My commitment on this issue is long-standing. In 1999, long before
BALCO or the well-publicized allegations of steroid use by former
players, I convened a meeting of my senior staff, respected experts and
team physicians to discuss the issue of performance-enhancing
substances and to develop a strategic approach for dealing with that
issue. Over a period of a few weeks, we developed and began to
implement a four-point strategic plan.
First, we felt it was important to eliminate steroid use before
players reach the Major Leagues. Because we do not have a collective
bargaining obligation in the minor leagues, I was able quickly to
develop and implement unilaterally in the spring of 2001, the first
ever minor league drug policy. That policy has been amended and updated
each year. In its present form, it is consistent with the highest
international standards and I hope to have a similar policy in the
Major Leagues.
The key features of the minor league policy include:
A comprehensive ban on all performance-enhancing substances
including steroids, stimulants, ephedra, precursors, masking
agents, and diuretics.
Year-round unannounced random testing of minor league
players.
Immediate fifteen (15) game suspensions without pay for
first time offenders and escalating discipline thereafter.
A strict liability approach under which athletes are held
accountable for any substance found in their bodies regardless
of intent or the source.
Last year, we conducted nearly 5,000 tests in the minor leagues and
the program is being expanded to cover the Dominican and Venezuelan
summer leagues this year.
Second, we committed ourselves to a comprehensive educational
program on performance-enhancing substances. At my direction, we
assembled an outstanding group of medical professionals to supervise
our program. As we speak, those professionals are engaged in a tour of
all thirty spring training camps to meet with players and explain the
serious health issues associated with the use of performance-enhancing
substances. This spring, Major League Baseball and the Partnership for
a Drug Free America have agreed to conduct a campaign to alert young
people to the dangers of steroids through Public Service commercials to
be aired during this season on both national and local telecasts of
Major League games. An important component of our annual Rookie Career
Development Program, conducted jointly with the Players Association, is
an educational session on the dangers of performance-enhancing
substances. And, we have partnered with the Center For Drug Free Sport
to provide our minor league players with access to a 24-hour a day, 7-
day a week 800 number that deals with questions on performance-
enhancing substances.
Third, we decided to become active supporters of legislative
efforts to increase the regulation of performance-enhancing substances
masquerading as so called ``nutritional supplements.'' Just this week,
Congressman John Sweeney conducted a press conference at my office in
New York to publicize the introduction of legislation to regulate
precursors such as androstenedione and designer steroids such as THG.
We have also supported the Hatch Biden Bill, which is similar
legislation co-sponsored by Chairman McCain, as well as legislative and
administrative efforts to ban ephedra. More generally, Major League
Baseball has advocated a wholesale overhaul of the Dietary Supplement
Health and Education Act so as to create a more active role for the
Federal government in protecting the American consumer, and
particularly the youth of America, from dangerous products sold as
nutritional supplements.
The fourth and most difficult part of our strategy was to make the
problem of performance-enhancing substances a bargaining priority in
our negotiations with the Major League Baseball Players Association
(``MLBPA''). The MLBPA approached our 2002 negotiations with a long-
standing, deep-rooted philosophical objection to drug testing of any
type. Baseball had to deal with this opposition in an extraordinarily
difficult labor relations environment. As I am sure you will recall,
Baseball experienced a crippling strike in 1994--1995 during which I
appeared before Congress on a number of occasions to address concerns
about our private labor dispute and the on-going player strike. As the
2002 negotiations approached, the Clubs were still feeling the economic
effects of the strike and the mere prospect of bargaining caused a
number of Senators, Congresspersons, the media and millions of fans to
express grave concern about the possibility of another work stoppage.
In fact, I testified in hearings before the Subcommittee on Anti-trust
of the Senate Judiciary Committee on November 21, 2000 and before the
Committee on the Judiciary of the House of Representatives on December
6, 2001.
In this difficult environment, the Clubs held to their commitment
to address the problem of performance-enhancing substances. One of the
first written proposals made by the Clubs in the winter of 2002 was on
drug testing. The topic was probably the most contentious issue
throughout the process, and the new drug agreement was one of the last
issues resolved in the hours of continuous bargaining before the MLBPA
strike deadline in August of 2002.
Ultimately, the agreement we accepted on drugs was a compromise. We
accepted less than we wanted because, in my judgment as the
Commissioner, we had pushed the MLBPA as far as it would go without a
strike and, equally important, the Clubs, whatever their convictions,
were profoundly concerned about the impact of another strike.
Compromise or not, the new joint drug agreement is an important
step forward on the issue of performance-enhancing substances. The
MLBPA abandoned its complete opposition to random testing. Baseball
administered over fourteen hundred random drug tests in the Major
Leagues last year and will administer a similar number this year. There
is anecdotal evidence that the testing has had the desired prophylactic
effect. Going forward, players will be subject to suspensions without
pay that will impose tremendous economic penalties. And, if our
legislative efforts on precursors and designer steroids are effective,
such substances will automatically be added to our banned list.
As important as this step is, I realize that we have work to do. We
need more frequent and year-round testing of players. We need immediate
penalties for those caught using illegal substances. We need a program
that bans all performance-enhancing substances regardless of whether
the substances are categorized as steroids or nutritional supplements.
We need a program that will meet accepted international standards and
allow for the continued internationalization of our game.
The MLBPA is well-aware of our desire to strengthen the Joint Drug
Agreement to address growing concerns about performance-enhancing
substances. It goes without saying that this issue will be a priority
in our next negotiations. But I understand the need to act now and we
have suggested to the MLBPA a number of creative ways for the
institution to move forward immediately, and without sacrificing the
rights and protections secured by the MLBPA in the last agreement. I am
hopeful that the MLBPA leadership and the players will join me in a
cooperative effort to restore the faith of the fans in our game and its
great players.
The Chairman. Thank you very much, Commissioner. And I
apologize for short-circuiting you there.
Mr. Selig. It's all right.
The Chairman. But in response to my question, you are
prepared to revisit the 2002 collective bargaining agreement
for the purpose of adopting a drug-testing policy that is at
least as stringent as the NFL policy? You're prepared to do
that?
Mr. Selig. I would like to use our minor league policy,
which I believe I just articulated, Mr. Chairman. But the
answer to you is, unequivocally, yes.
The Chairman. Mr. Fehr, I'd like to ask you the same
question. Are you prepared to revisit, immediately, the 2002
collective bargaining agreement, with the owners, for the
purposes of adopting a drug-testing policy that is at least as
stringent as the NFL policy?
Mr. Fehr. Let me say a number of things in response to
that, Mr. Chairman. First of all----
The Chairman. You might start out with yes or no.
Mr. Fehr. Mr. Chairman, the agreement that we now have
contains provisions for ongoing review. Those'll be done.
Second, if commissioner and the clubs have ideas that they
want to broach with us, that they would like us to consider.
All parties are obviously free to do that, and we will be
pleased to entertain what they have to say.
Third, I do not now, nor have I ever, predetermined or made
prejudgments as to the results of discussions.
Fourth, I agree with the commissioner that the program
we've adopted, I think, has had, based on anecdotal evidence to
date, as he just indicated, substantial effect, and I believe
we will see, over the course of this year, much more dramatic
effects.
No one's opposed to having continued discussions. We don't
bargain in public, and we don't predetermine the results of
those discussions.
The Chairman. I don't understand why you wouldn't agree
that a policy as stringent as the NFL's would be a standard
that you wouldn't commit to adhering to.
Mr. Fehr. Mr. Chairman, let me try and respond in the
following way. We believe that things, concepts, principles,
like not being required to prove innocence of something about
which an individual is not suspected, is an important thing. We
don't treat it lightly. We don't treat lightly the notion of
searches without cause.
We have made, I submit, a substantial compromise. If
further compromises are needed, we're certainly willing to talk
about those, and we'll see. I am not prepared, however----
The Chairman. You don't believe that further compromises
are needed?
Mr. Madden, are you familiar with the drug-testing policy
of major league baseball?
Mr. Madden. Sir, I'm no expert. I'm familiar with it.
The Chairman. Do you think it's stringent enough?
Mr. Madden. No, sir. I don't believe it has any of the
elements I described earlier. They don't have out-of-
competition, year-round testing, their list is obviously short.
It has to be an illegal item to be tested for. It just has none
of the elements. It's not a transparent program.
The Chairman. I note that first drug violation for an
Olympic athlete is a two-year ban; for the National Football
League, it's four games without pay; and for major league
baseball, I am informed it's counseling, with pay.
Commissioner Selig, reports indicate, and your testimony
confirms, that there was a fear among the owners, during the
2002 collective bargaining process, that things would break
down and lead to a strike. In fact, a high-ranking official
from your office was quoted as saying, quote, ``When it got
down to the drug-testing issue, we had to decide, `Should we
take a strike for this,' which would have been deadly to the
game.'' He asserted, on one hand, he'd like to see a zero-
tolerance policy with result to drug use in baseball, but the
issue was treated as nothing more than a bargaining chip at the
end of your collective bargaining, and ceded to the Players
Union, for fear of a strike.
Mr. Selig. Well, Senator McCain, what happened--there's a
lot of history here. We, obviously, had dealt with the problem.
We had instituted this problem in the minor leagues. We had
begun the educational program. We had done all the other
things. The industry and many of its member clubs were,
frankly, in a weakened state, and I was concerned about that.
When we got down to the wee hours of the morning, and it was
obvious that we were not going to get the kind of drug program
that I had hoped to get, I had to make a judgment. This was a
compromise, it was not--it did not reflect, at all, using this
as a chip. On the contrary, we just felt that, at that time,
given the pressure on us from many places, including
Washington, to not to have a work stoppage, that I felt, at
that point, that it was time to move on. And hopefully we can
make that look good by making the necessary adjustments now
that we have to make.
The Chairman. Mr. Upshaw, recently Mr. Orza said, ``Let's
assume steroids are a very bad thing to''--Mr. Orza is the
chief operating officer of major league baseball--quote,
``Let's assume steroids are a very bad thing to take. I have no
doubt that they are not worse than cigarettes.'' I'd like you
to comment on that. And, Mr. Orza was asked--when referring to
the harmony that the NFL enjoys with its Players Association,
Mr. Orza stated, quote, ``Some other unions do it differently,
but they value peace more than justice, in my estimation.''
Would you like to respond to those two statements by Mr. Orza?
And the reason why I ask that, Mr. Upshaw, is because it
indicates a certain contempt that is really remarkable.
Mr. Upshaw. Well, I would first start by saying I was
present when he made those comments, and I know why he made
them, but I don't agree with them. I believe, in our sport, our
players were the leaders in this area. They demanded that we
get it out of football, period, end of discussion. ``We want
zero tolerance. We don't want it in the game. We're not
concerned about privacy. We're not concerned about search and
seizure. I know the guy over there is using it, and I want it
out of the game.'' And that's what we did.
But we were also doing it in a way that was very, very
comprehensive. We wanted testing that was random. We wanted it
year round. We wanted confidentiality. We felt that was
important. We wanted education. And we wanted penalties. And
together with the NFL, we worked out a program that we feel at
least we're addressing the issue in a way that it helps our
players, and we're making the right examples for the youth that
are watching what we do. And it gets right to what makes our
game what it is, the integrity of the game. And that's the real
reason.
The Chairman. Thank you very much, Mr. Upshaw.
Mr. Fehr and Mr. Selig, all I can say to you is, this issue
has reached the level where the President of the United States
discusses it at a State of the Union message to the American
people. Your failure to commit to addressing this issue
straight on and immediately will motivate this Committee to
search for legislative remedies. I don't know what they are,
but I can tell you and your players that you represent the
status quo is not acceptable. And we will have to act in some
way, unless the players at Major League Players Association
acts in affirmative and rapid fashion, and I very, very, very
much regret to say that, because I don't think we have any
business doing it.
But as all Members have stated here, the integrity of the
sport, and the American people, demand a certain level of
adherence and standards that, frankly, is not being met at this
time. And, again, I regret to say that, and I say it with all
respect to both you and the Commissioner.
And I'll be glad to hear a response from you, or move to
the next Senator.
Mr. Selig. Well, from my standpoint and the club's
standpoint, Mr. Chairman, I agree with that. This is a problem
that needs to be addressed for a number of reasons, a myriad of
reasons. And as I said in my prepared remarks, it needs to be
addressed now. I think there are health reasons, there are
competitive issues, and I'm very hopeful that we can address
the problem very expeditiously. And I, frankly, can't disagree
with anything you just said.
The Chairman. Mr. Fehr?
Mr. Fehr. Well, just very briefly, let me say again there
are provisions in the agreement that call for periodic review.
We'll certainly honor those. We're certainly willing to sit
down and discuss any new and different ideas and to look at
matters in light of new information.
I believe that the program that we instituted has had some
effect, and I believe that over the course of this year, even
if no modifications are made, that will be borne out. It'll be
a matter of empirical knowledge. We won't have to guess about
it. If it's not, that, in and of itself, would suggest that the
fundamental premise that it works is wrong.
The Chairman. Thank you, sir. Thank you for appearing
today, and we hope you get well soon.
Mr. Fehr. Thank you, Mr. Chairman.
The Chairman. Senator Dorgan?
Senator Dorgan. Mr. Chairman, let me say that I'm
profoundly disappointed at the news that in the last couple of
years we've made very little progress. I think this testing
program is a baby-step. Perhaps a baby step in the right
direction, but as the Chairman indicated, you can be found in
baseball today, through this testing program, taking steroids,
and you don't miss a game, as I understand it. I mean, you get
counseling. I don't--I just don't understand why there has been
so little progress, and let me ask a couple of questions.
First of all, Mr. Commissioner, did you propose, in the
collective bargaining process, the type of rigorous testing
program that you have imposed in the minor leagues? Did you
propose that in your bargaining with the Players Union?
Mr. Selig. The answer, Senator Dorgan, is yes, we did. It
was probably, if not the most--well, I think it was the most
contentious issue, and, in fact, I think Mr. Angelos, as I said
in my prepared remarks today, would certainly agree with that.
There was a lot of emotion, there was a lot of intensity. And
the answer to your question is, we knew then, and I knew,
Senator Dorgan, from having talked to a lot of the team doctors
and many medical people, we need a policy like we have in the
minor leagues. And so the answer to your question is yes, we--
--
Senator Dorgan. So you proposed a policy of the type you
have in the minor leagues or of the type they have in the NBA
or the NFL. At this point, let me ask Mr. Fehr a question.
Mr. McCain asked you a question two years ago in the
hearing. He said, ``Can you assure this Committee this will be
a very, very important item of discussion?''--talking about
drug testing. And you said, ``I have no hesitancy about doing
that, for two reasons, one of which is, the players are going
to insist on it.''
Here's a USA Today poll that says ``79 percent of the
players want drug testing.'' Now, I would ask, Did you consult
with the players? And if 79 percent, 80 percent of the players
want drug testing, how do we end up with a testing program that
provides no penalties, that is occasional, and that resembles--
has no resemblance at all to the NFL or the NBA or others? I
don't understand how this happens.
Mr. Fehr. A couple of things. First of all, the laws
provide that each bargaining unit and the employers in that
industry bargain with respect to that industry, and that's what
we do. That's what every organization does. Second, when I left
here after that hearing, in June, I met, over the next 6 weeks,
more or less, with every team, individually, for hours. All
issues in collective bargaining were discussed. The issue of
steroids, in general, and what testing program should be
negotiated and what should be the elements, in particular, was
discussed at significant length in every meeting.
What came out of that was a position to say, OK, we have
long held the view that there should not be testing without
cause. We have had testing where cause can be shown, for two
decades, but that we would recede from that. We'll take a
survey and find out if this is right. That's what we did. The
results came back. We have----
Senator Dorgan. Can you share that survey?
Mr. Fehr.--receded from that position.
Senator Dorgan. Would you share the results of that survey
with this Committee? You said you took a survey. Is that----
Mr. Fehr. Sure, that was the survey test that was done in
2003. That's been publicly announced, that I referred to in my
earlier testimony.
Senator Dorgan. Now, let me--you mentioned suspicion-less
testing. And as you did, Mr. Fehr, I'm thinking to myself, Have
you just missed most of what I've been reading and most of what
America has been reading that causes us to believe there's a
serious problem? There is a major and growing problem. We all
understand that. So the discussion about testing is not about
suspicion-less testing, in my judgment.
And let me make another point. You said to us about
privacy, ``This is an issue about privacy.'' And you said,
``We, as''--you didn't quite say it this way--``We, as public
officials, that know about the issue of privacy.'' And we do.
No question about that. The standard is generally that if what
you do in private doesn't affect your public performance, it's
private. But in baseball, in athletics, the taking of steroids
in private is designed specifically to affect your performance
in public. Specifically for that. There cannot possibly be a
privacy issue here, in my judgment.
And so with respect to suspicion-less testing or privacy
issues, I just don't understand it. I think, it seems to me,
that it is in the interest of every baseball player in this
country. And I might reference Curt Schilling, for whom I have
great admiration. A few of them are speaking out, saying, ``We
want testing. We don't want this cloud of suspicion hanging
over our wonderful sport.'' I just don't understand why this is
even part of collective bargaining. With this cloud of
suspicion, the answer ought to be, ``Absolutely, let's have
testing, remove this cloud and get back to playing baseball and
not talking about banned substances and taking of steroids.''
Mr. Fehr. Two or three things. First of all, the privacy
issue essentially comes about not in the way you suggest. The
general philosophical principle, if you will, that I've alluded
to a couple of years ago, and I allude to now, is this. If I
have no reason to suspect you, as an individual, of having done
anything--I have no reason to suspect that, no evidence, no
circumstances which would suggest that something is there--as
an individual, then it's not up to me to make accusations, and
it's not up to me to ask you to prove yourself innocent, and
it's not up to me to do a search of your body or your house or
your telephone records or anything else that you have.
Where you have cause, of course, that changes. In the
Fourth Amendment context, when we're dealing with the
government, we usually refer to it as probable cause. That's
the context of that issue. That's an important American value.
And we ought not to lose sight of it, I suspect.
Second, what happened was that notwithstanding that long-
held and deeply felt belief--that if you have cause, you should
test; and otherwise, not; and we have had testing for cause for
a long time--then what the players agreed to was to recede from
that if evidence of the problem can be demonstrated. We did the
test. We found out empirically. We receded from it. And testing
without cause is now commencing.
Senator Dorgan. Mr. Fehr, my time is about expired, but I
think--first of all, all of you have common interest in the
success of sports and the exhibition of these wonderful
athletes who make a living playing football or basketball or
baseball. I must say that I think it will serve the interest of
the athletes, serve the interest of sport in this country for
all us to recognize there is a very significant problem.
There is a book titled ``The Tipping Point.'' And I must
say that we've reached a tipping point on this issue. There's
no going back. We've got a problem. And it seems to me the
owners and the players must solve it.
You said, two years ago, this must be solved by baseball.
You said that--if I may conclude--that this has to be solved
within baseball. Well, the difficulty with that is, if, in the
collective bargaining process in baseball, they're trying to
impose a system that exists in the minor leagues and in many
other of the major league sports, and you're saying no, it's
not going to get solved. It's only going to get solved, in my
judgment, when the players understand it's in their interest to
solve it. If 80 percent of them believe that, then that ought
to be reflected in the policies of baseball, with respect to
testing for steroids and banned substances. And I regret that
it's not. And I think the quicker you get to that point, the
quicker you put this behind you.
Mr. Chairman, thank you.
The Chairman. Senator Allen?
Senator Allen. Thank you, Mr. Chairman.
Let me first address you, Mr. Fehr. You heard the testimony
of Gene Upshaw, former football player, who has the perspective
of the love of the game, who also played the game, understands
how important that is for the players. And in it he talked
about the integrity of the game, the health of the players, and
the message that there should not be any shortcuts to success,
which is important for young people.
Baseball's a different sport than football, and there's not
the contact and the hitting, so speed matters, and running the
bases, and hand and eye coordination is very important, but
it's not a collision sport and a contact sport, as is football.
But would you agree in these principles that Mr. Upshaw
enunciated and espoused, and would you not also agree that
using steroids or these substances does--it can--can disrupt
the natural competitive balance of sports? Your sport, in
particular, of baseball, that you represent the players?
Mr. Fehr. First of all, I've known Gene for--Gene Upshaw
for a very long time, probably a quarter of a century. We have
had, and I suspect always will have, an extremely good and
respectful relationship. He understands, as I do, that his job
is to represent his players within the confines of whatever
collective bargaining arises in his sport, as it is mine in
mine.
Second, there is no question, as I said before, as I said
in 2002, that the use of unlawful steroids or the unlawful use
of any substances is inappropriate and ought not to be
permitted. There are two questions which flow from that. The
first one is, If that's true, what is the appropriate way to go
about doing it, and what principles are important enough to be
considered and looked at, given the nature of the problem, the
circumstances present, and anything else which is relevant to
the issue? The second thing you look at is the public policy of
the United States.
Now, let me focus on androstenedione for a moment. I am
certainly not a doctor, I'm not a research biologist, I don't
have that background; nor do I work day to day on this program
in baseball, as Mr. Selig will tell you, that's primarily----
Senator Allen. If you could, speed up your answer. We have
5 minutes, and----
Mr. Fehr. All right. It is--well, go ahead.
Senator Allen. Well----
Mr. Fehr. Androstenedione has been demonstrated, I think,
by the research that I have been made aware of, to be bad, but
particularly bad in connection with children. It ought not to
be used by anyone. It is legal to be used by them and to be
purchased by them. That's a decision that was made here.
Senator Allen. All right, but I'm going to--because we're
short--I understand, and I understood the----
Mr. Fehr. I apologize for the length.
Senator Allen. No, that's OK, because you made the point
that--gosh, if something's so awful, don't allow regular
citizens, non-athletes, non-professional athletes, to use it.
But if you'd just look, it's such a stark difference in
attitude, where, in my view--you bring up the Fourth Amendment
and the privacy rights and so forth, but you do have a
responsibility, a contractual responsibility as a player to
that team franchise, to the business that is organized as a
league, as well as one that is an ethical one. You look at the
situation in NFL, and, as Mr. Upshaw said--look, they didn't
wait around for the government to fiddle around and go through
hearings and debates and procedures and committees to figure
out what to do with ephedra. They stopped it. They saw it as a
problem. They didn't wait for the government to do it.
Your approach, unfortunately, seems to be a completely
different one. And I understand, for minor league baseball, as
far as the Commissioner is concerned, that it is--you're not
under the collective bargaining agreement, understand what you
would like to see done.
Now, let me ask you this. In listening to Mr. Upshaw and
Commissioner Tagliabue, but particularly Mr. Upshaw, he said
the players wanted this to be done. Why can you not allow, for
example--this may be a solution--all the players in major
league baseball to vote on whether they want to have a
program--maybe it's like minor league baseball or something
commensurate with the NFL Players--or the NFL agreement? Why
not allow the players, who do want to play, who want to make
those contracts--they earn it, it's a short time--I make no
apologies or--I make no criticism of any athlete to get what he
or she can get in the marketplace; that's free market, and
owners and leagues make a lot of money off these TV contracts--
but the point is, why not let them vote on this so that no one
is getting that competitive advantage over them with these
substances?
Mr. Fehr. The players approve of every position that we
take in bargaining in the overall collective bargaining
agreements that we reach. We couldn't reach them otherwise.
Senator Smith. Well, do you let the players vote? All the
players? Or just player reps?
Mr. Fehr. No, all the players vote to ratify the
agreements.
Senator Smith. Fine. But could you let them vote on the
specific issue of random drug testing, following the principles
that Mr. Madden talked--which are logical principles of drug
testing.
Mr. Fehr. We don't submit to a vote--ideas in the abstract.
It comes up in the connection with bargaining. But let me
assure you, Senator, that the notion that somehow the players
are divorced from the union that represents them is simply
wrong.
Senator Smith. How can you figure that the NFL players have
such a view for the integrity of the game, for their own
health, and also caring a great deal about the message it sends
to young people, who they want to keep the game going in future
generations, how can there be such a divergence in that ethical
or that sentiment of the players in major league baseball from
what you find in the NFL?
Mr. Fehr. I don't speak to NFL players, Senator. I
understand that, you know, you're right to a certain extent,
football is a contact sport, and mass times velocity--or mass
times acceleration equals force. They made the judgments in
their collective bargaining relationship they believed were the
appropriate ones to make. Players in baseball did also. If that
mindset changes in the players, they will change. If, in
discussions we have, either in the short term or the long term,
suggest otherwise, that will change. If it turns out that the
program we've put into place does not have the effect that we
thought it would, if the incidence of use does not fall
dramatically, as I expect it will, then that would suggest
we've been wrong, and we'll go and do something else.
Senator Allen. My time is up. I have a lot more questions.
Thank you. Thank you all for appearing.
The Chairman. Senator Breaux?
Senator Breaux. Thank you, Mr. Chairman. And thank all of
the panel witnesses.
Mr. Fehr, do you think that the use of illegal steroids is
cheating?
Mr. Fehr. Yes.
Senator Breaux. Do you think that employers have the right
to do random, unannounced testing of players that they employ?
Mr. Fehr. In a non-union situation, management has the
right to impose whatever it wants to. In a bargaining
situation, all terms and conditions have to be bargained. The
employees have an opportunity to participate in that. That's
what unions are all about. That's why we have the labor laws.
Senator Breaux. Is the position of your union to support
the random, unannounced testing of your members?
Mr. Fehr. The position of this union is that we made an
agreement which provided, last year on a survey basis, and
going forward this year, and into the future, that there would
be random, unannounced testing of the players. That will take
place.
Senator Breaux. Is there a limitation on how often it can
be--they can be tested under the random system you now support?
Mr. Fehr. Yes. There's a limitation in the current--there
is a limitation in the current agreement, for random. There is
no limitation for for-cause.
Senator Breaux. There's no limitation what? I'm sorry.
Mr. Fehr. For for-cause testing. So that, for example------
Senator Breaux: Yes, I understand that. But what's the
limit on how often you can do the random testing?
Mr. Fehr. It would be done at an undetermined time, and it
will be different for everybody. It'll go on from the beginning
of the season to the end----
Senator Breaux. But how many times could a player----
Mr. Fehr.--of the season. Once per year.
Senator Breaux.--be tested? I'm sorry?
Mr. Fehr. It's once per year, although the test is of two
parts, separated----
Senator Breaux. So a player knows that he could be tested
only once in an entire year?
Mr. Fehr. Unless there's cause, under this agreement.
Senator Breaux. Oh, well, sure if there's cause. My, God,
he got his hand in the cookie jar; I would hope so.
What is the difference, Mr. Madden, between the NFL testing
program and the baseball testing program? I think the Chairman
went into that, but what would the baseball program have to do
different in their testing to achieve what the NFL has
accomplished?
Mr. Madden. Not being an expert in either program, they'd
need to do year-round, out-of-competition, no-notice testing.
They'd have to have significantly more serious sanctions.
They'd have to be transparent, announcing a ballplayer, when he
does test positive and they go through their adjudication
procedures. And they'd need to test for a complete list of
prohibited substances.
Senator Breaux. Mr. Fehr, the President--thank you, Mr.
Madden--the President has called for a summit, I think, of the
leaders of all of the major sports leagues. The stories that I
have read is that major league baseball is the only one that
has resisted participating in that summit, for the reason, in
the press reports, that you feel it's a collective bargaining
matter and shouldn't be the proper subject of a summit. I mean,
how can you, as representing something that is truly a national
sport, with all of the national attention given to this, say,
``Look, we're so insular that we're going to not acknowledge
that we have a responsibility to the public, to even
participate in a public summit called by the President of the
United States?''
Mr. Fehr. Mr. Chairman--or, sorry, Mr. Senator, there was
one article to that effect. I believe it was a Washington----
Senator Breaux. And is that correct----
Mr. Fehr.--Post article.
Senator Breaux.--or not correct?
Mr. Fehr. I will explain. That article contained a specific
quote from Gene Orza, saying he couldn't imagine the
circumstances under which we would not participate. What we
know about a proposed summit of the representatives of all the
leagues comes from a representative of major league baseball on
the Hill. That's what we know.
Senator Breaux. Well, you all have not been contacted by
anybody----
Mr. Fehr. I've not been contacted----
Senator Breaux.--in the Administration at all?
Mr. Fehr.--by anybody at the White House or the Executive
Department with respect to attending a meeting of that type.
Senator Breaux. OK. Suppose you got an invitation from the
President to attend, with the other major league sports
representatives, a White House summit. Would you do so, without
setting out any preconditions about even attending a summit on
this issue?
Mr. Fehr. I expect so, sure.
Senator Breaux. The answer would be yes?
Mr. Fehr. Uh-huh.
Senator Breaux. Uh-huh?
Mr. Fehr. Yes.
Senator Breaux. OK. It's hard to write the ``uh-huh'' down.
Mr. Fehr. I'm sorry. As I indicated before, if my voice
drops, I apologize.
Senator Breaux. Do you think that it is appropriate for an
employer to punish an individual employee if the random test
shows a positive report on the use of illegal drugs?
Mr. Fehr. Yes, consistent with two things, one of which is
principles of just cause, which are traditional in collective
bargaining agreements, and, second would be with any agreements
that were reached as to what the level of discipline would be.
Senator Breaux. So if the collective bargaining agreement
reaches an agreeable standard as to the degree of punishment,
that's acceptable, but not outside----
Mr. Fehr. Oh, of course.
Senator Breaux.--those agreements. Do you think that
baseball has a problem? I mean, I think you've heard, from all
of us up here, that that has pointed to what we perceive to be
a problem that is more unique to baseball with the use of
illegal steroids than in the other professional sports. Do you
think that major league baseball has a problem that is unique,
or do you think that you're not any different from the other
major league public sports in this country?
Mr. Fehr. I'm not personally familiar with the
circumstances of what takes place in the other professional
sports, and I don't want to comment on their situations. That's
up to their representatives.
In baseball, if you will recall 2 years ago, there were
suggestions of use of 85 percent of the players, or very large
numbers. The testing that came back was obviously
disappointing. It was more than 5 percent. That triggered the
unannounced testing that we'll have now, which I expect and
hope will reduce it drastically, if it doesn't eliminate it
altogether. That's about the best way I can answer it, Senator.
Senator Breaux. Thank you.
The Chairman. Senator Sununu?
Senator Sununu. Thank you, Mr. Chairman.
Mr. Fehr, do you believe that the use of a corked bat by a
major league baseball player constitutes cheating?
Mr. Fehr. It's against the rules, sure.
Senator Sununu. Do you think that the Federal Government
should take action to regulate and restrict the production,
sale, and distribution of cork?
Mr. Fehr. I don't know whether they do or not, but, no, I
do not think they should. But the Federal Government does take
action with respect to what substances can be sold lawfully.
Senator Sununu. Mr. Madden, how long have you been involved
in testing for Olympic athletes?
Mr. Madden. Our organization started up in October 2000,
the day after the Sidney games ended.
Senator Sununu. Is testing done for, and do the regulations
that you've worked to enforce, restrict the use of over-the-
counter products, medications, you know, for cold and flu and
other elements that are found in those medications?
Mr. Madden. Yes. You can test positive in certain
situations. The penalties are much more lenient. They run,
basically, a warning, in most sports. So they're much more
lenient for over-the-counter medications. If you're talking the
dietary supplements, which can involve andro being slipped into
the supplement, that, again, would fall under the steroid
category, and that would be an initial two-year ban.
Senator Sununu. So there are significant restrictions put
in place for lawfully sold, over-the-counter products. Just
because something is lawfully sold doesn't mean that the U.S.
Olympic Committee or the International Olympic Committee
advocates that it be allowed to be used in sport.
Mr. Madden. No, sir. It would be a two-year penalty if
you're caught with a steroid in your system.
Senator Sununu. I was struck by the number that Senator
Dorgan put out. I think it came from a newspaper article, and
we don't believe everything we read in the papers, but it
suggested that nearly 80 percent of the players wish to have a
comprehensive system put in place in baseball. That's not the
current situation, as we've heard.
Mr. Fehr, though, for those players that wish to undertake
voluntary tests in order to clear their name, show with
confidence to their public or their fans that they don't use
any performance-enhancing drugs, will the Players Association
interfere or discourage their undertaking of voluntary testing?
Mr. Fehr. First of all, any player in our organization that
wants to say anything is, of course, free to do so. We don't
have any gag rules. Any player that wants to go to a physician
and be tested for anything at a private physician is free to do
so.
Senator Sununu. Mr. Selig, it wasn't clear to me--or I've
heard contradictory things about the knowledge of the timing of
the tests that were administered. To what extent was the timing
of the testing set beforehand?
Mr. Selig. I'm sorry, what time----
Senator Sununu. The timing of the tests. Did the players
know when the tests were going to be administered, or not?
Mr. Selig. No, they did not. It was unannounced, and it
was, as specifically documented here, one time a year. And then
they were done.
Senator Sununu. Well, Mr. Fehr, for those players that are
concerned about being put at a competitive disadvantage, or
being accused falsely, or being tainted by the numbers that
came out in the testing. If, you know, 5 to 7 percent are
testing positive, that casts suspicion on every player.
Fortunately or unfortunately, this does. That's the facts that
we're dealing with. What is the Players Union doing to protect
the interests of those that are concerned about either that
taint or about the competitive disadvantage clean players are
being put at?
Mr. Fehr. What will take place under the current agreement,
as it now is in place, is that this year there will be
unannounced testing, not on a survey basis, on an identified
basis. Anyone who is positive will be identified. He will then
know that he's in--he's been found, I guess is an appropriate
way to put it. I expect that will stop it. To the extent that
that doesn't, you then have the progressive penalties that I
made mention to, and that the Commissioner referred to in his
statement. And I expect that, if there are no changes, that
what you will see over the course of this year is a drastically
reduced incidence of positive tests from what we saw on the
survey last year.
Senator Sununu. And, finally, do you agree with the
statements of Gene Orza that equated the concerns and severity
or risks associated with steroid use with cigarette smoking?
Mr. Fehr. Mr. Chairman, I was--I'm sorry--Senator, I was
not present--I was still home recovering when Gene made those
alleged remarks. What I have been advised was that he was asked
a question something like, ``Shouldn't you prohibit anything
that might be harmful?'' And the response was, ``There's no
doubt at all that tobacco is harmful.'' There's no doubt at all
that over--this is--I'm speaking now--that over the last period
of time, it's been a major public health issue. It's,
nevertheless, lawful, should the employer test for tobacco.
Beyond that, Mr. Orza will have to speak for himself.
Senator Sununu. Well, I think that answer brings us back to
two fundamental points. One is the suggestion that it should
just be a question of banning harmful activities, like taking a
risk in playing off-season basketball, when maybe that's not
best for your career in baseball. Or smoking. Those are one set
of things that might not be healthful to you. And there are
another set of things that are both unhealthy, but also create
a competitive advantage, an inappropriate competitive
advantage, and one that undermines the integrity and the
credibility of the game and the athletes that are participating
in that game. Those are two very different things.
And, second, I will conclude by also underscoring this
distinction that what should be the guide in administering
tests or setting regulations is just what's legal or not legal,
because there are a lot of very legal products, situations that
still might undermine the integrity of the game, might
constitute cheating, and certainly could be used in the right
way to create a performance enhancement that, again, undermines
the credibility and the integrity of the game.
Mr. Fehr. It is one thing, I submit, to suggest that the
debate doesn't end by a statement that something is lawful or
that something is unlawful. It is quite something else, I
believe, to suggest that that should not be considered. And the
question is, Do you consider it? And if so, to what extent? And
how do you go about it?
I would remind you, Senator, in this country--well, let me
go back. I don't remember if you were here at that hearing, but
at the hearing that Senator Dorgan referred to, 2 years ago,
there was an individual here--I believe a coach or a doctor
from someplace in the Southwest, perhaps Arizona--who brought
with him bottles and bottles and bottles and bottles of what
were, under the law, nutritional supplements, which he urged
and pleaded everyone to do something about. And I encouraged
people to do that.
That's a judgment that Congress will make. But when the
Congress says 9-year-olds can walk into a store, and it is
legal for a pharmacist to buy this, then the question becomes
whether it's the role of the labor organization to say to an
individual that you somehow can't do what that child can do. It
doesn't mean that child should be allowed to do it. But that's
not a decision that I make or that my union makes. That's a
decision which is made here.
The Chairman. Could I ask Commissioner Tagliabue to respond
to that question that was asked? Because this is a very
important point here that's being made in this hearing.
Mr. Tagliabue. Yes, I think this is a really fundamental
difference between the way we view this and the way Mr. Fehr is
viewing it. We feel--myself, as the Commissioner, and Mr.
Upshaw, as the Executive Director of the Players Association,
and my constituents, which are owners and coaches, and his
constituents, who are the players--we recognize that we have a
unique universe of individuals, both in terms of what they do,
in terms of physical exertion, playing a game that Senator
Allen has described as a collision sport, and what they
represent, for themselves and to others, and that, to be
specific, they engage in extreme physical activity, not unlike
the military, and we have consulted with the military and the
Department of Defense scientific community on many of these
health issues. Second, it's about integrity of the competition,
as Mr. Upshaw emphasized and Senator Sununu just alluded to.
And also it's the fact that tens of millions of young people
are watching how they compete and whether the game has
integrity.
So when it comes to substances like andro, like ephedra,
like testosterone, and epitestosterone, which appear naturally
in the body, our medical and scientific advice has been,
despite the fact that those may be legal for me or Senator
Allen to take as a weight-loss supplement, for instance, in the
case of ephedra, or his wife or my wife to take as a weight-
loss supplement, it is not safe for an NFL player engaged in
NFL activities to take those substances, so we ban them.
It's part of a broader philosophy that we have where we
have tried--management and the Players Association and the
players--to identify a wide area where we have a common
interest in the medical, health, and safety of our players and
their game. And we view it as a win-win, not as a win-lose.
It's a zero-tolerance, as Gene said, not a zero-sum
negotiation.
And what we have done in this area, we are striving to do
with medical care, generally. There are many, many issues
broadly in the area of medical care, part and parcel of the
healthcare issues that Congress has been dealing with, where
we're trying work together, not as adversaries. So I think it's
a set of fundamentally different premises that underlies our
program.
The final thing I would say is that, alluding to the
question you asked Mr. Upshaw, he is second to nobody when it
comes to employee rights, civil rights, and privacy rights. He
not only heads our union, he's a member of the AFL-CIO
Executive Council. And for someone in another sport, or another
sport union, to have the type of innuendo that you alluded to
earlier is incredibly unfair.
The Chairman. Mr. Upshaw, do you have anything to add in
response to Mr. Sununu's question?
Mr. Upshaw. I would just support what Commissioner
Tagliabue just said. And we might be interested in the labor
peace. We're also interested in justice, and it's not ``just
us.''
The Chairman. Thank you, sir.
Senator Lautenberg?
Senator Lautenberg. Thank you, Mr. Chairman.
And there are two things that I want to bring up very
quickly. One is to reestablish my assertion that baseball was
developed in the state of New Jersey. It was 1846--no, I don't
remember the year, but I read about it--when a game was played
at the Elysian Field, the first organized baseball game, A.
B, is that there was a statement made here that I think was
a little unfair, by a very good friend of mine, about the
position of the Commissioner of baseball, and the gentleman who
sits here and who occupies that. As far as I know, and I know
Bud Selig quite well, and I also know the general arena that
baseball is in. I think that there has been a substantial
enhancement in the interest of the game, and I think that the
permanency of your position ought to be decided by the owners,
as it presently is, and not in a Congressional hearing.
And I would ask you, Mr. Selig, Mr. Fehr said that random
testing is now going to be the routine, and going to be done
regularly, randomly. Hasn't he made, therefore, a declaration
that all's well and that the union is going to--the Players
Union is going to get into the program as has been requested?
Mr. Selig. Well, Senator, thank you for those words. And
I--let me say about this, the reason we entered a deal, I think
has now been articulated. I said I had spent a lot of time
talking to team physicians and others, so I hope the answer to
your question is that we need to revisit this.
The thing I've worried about--that's one thing about this
job, you spend a lot of sleepless nights and wake up a lot in
the middle of the night worrying about things--I worry, quite
candidly, that--I think this problem, as has been described to
me by people who I consider to be medically expert in this
field, is so serious that I don't want someday, long after I'm
done being Commissioner, whenever that is, that people will
say, ``You all knew something about it, and you didn't do
something about it.'' And so I'm not going to rest, quite
frankly, until we've dealt with this problem in a way that I
now think it needs to be dealt with.
Senator Lautenberg. So are you asking just for a more
formal understanding? If Mr. Fehr said, ``OK, we'll put it into
our contract''--and I'm not urging you to do anything except to
observe that you're out of step with a lot of other people here
in the room--would you think that would be satisfactory, the
random testing that Mr. Fehr is----
Mr. Selig. Well, I think what we need is a program, Senator
Lautenberg, exactly like we have the minor leagues or the NFL
has. But I keep going back to our own minor league program,
because that really deals with everything that's been said here
today. You get penalized right off the bat, there is random
testing all year round. There are so many things. There are
health issues that are raised. But clearly--and everybody has
raised those issues--there are integrity issues.
Look, the athletes of today are magnificent, and they've
done well. And it breaks my heart to see even a shadow of doubt
cast. That's why it's a program that I think, in the end,
everybody benefits from.
Senator Lautenberg. I thank you for that. And, again, being
conscious of the time available here, I would, then, ask Mr.
Fehr, Does your position against more severe drug testing meet
with your players' demand, in general?
Mr. Fehr. Let me respond to that by beginning with a
reaction to one of the things that you said in your question to
the Commissioner. I did not say, and I don't want my remarks
here to be interpreted as saying ``all's well.'' What I have
said is that following the hearings in 2002, we took a number
of steps, which we believe will work. That will be determined
empirically. We won't have to guess about it. We will know. And
if it isn't, then that would call for doing something else.
With respect to--I'm sorry, Senator, what was the second
part of your question?
Senator Lautenberg. That's all right. Would----
Mr. Fehr. I apologize.
Senator Lautenberg.--the fact that you offered--and I think
I heard you correctly, that there would be a program
established for random testing. And my question to the
Commissioner was, ``OK, does that meet the''----
Mr. Fehr. Oh.
Senator Lautenberg.--``the requirement?''
Mr. Fehr. I----
Senator Lautenberg. And, you know, I don't want to be an
arbiter here, and try to make peace among you. But the one
thing I think that fails to register in your comments, Mr.
Fehr, is, you are in the public domain, and that changes the
rules for the game. And I would ask you this, Do you believe
that it's appropriate to go to a high school in--pick
anyplace--and ask the students to submit to drug testing where
they know that there is a drug problem in the area? Is that a
reasonable thing to----
Mr. Fehr. Senator, there will be, first of all, in response
to your first question, as quite agreed, random testing. If
there are other ideas, or circumstances suggest we ought to go
further, you look at those. And we're certainly prepared to sit
down and do that.
With respect to high schools and so on, you have a
circumstance in which local districts need to decide what's
best for them, and you are dealing with children. And there is
no doubt at all, as I alluded to in my prior statements, that
the documented harm from steroids or steroid precursors, which
are fully lawful in this country, to individuals who are not
yet grown is much more pronounced and potentially immediate
than it is to adults or adult males. And, of course, what steps
need to be taken should be taken. I don't have a----
Senator Lautenberg. Well, is that----
Mr. Fehr.--I don't have a position on----
Senator Lautenberg. Well, because----
Mr. Fehr.--testing of high school students.
Senator Lautenberg. I'll interrupt you here to speed the
process along and just say that that is without cause, is it
not? Is that an appropriate program that has no causal
relationship, to go ahead and find out what's happening to
these youngsters and what they're--in order to protect their
health. To me, it's akin to the argument you make on the other
side that says, ``Well, we don't want to do this without
cause.''
I think it's fair to say that, again, in the public domain
you have a unique obligation to bring a picture to the young
people of the country that, yes, sports is not only honorable
and a way to make a living, a good living, or a helluva lot of
money, as Joe Biden would have said, but the fact of the matter
is, you don't have the liberty of showing an abuse of health
effect or something that enhances one's performance compared to
others. You can't take that kind of an advantage. You can't
start before the gun goes off in a track event.
And I will conclude with this question. When you talk about
collision sports or contact sports, are track and field in that
category, of contact or collision?
Mr. Fehr. Not that I know of. I was referring entirely to--
--
Senator Lautenberg. OK. You----
Mr. Fehr.--Senator Allen's comment.
Senator Lautenberg. Do you, therefore, then, approve of
what the Olympic Committee does to ensure that the athletes
that are presented don't use steroids?
Mr. Fehr. I don't represent them, and they have to make
those decisions for themselves. That's up to them.
Senator Lautenberg. OK. So, Mr. Fehr, what I hear from
you--and I don't speak for my colleagues, obviously--is kind of
a shadow representation here that says, ``Well, we've got to
obey the players' wishes. We have to protect their privacy.''
But I don't hear the public interest being talked about there.
I don't hear you saying, ``Look, it's good for you and your
family, in the final analysis.'' I don't hear you saying that
there are programs that warn players about the ultimate
consequence of their taking drugs.
Mr. Fehr. First of all, as the Commissioner indicated, for
many years educational programs have been in place. And my
memory is, although it's a little foggy, that that was put into
the record specifically in the hearing that was held in
December--sorry, in June 2002. There's no question about that.
Second, my personal advice to players--and while I never
discuss individual conversations with players, they have a
right to keep that confidential, but since this is a general
advice, has been very simple and of long standing and without
equivocation. Nobody ought to be using anything under any
circumstances without a doctor or an appropriate medical
professional engaged in providing that person care, determining
that something should be done, and following it, and watching
it. And they're all obligated to do things which are legal, and
legal only. I have no hesitancy about that, across the board.
Senator Lautenberg. Thank you, Mr. Chairman.
The Chairman. Senator Fitzgerald?
Senator Fitzgerald. Mr. Fehr, thank you for coming here
today, just 2 weeks after surgery. I gather you had your gall
bladder removed? You said the same----
Mr. Fehr. I sure hope it isn't there.
[Laughter.]
Senator Fitzgerald. OK. Well, we all wish you a speedy
recovery. And understand that our tough questions here in no
way diminish our hopes for your good health.
Mr. Fehr. Thank you, Senator.
Senator Fitzgerald. I did want to follow up on a couple of
questions that have been asked. Now, I know when Senator Sununu
asked you whether you thought it was cheating to use a corked
bat, you said yes, you thought it was cheating. Do you think
it's cheating to use andro?
Mr. Fehr. That's a determination which I think is resolved
in collective bargaining. The agreement we have, so far----
Senator Fitzgerald. Doesn't ban andro.
Mr. Fehr.--does not. It does not. Because----
Senator Fitzgerald. So you don't think it's cheating.
Mr. Fehr. It is not something that the players have, thus
far, chosen to ban. That's correct.
Senator Fitzgerald. So it wouldn't be cheating to use
andro. And you also noted that andro is not banned by Federal
statute. Is that correct?
Mr. Fehr. Yes. And our agreement specifically provides,
among other things, that any anabolic substance which is added
to Schedule 3, or any anabolic substance--I think I have this
right--which may not lawfully be obtained, automatically
becomes prohibited.
Senator Fitzgerald. So your collective bargaining agreement
makes reference to our Federal statutes.
Mr. Fehr. In that case, yes.
Senator Fitzgerald. In that case. But our Federal statutes
don't ban cork bats, for example. We have no Federal law
against using a cork bat, correct? But, nonetheless, that is a
violation of your internal rules in major league baseball. So,
in that regard, baseball's----
Mr. Fehr. That's correct. I'm sorry, Senator.
Senator Fitzgerald.--baseball's adopting rules that are
tougher than Federal laws. Is that correct?
Mr. Fehr. Sure. Of course that's correct. Now, having said
that, the one part that's missing from that equation is that
the public policy of the United States has, in fact, spoken to
this issue.
Senator Fitzgerald. OK. And you're saying with respect to
cork bats, we haven't spoken, is that right?
Mr. Fehr. And I don't believe you should.
Senator Fitzgerald. OK. And we haven't spoken with respect
to whether you can put Vaseline on a baseball when you're
pitching.
Mr. Fehr. Not to my knowledge.
Senator Fitzgerald. But that is against your rules, because
it's against your internal rules. You have internal rules in
baseball, as football has internal rules. You don't look to
Congress to decide what's a penalty and what's not. And you
don't look--baseball doesn't look to Congress to decide what's
a legal pitch or an illegal pitch, or a legal bat or an illegal
bat. But with the case of drugs, you do have this policy that
you look to us to adopt some kind of public policy to give you
guidance. Why the discrepancy on the drugs and the rest of your
rules?
Mr. Fehr. The best way I can answer that, I suspect, is as
follows. The Congress of the United States unanimously, I
believe--I know it was unanimous in the Senate--changed the law
10 or 11 years ago, and it said that we believe, unless the
Federal Government, either by Congressional action or
administrative rule, decides otherwise, that substances which
are called nutritional supplements--and androstenedione, I
believe, legally is one--may be sold and used by anyone. That
was a decision this Congress made. It is one thing to say we
aren't bound by those rules, that's correct. It's quite
something else again, I believe, to suggest that we should not
pay attention to them at all, and pretend they aren't there.
Senator Fitzgerald. Well, but cork or Vaseline can be sold
or used by anyone, too, under our statutes, isn't that correct?
Mr. Fehr. I think that's correct, but I suspect that most
people would agree that dietary supplements act as a more
significant piece of legislation than something about cork bats
would be.
Senator Fitzgerald. OK. Now, Senator Sununu also asked you
whether a player could voluntarily submit to his own test, and
you said that any player could--there would be nothing to stop
them from going to their physician and having a drug test. Is
that correct?
Mr. Fehr. That's correct. Any one of us can do that.
Senator Fitzgerald. Now, in a February 26 article in
Newsday, John Hamond describes Gary Sheffield's willingness to
take a voluntary test, and his sudden reversal in his desire to
take the test. In an article published in the New York Post on
the same day, Gary Orza, speaking on behalf of Major League
Baseball Players Association, stated, quote, ``I told him there
will be no drug test. I told him it would be in violation of
the collective bargaining agreement if he took the test.''
Now, do you stand by Mr. Orza's statement in the New York
Post? Is it a violation of the collective bargaining agreement
for Gary Sheffield to take a test of his own accord?
Mr. Fehr. No, it is not. The question is, Is it something
that is insisted upon by management which is inconsistent with
the collective bargaining agreement? I would also observe two
things.
Senator Fitzgerald. So Gary Sheffield could go take a test
and report those results to the press.
Mr. Fehr. He can do whatever he wants if it's not coerced.
And----
Senator Fitzgerald. Barry----
Mr. Fehr.--having said that----
Senator Fitzgerald.--Barry Bonds and everyone else, if the
press wants to----
Mr. Fehr. Having----
Senator Fitzgerald.--challenge them to go take a test, they
could go----
Mr. Fehr. Having said that, Senator, let me go back to
where I came in. There's a reason I don't want to discuss
individuals. And the reason is that Mr. Sheffield, whose name
has been publicly reported in connection with the investigation
of BALCO in San Francisco, public reports indicate that he's
been--that he is both represented by counsel, and that he has
been, along with everyone else there, either in conversations
with appropriate government officials, or asked to testify
before a grand jury. I don't know what his circumstances are. I
would not hazard to comment. It would be entirely inappropriate
for me to do that.
Senator Fitzgerald. But you have no problem with any
player, who feels his integrity has been impugned, taking a
drug test and releasing the results to clear his or her name.
Mr. Fehr. There is no legal impediment to doing that. The
Players Association couldn't prohibit it if it wanted to.
Having said that----
The Chairman. Was Mr. Orza wrong, then?
Mr. Fehr. I don't know that Mr. Orza said that. It doesn't
sound right to me, and I wasn't there.
The Chairman. If Mr. Orza said that, was he wrong? If he
said it?
Mr. Fehr. The position is as I've just stated it.
Now, let me make just one further observation. Somebody
referred to this as values issues. And I think that, to a large
extent, that that's--that there's a lot to that. Is it an
appropriate value to say to someone, ``I don't have any reason
to suspect you've done anything wrong, but I will assume you
have, unless you prove to me to the contrary''? That, I
suggest, is not an irrelevant question.
The Chairman. Thank you.
Senator Nelson, and then Senator Allen has one additional
question.
In deference to your health situation, we will then
conclude the hearing. We thank you, and we hope we haven't done
you any permanent damage.
Mr. Fehr. My doctor said I'm likely to be very tired, but I
should recover, so thank you.
The Chairman. Thank you.
Senator Nelson?
STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA
Senator Nelson. Thank you, Mr. Chairman. And thank you,
again, for your leadership on important issues facing this
country, as you have often brought to this Committee. One that
comes to mind, we always--we don't always win, but we sure get
the subject out there and get it discussed, and I'm thinking of
global warming. So thank you for your leadership.
I want to--I think this issue has been well discussed, and,
Mr. Fehr, I think you know where everybody's coming from, and
you get the consensus here of the intensity of the feeling.
Rather than continue the line of questioning, I want to
offer, first of all, a compliment to Mr. Tagliabue on his
strong response to the halftime ceremony at the Super Bowl. I
have an interest in this, in that the Super Bowl's going to be
Jacksonville, Florida, next year, and we don't want that kind
of halftime. And what I'm saying reflects the values of
Florida, and particularly of Jacksonville. And so thank you for
the strong stand that you've taken.
Mr. Tagliabue. Thank you. I was discussing this with the
owner of the Jaguars yesterday.
Senator Nelson. And I want to thank Commissioner Selig. We
have had a meeting, earlier this morning, Mr. Chairman, about
an issue that I've been discussing with him and his
representatives for now 3 years, having to do with the pension
that has not been given to the old Negro League baseball
players. And the Commissioner had taken the initiative, back in
1997, recognizing that--what the Negro League players had
offered to the game and offered a pension at $10,000 a year,
but, in offering that--and this is where I have had the
discussions with him--because so many of these old Negro League
players, who were so good, live in Florida--they're now
retired, and I have had several meetings with them--but a lot
of them didn't get compensated because what was agreed to in
1997 was that they had had to have played in the major leagues
after the majors were integrated, in 1947, and they had to have
played for 4 years; when, in fact, the majors were not
integrated when Jackie Robinson broke the color barrier. But,
instead, it took almost 12 years later, until 1959, that all of
the teams had integrated.
And so, in pointing out that inequity, and asking him to
address this, on what is now only about 120 of these Negro
League players left. We're losing them every year. We lost 22
this past year. And so Mr. Selig has said to me this morning
that he's coming forth within a month, within 30 days, to offer
a specific solution that these remaining Negro League players
will get compensation. And I want you to know how much I
appreciate that. I look forward to seeing it.
And I want to ask you, who should I continue to meet with
over the next 4 weeks of this period to get updates on your
thinking? And what else must I do to help facilitate your
proposal, Commissioner Selig?
Mr. Selig. Jonathan Mariner and Rob Manford, from our
office, I think will, in the interim--before you and I get
together. They'll be working on it as early as tomorrow, and
they'll give you updates in the interim. And I'll be glad when,
frankly, we have this whole issue resolved, which we will,
hopefully very expeditiously.
Senator Nelson. Is there anything more that I need to do to
help facilitate this process as you----
Mr. Selig. Not at----
Senator Nelson.--make your final proposal?
Mr. Selig. well, not at the moment. There may be some
things in the interim, but not at the moment. We want to look
at all the numbers and people, and then--and we'll be back to
you very quickly.
Senator Nelson. Thank you.
Mr. Selig. Thank you.
Senator Nelson. Thank you, Mr. Chairman.
The Chairman. Senator Allen has one additional question and
then we'll conclude the hearing.
Senator Allen. Thank you. There's a two-minute warning
here. Thank you, Mr. Chairman.
One, I want to very much commend the NFL Players
Association and the league for their leadership, and the
leadership in sending the message to young people. You involved
the players in it. My son has a Jerry Rice jersey and Tim Brown
jersey, and his heroes are like them, and Derrick Brooks. They
are the ones that get the message to the kids. Others are a
little older, folks like Darryl Green and Jim Kelly. When I was
a kid, it was Deacon Jones and Roman Gabriel and Brig Owens and
folks like that. But it's really key, Mr. Chairman, to have the
players involved, because they're the ones who are the role
models. And I thank you, Mr. Upshaw, and the league, for
working in that way to get that message to young people that
this is the way you compete, honestly and fairly.
On the specific legislation which brought us here on this
issue, Senate Bill 1780, I have not signed on to it. I'm still
a free agent, so to speak, on it. Listening to all these
arguments, and, gosh, how are you going to have a definition of
anabolic steroids and provide all this research and education
activities, my question to you all--to you, Mr. Upshaw, and
Commissioner Tagliabue--is, I don't mind signing on to things,
but you like to do things that are actually going to have an
impact. Insofar as NFL is concerned, you don't wait around for
laws. Passing such a law might actually make people feel like
we have done something. But, as a practical matter, the passage
of this law--and say President Bush signs it into law, what
impact would that be if the leagues--whether it's major league
baseball or whether it's the National Hockey League, or whether
it's the NBA--what difference would that make unless it's
actually going to be enforced by the sort of credible random
drug testing that you all have in the NFL?
Mr. Tagliabue. Well, first of all, I think it would send an
equally powerful message to--equivalent to the message that a
Derrick Brooks or a Jerry Rice sends. Second, I think that the
potential for a criminal sanction for people who are suppliers
or distributors or inventors or creators of new steroids, would
be very important. And as we've seen recently, that is a
current challenge, and it's going to be a future challenge. And
so I think it would--it might not have significant effect on
what we do, because we've tried to stay ahead of the science
and prohibit things that are legal, but I think it would be
very important. That's why we support it.
Mr. Upshaw. I would just like to add to that since you
understand what we're trying to do in the NFL, I don't see any
reason now for you to hesitate about signing on to this bill,
because it is a winner, and you should be part of it.
The Chairman. Mr. Madden, go ahead.
Mr. Madden. Senator, this bill would be for the children
and women in our nation, the youngsters. We're already ahead of
it right now. We're testing for those substances now. This is
to get the stuff off the shelves that my 10 year old can go in
and buy that we don't know what the health issues are going to
be in the future for all the children, all the teenagers taking
this. This bill is directed to children, to women, and that
should be the full brunt of the bill. It's a health issue.
The Chairman. Commissioner Selig?
Mr. Selig. I would urge you to pass it as soon as possible.
Yes, it would be helpful to us in everything we've discussed
today. We don't have to go back over that. But it is a health
issue. It is an issue that the more of this we do, the more you
bring it to the public--yes, it's helpful to us internally, but
it's helpful to this country, and it needs to be done quickly.
The Chairman. Mr. Fehr?
Mr. Fehr. Just very briefly. We certainly have no objection
to the bill. And I phrase it that way for the following reason.
The judgments about the science in connection with safety of
sale of products to the general public is committed here, not
to us. That objection to the side, my view, personally--and I'm
sure it's shared by virtually all, if not all, players--is that
there ought to be nothing available without the kind of
rigorous scientific testing which would demonstrate, first of
all, that it's safe, or safe under whatever conditions are
appropriate for over-the-counter medicines, if that's the way
it goes, and that it actually does what it says it does, and
doesn't do something else.
You have another problem. You have the problem of whether
or not a lot of nutritional supplements are, in fact,
contaminated. What I mean is, they have stuff in them that
isn't there.
If there is opposition to this bill, if there is opposition
to that general concept, I don't know where it is. And I'm sort
of astonished that it's still puttering along. Hopefully, it
won't be. I certainly don't detect any indication from anybody
on this Committee that they would have any problem.
The Chairman. The opposition comes from the people who make
it.
Senator Allen. Thank you.
Senator Brownback. I take it that Senator Allen will be a
cosponsor.
Senator Allen. When Gene Upshaw says so. He's calling the
snap count here.
Finally, to Mr. Fehr, you wouldn't mind if there were a
major league baseball team around here, would you?
[Laughter.]
The Chairman. Senator Smith?
[Laughter.]
Senator Smith. To that point, I believe the national game
should be in the Nation's capital.
Senator Allen. Or nearby.
[Laughter.]
Senator Smith. I say that as an Orioles fan, but----
Thank you, Mr. Chairman. Just a brief comment.
Mr. Fehr, I know you don't feel well, and I wish you a
speedy recovery. And I know that this hearing has probably not
been a lot of fun, and a lot of anxiety that goes with it. But
I hope, in the Chairman's calling this hearing, that it'll make
your job easier to make this change, because I think it's
critical that these other systems, the minor league system in
baseball, the NFL example, is a worthy one. And I understand,
frankly, your feeling of the hypocrisy of a legal product that
shouldn't be available to players, but I really think the law
is important, but the law is the lowest common denominator of
what we can agree on up here. And, frankly, our ideals ought to
be above the law. And I think, ideally, baseball should live up
to the standards that will protect the health of the players
and the integrity of the game. And that's all I wanted to say.
Thank you, Mr. Chairman.
The Chairman. Thank you very much.
It's traditional to ask the witnesses, after a long hearing
like this, if they'd like to make any closing comments,
beginning with you, Commissioner Tagliabue.
Mr. Tagliabue. I would only say thank you for your support
and for giving us the opportunity to be here today.
The Chairman. Thank you for being here.
Mr. Upshaw?
Mr. Upshaw. Thanks for your support, and we look forward to
passage of that bill.
The Chairman. Thank you.
Mr. Madden?
Mr. Madden. Senator, with the President's leadership and
this Committee's leadership, this might be the last best chance
to stop doping in all sports, Olympic and all the professional
leagues. Thank you for letting us be here.
The Chairman. Mr. Madden, our hopes are with you in the
upcoming Olympic games and the preparation for it. And thank
you for what you do.
Commissioner Selig?
Mr. Selig. Thank you, Mr. Chairman, for this hearing. I
have hopes that this will lead to a solution to the problems
that have been so articulated here today. And I can assure you
that we will not rest until those problems are solved. So we
thank you for this hearing.
The Chairman. Thank you.
Mr. Fehr?
Mr. Fehr. Two things. First of all, I appreciate the kind
comments of a number of Members of the Committee about my
personal situation.
Second, while I don't know many of the Members of this
Committee very well, that's not true with respect to the
Chairman. He and I have known each other for a very--well, I
guess it's a longer time than we probably want to acknowledge
at this point.
With respect to your comments, I believe, you know, Senator
Nelson, as the Chairman knows, I understand his comments at the
beginning of this hearing, and I understand the mood which was
reflected by the remainder of the hearing.
Thank you.
The Chairman. Thank you very much. This hearing is
adjourned.
[Whereupon, at 12:35 p.m., the hearing was adjourned.]