Text: S.Hrg. 109-525 — S. 1114, THE CLEAN SPORTS ACT OF 2005, AND S. 1334, THE PROFESSIONAL SPORTS INTEGRITY AND ACCOUNTABILITY ACT

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[Senate Hearing 109-525]
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                                                        S. Hrg. 109-525
 
 S. 1114, THE CLEAN SPORTS ACT OF 2005, AND S. 1334, THE PROFESSIONAL 
                SPORTS INTEGRITY AND ACCOUNTABILITY ACT

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 28, 2005

                               __________

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




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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                     TED STEVENS, Alaska, Chairman
JOHN McCAIN, Arizona                 DANIEL K. INOUYE, Hawaii, Co-
CONRAD BURNS, Montana                    Chairman
TRENT LOTT, Mississippi              JOHN D. ROCKEFELLER IV, West 
KAY BAILEY HUTCHISON, Texas              Virginia
OLYMPIA J. SNOWE, Maine              JOHN F. KERRY, Massachusetts
GORDON H. SMITH, Oregon              BYRON L. DORGAN, North Dakota
JOHN ENSIGN, Nevada                  BARBARA BOXER, California
GEORGE ALLEN, Virginia               BILL NELSON, Florida
JOHN E. SUNUNU, New Hampshire        MARIA CANTWELL, Washington
JIM DeMINT, South Carolina           FRANK R. LAUTENBERG, New Jersey
DAVID VITTER, Louisiana              E. BENJAMIN NELSON, Nebraska
                                     MARK PRYOR, Arkansas
             Lisa J. Sutherland, Republican Staff Director
        Christine Drager Kurth, Republican Deputy Staff Director
                David Russell, Republican Chief Counsel
   Margaret L. Cummisky, Democratic Staff Director and Chief Counsel
   Samuel E. Whitehorn, Democratic Deputy Staff Director and General 
                                Counsel
             Lila Harper Helms, Democratic Policy Director


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on September 28, 2005...............................     1
Statement of Senator Allen.......................................     5
Statement of Senator Bunning.....................................     3
Statement of Senator Cantwell....................................     5
Statement of Senator Dorgan......................................     4
Statement of Senator Lautenberg..................................     9
    Prepared statement...........................................     9
Statement of Senator McCain......................................     2
Statement of Senator Bill Nelson.................................     8
Statement of Senator Rockefeller.................................     6
    Prepared statement...........................................     7
Statement of Senator Smith.......................................     4
Statement of Senator Stevens.....................................     1
Statement of Senator Sununu......................................     8

                               Witnesses

Bettman, Gary, Commissioner, National Hockey League..............    35
    Prepared statement...........................................    36
Davis, Antonio, NBA Player and President, National Basketball 
  Players Association............................................    32
    Prepared statement...........................................    33
Fehr, Donald M., Executive Director, Major League Baseball 
  Players Association............................................    16
    Prepared statement...........................................    18
Saskin, Ted, Executive Director, National Hockey League Players' 
  Association....................................................    45
    Prepared statement...........................................    46
Selig, Allan H., Commissioner, Major League Baseball; Accompanied 
  by Hank Aaron, Lou Brock, Phil Niekro, Robin Roberts, and Ryne 
  Sandberg, Members, Baseball's Hall of Fame.....................    12
    Prepared statement...........................................    14
Stern, David J., Commissioner, National Basketball Association...    29
    Prepared statement...........................................    29
Tagliabue, Paul, Commissioner, National Football League..........    22
    Joint prepared statement.....................................    23
Upshaw, Gene, Executive Director, National Football League 
  Players Association............................................    28
    Joint prepared statement.....................................    23

                                Appendix

Daly, William L., Deputy Commissioner, National Hockey League, 
  letters dated, October 25, 2005, to:
    Hon. John McCain.............................................    71
    Hon. Frank R. Lautenberg.....................................    71
Response to Written Questions Submitted by Hon. Frank R. 
  Lautenberg to:
    Donald M. Fehr...............................................    69
    Allan H. Selig...............................................    67
    David J. Stern...............................................    70
    Paul Tagliabue...............................................    69
Response to Written Questions Submitted by Hon. John D. 
  Rockefeller IV to:
    Donald M. Fehr...............................................    68
    Allan H. Selig...............................................    67
Uryasz, Frank D., President, The National Center for Drug Free 
  Sport, Inc., Prepared statement................................    65


 S. 1114, THE CLEAN SPORTS ACT OF 2005, AND S. 1334, THE PROFESSIONAL 
                SPORTS INTEGRITY AND ACCOUNTABILITY ACT

                              ----------                              


                     WEDNESDAY, SEPTEMBER 28, 2005

                                       U.S. Senate,
           Committee Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:01 a.m. in 
room SH-216 Senate Hart Office Building, Hon. Ted Stevens, 
Chairman of the Committee, presiding.

             OPENING STATEMENT OF HON. TED STEVENS 
                    U.S. SENATOR FROM ALASKA

    The Chairman. Good morning, I want to thank the witnesses 
who have come to be with us today, and the members of the 
Baseball Hall of Fame who honor us by coming to this hearing 
also. And, for those who believe that professional sports does 
not have an impact on the American public and our youth, I 
would point out an interesting fact that I just learned this 
morning. A member of my staff, Aaron Saunders, was named after 
you, Mr. Aaron, after his father witnessed your 714th home run 
in Cincinnati in 1974. So, we sort of have a Senate family 
connection to you, let's put it that way.
    I thank Senator McCain for asking to chair this hearing and 
for his commitment to demanding fair competition at all levels 
of our sports world. And we welcome as a guest member of this 
Committee at this time, Senator Bunning whose baseball career 
and dedication to preserving the integrity of our national game 
speak for themselves.
    As someone who pushed for the creation of the U.S. Olympic 
Committee and who has been involved with sports issues in the 
Senate for over 37 years, I have become increasingly concerned 
with the dramatic increase in doping at all levels of 
athletics, particularly among our youth.
    In a 2003 survey of over 15,000 high school students, the 
U.S. Centers for Disease Control and Prevention found that more 
than 6 percent of high school students admitted to using non-
prescription illegal steroids at some point in their lives. And 
that is unacceptable to us.
    Doping is a stain on all levels of athletics. It taints the 
accomplishments of our elite athletes, creates unattainable 
expectations for our young athletes, and threatens their 
physical well-being.
    I want to commend all of the leagues for addressing their 
drug problems over the past 18 months. There are two key 
elements to an effective drug policy: deterrence and 
credibility. Unfortunately I've got to say to you gentlemen, we 
would not be holding this hearing if all of your policies 
satisfied those threshold elements.
    I look forward to working with Senators McCain and Bunning, 
and the rest of the Committee, and the Senate to report 
legislation, and consider legislation on this subject. John, 
thank you very much. I know there are problems in our schedules 
today, I don't know what you're going to do. I am going to go 
to that meeting at 10:30, but I thank you for taking over, I 
think you ought to tell us what your plans are.

                STATEMENT OF HON. JOHN McCAIN, 
                   U.S. SENATOR FROM ARIZONA

    Senator McCain. Well, thank you very much, Mr. Chairman. 
Thank you for your courtesy in allowing me to hold the gavel 
this morning, and I appreciate the many courtesies you've 
extended to me, but most importantly your continued involvement 
in this issue.
    I will make a very brief statement. I would ask my 
colleagues also to make brief statements and then if it's 
agreeable, we have some special witnesses this morning that 
were not on the list, that perhaps I would ask to come forward 
to make statements as well. So again, I thank you, Senator 
Stevens, and we'll just press on with this hearing. Senator 
Bunning, welcome, and thank you for your involvement. I'll be 
brief.
    Today's hearing is about the integrity of professional 
sports. It's more importantly, perhaps, about young Americans. 
Young Americans who believe that the only way that they would 
be able to perform at a Major League professional level is 
through the ingestion of performance-enhancing drugs. The House 
of Representatives, some time ago had a hearing and some of the 
witnesses were the family members of young people who had 
committed suicide while under the influence of these 
substances, and that's really what it's all about.
    There are some people who would say Congress has no 
business in this issue. Well, I would make two points. One, we 
have not acted--professional sports have not acted. And two, we 
have an obligation to young people to do everything in our 
power to prevent them from succumbing to this terrible 
attraction in the belief that the only way they can perform at 
a Major League professional level is if they ingest these 
substances. Ask any high school coach in America, as I have, 
many high school coaches who have told me the same thing.
    I want to finally say, we don't want to have to act 
legislatively. We know that this is a labor and management 
issue. But we have the additional obligations and the fact that 
Major League Baseball, in particular, has still not been able 
to act. We also need to examine what's going on with the other 
professional sports regarding this issue. I urge my colleagues 
to be brief in their opening remarks, and I would ask my friend 
and Baseball Hall of Fame member, Senator Bunning to be 
recognized.

                STATEMENT OF HON. JIM BUNNING, 
                   U.S. SENATOR FROM KENTUCKY

    Senator Bunning. Thank you, Mr. Chairman. First, I want to 
thank Chairman Stevens and Senator McCain for the opportunity 
to be a guest member for this hearing. Second, I and probably 
most of the other Members in Congress do not relish the 
situation we are in.
    That situation is being on the brink of possibly passing 
legislation to clean up something that the sports leagues and 
players' unions should be able to clean up on their own. But 
for whatever reason, you just can't get it done, and you can't 
get your act together.
    It is impressive and amazing what you all can do. You can 
come to agreements on collective bargaining and salaries, and 
aspects of free agency and trading, and a host of other issues. 
But for whatever reason, some of you just cannot strike a deal 
on testing and penalties for illegal drug use. I, and millions 
of fans, think that is pathetic.
    Since we cannot be in the clubhouse to try and get to the 
bottom of all this, we thought we would bring you into this 
committee room. We apologize for not having any showers in 
here. Lord knows we all may need a shower after this hearing to 
cool down, because it just might get a little uncomfortable in 
here.
    My focus is going to be on baseball, not just because I 
once wore the uniform, but because that seems to be the biggest 
problem. Baseball's Commissioner has put forward a drug testing 
and penalty proposal. While I am not 100 percent in agreement 
with it, it is a start.
    While I think the Commissioner took too long to put forward 
his plan, I realize he had to deal with owners and build 
somewhat of a consensus with them. At times I am sure it was 
kind of like herding cats for the Commissioner.
    But the baseball players' union has not exactly been timely 
and pro-active in addressing the steroids issue. I know a bit 
about baseball players' unions because I and some of my former 
baseball colleagues here, helped start it. Some of them are 
here. Robin Roberts is here and Bob Feller and a few others. 
Yes, for the record this conservative Republican helped form a 
union. Back then, it was all about making sure players had fair 
salaries and fair pensions.
    These were important issues to help protect active players 
and retirees. But now? But now whether it is true or not, the 
perception is that the baseball players' union is protecting 
players who use steroids and other illegal performance-
enhancing drugs.
    Believe me, that was not something we ever envisioned the 
players' union doing. And I hope it is not what the union is 
doing. I see some of my fellow Hall of Famers here. Thank you 
for coming. I spent part of my career in the American League 
and did not have to pitch to Henry Aaron very often.
    I know they are concerned about steroids and not just how 
they affect the integrity of the game and the way they distort 
statistical records that took years and years for some members 
sitting out there to achieve.
    Thank you, Mr. Chairman. I appreciate it, and I'll get with 
the questions later on.
    Senator McCain. Thank you, Senator Bunning, for everything 
that you do on this issue and many others. Senator Dorgan, 
brief remarks please, from all of my colleagues.

              STATEMENT OF HON. BYRON L. DORGAN, 
                 U.S. SENATOR FROM NORTH DAKOTA

    Senator Dorgan. Mr. Chairman, thank you very much. Three 
and half years ago when I chaired the subcommittee that dealt 
with among other things, sports, at your request I held the 
first hearing, I believe, on baseball steroids in this 
Committee. Let me say, that some things have happened since 
that time, some positive things. But Mr. Chairman, let me tell 
you something that I've told you before many times. Roger Maris 
comes from the great State of North Dakota. In 1961 he broke a 
34-year record, hit 61 home runs, a record that has stood for 
34 years and he did it without steroids.
    And Mr. Chairman, some of us think that home run record 
still stands. And that's a sad comment about baseball. I regret 
to say that, but it's a sad comment about baseball. We held the 
hearing three and half years ago as I indicated. We made some 
progress, but I still find it unbelievable that not everyone 
believes the same thing. There ought not be performance-
enhancing drugs in baseball. There ought not be a question 
about a rigorous testing program and there ought not be 
questions about penalties.
    Let me say, Mr. Fehr, you've been here twice, and in my 
judgment the players' union in baseball has given ground only 
grudgingly, and in every circumstance only grudgingly, arguing 
that this is a part of collective bargaining, and it's a matter 
of privacy.
    Mr. Fehr, you and the players have lost that argument. It 
is not about privacy, and it is not about collective 
bargaining. That issue is over. And I hope that finally this 
hearing will end the need for future hearings and everyone will 
understand there cannot be performance-enhancing drugs in 
professional sports. There must be aggressive testing and 
aggressive penalties for their use.

              STATEMENT OF HON. GORDON H. SMITH, 
                    U.S. SENATOR FROM OREGON

    Senator Smith. Thank you, Chairman McCain. Gentlemen, all 
of you, thank you for participating in this hearing. I was a 
very young boy when my family moved from Oregon to Washington 
D.C. and soon I found myself in love with the Washington 
Senators. One of the earliest memories of my life was watching 
Mickey Mantle beat my Senators, by hitting a home run out of 
the park in the old Griffith Stadium. As an adult I have 
watched and thrilled as records have fallen by today's great 
players and yet now as the father of a 16-year-old, watching 
further records that I once watched be created. To watch them 
fall, with asterisks by them is very distressing.
    It isn't just that. Far more important to 16-year-olds is 
the example which Major League players obviously are called 
upon to set for our young people. So I would hope, Mr. 
Chairman, that the leaders that are at the table today, would 
understand the importance of a ``three strikes and you're out'' 
policy to set a standard that will reverberate far beyond the 
majors, but to the little leagues as well. Every time a player 
tests positive for drugs, he casts doubt not only on his own 
achievements but on the achievements of all players, and I do 
respect the players unions' obligations to defend every player. 
But I hope it is fully understood that when it protects 
cheaters it threatens the rest of the players who are playing 
by the rules.
    I close, Mr. Chairman, by simply noting a quote from Little 
League Baseball's International President to Major League 
Baseball, and the Major League Players Association. Said he 
``We all must accept the fact that children are affected by the 
actions of Major Leaguers...tougher polices in dealing with 
steroids among Major Leaguers will help convey to young people 
the seriousness with which this problem is regarded by players 
and Major League baseball.'' All of us in baseball are counting 
on you to do the right thing. Thank you, Mr. Chairman.

               STATEMENT OF HON. MARIA CANTWELL, 
                  U.S. SENATOR FROM WASHINGTON

    Senator Cantwell. Thank you, Mr. Chairman, and I may enter 
a longer statement in the record, but just say this.
    Senator McCain. Without objection.
    Senator Cantwell. Thank you, Mr. Chairman. I'm very 
concerned about this issue. Commissioner Selig was in Seattle 
in April and gave a speech at a luncheon commemorating and 
celebrating Ichiro Suzuki's accomplishments from the last 
season.
    At the time, he spoke about the ``three strikes and you're 
out'' policy. And the Seattle Mariners have taken very swift 
action, not only with three Major League players, but eight 
Minor League players. I think our franchise has probably taken 
very decisive and swift action. But yet I'm left with the 
conclusion, after hearing all of this in April and seeing all 
these actions in April, that somehow collective bargaining is 
stopping us from getting real results on this issue. And it 
seems that only will we get movement on a negotiation between 
the baseball union and Major League Baseball if Congress and 
the United States Senate has hearings. I think we have to have 
more progress in this.
    Currently steroids have been used not only by professional 
athletes but younger athletes, and the fact that so many of 
these younger athletes are now finding this acceptable because 
Major League Baseball hasn't acted and taken swift action, I 
think is a problem. So, Mr. Chairman, thank you for holding 
this hearing, and thank you for your continued leadership on 
this issue.
    Senator McCain. Thank you.
    Senator Allen.

                STATEMENT OF HON. GEORGE ALLEN, 
                   U.S. SENATOR FROM VIRGINIA

    Senator Allen. Thank you, Mr. Chairman. People of America 
love sports, and the reason is, is that everyone's got an equal 
opportunity to compete and succeed based upon their own hard 
work, their strategies and execution.
    We look at sports, and I do, and I grew up in sports, 
playing it, with my father's teams. But it is a meritocracy, 
Mr. Chairman. You don't care about someone's race, their 
religion, their ethnicity, all you care about is whether they 
can contribute to the team effort. And I think this country 
loves sports because it is that meritocracy, it's what we 
should aspire to for our society.
    There are certain elements of it, it's a level playing 
field. It's also something that is admired by young people. As 
a pup growing up, I liked Johnny Unitas, and Roman Gabriel, and 
Deacon Jones, and later on, Billy Kilmer and Diron Talbert. My 
kids admire people like Jerry Rice, and Tim Brown, and Cadillac 
Williams. And others in other sports, it was Jerry West and 
Elgin Baylor, you know you'd think of them all. Sandy Koufax, 
Minnie Minoso, Ernie Banks, and in hockey I loved all the 
Montreal Canadiens. And they didn't wear helmets then so you 
could see what they looked like on the ice.
    The point is people look up to these players. The integrity 
of the sport is essential. Statistics matter, that makes it 
interesting, but especially young people if they see that they 
don't have to work hard, lift weights, run, exercise, whatever 
all the training is, and you can get it out of a bottle, it 
sends the wrong message.
    Now we're going to be looking at legislation here, let's 
make sure that this legislation while not perfect, if the 
Federal Government is going to act, does not harm what some of 
the leagues do. Let's not stereotype every one of the leagues 
as being in the same situation. I look at the NFL as one who 
doesn't wait around for the Federal Government or the FDA to 
act, they work together.
    Mr. Upshaw and Mr. Tagliabue, and the players and owners 
work well together.
    Senator McCain. The Senator's time has expired.
    Senator Allen. I hope Mr. Chairman, that we're going to 
make sure as we work through here that this meritocracy will 
continue to be admired. And I thank you, and our witnesses for 
appearing today.
    Senator McCain. Senator Stevens.
    The Chairman. Mr. Chairman, and the witnesses who have 
come, I want to apologize for my conflicts today. We're just 
overwhelmed with issues pertaining to Katrina and Rita, and 
you'll see Members come and go here while you're here. We 
thought about canceling this, but I think this is of 
overwhelming importance too, so I congratulate Senator McCain 
for wanting to continue. And I hope he does continue, but 
there's a series of meetings going on now that many of us will 
have to go to. I apologize for leaving.
    Senator McCain. Thank you, Senator Stevens.
    Senator Rockefeller.

           STATEMENT OF HON. JOHN D. ROCKEFELLER IV, 
                U.S. SENATOR FROM WEST VIRGINIA

    Senator Rockefeller. Thank you, Mr. Chairman. I've been a 
baseball fan since I was six, and I still am. But I will have 
to say that I'm mightily disillusioned by what is taking place. 
I agree with Senator Dorgan, that the Major League home run 
record, was set by Roger Maris, and has never been broken. I 
don't know why it is that we have to keep doing this. We have 
these meetings and I, for one, am tired of them. I particularly 
single out baseball, and in baseball I particularly single out 
those who represent the players. Because I think they, as has 
been said, negotiate reluctantly if at all. I think I saw a 
letter that was sent the day before yesterday, not to the 
Commissioner but to the press. Negotiating through the press, 
not with the Commissioner is not a very good idea, and I don't 
know from management's point of view, whether they knew 
anything about the great chase of Sosa and McGwire, and what 
was going on with those folks and whether they were doing that 
to bring baseball back to where it belonged. Because baseball 
had been suffering on crowds and that really did, in fact, 
solve the problem.
    But for those of us who absolutely love the sport, who are 
fanatically devoted to it, and spend too much time watching it, 
as Jim Bunning well knows, we can't go on with this. I have no 
hesitation whatsoever in singling out a particular sport, or 
all sports. And having Federal legislation that mandates what 
they do. That's not what the Congress generally does with free 
enterprise, but if that's what it takes to get America, the way 
America ought to be, and have kids looking up to athletes the 
way they need to, and do, then I'm for it.
    Senator McCain. Senator's time has expired.
    Senator Rockefeller. So I am impatient, I am angry, I 
recognize that most of the sports here are doing the best they 
can. But baseball is not. Thank you, Mr. Chairman.
    [The prepared statement of Senator Rockefeller follows:]

          Prepared Statement of Hon. John D. Rockefeller IV, 
                    U.S. Senator from West Virginia

    I want to thank Senator McCain for holding this hearing today, 
although I am deeply disappointed that we have to hold another hearing 
on this topic. We have a number of Hall of Fame baseball players in 
attendance today and I would like to recognize their continuing 
commitment to baseball. I know that they care deeply about the future 
of the game, as do I.
    Before I start, I wanted to mention again at this hearing that my 
son has the good fortune of being married to Commissioner Tagliabue's 
daughter.
    Unfortunately, I am not sure that everyone here today shares our 
deep concerns that continuing steroid use in baseball is having a 
devastating impact on the game and on the next generation of athletes.
    Eighteen months ago, I told almost the exact same group of people 
testifying before the Committee that in my opinion Roger Maris still 
holds the single season home run record. The news stories of the last 
six months certainly reinforce that view for me and millions of other 
fans. I will reiterate that is my view that use of steroids and other 
performance-enhancing drugs has no place in sports at any level, at any 
time.
    The NFL has an aggressive testing program and significant penalties 
for individuals who test positive for steroids or other banned 
substances. The results of the NFL's policies can be seen in the very 
small percentage of players who test positive for banned substances. 
NFL players and owners recognize that their sport would be better off 
if everyone played by the same rules.
    I know the National Basketball League and the National Hockey 
League have reached agreements with their respective players' unions on 
steroid policies. It is my understanding that these policies will go 
into effect during the 2006 season. I am pleased to see that these 
leagues have endorsed substantially more rigorous testing regimes as 
well as much more significant penalties for their players who test 
positive for illegal substances.
    Unfortunately, Major League Baseball and its players have not 
achieved the same level of consensus on this issue, which is outrageous 
given the fact that baseball is the sport with the largest problem.
    I will also reiterate that I place much of the blame squarely on 
the players, who continue to resist meaningful testing and disciplinary 
measures. I also blame the owners who have spent more of their energy 
managing the public relations aspect of steroids abuse instead of 
focusing their energies on cracking down on the problem.
    I am a co-sponsor of legislation that would take steroids policy 
out of the hands of the leagues. I did not take this step lightly. It 
was a sign of my growing frustration with baseball and other leagues' 
inability to police themselves. I know the witnesses will offer a 
number of criticisms of the bills, many of them are valid. I certainly 
do not want Federal rules that are weaker than what the various leagues 
have adopted.
    I want Major League Baseball and its players to view this hearing 
as the second strike. You do not want to make a third appearance before 
this Committee explaining why you cannot make a voluntary system work. 
I also want to make it clear that I will be closely monitoring how the 
NHL and NBA implement their new programs. Too much is at stake. Most 
importantly, the health of young people is at risk. You are role 
models. You set examples.
    You must do the right thing or Congress will step in and make you 
do it. If it does not appear that the leagues are making any real 
progress in addressing this issue, I will work with Senator McCain, 
Senator Bunning, and others to pass legislation.
    I look forward to hearing from the panel today.

    Senator McCain. Senator Sununu.

               STATEMENT OF HON. JOHN E. SUNUNU, 
                U.S. SENATOR FROM NEW HAMPSHIRE

    Senator Sununu. Thank you, Mr. Chairman, I don't have an 
opening statement and I appreciate the panel being here. I'm 
sure there are zillions of other places you would rather be. 
But I do appreciate the NFL and the other professional sports 
leagues for providing the model for testing that they have. Of 
course I appreciate the Commissioner and those in Major League 
Baseball for at least beginning the process of implementing a 
testing plan and look forward to hearing how the implementation 
of that plan has progressed, how it might be improved, and 
appreciate the time.
    Thank you, Mr. Chairman.
    Senator McCain. Senator Nelson.

                STATEMENT OF HON. BILL NELSON, 
                   U.S. SENATOR FROM FLORIDA

    Senator Nelson. Thank you, Mr. Chairman, the consequences 
of what we're talking about today are enormous, because we're 
seeing the spread of the use of steroids among young athletes 
particularly in high school. Their steroid use is up, it's more 
than doubled among high school students from 1991 to 2003, 
according to the Centers for Disease Control. Last year, one 
school district in my state, Polk County, became the first in 
Florida to establish random testing for high school athletes. 
And then the Florida legislature tried and failed to require 
steroid testing for all high school athletes, the schools and 
the states push back by saying that it's too costly. So I'm 
directing our staff to draft Federal legislation that would 
help states with the resources they need to curb the use of 
steroids. It would provide Federal grants directly to the 
states, so that they can develop and implement steroid testing 
programs.
    And I think in conclusion I'll say, I think it's time for 
all of you to get involved in these kinds of ways, and I ask 
each of you testifying today to begin a major multi-sport, 
national advertising campaign, and it could be paid for by the 
leagues and their players and it could be directed at young 
people. Thank you, Mr. Chairman.
    Senator McCain. Senator Lautenberg.

            STATEMENT OF HON. FRANK R. LAUTENBERG, 
                  U.S. SENATOR FROM NEW JERSEY

    Senator Lautenberg. Thank you very much, Mr. Chairman. I 
want to have a few words, not strictly as a Senator, but also 
as a grandfather. And one of my grandsons who's 9 years old 
follows the New York Yankees so ardently that last spring 
before baseball season began, he wrote an article that assessed 
the Yankees chances of winning their division this year. The 
article was very insightful, it revealed the extent of his love 
for the game of baseball and his allegiance to that particular 
team. Any other team representation here, forgive me. He looks 
up to the players, and in his eyes, they truly loom larger than 
life. And of course there are millions of young people like my 
grandson, they idolize professional athletes who play baseball, 
football, basketball, you name it. And I would hate to have to 
explain to my grandson or any other young person that this 
respect and admiration was misplaced. I'd hate to have to break 
his heart by telling him that some of his heroes were cheating. 
And I'd hate to----
    Senator McCain. I'd like to remind the Senator, we have a 
two-minute time limit here this morning.
    Senator Lautenberg. OK. We're just about there. And I'd 
hate to see a game that's inspired generations of Americans, 
become forever tainted by scandal. Mr. Chairman, we've come to 
realize that this is really a serious problem. And I commend 
you for holding this hearing.
    [The prepared statement of Senator Lautenberg follows:]

            Prepared Statement of Hon. Frank R. Lautenberg, 
                      U.S. Senator from New Jersey

    Mr. Chairman,
    I want to speak not as a Senator, but as a grandfather.
    One of my grandsons follows the New York Yankees so ardently, that 
last spring, before the baseball season began, he wrote an article that 
assessed the Yankees' chances of winning their division this year. The 
article was very insightful and it revealed the extent of his love for 
the game of baseball and his allegiance to the Yankees.
    He looks up to the players--in his eyes, they truly loom larger 
than life.
    Of corse there are millions of young people just like my grandson. 
They idolize professional athletes who play baseball, football, 
basketball, soccer and hockey.
    I would hate to have to explain to my grandson, or any other young 
person, that this respect and admiration was misplaced.
    I would hate to have to break his heart by telling him that some of 
his heroes were cheaters.
    And I would hate to see a game that has inspired generations of 
Americans become forever tainted by scandal.
    Mr. Chairman, I think we have all come to realize that this really 
is a serious problem. Now it's time to get serious and agree on a 
solution that we can all rally behind.

    Senator McCain. Thank you, Senator. Now I understand that 
Commissioner Selig has brought five individuals with him this 
morning who are amongst the most respected and admired people 
in America. And if it's agreeable to you, Commissioner, we'd 
ask them to come and sit next to you, one by one and make a 
brief statement since they have come here, and we'd like to 
begin with Hank Aaron, if that's agreeable, sir. Thank you for 
coming this morning, Mr. Aaron, you honor us with your 
presence.
    Mr. Aaron. Thank you very much, Mr. Chairman. This is the 
first time I've been a lead off though.
    Senator McCain. I'm sure you'll hit a home run here.
    Mr. Aaron. I'm used to cleaning up. But I'm here because of 
my involvement with the Boys and Girls Clubs for many years, 
and in traveling around the country I think I was saddened by 
some of the things that I hear from my colleagues and some 
things that I've heard from drug testing, and all the hearings. 
And I'm here this morning to support the Commissioner, and also 
to support tougher anti-drug action. I think that we need to be 
concerned with our young people because they are the ones that 
are the future of this country. And if we don't protect them, 
are we not going to protect this country. Baseball is just a 
small part of all of the things that we are capable of doing in 
this country. So I want to applaud the Commissioner, and I also 
just want to make sure that whatever we do, we make sure that 
we clean up baseball. Thank you very much.
    Senator McCain. Sir, may I exercise the prerogative of the 
Chair and ask you one question?
    Mr. Aaron. Sure.
    Senator McCain. What should be done about records that are 
set that are tainted by the use of steroids?
    Mr. Aaron. I think that's going to be--Mr. Chairman, I 
think that's going to be left up to the Commissioner and the 
rules committee. They will probably have to go back and look at 
some of those things that happened. That's the only answer that 
I can give you at this time.
    Senator McCain. Thank you, sir, and thank you for your 
magnificent work as an outstanding American.
    Mr. Aaron. Thank you very much.
    Senator McCain. Mr. Brock, welcome.
    Mr. Brock. Thank you, Mr. Chairman, my name is Lou Brock, 
and I'm here to represent baseball and its fight and its 
struggle to confront steroid use in America's sports. I believe 
that we have to make some radical move to get the attention of 
everyone. Radical, simply meaning that steroids are radical. 
And its movement, and it can only move if we touch it with our 
hands. So we need to be able to have a radical decision. A 
radical decision that points out and states our belief in 
America. And that is cheaters can't win. And steroids has put 
us in a position that it's OK to cheat. And I think the stiffer 
the penalty, the greater the message will be sent. Thank you, 
Mr. Chairman.
    Senator McCain. Thank you, very much, sir, and thank you 
for joining us. Mr. Sandberg. Resident of the great State of 
Arizona.
    Mr. Sandberg. Thank you, Mr. Chairman. I want to thank you 
personally for all that you do for the great State of Arizona. 
I enjoy living out there, and I love the golf courses, by the 
way.
    Senator McCain. We appreciate your taxes.
    Mr. Sandberg. I'm here today, because I love the game of 
baseball. Exactly two months ago, I gave an induction speech in 
Cooperstown and I reflected on my career, and I talked about 
players respecting the game. Players playing the game the right 
way. To me that's respecting the uniform they wear, respecting 
their team, respecting their opponents, the media, and the 
fans.
    We do have a problem in baseball, and using steroids is not 
respecting the game. I'm here today in hope of a strict policy 
for baseball that has strict penalties for the cheaters in the 
game. Fifty, 100, life, is a strict policy. And what I hope for 
the game is players that are respectful. And we here today owe 
America's pastime a strict policy. Thank you.
    Senator McCain. Thank you very much.
    Mr. Niekro.
    Mr. Niekro. Thank you, Mr. Chairman.
    Senator McCain. Welcome, sir.
    Mr. Niekro. I'm here, I had the honor to play the game of 
baseball 28 years, 23 in the Majors, and 5 in the Minor 
Leagues, I guess we just didn't have those problems back there, 
then. If we did, it certainly wasn't recognized. I am here to 
support the policy of the Commissioner of Baseball. I do 
believe that a first offender--50 games, sometimes I don't 
think that's even enough. But that is a starting point. I have 
been under the guidance of Don Fehr, and Marvin Miller when 
they first brought the union together. And they have done a lot 
for the players, extremely a lot. I would not be living in a 
house, and driving the cars, or whatever if it wasn't for the 
association of, basically, baseball players. But I do believe 
that they can step up. I know they have been meeting a lot in 
trying to put this problem to an end. And it is a problem. I 
would like to see the Association of Players come up and come 
to the level of 50 games, at least 50 games. And I am here to 
strictly back Mr. Selig's proposal of first time offender, 50 
games, and sometimes I don't think that's enough. Thank you.
    Senator McCain. Thank you, sir. Thank you for coming today.
    And finally Mr. Robin Roberts, who mentioned that his 
performances were far superior to Mr. Bunning's.
    Mr. Roberts. That's not true, Mr. Chairman. That's not 
fair. But welcome to all of you. The last time I was here at a 
meeting like this, was when Senator Kefauver called me. And 
they were arguing about the reserve clause. And I got a--I get 
the same pay this time I think, Bud, don't I?
    Mr. Selig. That's correct.
    Mr. Roberts. Jim, Senator Bunning. Pardon me, Jimmy. He 
mentioned that he and I were very active in starting the 
Players Association, and there have been a number of items that 
the players have fought for and I disagreed with and everything 
else. But I'm not in a position of helping out at all. But I 
think, overall, Jim and I can be proud of the fact that the 
Players Association and the owners have come up with a 
beautiful sport, followed by many great athletes still playing. 
And what we're talking about today is certainly something that 
has to be reckoned with.
    Of all the things that I've agreed with, on Don and the 
Players Association, I disagree. I don't believe that with his 
power and with his--that he can no longer recognize the fact 
that this has got to be something, he's got to say to the 
Commissioner, you represent the fans, we represent the fans, 
the fans demand this, and I think he'll most important to go 
along with what the Commissioner has proposed, and not make you 
gentlemen waste your time anymore with that thing.
    It is a terrible thing. I do think I would like to see an 
amnesty as far as records that have gone behind. Because nobody 
knows exactly who did what, and as much as I respect Roger 
Maris, and the rest of them. The show they put on, the fact 
that Barry Bonds is hitting them right now, and I know he 
mustn't be on them now, I don't know. But he's a phenomenal 
athlete, probably the greatest hitter that ever lived. And you 
can taint him anyway you want, but the guys playing the game 
today, they take better care of themselves, they're outstanding 
athletes, and I do think that Don is the one that can 
straighten this out immediately and you guys and ladies can 
work on other things. Thank you for having me.
    Senator McCain. Thank you, sir, thank you for being here. 
And I know that's a little unusual, but I thought it was 
important to hear from these individuals who have done so much 
for America's pastime and I appreciate the patience of our 
witnesses. And now our panel consists of Allan H. ``Bud'' 
Selig, Commissioner of Major League Baseball, Don Fehr, the 
Executive Director and General Counsel of the Major League 
Baseball Players Association, Paul Tagliabue, Commissioner of 
the National Football League, Gene Upshaw who is the Executive 
Director of the National Football League Players Association, 
David Stern, the Commissioner of the National Basketball 
Association, Antonio Davis who is the President of the National 
Basketball Players Association, Gary Bettman, who is the 
Commissioner of the National Hockey League--the newly 
resuscitated National Hockey League, and Ted Saskin, who is 
Executive Director of the National Hockey League Players 
Association. Welcome. We'll begin with you, Mr. Selig.

    STATEMENT OF ALLAN H. SELIG, COMMISSIONER, MAJOR LEAGUE 
 BASEBALL; ACCOMPANIED BY HANK AARON, LOU BROCK, PHIL NIEKRO, 
 ROBIN ROBERTS, AND RYNE SANDBERG, MEMBERS, BASEBALL'S HALL OF 
                              FAME

    Mr. Selig. Thank you, Mr. Chairman. I would like to thank 
the Chairman, the Ranking Member and the Committee members for 
inviting me to testify today.
    I have the distinct privilege of serving as the ninth 
Commissioner of Baseball. As Commissioner, the most important 
point I want to make this morning is that my top priority is to 
eradicate performance-enhancing substances from baseball. That 
is why I proposed last April a tough, new 50-games, 100-games, 
life suspension discipline schedule for cheaters who use 
steroids. Members of the Committee, it is time for this 
proposal to be accepted.
    As you know now, five members of Baseball's Hall of Fame--
Hank Aaron, Lou Brock, Phil Niekro, Robin Roberts, and Ryne 
Sandberg--have joined me today to support my proposal to 
toughen Major League Baseball's drug-testing program. I also 
have with me a letter from the President of Little League 
Baseball urging tougher penalties for those who use steroids.
    I have often spoken about baseball's role as a social 
institution, and how Jackie Robinson breaking the game's color 
barrier on April 15, 1947, was baseball's proudest moment. As 
the national pastime, we have social responsibilities that we 
take very seriously. But meeting those responsibilities can be 
difficult and complex. Baseball presently has a problem with 
performance-enhancing substances. This is a problem for several 
reasons. First, players who use steroids are cheating which 
directly affects the integrity of the game. Second, the use of 
steroids presents serious health issues for those who are 
taking them. Third--and this directly impacts the social 
responsibility that the game has to its fans and to the 
communities in which we play--the use of steroids by our 
players influences the youth of America. Whether we and our 
players like it or not, they are role models and kids who 
admire them are likely to emulate what they do. If the young 
athletes of our country believe that taking steroids may help 
them become Major Leaguers, they will take those substances. 
This must not happen. It is my goal as the Commissioner of 
Baseball to eradicate the use of performance-enhancing 
substances from the game and I won't leave one stone unturned 
until that happens.
    Before the BALCO investigation and before President Bush 
brought up the subject in the State of the Union speech, Major 
League Baseball had recognized the seriousness of the steroid 
problem and had begun to address it. We banned performance-
enhancing substances throughout the Minor Leagues and began 
testing there. But I could not unilaterally impose testing in 
the Major Leagues, because drug testing is a matter of 
collective bargaining. The Major League Baseball Players 
Association had long opposed any kind of testing. During our 
2002 labor negotiations, testing for performance-enhancing 
substances was a priority and we were successful, for the first 
time, in negotiating a testing program. Although it was not as 
comprehensive as I would have liked, it was a first step.
    But we did not stop there. In March 2004, due in part to 
the message from the President and this Committee, we went back 
to the Players Association and told them that the program we 
had was insufficient. Last January, in an unprecedented move, 
Major League Baseball and the Players Association reopened the 
basic agreement and devised a tougher, more comprehensive drug-
testing program that was much more effective.
    There is no doubt in my mind that the current testing 
program is working. But whether or not the program is working 
is no longer the issue. The issue is integrity, my integrity, 
the players' integrity, the owners' integrity, but most 
importantly, the game's integrity. The integrity issue is 
transcendent. We must put a stop to the use of steroids and the 
best way is to put in place a drug-testing program that has 
tough discipline and independent testing. In April, I sent a 
letter to Don Fehr, the Executive Director of the Players 
Association, proposing that violators of the program be 
suspended for 50 games for a first offense, 100 games for a 
second, and a lifetime ban for a third. I also proposed an 
extension of testing to include amphetamines, increased random 
testing, and turning over the administration of the testing 
program to an independent authority.
    I believe so strongly in this proposal that I have already 
implemented the ``three strikes and you're out'' program in the 
Minor Leagues for the 2006 season. At the Major League level, 
my staff has diligently pressed the Players Association and, in 
recent weeks, has negotiated--as required by the National Labor 
Relations Act--to effectuate the goals I articulated in my 
letter to Mr. Fehr. Unfortunately, the Players Association has 
yet to agree to the proposal I made to them five months ago. 
This week, I received a letter from Mr. Fehr that moves in the 
right direction, but his reply does not go far enough. 
Notwithstanding my impatience and profound disappointment, I 
refuse to give up and will continue to press to strengthen the 
program.
    Senator John McCain and Senator and Hall of Famer Jim 
Bunning each has introduced legislation that would regulate 
drug-testing programs in professional sports. It would be 
preferable to handle this issue through collective bargaining, 
but after waiting five months I stand ready to support 
appropriate Federal legislation if Congress becomes convinced 
that the collective bargaining process will not yield an 
acceptable drug-testing program.
    While this process continues, we have increased our efforts 
where we can act unilaterally. For example, in 2005, we 
significantly increased our drug testing in the Minor Leagues, 
in the Dominican Republic and Venezuelan Summer Leagues. We 
conducted more than 7,000 tests and imposed more than 100 
suspensions in the Minor Leagues alone for players who tested 
positive for performance-enhancing substances. Recognizing the 
need to keep the science of drug testing on the cutting edge, 
Major League Baseball has committed to fund research by Dr. 
Donald Catlin, the renowned scientist who heads the World Anti-
Doping Agency-accredited UCLA Laboratory, in his endeavor to 
create a valid urine test for Human Growth Hormone. We are also 
active on the educational side of this issue and have joined 
forces with the Partnership for a Drug Free America and the 
Taylor Hooton Foundation to help warn America's youth and their 
parents about the health dangers of steroids and performance-
enhancing drugs.
    There can be no question that Major League Baseball takes 
this issue very seriously. As I have said many times, the 
elimination of steroids and performance-enhancing substances 
from our game through a tougher and more effective testing 
program is essential to restoring integrity to the game. I 
appreciate the attention you are giving this issue and thank 
you for allowing me the opportunity to appear before you today.
    [The prepared statement of Commissioner Selig follows:]

   Prepared Statement of Allan H. Selig, Commissioner, Major League 
  Baseball; Accompanied by Hank Aaron, Lou Brock, Phil Niekro, Robin 
      Roberts, and Ryne Sandberg, Members, Baseball's Hall of Fame

    I would like to thank the Chairman, the Ranking Member and the 
Committee members for inviting me to testify today.
    I have the distinct privilege of serving as the ninth Commissioner 
of Baseball. As Commissioner, the most important point I want to make 
this morning is that my top priority is to eradicate performance-
enhancing substances from baseball. That is why I proposed last April a 
tough, new 50-games, 100-games, life suspension discipline schedule for 
cheaters who use steroids. Members of the Committee, it is time for 
this proposal to be accepted.
    Five members of Baseball's Hall of Fame--Hank Aaron, Lou Brock, 
Phil Niekro, Robin Roberts, and Ryne Sandberg--have joined me today to 
support my proposal to toughen Major League Baseball's drug-testing 
program. I also have with me a letter from the President of Little 
League Baseball urging tougher penalties for those who use steroids.
    I have often spoken about baseball's role as a social institution, 
and how Jackie Robinson breaking the game's color barrier on April 15, 
1947 was baseball's proudest moment. As the National Pastime, we have 
social responsibilities that we take very seriously. But meeting those 
responsibilities can be difficult and complex.
    Baseball presently has a problem with performance-enhancing 
substances. This is a problem for several reasons. First, players who 
use steroids are cheating which directly affects the integrity of the 
game. Second, the use of steroids presents serious health issues for 
those who are taking them. Third--and this directly impacts the social 
responsibility that the game has to its fans and to the communities in 
which we play--the use of steroids by our players influences the youth 
of America. Whether we and our players like it or not, they are role 
models and kids who admire them are likely to emulate what they do. If 
the young athletes of our country believe that taking steroids may help 
them become major leaguers, they will take those substances. This must 
not happen. It is my goal as the Commissioner of Baseball to eradicate 
the use of performance-enhancing substances from the game and I won't 
leave one stone unturned until that happens.
    Before the BALCO investigation and before President Bush brought up 
the subject in the State of the Union speech, Major League Baseball had 
recognized the seriousness of the steroid problem and had begun to 
address it. We banned performance-enhancing substances throughout the 
Minor Leagues and began testing there. But I could not unilaterally 
impose testing in the major leagues, because drug testing is a matter 
for collective bargaining. The Major League Baseball Players 
Association had long opposed any kind of testing. During our 2002 labor 
negotiations, testing for performance-enhancing substances was a 
priority and we were successful, for the first time, in negotiating a 
testing program. Although it was not as comprehensive as I would have 
liked, it was a first step.
    But we did not stop there. In March 2004, due in part to the 
message from the President and this Committee, we went back to the 
Players Association and told them that the program we had was 
insufficient. Last January, in an unprecedented move, Major League 
Baseball and the Players Association reopened the Basic Agreement and 
devised a tougher, more comprehensive drug-testing program that was 
much more effective.
    There is no doubt in my mind that the current testing program is 
working. But whether or not the program is working is no longer the 
issue. The issue is integrity . . . my integrity . . . the players' 
integrity . . . the owners' integrity . . . and, most importantly, the 
game's integrity. The integrity issue is transcendent. We must put a 
stop to the use of steroids and the best way is to put in place a drug-
testing program that has tough discipline and independent testing. In 
April, I sent a letter to Don Fehr, the Executive Director of the 
Players Association, proposing that violators of the program be 
suspended for 50 games for a first offense, 100 games for a second, and 
a lifetime ban for a third. I also proposed an extension of testing to 
include amphetamines, increased random testing, and turning over the 
administration of the testing program to an independent authority.
    I believe so strongly in the proposal that I have already 
implemented the ``three strikes and you're out'' program in the Minor 
Leagues for the 2006 season. At the Major League level, my staff has 
diligently pressed the Players Association and, in recent weeks, has 
negotiated--as required by the National Labor Relations Act--to 
effectuate the goals I articulated in my letter to Mr. Fehr. 
Unfortunately, the Players Association has yet to agree to the proposal 
I made to them five months ago. This week, I received a letter from Mr. 
Fehr that moves in the right direction, but his reply does not go far 
enough. Notwithstanding my impatience and profound disappointment, I 
refuse to give up and will continue to press to strengthen the program.
    Senator John McCain and Senator and Hall of Famer Jim Bunning each 
has introduced legislation that would regulate drug-testing programs in 
professional sports. It would be preferable to handle this issue 
through collective bargaining, but after waiting five months I stand 
ready to support appropriate Federal legislation if Congress becomes 
convinced that the collective bargaining process will not yield an 
acceptable drug-testing program.
    While this process continues, we have increased our efforts where 
we can act unilaterally. For example, in 2005, we significantly 
increased our drug testing in the Minor Leagues and in the Dominican 
Republic and Venezuelan Summer Leagues. We conducted more than 7,000 
tests and imposed more than 100 suspensions in the Minor Leagues alone 
for players who tested positive for performance-enhancing substances.
    Recognizing the need to keep the science of drug testing on the 
cutting edge, Major League Baseball has committed to fund research by 
Dr. Donald Catlin, the renowned scientist who heads the World Anti-
Doping Agency-accredited UCLA Laboratory, in his endeavor to create a 
valid urine test for Human Growth Hormone. We are also active on the 
educational side of this issue and have joined forces with the 
Partnership for a Drug Free America and the Taylor Hooton Foundation to 
help warn America's youth and their parents about the health dangers of 
steroids and performance-enhancing drugs.
    There can be no question that Major League Baseball takes this 
issue very seriously. As I have said many times, the elimination of 
steroids and performance-enhancing substances from our game through a 
tougher and more effective testing program is essential to restoring 
integrity to the game. I appreciate the attention you are giving this 
issue and thank you for allowing me the opportunity to appear before 
you today.

    Senator McCain. Thank you, Commissioner.
    Mr. Fehr.

 STATEMENT OF DONALD M. FEHR, EXECUTIVE DIRECTOR, MAJOR LEAGUE 
                  BASEBALL PLAYERS ASSOCIATION

    Mr. Fehr. Thank you, Senator, Mr. Chairman. I guess the 
Chairman isn't here any longer, but other members of the 
Committee, I would like to make a brief opening, and ask that 
my written statement be offered for the record.
    Senator McCain. Without objection.
    Mr. Fehr. I'd also like to introduce Michael Weiner who's 
sitting behind me right there. Mike is now the general counsel 
of the Players Association. I haven't held that title for 18 
months or a little more. He's been principally involved in both 
administration and particularly the negotiations that Mr. Selig 
has referred to, and if the matters come up in which I need to 
get a specific answer, I may ask him to reply on my behalf.
    Very briefly, Mr. Chairman, we've made a lot of progress. I 
know that it isn't sufficient yet for some. But I'd like to 
take a moment and describe it because I think that viewed 
fairly, it indicates that an awful lot has been done. Initially 
I would like to agree with Commissioner Selig on one very 
important point. The program we have now is working. I don't 
think that there is any dispute among us in that regard. Very 
briefly, at the hearing that we had in 2002 to which I believe 
Senator Dorgan referred to in his opening statement, there were 
a lot of things said. There were rumors going around of very 
high percentages of Major League players that were using 
steroids. Remembering however, that a number of steroids were 
legal at that point in time, such as Androstenedione. We 
reached an agreement with the clubs, in which we would do a 
survey test. If positive tests exceeded a certain number we 
would go in 2004 to testing with disciplinary consequences. The 
2003 tests resulted in just over 5 percent, much higher than I 
hoped, but that triggered the next step, and in 2004 there were 
disciplinary consequences, and the number of violations dropped 
to about 1 percent. There were 12 confirmed violations.
    Nevertheless at the hearing in March of 2004, if I recall 
the date correctly, you may remember I was ill during that 
hearing and I don't--it may be fading a little bit. But in 
essence we were asked to do more. So as Commissioner Selig 
indicated we reopened the agreement, we worked over that 
season, we agreed to more tests, we agreed to off-season tests, 
we agreed to increase the penalties, including a suspension for 
a first-time positive, and as Senator Dorgan had requested, 
public identification of those who indicated that they had 
violated the program.
    At the time, January of 2005, we had hoped that we had 
taken a significant enough step. Players certainly felt good 
about it. There were hearings last spring in the House in which 
we were asked once again to consider negotiations. The 
Commissioner sent me a letter that he referred to in April. I 
responded to him the end of that month by indicating that I 
would consider what he had to say, meet with the players and 
discuss it. We agreed at that time that any changes would be 
effective for 2006, and as I indicated to him at the time, I 
was going to spend most of the summer and did, meeting with 
every team, talking to every player who wanted to talk to me, 
hearing all views, conveying the views of this body and its 
members and of your counterparts in the House.
    I even sent tapes of the House hearings out to all of the 
clubs so that players could watch it if they wanted to.
    The letter that I sent to the Commissioner earlier this 
week, I want to make one thing clear, was not a new proposal. 
It was a summary of where our discussions have taken us to 
date. And there was nothing new in that letter to the 
Commissioner. Senator McCain has suggested to me that I should 
have said more things publicly about our position before. He 
and I have a disagreement about that. In the past we've been 
criticized for negotiating in public. But in any event, I 
wanted to make clear what our position was before the hearing 
began.
    And we have reached agreement on most of the issues that 
are between us. We've agreed to vastly increase the number of 
tests, approximately doubling it to about 3,000 with every 
player tested a minimum of twice. Random, unannounced testing 
year round; we have agreed to a structure for the testing of 
amphetamines which was a matter raised by Senator McCain after 
the last agreement was reached. And we're very close on a 
penalty structure. I don't expect that that will be a 
significant issue. As the Commissioner said, we've reached 
agreement on moving a lot of the administrative functions to an 
outside entity so that questions that might be raised about 
that would no longer be there. And the last major issue to be 
resolved is steroid penalties.
    And here again I think we're much closer than people ever 
expected us to be. On the second-time penalty we've proposed a 
presumptive penalty of 75 games, the Commissioner is at 100, 
with the possibility if there are mitigating circumstances it 
could be 50, if there are aggravating circumstances it could be 
100. The Commissioner is at 80, 100, and 120. With respect to a 
third time, we've accepted in principle the ``three strikes and 
you're out'' circumstance. Or the ``three strikes and you're 
out'' framework, I guess perhaps that's a better word, with the 
provision that there be arbitral review of anything as severe 
as a lifetime sanction to look at the specifics.
    Just to bring everyone up to date with matters which 
occurred essentially after my prepared testimony had been 
written on Friday, that I noticed over the weekend and I want 
to make certain there's no dispute about. Our proposal on a 
third penalty, is that the Commissioner may impose whatever 
penalty he believes up to and including a permanent ban as is 
appropriate under the facts and circumstances, that can be 
reviewed by an arbitrator, but it could not be reduced to less 
than one year.
    The Commissioner's proposal is the same, except that it 
could not be reduced to less than two years, which as I 
understand it, and Bud will correct me if I'm wrong, has been 
the circumstance for about 60 years with someone ineligible as 
a result of gambling, or something like that.
    On penalties, the last thing I'll say is that we believe 
very strongly that the purpose of penalty provisions ought to 
be to deter. Not to punish for its own sake. We believe that 
the penalty structure we have imposed has demonstrated that it 
will. The number of confirmed positives we have so far this 
year is nine and one of those was an individual in which the 
arbitrator found that the result had--the positive result was 
from a prior use, prior to 2005 for which he had already been 
disciplined in the Minor Leagues. I don't know if that will be 
nine before the end of the year. We still have tests yet to 
come and we have off-season testing which will begin this year. 
I would expect that our negotiations would continue as they 
have been. The atmosphere which in baseball has been for many, 
many years contentious on all kinds of issues as the Hall of 
Famers will certainly remember from the time they were there. 
These discussions have not be conducted in that atmosphere. It 
doesn't mean that we agree on everything.
    In conclusion, and I don't want to over-extend my time, Mr. 
Chairman, we agree that the best way to solve this matter is 
through collective bargaining. We believe that we've made a lot 
of strides in the program which as the Commissioner indicated 
is working and we are prepared to do a lot more. I hope and 
expect that when our negotiations resume, which I would expect 
to be next week after the Jewish holidays, that we'll be able 
in a reasonable period of time to conclude the discussions on 
the issues that we have remaining.
    Last thing, Senator Cantwell, I believe, referred to the 
decisive and swift action taken by the Seattle Mariners, in a 
very positive way. The point I would like to make that with 
respect to any of those players who were on the 40-man roster, 
that decisive and swift action was the result of and operated 
under the program that we negotiated last year. It's not 
something that was done independently or outside of it.
    Thank you, Mr. Chairman. I hope I did not exceed my time.
    [The prepared statement of Mr. Fehr follows:]

Prepared Statement of Donald M. Fehr, Executive Director, Major League 
                      Baseball Players Association

    Thank you, Mr. Chairman. My name is Donald M. Fehr and I am the 
Executive Director of the Major League Baseball Players Association. I 
appreciate this opportunity to testify today about what our union has 
done and is continuing to do to combat the use of illegal performance-
enhancing substances in Major League Baseball.
    The last time I appeared before this Committee, on March 10, 2004, 
I explained how the new Joint Drug Agreement contained in our 2002 
collective bargaining agreement was working. We had conducted a year of 
survey testing in 2003, which produced positive test results for 
between 5 and 7 percent of players (I believe the actual number of 
positive tests was in the 80s), with the result under our agreement 
being that in 2004 we were about to begin the random testing of 
individual players with disciplinary consequences. I expressed my 
belief that the 2004 testing program would be a significant deterrent 
to the use of unlawful performance-enhancing drugs, and that the number 
of positive tests would drop dramatically. I also pointed out that by 
the end of the season we would have hard data (the 2004 results) by 
which to gauge whether our agreement had been effective, and whether my 
prediction would prove accurate.
    I recognize that not everything I said that day was well received. 
Chairman McCain said that he did not disagree with anything in my 
opening statement, but nonetheless indicated he thought we needed a 
much stronger program. Senator Dorgan said he was disappointed that we 
had made so little progress since a Committee hearing in the summer of 
2002, and indicated his dissatisfaction that under our 2002 agreement, 
players who tested positive for the first time were not suspended or 
publicly identified, but instead referred to treatment. Based on these 
and other criticisms, the Chairman urged us to commit to revisit the 
issue. We did.
    We soon began discussions with the clubs to amend our agreement, 
even though we had no legal obligation to negotiate, and announced our 
new agreement last January. In it, we tried to address each of the 
major criticisms which had been leveled at our program: (1) we added 
additional tests, and established a program under which a player could 
never be certain that he would not be tested again; (2) we added off-
season testing; and (3) we increased the penalties, including the 
public identification and suspension of a player who tested positive 
for the first time. While reluctant to take this last step, the players 
believed that public identification of those who test positive for the 
use of unlawful performance-enhancing drugs, with the attendant 
necessary consequences of widespread criticism and shame, would be a 
significant deterrent.
    On the day of the announcement, Mr. Selig praised both the 
agreement and the Players Association for agreeing to an unprecedented 
mid-term renegotiation of a significant provision in our collective 
bargaining agreement. In early March, he said he was ``very confident 
that we will effectively rid our sport of steroids'' in 2005. President 
Bush said the new agreement was good for baseball and good for society. 
Some Members of Congress indicated that they hoped that more would be 
done, but still clearly felt that the new agreement was a very positive 
step. By all accounts, we had significantly enhanced our program. At 
about the same time we learned that the 2004 program was working well. 
There were twelve confirmed positive tests, out of more than 1,100 
administered.
    Both the new agreement we reached and the results in 2004--the hard 
data--constitute strong evidence of progress. And yet, only two months 
after the announcement of the new agreement, and before we even were 
able to implement it, we appeared on March 17, 2005, before the House 
Committee on Government Reform. Again, our program received harsh 
criticism. I believed then, and continue to believe, that much of that 
criticism was not well-founded.
    A few weeks after the hearing, despite his previous emphatic 
support of the new program, Commissioner Selig publicly called for us 
to renegotiate yet again. Members of the House Government Reform 
Committee, as well as the House Energy and Commerce Committee which 
held a hearing on May 18, also asked us to do so, as did Members of the 
Senate. And so, yet again, we have. I informed the Commissioner that we 
would discuss the issues with the players, and I spent much of the 
summer traveling to meet with all of the players on all 30 teams to 
give each player an opportunity to hear and discuss these difficult 
issues. During and subsequent to my meetings with the players, we have 
been actively negotiating with the clubs to see what additional 
agreement we may be able to reach. \1\
---------------------------------------------------------------------------
    \1\ Both sides agreed that it would be unfair to implement new 
testing rules during the 2005 season. Indeed. Mr. Selig said he thought 
it was unfair to do so in the Minor Leagues, where the program is 
unilaterally implemented by the owners. We also believed that the 
results of our 2005 testing program would be helpful to our 
discussions.
---------------------------------------------------------------------------
    Meanwhile, we now have results from the 2005 testing program. Some 
believed there might be far more positive test results in 2005 than in 
2004 for one simple reason: many substances which were perfectly legal 
until last January are now illegal, as a result of the passage of the 
Anabolic Steroid Control Act of 2004. The substances covered in the 
bill were automatically added to our program. As a practical matter, 
what this meant was that a player could test positive this year merely 
by continuing to use something he had legally purchased as recently as 
New Years Day 2005. And, of course, we have a very diverse membership, 
some of whom live in countries in which I believe some of those 
products can still be legally obtained.
    Those concerns were not realized. The 2005 results demonstrate that 
the players take our program seriously. So far this year we have 
conducted more than 1,400 tests. Only nine players have been suspended 
for testing positive, of which only five were full-time Major Leaguers 
in 2004, and only four of whom will have a full year of major league 
service in 2005. Two of the nine had no Major League service through 
2004; two had less than two months. And one of the nine players 
suspended did not use steroids in 2005 at all. The arbitrator found 
that the low level detected in his urine was the result of a prior use, 
before the 2004 season, for which this player had already been 
disciplined twice, under the Minor League program. It was for that 
reason that the Players Association believed, and still believes, that 
this third suspension was fundamentally unfair and inappropriate, 
representing a kind of double jeopardy.
    Clearly these results are very encouraging, and one can hope that 
the final results will demonstrate that Mr. Selig's prediction (that we 
will effectively rid the game of steroids in 2005) will turn out to be 
accurate. \2\
---------------------------------------------------------------------------
    \2\ The incidence of positive test results is at a very low level, 
and while zero is our goal, it may be unrealistic to expect that it 
will be reached. No testing program has been entirely free of positive 
tests. But we are already very close to that goal.
---------------------------------------------------------------------------
    Of course, as everyone here is well aware, one of the players 
suspended does have substantial Major League service. Senator McCain 
has indicated that the suspension of Rafael Palmeiro brought this issue 
to the forefront again. To an extent, I feel as if we are caught in a 
catch-22. Before the Palmeiro suspension, a primary criticism leveled 
at our program had been that it could not be working because no well-
known players had been suspended. After the Palmeiro suspension we hear 
that the program cannot be working because Rafael Palmeiro was found to 
be in violation of the program. But you can't have it both ways. With 
all due respect, our program is working well. It has resulted in a 
dramatically reduced incidence of steroid use, and applies to all 
players equally, without regard to seniority, ability or status in the 
game. Nor does the Palmeiro suspension demonstrate that our penalties 
are inadequate. The consequences of making this suspension public have 
been devastating for the player.
    Let me turn now to our current discussions with the owners. 
Unfortunately, as of the time that this is written, we have not yet 
reached a comprehensive new agreement, and, in labor negotiations, no 
final agreement is made until all outstanding issues have been 
resolved. But we have made significant progress in each of the areas of 
concern identified by Mr. Selig, and have reached or are very near 
agreement on several of the key issues which we have been discussing. 
We have agreed to conduct significantly more tests. The number of tests 
performed each year would double, and the new annual number of tests 
would be approximately 3,000. We have agreed upon a framework for 
testing for amphetamines, something that baseball has never before 
tried to do, and have essentially agreed on a penalty structure for 
amphetamine positives. We have offered to move more of our testing and 
administrative functions to an outside entity in order satisfy a 
criticism--even if, as we believe, it is uninformed--that we need to 
create more transparency and independence. We also have agreed to 
clarify the language regarding governmental investigations.
    However, we have yet to reach agreement on a new penalty structure 
to be applicable to players who are found to have used unlawful 
steroids. Although the Players Association has made a proposal for 
enhanced penalties, we have been unable to meet the Commissioner's 
demands, particularly with respect to penalties for a first-time 
offender. Specifically, the agreement we entered into in January calls 
for a 10-day suspension for a first positive. The MLBPA has proposed 
doubling that to a presumptive 20-game suspension. The Commissioner 
would have the right to impose a suspension which could under certain 
circumstances become 30 games, and the player would be able to argue 
that the circumstances were such that the penalty should be reduced 
(but not below 10 games). Mr. Selig's proposal presumes a 50-game 
penalty, with the possibility that he could increase it to 60 games, 
and the player could argue that it should be reduced to 40. For a 
second violation, the current agreement calls for a 30-day suspension. 
The MLBPA has proposed that this be increased to a presumptive 75-game 
suspension, with circumstances under which the Commissioner could 
impose 100 games, and the player having the right to argue to an 
arbitrator for a reduced penalty, but at least 50 games. Mr. Selig's 
proposed presumptive penalty is 100 games, although he could impose up 
to 120 games, and the player could argue for a lower penalty of 80 
games. And for a third positive test result, the current agreement 
calls for a 60-day suspension. We have proposed that the new agreement 
give the Commissioner the right to impose whatever suspension he 
believes is appropriate and consistent with just cause, including a 
permanent ban, with the player having the right to argue to an 
arbitrator that the penalty is not warranted under the facts of his 
particular case. Mr. Selig's position is that after a third violation, 
a player should be permanently banned, without arbitral review or any 
other review, or even an examination of the particular facts and 
circumstances of the individual case.
    The clubs' position in this bargaining seems to be that the players 
must give the clubs what they want or an even more punitive result will 
follow by legislation. But, clearly, Mr. Selig does not believe that 
stiffer penalties are needed in order to have an effective program. He 
has said on a number of occasions that the program is in fact working 
well, but that, somehow, this is not the issue and that does not 
matter.
    We think it does matter. We think that the facts do matter, or they 
should. It is the very role and function of the Players Association, as 
it is of every union, to effectively represent its members to the best 
of its ability, and that includes individuals who will be tested and, 
if appropriate, punished. So we do believe, and we must believe, that 
fundamental fairness matters, and that the penalties should be designed 
for effective deterrence, not for punishment for its own sake. The 
penalties the clubs are asking for, and the ones provided in the bills 
being discussed today, do not meet that standard.
    Consider our current program. While we do not have a system of 
absolute strict liability, we have agreed that once a player tests 
positive the burden shifts to the player to show why he did not violate 
the program. This obviously puts the player in the nearly impossible 
situation of having to attempt to demonstrate how something got into 
his body weeks or months earlier. If he did not put it there, he will 
not know. Clearly there may well be results which are unfair to the 
player. And while some will say that a system like this is necessary in 
order to have an effective policy, it is also a reason that first time 
penalties should not be overly severe--that is, more punitive than is 
necessary to deter use.
    There is also the possibility that a player will test positive as 
the result of a mistake. The player may take a single pill, not knowing 
what it is or thinking it is something else, and test positive. And, 
however unlikely we hope that it is, there certainly is also the 
possibility of a player being set up by someone who puts something in 
his food or beverage. A Major League player is not in a position to do 
what I have heard some cyclists do, i.e., take everything he is going 
to consume with him whenever he travels. And there is also the question 
of the science, and its limitations. We may be using the best science 
available but, it will likely evolve. For example, we know things now 
that we did not know until very recently. It used to be thought that 
the metabolites of nandrolone were not naturally found in humans; now 
we know that in certain circumstances they can be. We also did not know 
that the metabolites could grow in a test tube; now we know otherwise. 
As time goes on we will likely learn other things of which we are not 
now aware. Scientific mistakes will be made, and a just program must 
account for that reality.
    If this Committee does proceed to consider legislation, be it one 
of the bills currently before it or one of the measures under 
consideration in the House of Representatives, we ask that it address 
several issues which to date have not received serious attention. This 
is especially true since different legal and regulatory concerns arise 
when a testing program is mandated by the Federal Government as opposed 
to one created and administered through collective bargaining. For 
example, what is the basis for covering some professional athletes and 
not others? Will covered athletes be afforded traditional due process 
rights? Will covered athletes be provided the same legal protections 
and due process rights afforded Federal employees who are subject to 
random, suspicionless testing? What is the appropriate standard to 
judge the adequacy and effectiveness of an existing penalty structure? 
What is the mechanism for redressing the injuries suffered by a 
professional athlete who is incorrectly identified as testing positive? 
What scientific standards will be followed concerning the development 
and implementation of new testing methodologies or replacing those 
found to be out-dated or inaccurate? And, how will the Committee ensure 
a proposed program is Constitutional?
    There are serious questions as to whether the bills before the 
Committee are consistent with the Constitution. See, for example, 
Chandler v. Miller, 520 U.S. 305 (1997). In that case the Supreme Court 
held unconstitutional, as a violation of the Fourth Amendment, a 
Georgia law requiring drug testing of candidates for public office. The 
Federal Government recognized the principles set forth in Chandler in 
1999 when it clarified which Federal employees could be subjected to 
mandatory random drug testing. Concerns regarding public safety or 
national security can justify such testing, the Fourth Amendment 
notwithstanding. Concerns regarding public trust, reputation for 
integrity, honesty or responsibility, cannot. \3\
---------------------------------------------------------------------------
    \3\ See Memorandum from the Interagency Coordinating Group 
Executive Committee to Federal Agencies, Guidance for Selection of 
Testing Designated Positions III(D)(1) (August 2, 1999). This can be 
found at http://dwp.samhsa.gov/FedPgms/Files/TDPs.aspx.
---------------------------------------------------------------------------
    Clearly, the considerations which might or might not justify 
federally mandated testing of professional athletes may be different 
than those which pertain to State or Federal officials or employees, 
and no one can be certain what the result of any litigation would be. 
But given the doubt that any such legislation would be Constitutionally 
valid, along with the evidence that the agreement reached by the 
parties in collective bargaining is successfully dealing with the 
problem, legislation at this time is not warranted. Under the 
circumstances, the bargaining parties have a program whose 
effectiveness should at the very least be tested over time before 
Congress wrests control of this issue from private hands.
    As I said, we have not yet reached final agreement with the clubs 
on a new program, but we have on a number of important issues. 
Hopefully we will be able to close on the remaining issues.

    Senator McCain. Thank you very much.
    Welcome, Commissioner Tagliabue.

 STATEMENT OF PAUL TAGLIABUE, COMMISSIONER, NATIONAL FOOTBALL 
                             LEAGUE

    Commissioner Tagliabue. Thank you very much, Mr. Chairman, 
Senator Bunning and Members of the Committee. The issues that 
the Committee is considering today are very important and 
clearly merit the attention of Congress. Mr. Upshaw and I last 
appeared before this Committee some 18 months ago, we've again 
submitted a joint statement because while there are issues on 
which we disagree in other areas, at times quite sharply, this 
is not one of them.
    We currently have strong and effective programs in place to 
rid our locker rooms and playing fields of performance-
enhancing drugs. These policies were put in place as long as 18 
or 20 years ago. We have worked since then with leading 
institutions and scientists, both in and out of government and 
continue to do so to have very strong programs and policies to 
deal with these issues.
    We recognize that one of the Committee's critical concerns 
is the extent of steroid and other substance abuse, or use 
among young people. We have been working with topnotch 
universities and medical organizations to create materials 
distributed on the Internet and elsewhere for some years to 
discourage the use of steroids, supplements and other drugs of 
abuse by young people. We have shared with the Committee our 
``Play Safe'' medical series, our Coaching Academy publications 
and now in conjunction with the National Institute of Drug 
Abuse, we are airing anti-steroid advertisements on all of our 
network telecasts, on other programming of our network partners 
and on our own NFL Network.
    I've been involved with youth sports my entire life. I was 
fortunate enough to go to college on an athletic scholarship, 
basketball to be specific. I wouldn't be here today, I wouldn't 
have the education I had if I hadn't been inspired by my heroes 
in basketball, football, baseball, hockey, track and field and 
other areas. So I fully support--and we fully support as you 
know, Mr. Upshaw has been involved in sports his whole life, 
and he's more successful than I, but we both strongly support 
what the Committee is doing.
    I could comment on specific aspects of the bills, but I 
think our policies are in sync with all of the critical 
elements of the bills. Both bills call for random testing 
throughout the year; we have that. Both bills call for a 
comprehensive list of banned substances and methods; we have 
that. Both bills call for independent administration of a 
testing program; under our program as you know, Mr. Chairman, 
no representative of the League, the Players Association, or 
any NFL member team has any role whatsoever in determining who 
will be tested, when a player will be tested, or how often he 
will be tested. It's all institutionalized with outside 
parties, and in large measure computerized and randomized with 
computer technology.
    Both bills require the use of an independent certified 
laboratory, we do that. And we have funded those laboratories 
and are continuing to fund new laboratories in this field.
    Both bills call for tough sanctions for violators. Our 
program embodies a strict liability approach under which 
players are strictly responsible for whatever is in their 
bodies that's a violation, and suspensions without pay are 
mandatory for all offenders.
    We strongly believe in the strict liability approach rather 
than a subjective intent approach. Consistent with the strict 
liability approach a four-game suspension, 25 percent of the 
season without pay is an effective sanction for a first 
offense. We have had in the almost 20 years of our program only 
two repeat offenders, and both of those players retired from 
the game before they were suspended a second time.
    I believe this is a very telling measure of the 
effectiveness of both our testing and our discipline.
    In our prepared statement we emphasize that we fully 
respect Congress' desire and prerogative to legislate, and we 
would urge that that legislation have a certification program 
that would recognize in advance the effectiveness of collective 
bargaining programs that serve and meet the policies and goals 
of the statute. And that there would be--that is a feature that 
is in some other areas of Federal law so that we can know in 
advance that what we're doing complies with the Congressional 
mandate.
    I'll be pleased to take questions, as will Mr. Upshaw, Mr. 
Chairman, and we thank you again for your focus on this issue.
    [The joint prepared statement of Mr. Tagliabue and Mr. 
Upshaw follows:]

  Joint Prepared Statement of Paul Tagliabue, Commissioner, National 
  Football League and Eugene Upshaw, Executive Director, NFL Players 
                              Association

    Chairman Stevens, Chairman McCain, and Members of the Committee:
    The issue that the Committee is considering today--the use of 
steroids and other performance-enhancing drugs in professional sports--
is an important one that merits thoughtful attention by the Congress. 
It is an issue that addresses a wide range of concerns: the health of 
athletes who use these substances, the values that are promoted or 
debased by the use of these substances, and the proper roles of 
government and the private sector in combating their use.
    In recent months this subject has commanded considerable time and 
attention in both Houses of Congress. It also has for us, but it is not 
a new subject in the NFL. For two decades, we have had very strong 
programs in place to rid our locker rooms and playing fields of 
performance-enhancing drugs, and League programs have been a positive 
force in helping football at all levels to address these issues. We 
have not had all the answers but we have worked with leading 
institutions and scientists, both in and out of government, to stay 
ahead of an ever-changing curve. Our policies, which have included 
prompt and stiff sanctions for violators, have addressed these issues 
in a firm and constructive way. And we intend to continue to have very 
strong policies and programs to deal with the scientific, medical, 
ethical and legal questions surrounding the use of these substances 
both within and outside of professional sports.
    We last appeared before this Committee on this subject some 18 
months ago. Then, as today, we submitted a joint statement. We do so 
because while there are issues on which we disagree--at times sharply--
this is not one of them.
    We have previously furnished to the Committee detailed information 
about the structure and operation of our program, how it works, and the 
results to date.
    To summarize, more than 20 years ago, in 1983, Commissioner Pete 
Rozelle notified all NFL players that anabolic steroids fell squarely 
within the League's prohibition against drug abuse and that steroids 
had serious adverse health effects. In 1987 and 1988, the League began 
testing for steroids to obtain a documented understanding of the extent 
of steroid use among NFL players. And in 1989, the NFL instituted 
discipline for steroid use with suspensions on players testing positive 
for prohibited substances. In testimony given in May of 1989 to the 
Senate Judiciary Committee, Commissioner Rozelle outlined the basis for 
the League's more stringent approach:

        ``The fundamental responsibility of [the Commissioner] is to 
        protect, as best he can, the integrity of the game he oversees 
        and the public's confidence in it. In my view, steroid use both 
        threatens that integrity and confidence and presents other 
        significant problems as well.

        ``Our measures are designed to promote common sense, fair play, 
        and good health. If they do no more than generate an increased 
        awareness among athletes at all levels of the potential risks 
        of using steroids, our program will have been a modest success 
        . . . . [But] we hope our new measures will be a much larger 
        success and a significant step toward eradicating these drugs 
        from our sport.''

    Shortly after taking office in late 1989, Commissioner Tagliabue 
instituted a number of changes in the League's program, to take account 
of the need for greater investment in specialized resources and 
increasingly varied and sophisticated testing techniques to deal with a 
growing array of substances. Those changes included year-round random, 
unannounced testing for all players, new medical and scientific 
advisors, and moving all testing to laboratories certified by the 
International Olympic Committee. Since 1993, we have had a jointly 
administered program by the NFL and NFL Players Association. And the 
League and the NFLPA have met regularly to review the workings of the 
program and to ensure that we are continuing to be pro-active in 
responding to developments of science and technology, doping control 
research, and the policies of other organizations. For many years, we 
were the only professional league that tested for these substances and 
imposed significant discipline for a positive test. And our program, 
while not perfect, has worked and worked well.
    In this respect, it is important to understand what a four-game 
suspension means in the NFL. It takes the player entirely out of the 
lineup for one quarter of our season. In other leagues, this would be 
the equivalent of a 20 or 40 game suspension. If the suspension begins 
late in the season, it will carry into the playoffs. Any suspended 
player likewise loses a quarter of his regular season salary and may 
also forfeit some or all of his signing or performance bonus. By any 
measure, it is a significant penalty, but not a vindictive one.
    It is against this background that we offer comments on S. 1114 and 
S. 1334, the two bills presently pending before the Committee. We fully 
endorse the goals of these bills. In many respects, the principal 
points set forth in the bills have long been part of our own program.

   Both bills call for random testing of athletes throughout 
        the year. Our program has relied on this kind of random, 
        unannounced testing for more than 15 years. We currently 
        conduct more than 9,000 unscheduled tests every year on NFL 
        players, which occur throughout the season, during the 
        playoffs, and during our off-season. Every player is tested, 
        but no player knows when or how often he will be tested. 
        Earlier this year, we increased by a factor of three the number 
        of off-season tests to which a player is subject--at a time 
        when the Olympic drug testing authority cut in half the number 
        of off-season, or out-of-competition, tests that it performed.

   Both bills call for a comprehensive list of banned 
        substances and doping methods. While our list of prohibited 
        substances and methods may differ in some respects from the 
        Olympic list, there can be no serious question that our list is 
        broad and comprehensive. It is reviewed every year and 
        frequently supplemented. We have banned substances like 
        androstenedione, DHEA, and ephedra well before other sports or 
        even the Federal Government did so. Indeed, when we appeared 
        before this Committee last year it was to testify in support of 
        a bill that would prohibit the use of certain steroids and 
        steroid precursors--each of which had already been banned in 
        the NFL through our collective bargaining process.

   Both bills call for independent administration of the 
        testing program. The random selection of players to be tested 
        in the NFL is supervised by a medical advisor retained jointly 
        by the NFL and NFLPA, Dr. John Lombardo, who is a recognized 
        expert in this field. Dr. Lombardo uses a computer-based 
        selection system specially designed for this purpose. 
        Administration of the testing program is independent. No 
        representative of the NFL, the NFLPA, or any NFL member club 
        has any role whatsoever in determining who will be tested, when 
        a particular player will be tested, or how often he will be 
        tested.

   Both bills require that a testing program use an 
        independent, certified laboratory. Our program has always 
        complied with this requirement. All of our tests are performed 
        at the UCLA Olympic Analytical Laboratory, which fully 
        satisfies any standard of independence and expertise. And we 
        have partnered with the U.S. Anti-Doping Agency to finance and 
        develop a second certified lab to perform testing and research 
        on steroids and other substances. This new lab will be based at 
        the University of Utah and is expected to begin operations 
        later this year.

   Both bills call for tough sanctions for violators. Our 
        program embodies a strict liability approach, with mandatory 
        suspensions for first offenders. Our sanctions are clear, 
        significant and effective. And, consistent with both bills, we 
        have from the beginning included a collectively-bargained 
        appeal process.

    In short, our current program satisfies all of the key requirements 
of the two bills pending before the Committee. We also incorporate one 
more significant feature that makes our collectively-bargained program 
superior to a government program--the ability to respond quickly to 
changes in substance use for doping technology. For example, when the 
designer steroid THG was identified in 2003, we retested more than 
2,000 urine samples--every sample in our possession--to determine the 
extent to which NFL players may have used this drug. And our policy has 
from the outset incorporated a ``related substances'' provision, to 
ensure that minor chemical changes do not allow users to escape the 
prohibitions of our program.
    This process of continual examination and improvement has continued 
into 2005. Before hearings began in the current session, the NFL and 
NFLPA agreed as part of the regular review of the program to implement 
the following improvements:

   To reduce the threshold for a positive testosterone test 
        from the previous 6:1 testosterone-epitestosterone ratio to a 
        ratio of 4:1. This is the same standard used for Olympic tests.

   To increase from two to six the maximum number of times 
        players can be tested during the off-season.

   To add additional substances to the list of banned 
        substances.

    The development and operation of this program, and our common 
commitment to continual examination and improvement, has never required 
a prod from Congress. Rather, it reflects our shared commitment to 
protecting the integrity of our game, preserving the health of our 
players, and promoting proper values among young people.
    Where we differ from the pending bills is in our belief that a 
Federally-imposed solution is not required in all cases. To the 
contrary, we believe that the government should recognize and encourage 
private sector solutions through collective bargaining, and that those 
solutions are preferable, particularly where--as here--there is a 
substantial track record of effectiveness. Accordingly, we do not 
believe either of these bills should be enacted into law without 
providing for a certification mechanism that permits the continued 
operation of collectively-bargained programs that meet Congressional 
policy goals.
    Our specific concerns are as follows:
    First, we do not believe there is any demonstrated basis for 
supplanting in all circumstances collective bargaining as the 
appropriate means for addressing these issues. Instead, we believe that 
any bill should expressly recognize collectively-bargained solutions 
and provide that effective collectively-bargained programs satisfy the 
requirements of the statute.
    This is not a new concept. On numerous occasions, Congress has 
specifically recognized the wisdom of deferring to solutions reached by 
management and labor in collective bargaining, and has provided for 
specific exemptions from otherwise-applicable Federal law. These 
examples include the treatment of collectively-bargained employee 
benefit plans, overtime and severance pay, use of immigrant workers, 
and grievance procedures. In each of these and other cases, generally-
applicable Federal law has given way to the terms of a collective 
bargaining agreement. And we have substantial concerns about a 
regulatory approach displacing and potentially weakening a demonstrably 
effective program.
    Finally, a collectively-bargained approach will have greater player 
acceptance than would be the case with a government-imposed solution.
    Second, a uniform system for all sports may actually lower 
standards in the NFL and reduce the effectiveness of our program. One 
obvious example is the in-season/out-of-season distinction that is 
drawn in the bills. This concept, which is found in the Olympic anti-
doping code, may be appropriate in Olympic sports, which are almost 
entirely individual, and where the competition is largely limited to a 
number of high profile events over a two-to-four year period. In the 
NFL, that distinction has no place and would weaken our program in a 
significant way. Rather, we believe that there should be one set of 
rules that applies throughout the year. The in-season/out-of-season 
distinction would needlessly confuse players, send mixed messages to 
young people, and create significant and unnecessary administrative 
complexities in the program.
    Another problem with a uniform regulatory regime is that it will be 
slower and more cumbersome than our collectively bargained approach, 
which allows for a more rapid and certain response to developments in 
doping and anti-doping technology. As one example, in 1997, the NFL and 
NFLPA agreed to include androstenedione as a banned substance. Players 
testing positive for andro were suspended. Had we been required to wait 
for the FTC, or for the Director of the Office of National Drug Control 
Policy to make this determination, NFL players might have continued to 
use andro without penalty.
    In addition, and unlike a government program, our program is not 
subject to collateral court challenges. The example of ephedra is 
instructive here. We determined that ephedra should be a prohibited 
substance at the beginning of the 2001 season. The FDA eventually 
implemented a ban on ephedra in 2004, but its rules were sharply 
limited by a Federal judge's decision earlier this year. By contrast, 
agreements between the NFL and the NFLPA are not subject to these kinds 
of court challenges since the National Labor Relations Act requires 
courts to give great deference to these kinds of employer-employee 
agreements.
    Regulations issued by a government body are, by nature of the 
notice and comment and judicial review provisions in the Administrative 
Procedure Act, necessarily subject to lengthy administrative 
procedures, court challenges, and potential revision or invalidation by 
a single Federal judge. And once Congress federalizes drug testing in 
sports, and replaces collective bargaining under the National Labor 
Relations Act with statutory and regulatory mandates, there can be no 
assurance that even agreed-upon provisions that exceed Federal minimums 
will be respected by the courts. Nor would the anti-injunction 
provisions of the Norris-LaGuardia Act necessarily continue to apply.
    Third, the penalties required by the bills are excessive and 
disproportionate in the context of professional football. There is no 
evidence that current penalties in the NFL are too low, insufficient to 
deter use, or somehow perceived as insubstantial or not credible by 
players, teams and fans. From any perspective--financial, competitive, 
and reputational--a mandatory four game suspension without pay, 
combined with ongoing testing, is a substantial penalty that works.
    The central feature of penalties in the NFL system is that of 
strict liability. Players are told and clearly understand that they are 
responsible for what is in their bodies. There are no issues of 
inadvertent use or tainted supplements. Questions of intent are simply 
not relevant. Long experience confirms that it is difficult if not 
impossible to administer the sort of intent-based system embodied in 
the proposed legislation.
    The strict liability standard that we have agreed to serves a 
number of important purposes. It provides clarity for athletes, teams 
and fans. It is a simple and straightforward principle that places the 
responsibility where it belongs--on the player.
    It also promotes fairness and even-handedness. All players are 
subject to the same rules and procedures, and players know that they 
will all be treated the same way under the program. Finally, the strict 
liability standard promotes efficient administration of the appeal 
process. Hearing officers do not have discretion to reduce the penalty. 
If the positive test is confirmed, the discipline follows 
automatically.
    We believe our current system of limited suspensions and strict 
liability is preferable to a system of much longer suspensions combined 
with a series of intent-based reductions or exemptions.
    One important measure of whether a penalty structure is effective 
is the extent to which there are repeat offenders. In the NFL, there 
have only been two repeat positives in 15 years, both of whom retired 
from the game rather than face a longer suspension. And the low number 
of repeat offenders is not because we were looking the other way. NFL 
players who test positive are tested as often as 24 times a year for 
the rest of their career, meaning that there is very little prospect of 
escaping detection.
    Two other matters related to the scope and effectiveness of the 
League's testing programs also deserve mention.
    The first is the subject of human growth hormone (``HGH''). We have 
prohibited this substance since 1991. Currently, there is no readily 
available test or testing laboratory in the United States for HGH, and 
there is still no urine-based test for growth hormone. A blood test was 
first used at last summer's Olympic games in Athens, where 300 of the 
more than 11,000 athletes who competed in the Games were tested. No 
athlete tested positive. We are currently evaluating our next steps 
with respect to growth hormone and will continue to consult with 
experts in the field, including those associated with government and 
other leading sports organizations. When scientific developments 
warrant, we will act quickly to adjust our own policies as we have 
consistently done in the past.
    The second is testosterone, which we are addressing in two 
respects. First, to take account of the evolving consensus as to test 
protocols for the testosterone-epitestosterone ratio, we have lowered 
the threshold for a positive test from a ratio of 6:1 to a ratio of 
4:1. Second, we have developed procedures to review player tests over 
time to identify unusual changes in player t:e ratios, even when below 
the 4:1 threshold, which would then result in more detailed medical 
review, reasonable cause testing, and discipline.
    We recognize that one of the Committee's primary concerns is the 
extent to which young people are using steroids today. As Commissioner 
Rozelle's remarks to the Senate Judiciary Committee more than 15 years 
ago demonstrate, this has been one of the primary factors underlying 
the NFL's program as well.
    Among athletes and coaches, where we can influence behavior, we 
make an aggressive effort to discourage the use of steroids, 
supplements and drugs of abuse. As one example of this, we have worked 
with leading institutions in medicine and sports to create reliable 
guides on fitness, nutrition, safety and conditioning--entitled the 
``Play Safe! The NFL Youth Football Health and Safety Series.'' This 
four-volume series gives players, coaches, parents and the public 
general information on football-specific health and safety issues in a 
clear, easy-to-understand format. Needless to say, this series 
emphasizes that the use of performance-enhancing substances, and/or 
other drugs of abuse, is unacceptable.
    By partnering in the publication of this series with leading 
academic and public service organizations, we have sought to ensure 
that this series will be regarded as definitive and independent and 
also widely distributed and used. The series editor is the Director of 
Sports Medicine at Yale University Health Services and Clinical 
Professor of Pediatrics at Yale University School of Medicine, Dr. 
Barry Goldberg. The series is produced in partnership with the American 
College of Sports Medicine, the American Red Cross, the National 
Athletic Trainers' Association, and the Institute for the Study of 
Youth Sports at Michigan State University.
    Two of the four volumes of this series deal with the matters of 
direct interest to this Committee. One volume specifically discusses 
``Strength and Conditioning'' and offers practical, step-by-step 
techniques to build strength, endurance and flexibility; improve 
performance; and decrease risk of injury--all without steroids or other 
illegal substances. Another volume in the series, entitled ``Health 
Concerns for Young Athletes'' includes an entire section on substance 
abuse and specific warnings about steroids, including the following:

        ``There should not be any controversy about steroid use in 
        sports; nonmedical use is illegal and banned by most, if not 
        all, major sports organizations.''

        ``The use of anabolic-androgenic steroids to enhance 
        performance is not only illegal, it is dangerous.''

    This series has been distributed nationwide in both print and on-
line editions and has been furnished to the Committee. It has been 
furnished to all high school football programs, and to our NFL National 
Youth Football Partners network, which includes the Boys and Girls 
Clubs of America, Jewish Community Centers Association, Police Athletic 
Leagues, Pop Warner, and the YMCA, among others. The entire series is 
available free of charge on NFLHS.com, a high school football website 
presented by the NFL. The site also includes articles and Q&A sessions 
between a former NFL coach and high school players on various topics, 
including the dangers of steroids and drug use. Among these messages: 
``Coaches: Please Know What Your Athlete is Taking.'' NFL 
representatives and other professionals also address these issues at 
our annual NFL Youth Football Summit, and high school and youth 
football coaches throughout the country receive our NFL Coaching 
Academy Playbook. This publication includes a chapter devoted to health 
and safety issues that gives specific advice to football coaches on the 
dangers of steroids and steps coaches can take to detect and deter drug 
use by their players. This, too, has been furnished to the Committee.
    USA Football, a not-for-profit advocacy and educational 
organization jointly endowed by the NFL and the NFLPA, has made a wide 
array of resources available to parents, coaches and players across the 
Nation. The USA Football website contains articles on steroids and 
drugs of abuse, and USA Football made this a key focus of its health 
and safety efforts for 2005, including at its Huddle 2005 national 
conference last June. The message is always the same--to play football 
in a way that is safe, within the rules, and without use of artificial 
performance-enhancing products.
    In conjunction with the National Institute on Drug Abuse, we have 
also produced a series of ``anti-steroids'' public service 
announcements, which are being shown during telecasts of NFL games 
throughout the season.
    In sum, Mr. Chairman, we support the goals of the legislation. Our 
record over the last 15 years makes that clear. We will continue to 
work closely with each other, with this Committee, and with those 
outside of the NFL to keep our game as free of performance-enhancing 
substances as we can. Our challenge going forward will be to ensure 
that our research is current, that adequate resources are available to 
support programs proven to be effective with young people, including 
non-athletes, and that football organizations maintain their commitment 
to clean competition at all levels. We recognize that there are 
significant challenges ahead and we are prepared to do our part to meet 
them, along with you and this Committee and others in Congress who are 
concerned about this issue.
    Thank you for inviting us to appear today and we will be pleased to 
answer any questions.

    Senator McCain. Thank you very much, Commissioner.
    Welcome back, Mr. Upshaw.

STATEMENT OF GENE UPSHAW, EXECUTIVE DIRECTOR, NATIONAL FOOTBALL 
                   LEAGUE PLAYERS ASSOCIATION

    Mr. Upshaw. Thank you, Mr. Chairman. I join with the 
Commissioner, and we submitted a joint statement, simply to 
emphasize how strongly we feel about this. And why there is 
really no disagreement whatsoever when it comes to this issue 
of steroids and performance-enhancing drugs.
    I would only like to add a couple of points to the 
Commissioner's statement and that is, the players in the 
National Football League strongly endorse this program, support 
this program, and continue to believe that this program has 
been effective as it relates to the National Football League. 
We looked at the legislation, and when we see one-size-fits-all 
we see that the legislation should really address each 
individual sport, but also allowing the collective bargaining 
process to come up with a solution that works. If it meets with 
what Congress has, as the Commissioner stated, we think we're 
doing a very good job in the National Football League. We have 
stayed on the cutting edge of change and changed our program. 
We do not wait for anyone else to act. We want it off the field 
because our players believe that anyone that uses drugs are 
really cheaters. There is no room for cheaters in sports. And 
it also affects the integrity of the game and integrity of the 
contest. We do not want cheaters in our sport, and will do 
whatever we have to do to keep it out. We have had unanimous 
support from players on this issue. Anytime that a player has 
tested positive, you can't find one player in the National 
Football League, and I'll challenge you to do that, that 
supports having a cheater in the sport.
    I will be welcome and here to answer any questions that you 
might have. Thank you.
    Senator McCain. Thank you, sir.
    Welcome, Commissioner Stern.

STATEMENT OF DAVID J. STERN, COMMISSIONER, NATIONAL BASKETBALL 
                          ASSOCIATION

    Commissioner Stern. Thank you, Mr. Chairman and other 
Members of the Committee for focusing on this very important 
problem. I appeared before two different House committees, with 
my counterpart from our Players Association in May, and we 
represented to them that we were in the midst of collective 
bargaining and although we didn't know, didn't think, and our 
knowledge was that this was not a major problem, we understood 
our obligation as a sport that had role models. Out of that 
collective bargaining, and really the least contentious part of 
it, came an agreement that may sound--begin to sound--familiar 
to you, that has four random unannounced tests, that has an 
expanded list of prohibited substances, all of those that were 
declared illegal by Congress, plus additional ones that the 
World Anti-Doping Association has put on the list. We clearly 
decided that it was better and more effective to turn this over 
to a third party so that the League and the Players Association 
have nothing to do with the randomized unannounced tests and of 
course the results will be provided by a WADA approved 
laboratory and they will be announced, with respect to the 
player and the drug, if there are any positive tests.
    Our penalties were moved up to 10 games, 25 games, a year 
and you're out. We think that the strict liability that we 
impose actually is stricter than the liability under WADA, 
which allows for appeals and other delays and omission of 
penalty. And we think that collective bargaining has been 
effective for us. If you nevertheless find it necessary to 
legislate in this area, my statement which I submit for the 
record lists some areas that we think could bear some 
additional focus, and we look forward to either your acceptance 
of the collective bargaining process, or such legislation as 
you care to propose. And we think that your focus on this has 
been very helpful to us, as has the House's focus on this. And 
we thank you for your attention.
    [The prepared statement of Mr. Stern follows:]

Prepared Statement of David J. Stern, Commissioner, National Basketball 
                              Association

    Chairman Stevens, Chairman McCain and distinguished Members of the 
Committee:
    On behalf of the National Basketball Association (``NBA''), I 
appreciate the opportunity to testify before the Committee regarding S. 
1114, the ``Clean Sports Act of 2005,'' and S. 1334, the ``Professional 
Sports Integrity and Accountability Act.''
    The NBA supports the efforts of this Committee and the Congress to 
confront and address the issue of steroids and performance-enhancing 
substances in professional sports. These drugs undermine the 
fundamental integrity of all athletic competition; they pose serious 
health risks to the players involved; and their use in major league 
sports sends a harmful and potentially destructive message to countless 
young fans who emulate professional athletes. Steroids and performance-
enhancing drugs have no place in the NBA.
    The NBA has appeared before Congress twice this year in connection 
with this issue. On those occasions, we made clear our intention to 
work with the players' union during then-ongoing collective bargaining 
negotiations to strengthen our existing drug program. Those 
negotiations have now concluded, with the successful execution of a new 
labor contract in July 2005. As part of that new contract, the NBA and 
the Players Association did in fact agree to substantially strengthen 
and expand our drug program, particularly with respect to steroids and 
performance-enhancing substances.
    Important elements of this program now include the following:

   All players (veterans and rookies) will be tested at random 
        4 times during the season, from October 1 through June 30 (a 
        period that includes, but is not limited to, training camp, the 
        regular season and the playoffs). Players also remain subject 
        to reasonable cause testing at any time.

   Penalties for violators have increased as follows: first 
        offense--10-game suspension; second offense--25-game 
        suspension; third offense--1-year suspension; and fourth 
        offense--dismissal and disqualification from the NBA.

   The list of banned substances has been expanded to include 
        all steroids made illegal by the Anabolic Steroids Control Act 
        of 2004, plus additional steroids, stimulants and other 
        performance-enhancing drugs banned by WADA, and a provision has 
        been added requiring that any substance declared illegal by 
        Congress will automatically be added to the NBA's banned 
        substances list.

   Random drug tests will be scheduled by, and the urine 
        specimens will be collected by, an independent testing 
        organization, without notice to the NBA or the Players 
        Association.

   When a player is suspended for a violation of the Program, 
        the substance for which he tested positive will be publicly 
        announced. (Previously, only the player's suspension was 
        publicly announced.)

   The program maintains the involvement of a Prohibited 
        Substances Committee, which is comprised of three independent 
        experts in the field of performance-enhancing substances, and 
        one representative from both the NBA and the Players 
        Association. The Committee is charged with meeting twice per 
        year to review the list of Prohibited Substances and propose 
        any additions or changes.

   Other technical changes have been made to the program, such 
        as lowering the threshold for a positive testosterone test from 
        a ratio of 6:1 to a ratio of 4:1, as WADA did earlier this 
        year, and changing the NBA's testing laboratory to one 
        accredited by WADA in order to take advantage of the most 
        advanced laboratory science.

    As a result of these changes, the NBA and the Players Association 
now have in place a comprehensive, effective, and fair policy for 
steroids and performance-enhancing substances. Further, because the 
parties arrived at this policy by agreement--through the traditional 
collective bargaining process--we are both invested in its success. The 
NBA, therefore, does not believe that legislation in this area is 
necessary or appropriate. Nevertheless, if this Committee and the 
Congress feels that legislation must be enacted, we offer the following 
observations on the specific proposals contained in the Clean Sports 
Act of 2005 and the Professional Sports Integrity and Accountability 
Act.
    First, while we believe it is important to prohibit a broad list of 
steroids and performance-enhancing substances and, as a result, have 
agreed with the Players Association to significantly expand our list of 
banned drugs, we do not believe that the entire WADA list of prohibited 
substances is appropriate for the NBA. The sport of basketball 
emphasizes a specialized set of physical abilities--particularly 
quickness, agility, and basketball skill--that are distinct from those 
required in a number of other sports. Accordingly, illicit substances 
that could assist athletes in strength sports (such as weightlifting or 
football), power sports (such as baseball), or endurance sports (such 
as cycling or marathon running) are not likely to be of benefit to NBA 
players. We therefore do not believe it would be appropriate to require 
the NBA to test players for these substances, or for the NBA to be 
required to incur the substantial cost of such testing.
    Second, while stiff penalties are necessary for the legitimacy of 
any anti-drug program, we believe that the penalties contained in our 
new labor contract--and not the more excessive penalties set forth in 
the proposed Acts--are fair and appropriate for our sport. A first-time 
offender of our steroids and performance-enhancing drugs policy will be 
suspended from his team for ten games. Because the average NBA player 
now earns approximately $4.5 million per season, a ten-game suspension 
would result, on average, in a financial penalty to the player of more 
than $400,000. In addition, the player's suspension and the prohibited 
substance used by the player will be publicly announced, which will 
appropriately diminish the player's reputation and off-the-court 
financial prospects. A second offense will result in a suspension of 25 
games, resulting in an average financial penalty of over $1 million, 
and significantly affecting a player's ability to obtain any 
performance-based bonuses in his contract or prove his value for 
purposes of obtaining a subsequent contract. For the third offense, the 
player will be suspended for one year. As noted above, that would 
result in the average loss of income of $4.5 million and the loss of 
one year in a career that, on average, lasts for less than 5 years. 
After the fourth strike, the player would be dismissed and disqualified 
from the NBA.
    The foregoing penalties, we submit, are strict enough to punish 
violators appropriately, deter the use of steroids and performance-
enhancing drugs in the NBA, and provide fair opportunities for players 
to conform their conduct.
    In addition, the Professional Sports Integrity and Accountability 
Act, like the NBA's current drug policy, contains a ``strict 
liability'' standard--that is, a player can commit a violation 
unknowingly by, for example, ingesting a tainted nutritional supplement 
that is legally sold over the counter. Under those circumstances, a 
two-year ban (if the violation was the player's first) or a lifetime 
ban (if the violation was the player's second) are unduly harsh. 
Indeed, even the WADA Code does not provide for strict adherence to the 
penalties proposed in the bill, and instead makes clear (in Section 
10.5 of the Code) that special circumstances--such as a contaminated 
supplement--should be taken into account and could result in a reduced 
(or even no) penalty. Fundamental fairness to athletes whose 
livelihoods are at stake should require no less.
    Third, both Acts would require that testing for steroids and 
performance-enhancing substances be ``independently administered.'' 
While we believe the NBA's drug program would meet this standard--
because the scheduling of tests and collection of samples for all 
players will now be handled by a third-party testing organization 
without the participation of the NBA or the Players Association--that 
conclusion is not completely clear. The parties, of course, must pay 
for the services performed by the third-party testing organization, and 
neither Act indicates whether this fact would compromise the 
``independence'' of the relationship. In addition, the NBA and the 
Players Association will continue to have an active role in overseeing 
our drug program, monitoring the testing, providing input for testing 
protocols, imposing discipline, and making improvements--a role that 
fosters confidence among NBA players that the program is legitimate, 
impartial, and fair, which in turn helps the program run smoothly. The 
NBA would oppose any legislation that did not allow for this continuing 
involvement.
    Fourth, neither Act clearly indicates the forum for the 
adjudication of player appeals. (The Clean Sports Act suggests, but 
does not state, that the forum would be the Court of Arbitration for 
Sport, which is used by USADA. The Professional Sports integrity and 
Accountability Act suggests, but does not state, that the forum would 
be selected by each professional sports league.) In the NBA, any 
disputes arising under the drug program are to be heard and resolved by 
an independent grievance arbitrator, and we believe that practice 
should be continued.
    Fifth, while both Acts set forth certain baseline standards 
regarding testing, substances, and penalties, the particulars of those 
standards are left up to the Federal Trade Commission. Without knowing 
the specifics of the regulations, of course, it is not possible for us 
to react fully to the proposed legislation, or to anticipate its effect 
on the NBA.
    Sixth, Section 4(b)(7)(B) of the Act authorizes lesser penalties 
for players who provide information about the steroid or performance-
enhancing drug use of other players. We respectfully submit that this 
is an inappropriate policy in a team--or any--sport.
    Seventh, both Acts include the concept of a ``therapeutic use 
exemption'' for players with valid medical prescriptions. Currently, 
the NBA handles this issue through the medical review process, which 
takes place after an adverse analytical finding is reported by the 
laboratory, not prior to the collection of a sample as is required by 
WADA. Such a medical review process is used by employers nationwide, 
including the Federal Government. In addition, we believe that the 
adoption of a WADA-like therapeutic use exemption may conflict with the 
Americans with Disabilities Act.
    Finally, Section 5 of the Act sets forth penalties that would apply 
only to professional sports leagues if they fail to implement drug 
testing programs that meet or exceed the applicable minimum standards. 
We assume, therefore, that the bill would allow a sports league simply 
to impose such a program without bargaining its provisions with the 
players' union or otherwise complying with the Federal labor laws. If 
that is not the case, we would suggest that the penalties contained in 
the Act be made applicable to both management and labor, thereby 
providing incentives for both parties to reach an agreement in 
collective bargaining that meets the proposed Federal standard.
    In summary, the NBA believes it has a strong and effective drug 
testing program in place for steroids and performance-enhancing 
substances, and does not perceive a need for Federal involvement in 
this area. If Congress nonetheless sees fit to establish minimum 
standards for such a program, we suggest that they be flexible enough 
to account for characteristics that distinguish one professional sport 
from another, reasonable with respect to penalties, and consistent with 
all other applicable laws. In all events, we appreciate the Committee's 
effort and attention to this important matter, and look forward to 
providing any additional information or assistance as necessary.
    I thank the Committee for considering the views of the NBA on this 
legislation.

    Senator McCain. Thank you, Mr. Commissioner.
    Mr. Davis, welcome.

STATEMENT OF ANTONIO DAVIS, NBA PLAYER AND PRESIDENT, NATIONAL 
                 BASKETBALL PLAYERS ASSOCIATION

    Mr. Davis. Thank you, Mr. Chairman and Members of the 
Committee. As President of the National Basketball Players 
Association, I accept this invitation from Chairman Stevens to 
testify in place of our Executive Director, Billy Hunter, who 
is recovering from surgery.
    As a professional athlete for over 15 years, I am 
appreciative of the Committee's concern about the use of 
steroids by professional athletes and others, particularly 
young adults and children, as evidenced by the legislation 
introduced by several members of this Committee.
    I would like to begin by clearly stating the position of 
the NBPA. While we are confident in our belief that the use of 
steroids and other performance-enhancing drugs is virtually 
non-existent in the NBA, we are committed to ensuring that the 
use of these drugs does not ever become an issue or concern.
    To that end, in the recently concluded negotiations for the 
current Collective Bargaining Agreement between the NBPA and 
NBA, we greatly strengthened the testing protocol for steroids, 
masking agents and performance-enhancing drugs that was 
established in the 1999 Agreement.
    It is vitally important that the list of banned substances 
for which players are tested remains current. Accordingly, in 
our program that list is updated regularly by our Prohibited 
Substances Committee, and comprised of three independent drug 
testing experts and a representative from both the NBPA and 
NBA.
    While our anti-drug program has always had a strong 
emphasis on education and treatment rather than punishment, 
with a standard of progressive discipline for violators, the 
program does provide for substantial penalties, which have been 
significantly increased under our new agreement, for those who 
are caught using steroids and other performance-enhancing 
drugs.
    In addition to severe penalties and increased frequency of 
testing, our anti-drug policy is focused on education, 
treatment and counseling. During each season, every NBA player 
is required to attend and participate in meetings where the 
dangers of steroid and performance-enhancing drug use are 
discussed by drug counselors. Also, all rookie players are 
required to attend a week-long Rookie Transition Program, 
before the start of their first NBA season.
    Finally, the program's Medical Director supervises a 
national network of medical professionals, located in every NBA 
city, available to provide counseling and treatment to players.
    We wanted to, and feel that we have, sent a strong and 
unequivocal message to society in general and our young fans in 
particular that we do not condone, support or accept the use of 
steroids and performance-enhancing drugs in our sport. Our 
willingness to significantly increase the frequency of testing 
that our players undergo, and increase the penalties imposed 
upon violators shows the utmost concern that we have for this 
societal problem.
    We continue to believe that a collective bargaining 
agreement is the most appropriate forum for the resolution of 
these issues and are confident that the changes made address in 
a meaningful way the concerns of the Committee, as embodied in 
the pending legislation.
    Congress has long given deference to parties operating 
under collective bargaining agreements to develop their own 
solutions to problems, properly recognizing that the parties 
bound by a collective bargaining agreement have a longstanding 
relationship with unique problems and problem-solving methods 
that are often difficult to comprehend by those outside the 
relationship.
    While we fully believe in and support the Committee's and 
Congress's goal of eliminating the use of steroids and 
performance-enhancing drugs in sports, we believe this goal is 
best accomplished by the leagues and players working together 
to accomplish this universal objective. We think that the 
players, supported by the leagues, are best able to demonstrate 
to everyone, especially our young fans, that the only way to 
become a professional athlete is by cultivating and nurturing 
their talent, determination, and desire, and by working harder 
than everyone else.
    I thank the Committee for the opportunity to appear before 
you today.
    [The prepared statement of Mr. Davis follows:]

Prepared Statement of Antonio Davis, NBA Player and President, National 
                     Basketball Players Association

    Mr. Chairman and Members of the Committee:
    My name is Antonio Davis and I am the starting power forward for 
the Chicago Bulls as well as the President of the National Basketball 
Players Association, the labor union that represents all NBA players in 
collective bargaining. I appear today in response to the invitation of 
Chairman Stevens to testify.
    As a professional athlete for over 15 years, I am appreciative of 
the Committee's interest in and concern about the use of steroids by 
professional athletes and others, particularly young adults and 
children, as evidenced by the legislation, S. 1114 and S. 1334, 
introduced by several members of this Committee.
    I would like to begin by clearly stating the position of the NBPA. 
While we are confident in our belief that the use of steroids and other 
performance-enhancing drugs are virtually non-existent in the NBA, we 
are committed to ensuring that the use of such drugs does not ever 
become an issue of concern.
    To that end, in the recently concluded negotiations for the current 
Collective Bargaining Agreement between the NBPA and NBA we greatly 
strengthened the testing protocol for steroids, masking agents and 
performance-enhancing drugs that was established in the 1999 Agreement. 
Our new Agreement signed two months ago today provides for random 
testing for all players of up to four (4) times during the NBA season, 
which covers the period from the start of training camp in October 
through the NBA Finals in late June. This new testing protocol is a 
significant change from the prior policy, which provided for random 
testing of all incoming players four (4) times during their rookie 
season and testing of veteran players once during the training camp 
period.
    Additionally, all players remain subject to reasonable cause 
testing at any time. If an independent expert finds reasonable cause to 
believe that a player is using steroids the player may be tested up to 
four (4) times during the following six week period. The testing during 
this period may be administered at any time, without any prior notice 
to the player.
    It is vitally important in the efforts to control the usage of 
steroids and other performance-enhancing drugs that the list of banned 
substances for which players are tested remains current. Accordingly, 
in our Program that list is updated regularly by our Prohibited 
Substances Committee, comprised of three independent drug testing 
experts and a representative from both the NBPA and NBA. The Committee 
may be convened at any time to ban a substance that is either declared 
illegal by the Federal Government or is or reasonably likely to be 
physically harmful to players and is or is reasonably likely to be 
improperly performance-enhancing. I believe you will find our list of 
prohibited substances to be extremely comprehensive.
    While our Anti-Drug Program has always had a strong emphasis on 
education and treatment rather than punishment, with a standard of 
progressive discipline for violators, the Anti-Drug Program does 
provide for substantial penalties, which have been significantly 
increased under our new agreement, for those who are caught using 
steroids and other performance-enhancing drugs. A first time offender 
is automatically suspended for ten (10) games and is required to enter 
an education, treatment and counseling program established by the 
Program's Medical Director. For a second violation the player is 
suspended for twenty-five (25) games and required to re-enter the 
education, treatment and counseling program. For a third violation, the 
player is suspended for one (1) year from the date of the offense and 
is again required to enter the education, treatment and counseling 
program. If there is a fourth violation, the player is immediately 
dismissed and disqualified from the NBA. Also, any player who is 
disciplined for conduct involving steroids, performance-enhancing drugs 
or masking agents, will have his identity, the particular drug used, 
and the penalty publicly disclosed.
    In addition to severe penalties and increased frequency of testing, 
our Anti-Drug Policy is focused on education, treatment and counseling. 
During each season, every NBA player is required to attend and 
participate in a meeting where the dangers of steroid and performance-
enhancing drug use are discussed by drug counselors. Also, all rookie 
players are required to attend a week long Rookie Transition Program, 
before the start of their first NBA season, during which numerous 
topics are addressed in detail, including the dangers of using steroids 
and performance-enhancing drugs. Finally, the program's Medical 
Director supervises a national network of medical professionals, 
located in every NBA city, available to provide counseling and 
treatment to players.
    Since testing for steroids and other performance-enhancing drugs 
was instituted in 1999 there have been approximately 4,200 tests 
conducted, with only 23 initial laboratory positive tests (less than 
one (1) percent). Of the 23 tests that were initially laboratory 
positives, only 3 satisfied the additional steps that are required for 
a sample to be confirmed as positive under our Anti-Drug Program, 
either because the player was terminated from employment prior to 
confirmation of his test result or because the Medical Director found a 
reasonable medical explanation for the test result. The three (3) 
players who had confirmed positive tests were immediately suspended.
    Recognizing the increased scrutiny that steroid and other 
performance-enhancing drug use has received in society, and 
particularly in professional sports, since our ground breaking 
agreement was reached in 1999, we have implemented significant and 
wholesale modifications in our new Anti-Drug Program to deal with the 
growing societal problem of the use of steroids and other performance-
enhancing drugs. We wanted to, and feel that we have, sent a strong and 
unequivocal message to society in general and our young fans in 
particular that we do not condone, support or accept the use of 
steroids and performance-enhancing drugs in our sport. Our willingness 
to significantly increase the frequency of testing that our players 
undergo, and increase the penalties imposed upon violators evidences 
the utmost concern that we have for this societal problem.
    We continue to believe that collective bargaining is the most 
appropriate forum for the resolution of these issues and are confident 
that the changes made address in a meaningful way the concerns of the 
Committee, as embodied in the pending legislation, S. 1114 and S. 1334. 
Congress has long given deference to parties operating under collective 
bargaining agreements to develop their own solutions to problems, 
properly recognizing that the parties bound by a collective bargaining 
agreement have a longstanding relationship with unique problems and 
problem solving methods that are often difficult to comprehend by those 
outside the relationship. While we fully believe in and support the 
Committees' and Congress' goal of eliminating the use of steroids and 
performance-enhancing drugs in sports, we believe this goal is best 
accomplished by the leagues and players working together to accomplish 
this universal objective. We think that the players, supported by the 
leagues, are best able to demonstrate to everyone, especially our young 
fans, that the only way to become a professional athlete is by 
cultivating and nurturing their talent, determination, and desire, and 
by working harder than everyone else.
    I want to thank the Committee for the opportunity to appear before 
you today.

    Senator McCain. Thank you, Mr. Davis, an excellent 
statement. Thank you.
    Commissioner Bettman.

STATEMENT OF GARY BETTMAN, COMMISSIONER, NATIONAL HOCKEY LEAGUE

    Commissioner Bettman. Thank you, Mr. Chairman, Members of 
the Committee, the National Hockey League appreciates being 
given the opportunity to offer comments regarding the proposed 
legislation. The NHL will cooperate in any way it can with the 
effort to eliminate performance-enhancing drugs from 
professional and amateur athletics.
    While it is the leagues' firm belief that the performance-
enhancing drug issue is not a problem in the NHL, the league is 
committed to providing its fans with outstanding athletic 
competition with the assurance that our game is being conducted 
in an environment free of performance-enhancing substances. The 
NHL's active pursuit of this objective is reflected in the 
creation of a program we just incorporated into our new 
collective bargaining agreement.
    The primary elements of this program focus on the education 
of players regarding the health risk posed by the use of 
prohibited performance-enhancing substances, the treatment of 
players who have used prohibited substances, and the deterrence 
and prevention of such use through random, no-notice testing up 
to twice per season for the substances designated on the out of 
competition list compiled by the World Anti-Doping Agency. In 
addition, the program provides for ``reasonable cause'' testing 
of players. Players who test positive will incur severe 
disciplinary penalties. A first positive test results in a 
suspension of 20 games, one quarter of the season, without pay. 
A second positive test results in a suspension of 60 games, 
three quarters of a season, without pay. And a third positive 
test results in a permanent suspension without pay. A player so 
suspended can apply for discretionary reinstatement after a 
minimum period of 2 years.
    In the experience of the doctors who administer our 
program, the primary alleged benefit of steroid use, 
significant large muscle development, is not consistent with 
playing our sport at the highest levels. The bulkiness 
attributable to steroid use simply is not a desired 
characteristic of NHL players. To the extent there might be 
some limited usage of performance-enhancing substances in the 
NHL, we believe that our program will eradicate any such use.
    For this reason the NHL does not see the need for the 
proposed legislation as it applies or relates to our sport. 
However, should Congress proceed along the lines contemplated 
by the legislation, we have set out our comments in my written 
statement and we are certainly prepared to cooperate.
    I would like to briefly make the following points. We 
believe that minimal doping control standards, testing 
protocols, and processes should be established by the Director 
of the Office of National Drug Control Policy, in consultation 
with the National Institute on Drug Abuse, NIDA, which has 
particular expertise in addressing substance abuse, the United 
States Department of Transportation, which is one of the 
largest workplace-testing entities in the world, the United 
States Anti-Doping Agency, USADA, which has expertise in the 
non-workplace testing area, to be specific, amateur 
competitions, and the subject sport's professional league. This 
process would provide the Director with the information, 
resources and practical experience necessary to develop an 
appropriate workplace, and this is a workplace, testing policy 
for each of the sports.
    As pertaining to the NHL we'd ask the Committee to please 
bear in mind that we have certain unique issues. A third of our 
players come from outside of North America, 85 percent of our 
players come from outside the United States, so issues relating 
to which physicians need to be licensed by which jurisdiction, 
where testing might be legal or illegal in the off-season, 
therapeutic use exemptions, and testing labs are all things 
that we think need to be reconciled, particularly with Canada, 
as it relates to the fact that we play over 200 of our games 
there. And so with respect to off-season testing and the like, 
we think that indicates why a one-size-fits-all solution 
doesn't work. We believe that the USADA model of penalties of 2 
years for a first test violation, and lifetime for a second 
violation are unduly harsh when applied in the context of the 
players in the NHL. Unlike International sports events, such as 
the World Championships and Olympics which are generally 
conducted on an annual or bi-annual or quadrennial basis, the 
NHL season consists of 82 regular season games, plus playoffs. 
Identical penalties in these two distinctly different 
environments would result in a disparate and unduly harsh 
impact on NHL players.
    Finally, in the event this legislation is passed, we also 
recommend that players are provided in-person education and 
training on an annual basis regarding prohibited substances, 
the nature and application of the testing program and the 
penalties associated with violations.
    The NHL believes the public is entitled to have confidence 
in the integrity of our sport and to be assured that our 
athletes are not using performance-enhancing drugs. Every 
professional athlete does serve as a role model and with that 
comes a corresponding responsibility.
    Thank you for your attention to this important matter.
    [The prepared statement of Mr. Bettman follows:]

   Prepared Statement of Gary Bettman, Commissioner, National Hockey 
                                 League

    On behalf of the National Hockey League, and in response to the 
request of the Senate Committee on Commerce, Science, and 
Transportation (hereinafter the ``Senate Committee''), this shall 
constitute my written statement regarding the NHL/National Hockey 
League Players' Association performance-enhancing Substances Program 
and S. 1114 and S. 1334. At the outset, I would like to express the 
NHL's appreciation for being afforded the opportunity to provide the 
Senate Committee with our comments regarding the proposed legislation. 
The NHL undertakes to cooperate in any way it can in the effort to 
eliminate the use of performance-enhancing drugs in professional and 
amateur athletics.

NHL/NHLPA Agreement Regarding Future Testing for Performance-
        Enhancing Drugs "
    It is our conviction that, as a general matter, performance-
enhancing drugs are not a pervasive problem in the NHL. Nevertheless, 
we believe that fans in particular, and the public at large, are 
entitled--and deserve--to have confidence that our games are being 
played in a steroid-free environment. Accordingly, the NHL and its 
Players' Association have recognized the need for a modernized drug 
testing and performance-enhancing substances control policy that is 
specifically directed to the prevention of the use of performance-
enhancing drugs in our sport and, in conjunction with the recently 
concluded Collective Bargaining Agreement between the NHL and the 
NHLPA, have established a jointly-administered performance-enhancing 
Substances Program (the ``Program'').
    The primary purposes of the Program include:

   the education of Players regarding the health risks posed by 
        the use of prohibited performance-enhancing substances 
        (``Prohibited Substances'');

   the treatment of Players who have used Prohibited 
        Substances; and

   the deterrence and prevention of such use through education, 
        random no-notice testing and the imposition of disciplinary 
        penalties where appropriate.

    (Attachment I--2005 CBA, Section 47.1) The CBA provides that the 
Program shall be jointly administered by a Program Committee comprised 
of representatives of the League and the NHLPA, and consulting expert 
doctors. \1\ The responsibilities of the Program Committee include:
---------------------------------------------------------------------------
    \1\ The League and the NHLPA have retained Dr. Dave Lewis of 
Visions Residential Treatment Program, California, and Dr. Brian Shaw 
of Toronto Hospital and the Hospital for Sick Children, to serve on the 
Committee as consulting expert doctors. Drs. Lewis and Shaw have 
extensive experience in treating problems related to substance abuse, 
including among professional athletes, and have served as the NHL/NHLPA 
Substance Abuse and Behavioral Health (``Substance Abuse Program'' or 
``SABH'') Program Doctors since the inception of the SABH Program in 
1995.

        (a) to establish a comprehensive educational program for 
        Players on the dangers of Prohibited Substances and the nature 
---------------------------------------------------------------------------
        of the Program;

        (b) to select, and contract with, an appropriate sample 
        collecting authority;

        (c) to select, and contract with, an appropriate testing 
        laboratory;

        (d) to review the WADA list of prohibited performance-enhancing 
        substances and make recommendations to the NHL and NHLPA as to 
        which performance-enhancing substances on the WADA list are 
        relevant to the sport of hockey and should be deemed Prohibited 
        Substances under the Program;

        (e) to develop Player and Club notification procedures for 
        positive test results;

        (f) to oversee the administration of Player evaluation and 
        treatment following positive test results; and

        (g) to establish standards for the administration of 
        ``reasonable cause'' testing. (Attachment I--2005 CBA, Section 
        47.2)

    Based on the recommendations of the Program Committee, the NHL and 
the NHLPA have agreed that NHL players will be subject to testing under 
the terms of the performance-enhancing Substances Program for the 
performance-enhancing drugs designated on the WADA out-of-competition 
list. It is our view that this list reflects those drugs that could 
theoretically affect the integrity of our competition, our paramount 
concern. A copy of the list of banned performance-enhancing substances 
is attached hereto. (Attachment II--Prohibited List) The Program 
provides for up to two (2) no-notice tests during the period from the 
start of Training Camp through the end of the Regular Season. \2\ 
Positive tests for performance-enhancing substances will result in 
mandatory discipline as follows:
---------------------------------------------------------------------------
    \2\ Given the relatively short time frame between the ratification 
of the new CBA and the start of the 2005/2006 NHL season, the NHL and 
the NHLPA have agreed that, with respect to the 2005/2006 season only, 
players will be subject to testing beginning on January 15, 2006, after 
the consulting expert doctors have provided all Players with an 
orientation session regarding the Program.

        (1) for the first positive test, a suspension of twenty (20) 
        NHL Games without pay, and mandatory referral to the SABH for 
---------------------------------------------------------------------------
        evaluation and possible treatment;

        (2) for the second positive test, a suspension of sixty (60) 
        NHL Games without pay, and mandatory referral to the SABH 
        program for evaluation and possible treatment;

        (3) for the third positive test, a ``permanent'' suspension 
        without pay, although a Player so suspended may reapply for 
        discretionary reinstatement after a minimum period of two (2) 
        years by making an application to the Committee.

    (Attachment I--2005 CBA, Section 47.7) The Program also provides an 
opportunity for a Player to challenge the imposition of any discipline 
in the event he is able to establish an applicable therapeutic use 
exemption, a testing error, mistaken use, or the use of a tainted 
supplement or other product (i.e., where the Player could not have 
reasonably ascertained the presence of the Prohibited Substance). 
(Attachment I--2005 CBA, Section 47.8)
    The Program incorporates a mandatory educational component which 
provides that the Players shall receive: education on Prohibited 
Substances and the nature of the Program each League Year during 
Training Camp, provided, however, that no testing shall take place and 
no discipline shall be imposed under the Program until the Committee 
has provided a Player with an orientation session regarding the 
Program, which shall include an in-person presentation on the Program 
and the distribution of informational materials describing all relevant 
aspects of the Program, including the list of Prohibited Substances, 
testing procedures and disciplinary penalties. Education and training 
on the details of the Program will also be provided to Club Athletic 
Trainers and Club physicians. Over time, and to the extent feasible, 
the Committee will endeavor to develop an ``approved list'' of 
nutritional supplements, which will have been tested and certified as 
being free of Prohibited Substances.
    (Attachment I--2005 CBA, Section 47.4) This provision reflects the 
comprehensive nature of the Program, and the belief of the NHL and the 
NHLPA that education regarding the dangers of illegal substances (both 
performance-enhancing and otherwise) is, perhaps, the most effective 
tool in preventing use and abuse.

NHL/NHLPA Substance Abuse and Behavioral Health Program
    Prior to the creation and implementation of the Program, the NHL 
and the NHLPA addressed problems of substance abuse (including abuse of 
performance-enhancing substances) through the NHL/NHLPA Substance Abuse 
Program (Attachment III), * which was jointly developed and implemented 
in 1995 in conjunction with the parties' prior collective bargaining 
agreement. The Substance Abuse Program was designed to be a 
``comprehensive effort to address substance abuse among NHL players and 
their families, to treat those with a substance abuse problem in a 
confidential, fair and effective way, and to deter such abuse in the 
future.'' (Attachment III, SABH Program Section 1) In order to 
accomplish these goals, the Substance Abuse Program incorporates 
education, counseling, inpatient and outpatient treatment, follow-up 
care, and where appropriate, punitive sanctions, up to and including 
permanent suspension from play in the League. On a going-forward basis, 
those players who are found to be using performance-enhancing 
substances will be subject to mandatory discipline as outlined above 
under the performance-enhancing Substances Program, and will also be 
referred to the Substance Abuse Program for evaluation and treatment.
---------------------------------------------------------------------------
    * The information referred to has been retained in Committee files.
---------------------------------------------------------------------------
    Historically, the players who have been treated under the Substance 
Abuse Program have exhibited problems associated with alcohol and/or 
``recreational'' drug use, rather than steroid (or steroid precursor) 
use. The experience of our Substance Abuse Program in this regard is 
not surprising when one considers that primary of the alleged benefits 
of steroid use--significant large muscle development--is not consistent 
with playing hockey at the highest levels of the sport, and the 
resulting bulkiness attributable to steroid use simply is not a desired 
characteristic of skilled NHL players. \3\ Nevertheless, in the event 
NHL players were to exhibit symptoms associated with abuse of 
performance-enhancing drugs, the Substance Abuse Program was broad 
enough in scope to provide treatment (and if appropriate, discipline) 
for such players and the Substance Abuse Program Doctors were empowered 
to intervene in any manner they felt was appropriate.
---------------------------------------------------------------------------
    \3\ Our belief that steroid use is not desired by or prevalent 
among skilled hockey players is seemingly confirmed by the fact that 
there have been only eight positive results in approximately 3,100 
tests of NHL and non-NHL players administered at the World Hockey 
Championships (conducted by the International Ice Hockey Federation 
(``IIHF'')) since 1993/94.
---------------------------------------------------------------------------
Drug Testing of NHL Players in International Hockey Competitions
    The frequent and consistent participation of NHL players in 
international competitions, and the drug testing NHL players undergo in 
connection therewith, provide objective support for our belief that the 
use of performance-enhancing drugs by NHL players is negligible, to the 
extent it exists at all. \4\ Over the past ten years, NHL players have 
represented their nations of origin annually in connection with the 
IIHF World Championships, twice in Olympic competitions in 1998 and 
2002, and just this past year in the 2004 World Cup of Hockey, which 
the NHL and the NHLPA organized and sponsored. In connection with 
international play, the NHL and its players are held to and abide by 
the international standards of the World Anti-Doping Agency (``WADA''), 
which have been adopted by the IIHF.
---------------------------------------------------------------------------
    \4\ We are aware of recent statements by Dave Morissette and Andrew 
Peters regarding their use of performance-enhancing drugs, but for the 
reasons set forth above, do not believe that their experiences are 
representative of the vast majority of NHL players. Indeed, Dave 
Morissette played in only 11 NHL games in his career. We further note 
that Mr. Peters' assertion that he stopped taking andro after the U.S. 
Department of Health and Human Services issued a report about the 
health risks associated with taking the substance provides further 
support for our assertion that it is essential to provide training and 
education on the dangers of performance-enhancing drugs.
---------------------------------------------------------------------------
    In the past ten years, of the nearly 1,000 NHL players who have 
participated in the IIHF World Championships, the Olympics, and the 
World Cup of Hockey competitions, and were subject to drug testing in 
connection therewith, we are aware of only three positive tests for 
performance-enhancing drugs. \5\ And of the three, one of the players 
tested positive for salbutamol, a drug that is also used for asthma as 
a Proventil inhaler, and which may be used with a Therapeutic Use 
Exemption. A second player tested positive for tramadol, a substance 
which is designated as an ``allowed narcotic'' ( i.e., a prescribed 
painkiller). The third player established a ``mistaken use'' defense in 
connection with his use of over-the-counter nutritional supplements.
---------------------------------------------------------------------------
    \5\ In connection with international competitions in which NHL 
players have participated over the past ten years, the Program Doctors 
along with the USOC administered the pre-competition drug testing for 
the Olympics, and the IOC administered the in-competition testing. The 
Program Doctors administered the out-of-competition and in-competition 
testing for the World Cup of Hockey. The IIHF administered the in-
competition testing for the World Championships. With respect to the 
tests administered by the IIHF, the IOC and the USOC, it is our 
understanding that no NHL player had a positive test result for 
performance-enhancing drugs; however, we do not have access to specific 
data or testing results.
---------------------------------------------------------------------------
S. 1114, The Clean Sports Act of 2005
    The National Hockey League has reviewed the proposed Clean Sports 
Act of 2005 and, as stated above, is supportive of a program featuring 
mandatory testing and discipline imposed in connection with an 
athlete's use of performance-enhancing drugs. The NHL remains of the 
belief that, given the mandatory and effective Program agreed to by the 
NHL and the NHLPA, which has been designed to eradicate the use of all 
performance-enhancing drugs from our game, we do not see a need for the 
proposed legislation as it would relate to the NHL. However, should 
Congress decide to proceed in this area and legislate along the lines 
that this proposed legislation contemplates, the NHL's specific 
comments regarding the provisions of the proposed legislation are as 
follows:

   The proposed legislation provides that professional sports 
        leagues shall be subject to the minimum doping control 
        standards established by the United States Anti-Doping Agency 
        Protocol (``USADA'') for Olympic Movement Testing, and shall 
        consult with USADA in the development of its test distribution 
        plan, its drug testing protocols, and its adjudication process. 
        We believe that the Director of the Office of National Drug 
        Control Policy shall be responsible for establishing minimum 
        doping control standards for each sport, as well as test 
        distribution plans, testing protocols and adjudication 
        procedures, and that the Director shall establish the foregoing 
        after consultation with: (1) the National Institute on Drug 
        Abuse (``NIDA''), which has particular expertise in addressing 
        substance abuse; (2) the United States Department of 
        Transportation, which is one of the largest workplace-testing 
        entities in the world; (3) USADA, which has expertise in the 
        non-workplace testing arena of amateur competitions; and (4) 
        the subject professional sports league. We believe that the 
        foregoing entities together would provide the Director with the 
        information, resources, and practical experience necessary to 
        develop an appropriate workplace testing policy and procedure 
        applicable to the employees ( i.e., the players) for each 
        professional sport. We do not believe it is appropriate for the 
        standards set by USADA to set a floor for the minimum 
        requirements applicable for the professional sports leagues, by 
        default. ( See Section 4(b)) We believe that the foregoing 
        process shall also apply in the context of the annual 
        certifications outlined in Sections 4(b)(2) and 4(b)(3).

   Section 4(b)(1)(A) of the proposed legislation provides for 
        ``each professional athlete [to be] tested a minimum of 5 times 
        each calendar year that such athlete is competing in games 
        organized by the major professional league.'' Section 
        4(b)(1)(B) provides that each athlete shall be tested ``(i) at 
        least 3 times, each with no advance notice, during each season 
        of play; and (ii) at least 2 times, each with no advance 
        notice, during the off-season.'' The National Hockey League 
        plays its games in two different countries and features 
        athletes hailing from twenty-two countries around the globe. 
        One-third of NHL players are from outside of North America and 
        eighty-five percent are from outside the United States. For 
        this reason, and giving appropriate consideration to the fact 
        that the NHL does not have a pervasive problem with its players 
        using performance-enhancing substances, in-season testing makes 
        particular sense. While we do not object to subjecting NHL 
        players to random no-notice testing during the off-season, we 
        would not advocate that it be mandatory for sports leagues in 
        general, and the NHL in particular, to conduct off-season 
        testing given the logistical difficulties that would arise in 
        connection with testing players scattered throughout the world. 
        The standard adopted by the NHL and the NHLPA, requiring up to 
        two (2) in-season tests, was designed to insure the 
        effectiveness of the Program while recognizing the realities of 
        professional hockey. In the event legislation is passed 
        requiring more than two tests per calendar year, we would 
        advocate that there be no more than four tests required 
        annually, and that it be permissible to evenly distribute such 
        tests once per calendar quarter.

   Section 4(b)(4) provides that ``a major professional league 
        may make exceptions for any prohibited substances that have 
        been properly prescribed by a doctor of medicine licensed in 
        the United States for legitimate and documented therapeutic 
        purposes.'' We would recommend that this provision be clarified 
        to provide that the exception may be granted retroactively by a 
        medical review officer, after a player has tested positive for 
        a banned substance in the event an investigation reveals that 
        the substance was properly prescribed for a legitimate and 
        documented therapeutic purpose. In addition, the fact that 
        there are six (6) Canadian-based NHL teams would necessitate 
        that Canadian licensed physicians also be authorized to 
        prescribe medications qualifying for a therapeutic use 
        exemption. \6\
---------------------------------------------------------------------------
    \6\ Canadian NHL team physicians also may treat and prescribe 
medications to visiting teams' players--including United States-based 
teams--who suffer an injury while playing in one of the 246 NHL games 
played in Canada.

   Section 4(b)(5) provides for the samples to be analyzed by a 
        laboratory approved by USADA. We would recommend that Canadian-
        based laboratories approved by the World Anti-Doping Agency 
---------------------------------------------------------------------------
        (``WADA'') also be authorized to analyze the samples.

   Section 4(b)(6) provides that a ``refusal by a professional 
        athlete to submit to a test or a failure of a professional 
        athlete to submit to a test without compelling justification 
        shall also be considered a positive test.'' If the requirement 
        regarding mandatory offseason testing is maintained, we would 
        recommend that the legislation address the testing of players 
        in foreign countries (of course, any such testing, if allowed 
        at all, would need to be performed in accordance with 
        applicable laws in the local jurisdiction), or alternatively, 
        recognize as a compelling justification the absence of a player 
        from the United States at the time of a requested test, thus 
        recognizing the international makeup of NHL players and the 
        fact that many such players return to their native countries 
        during the off-season.

   Section 4(b)(7) of the proposed legislation provides for a 
        minimum suspension of two (2) years for an athlete who tests 
        positive for their first violation, and for the ``lifetime ban 
        of the professional athlete from all major professional 
        leagues'' for an athlete who commits a second violation. The 
        NHL agrees that a player who tests positive for performance-
        enhancing drugs should be subject to a significant punishment, 
        and further agrees that progressive discipline should be 
        imposed for a player who tests positive more than once. We 
        believe that the USADA model penalties are unduly harsh when 
        applied in the context of professional hockey players in the 
        National Hockey League. The proposed legislation incorporates a 
        significant and meaningful penalty of a two-year ban for a 
        first-time offender in the context of international ``amateur'' 
        competitions that take place relatively infrequently, as 
        compared to NHL games. In the international sports environment, 
        events are generally conducted on an annual, bi-annual or 
        quadrennial basis (e.g., Olympics, World Championships), while 
        in the NHL, there are 82 regular season games each season in 
        addition to playoff games for eligible clubs. Imposition of 
        identical penalties in these two distinct environments would 
        result in a disparate, and in our opinion, unduly harsh impact 
        on NHL players. Further, given the limited career length of a 
        professional athlete, we believe a two (2) year suspension for 
        a first-time offender is too harsh, resulting in an excessive 
        impact on the athlete's ability to earn a ``livelihood.''

   Section 4(b)(9) of the proposed legislation provides that a 
        positive test shall result in the public disclosure of the 
        ``identity of any professional player who has tested positive 
        as well as the prohibited substance or prohibited method for 
        which he tested positive not later than 30 days after receiving 
        the test results.'' The NHL agrees that it would be appropriate 
        to publicly disclose the name of an athlete who has tested 
        positive for the use of a performance-enhancing drug, but 
        believe that prior to such disclosure--and even in the event an 
        appeal is not filed--it would be prudent to implement a process 
        that would require a medical review officer to contact the 
        player who tested positive to determine whether there is an 
        legitimate medical explanation \7\ for the player's use of the 
        banned substance. If so, and the player has a proper medical 
        prescription authorizing the use of the substance, the positive 
        test results should be considered cancelled, penalties should 
        not be imposed, and no public disclosure of the test result 
        should be made. If, however, a legitimate medical explanation 
        for the player's use of the banned substance does not exist, it 
        would then be appropriate to make the positive test results 
        public and impose discipline, in addition to providing 
        counseling and treatment.
---------------------------------------------------------------------------
    \7\ See 49 CFR Sec. 40.137 (2003) (Department of Transportation 
Procedures for Transportation Workplace Drug Testing Programs).

   Section 6 of the proposed legislation provides that the 
        Commission may seek a civil penalty of not more than $1,000,000 
        for each violation of section 4. We would advocate that any 
        such penalty be assessed to the parties administering the 
---------------------------------------------------------------------------
        collective bargaining relationship.

   In the event legislation is passed regarding performance-
        enhancing substances, we would recommend that such legislation 
        include an obligation on the professional sports leagues to 
        provide in-person education and training to its players on an 
        annual basis regarding prohibited substances and the nature of 
        the applicable testing program, including the penalties 
        associated with violations of the program.

S. 1334, Professional Sports Integrity and Accountability Act
    To the extent S. 1334 has provisions identical to S. 1114, the 
NHL's comments regarding the proposed legislation are set forth above. 
The NHL's specific comments regarding the provisions of S. 1334 that 
are materially different from S. 1114 are as follows:

   Section 5(d)(1) of the proposed legislation provides for 
        ``each professional athlete [to be] tested for the use of 
        prohibited substances and methods no less than 3 times in each 
        calendar year that the athlete competes in a professional 
        sports league.'' Section 5(d) further provides for tests to be 
        conducted ``at random intervals throughout the entire calendar 
        year . . . '' As stated above, in-season testing makes 
        particular sense for the NHL. The proposed legislation seems to 
        permit such testing to occur at random intervals in each 
        ``third'' of the calendar year, thus effectively addressing the 
        impracticalities associated with off-season testing of non-
        North American based NHL players. We would recommend that each 
        team's entire roster of players be tested at the same time 
        during the NHL season on a no-notice basis.

   Section 5(e) of the proposed legislation provides that a 
        professional sports league shall publicly disclose the name of 
        any violator, the penalty imposed, and a description of the 
        violation ``not later than 10 days after receiving notice of a 
        violation . . . '' As stated above, it is our view that public 
        disclosure would not be appropriate until after a medical 
        review officer has contacted the player who tested positive to 
        determine whether there is a legitimate medical explanation for 
        the player's use of the banned substance, and any appeal 
        process has been fully adjudicated.

    The public is entitled to have confidence in the integrity of 
competition in the game of hockey and in all professional sports, and 
to watch the exceptional athletes of today compete on a level playing 
field, free of the influence of performance-enhancing drugs. Every 
professional athlete serves as a role model, and with that comes a 
corresponding responsibility to engage exclusively in conduct that will 
bring honor to himself, his team, and the game in which he earns his 
livelihood. For these reasons, we support the requirement that the NHL 
and the other professional sports leagues conduct mandatory testing on 
athletes for performance-enhancing drugs.
                                 ______
                                 
   Attachment I--Article 47--performance-enhancing Substances Program

    47.1 Introduction. The parties agree to the establishment of a 
jointly-administered performance-enhancing Substances Program 
(``Program''), which shall have as its primary purposes the education 
of Players regarding the health risks posed by the use of prohibited 
performance-enhancing substances (``Prohibited Substances''); the 
treatment of Players who have used Prohibited Substances; and the 
deterrence and prevention of such use through education, random no-
notice testing and the imposition of disciplinary penalties where 
appropriate.
    47.2 Program Committee. The Program shall be jointly administered 
by a Program Committee (``Committee'') comprised of an equal number of 
League and NHLPA representatives and one (1) consulting expert doctor 
nominated by each party. The responsibilities of the Committee shall 
include, among other things:

        (a) to establish a comprehensive educational program for 
        Players on the dangers of Prohibited Substances and the nature 
        of the Program;

        (b) to select, and contract with, an appropriate sample 
        collecting authority;

        (c) to select, and contract with, an appropriate testing 
        laboratory;

        (d) to review the WADA list of prohibited performance-enhancing 
        substances and make recommendations to the NHL and NHLPA as to 
        which performance-enhancing substances on the WADA list are 
        relevant to the sport of hockey and should be deemed Prohibited 
        Substances under the Program;

        (e) to develop Player and Club notification procedures for 
        positive test results;

        (f) to oversee the administration of Player evaluation and 
        treatment following positive test results; and

        (g) to establish standards for the administration of 
        ``reasonable cause'' testing.

    The Committee shall endeavor to render unanimous decisions with 
respect to matters committed to it pursuant to this Article. In the 
absence of a unanimous decision, a decision by the majority of 
Committee members shall govern. When a majority decision cannot be 
reached, the two (2) consulting expert doctors shall select an ad hoc 
expert doctor who shall cast the deciding vote with respect to the 
matter at issue.
    47.3 Scope of Program. The Program shall be limited to addressing 
the testing for and use of prohibited performance-enhancing substances 
(Prohibited Substances). All other forms of ``substance abuse'' and 
behavioral and domestic issues requiring employee assistance will 
continue to be handled through the NHL/NHLPA Program for Substance 
Abuse and Behavioral Health (the ``SABH Program'').
    47.4 Educational Initiatives. Players shall receive education on 
Prohibited Substances and the nature of the Program each League Year 
during Training Camp, provided, however, that no testing shall take 
place and no discipline shall be imposed under the Program until the 
Committee has provided a Player with an orientation session regarding 
the Program, which shall include an in-person presentation on the 
Program and the distribution of informational materials describing all 
relevant aspects of the Program, including the list of Prohibited 
Substances, testing procedures and disciplinary penalties. Education 
and training on the details of the Program will also be provided to 
Club Athletic Trainers and Club physicians. Over time, and to the 
extent feasible, the Committee will endeavor to develop an ``approved 
list'' of nutritional supplements, which will have been tested and 
certified as being free of Prohibited Substances.
    47.5 Prohibited Substances. The NHL and the NHLPA shall be 
responsible for maintaining the list of Prohibited Substances (the 
``Prohibited Substances List''). Upon receiving the Committee's 
recommendations made pursuant to Section 47.2(d) above, the parties 
shall confer and agree upon the Prohibited Substances to be included on 
the List. Changes to substances on the List may only be as negotiated 
by the NHL and the NHLPA. There shall be no retesting of samples based 
on newly discovered substances not included on the Prohibited 
Substances List at the time of the original testing.
    47.6 Testing Procedures. Every NHL Player who has participated in 
an orientation session pursuant to Section 47.4 will be subject to up 
to two (2) no-notice tests during the period from the start of Training 
Camp through the end of the Regular Season. All such tests will be 
conducted at the Clubs' facility on the day of a scheduled practice, as 
opposed to on a game day.
    47.7 Disciplinary Penalties. Positive tests for performance-
enhancing substances will result in mandatory discipline as follows:

        (a) for the first positive test, a suspension of twenty (20) 
        NHL Games without pay, and mandatory referral to the SABH 
        Program for evaluation and possible treatment;

        (b) for the second positive test, a suspension of sixty (60) 
        NHL Games without pay, and mandatory referral to the SABH 
        Program for evaluation and possible treatment;

        (c) for the third positive test, a ``permanent'' suspension 
        without pay, although a Player so suspended can reapply for 
        discretionary reinstatement after a minimum period of two (2) 
        years by making an application to the Committee.

    47.8 Appeal Procedures. The NHLPA may, on a Player's behalf, appeal 
a positive test to the Impartial Arbitrator on an expedited basis, 
utilizing the procedures set forth in Article 17 of the Agreement. A 
strict liability standard will be employed with respect to all positive 
tests. Notwithstanding the above, the Player shall be entitled to 
challenge the imposition of any discipline in the event he is able to 
establish an applicable therapeutic use exemption (as described in 
Section 47.9 hereof), a testing error, mistaken use, or the use of a 
tainted supplement or other product ( i.e., where the Player could not 
have reasonably ascertained the presence of the Prohibited Substance). 
To the extent a Player successfully establishes a defense to a positive 
test, he may avoid the mandatory suspension, but will in all cases be 
referred to the SABH Program for evaluation and possible treatment. A 
Player who files a timely appeal may not be suspended pursuant to 
Section 47.7 until a decision on the appeal has been rendered by the 
Impartial Arbitrator.
    47.9 Therapeutic Use Exemption. A Player may apply to the Committee 
for a therapeutic use exemption with respect to a particular Prohibited 
Substance. The Committee shall consider and act upon such Player's 
application expeditiously and approval of the application shall not be 
unreasonably withheld.
    47.10 Confidentiality. Test results will be kept confidential, 
subject to the following limited exception: once a positive test has 
been confirmed after appeal to the Impartial Arbitrator, or if no 
appeal is taken, the Player suspended will be identified, and it will 
be announced that the Player `` has been suspended for violating the 
terms of the NHL/NHLPA Program for performance-enhancing Substances.''
    47.11 Program Funding. Any salary forfeited by a Player by reason 
of a suspension imposed pursuant to Section 47.7 will be utilized to 
help defer the costs of both the Program and the SABH Program. All 
costs of administering the Program, including the costs associated with 
mandatory no-notice testing, shall be the responsibility of the NHL.
    47.12 Mandatory Legislation. The parties agree that to the extent 
mandatory and binding legislation goes into effect that requires 
material changes to the Program, the provisions of the Program will 
become null and void and the parties will endeavor to collectively 
bargain over a revised Program that complies with such legislation and 
that is agreeable to both parties.
                                 ______
                                 
Attachment II--The 2005 Prohibited List--World Anti-Doping Code (Valid 
                            1 January 2005)

The Use of Any Drug Should be Limited To Medically Justified 
        Indications
Prohibited Substances
S1. Anabolic Agents
    Anabolic agents are prohibited.
1. Anabolic Androgenic Steroids (AAS)
    a. Exogenous* AAS, including:
    18a-homo-17b-hydroxyestr-4-en-3-one; bolasterone; boldenone; 
boldione; calusterone; clostebol; danazol; dehydrochloromethyl-
testosterone; delta1-androstene-3,17-dione; delta1-androstenediol; 
delta1-dihydro-testosterone; drostanolone; ethylestrenol; 
fluoxymesterone; formebolone; furazabol; gestrinone; 4-
hydroxytestosterone; 4-hydroxy-19-nortestosterone; mestanolone; 
mesterolone; metenolone; methandienone; methandriol; methyldienolone; 
methyltrienolone; methyltestosterone; mibolerone; nandrolone; 19-
norandrostenediol; 19-norandrostenedione; norbolethone; norclostebol; 
norethandrolone; oxabolone; oxandrolone; oxymesterone; oxymetholone; 
quinbolone; stanozolol; stenbolone; tetrahydrogestrinone; trenbolone 
and other substances with a similar chemical structure or similar 
biological effect(s).
    b. Endogenous** AAS:
    androstenediol (androst-5-ene-3b,17b-diol); androstenedione 
(androst-4-ene-3,17-dione); dehydroepiandrosterone (DHEA); 
dihydrotestosterone; testosterone.
    and the following metabolites and isomers:
    5a-androstane-3a,17a-diol; 5a-androstane-3a,17b-diol; 5a-
androstane-3b,17a-diol; 5a-androstane-3b,17b-diol; androst-4-ene-
3a,17a-diol; androst-4-ene-3b,17a-diol; androst-4-ene-3b,17a-diol; 
androst-5-ene-3a,17a-diol; androst-5-ene-3a,17b-diol; androst-5-ene-
3b,17a-diol; 4-androstenediol (androst-4-ene-3b,17b-diol); 5-
androstenedione (androst-5-ene-3,17-dione); epi-dihydrotestosterone; 
3a-hydroxy-5a-androstan-17-one; 3b-hydroxy-5a-androstan-17-one; 19-
norandrosterone; 19-noretiocholanolone.
    Where a Prohibited Substance (as listed above) is capable of being 
produced by the body naturally, a Sample will be deemed to contain such 
Prohibited Substance where the concentration of the Prohibited 
Substance or its metabolites or markers and/or any other relevant 
ratio(s) in the Athlete's Sample so deviates from the range of values 
normally found in humans that it is unlikely to be consistent with 
normal endogenous production. A Sample shall not be deemed to contain a 
Prohibited Substance in any such case where the Athlete proves by 
evidence that the concentration of the Prohibited Substance or its 
metabolites or markers and/or the relevant ratio(s) in the Athlete's 
Sample is attributable to a physiological or pathological condition. In 
all cases, and at any concentration, the laboratory will report an 
Adverse Analytical Finding if, based on any reliable analytical method, 
it can show that the Prohibited Substance is of exogenous origin.
    If the laboratory result is not conclusive and no concentration as 
referred to in the above paragraph is found, the relevant Anti-Doping 
Organization shall conduct a further investigation if there are serious 
indications, such as a comparison to reference steroid profiles, for a 
possible Use of a Prohibited Substance.
    If the laboratory has reported the presence of a T/E ratio greater 
than four (4) to one (1) in the urine, further investigation is 
obligatory in order to determine whether the ratio is due to a 
physiological or pathological condition, except if the laboratory 
reports an Adverse Analytical Finding based on any reliable analytical 
method, showing that the Prohibited Substance is of exogenous origin.
    In case of an investigation, it will include a review of any 
previous and/or subsequent tests. If previous tests are not available, 
the Athlete shall be tested unannounced at least three times within a 
three month period.
    Should an Athlete fail to cooperate in the investigations, the 
Athlete's Sample shall be deemed to contain a Prohibited Substance.
2. Other Anabolic Agents, Including but not Limited to: Clenbuterol, 
        Zeranol, Zilpaterol.

    For purposes of this section:

        *``exogenous'' refers to a substance which is not capable of 
        being produced by the body naturally.

        **``endogenous'' refers to a substance which is capable of 
        being produced by the body naturally.

S2. Hormones and Related Substances
    The following substances, including other substances with a similar 
chemical structure or similar biological effect(s), and their releasing 
factors, are prohibited:

        1. Erythropoietin (EPO);
        2. Growth Hormone (hGH), Insulin-like Growth Factor (IGF-1), 
        Mechano Growth Factors (MGFs);
        3. Gonadotrophins (LH, hCG);
        4. Insulin;
        5. Corticotrophins.

    Unless the Athlete can demonstrate that the concentration was due 
to a physiological or pathological condition, a Sample will be deemed 
to contain a Prohibited Substance (as listed above) where the 
concentration of the Prohibited Substance or its metabolites and/or 
relevant ratios or markers in the Athlete's Sample so exceeds the range 
of values normally found in humans so that it is unlikely to be 
consistent with normal endogenous production.
    The presence of other substances with a similar chemical structure 
or similar biological effect(s), diagnostic marker(s) or releasing 
factors of a hormone listed above or of any other finding which 
indicate(s) that the substance detected is of exogenous origin, will be 
reported as an Adverse Analytical Finding.

S3. Beta-2 Agonists
    All beta-2 agonists including their D- and L-isomers are 
prohibited. Their use requires a Therapeutic Use Exemption.
    As an exception, formoterol, salbutamol, salmeterol and 
terbutaline, when administered by inhalation to prevent and/or treat 
asthma and exercise-induced asthma/broncho-constriction require an 
abbreviated Therapeutic Use Exemption.
    Despite the granting of a Therapeutic Use Exemption, when the 
Laboratory has reported a concentration of salbutamol (free plus 
glucuronide) greater than 1000 ng/mL, this will be considered as an 
Adverse Analytical Finding unless the athlete proves that the abnormal 
result was the consequence of the therapeutic use of inhaled 
salbutamol.

S4. Agents With Anti-Estrogenic Activity
    The following classes of anti-estrogenic substances are prohibited:

        1. Aromatase inhibitors including, but not limited to, 
        anastrozole, letrozole, aminogluthetimide, exemestane, 
        formestane, testolactone.

        2. Selective Estrogen Receptor Modulators (SERMs) including, 
        but not limited to, raloxifene, tamoxifen, toremifene.

        3. Other anti-estrogenic substances including, but not limited 
        to, clomiphene, cyclofenil, fulvestrant.

S5. Diuretics and Other Masking Agents
    Diuretics and other masking agents are prohibited. Masking agents 
include but are not limited to: Diuretics*, epitestosterone, 
probenecid, alpha-reductase inhibitors (e.g. finasteride, dutasteride), 
plasma expanders (e.g. albumin, dextran, hydroxyethyl starch).
    Diuretics include: acetazolamide, amiloride, bumetanide, canrenone, 
chlortalidone, etacrynic acid, furosemide, indapamide, metolazone, 
spironolactone, thiazides (e.g. bendroflumethiazide, chlorothiazide, 
hydrochlorothiazide), triamterene, and other substances with a similar 
chemical structure or similar biological effect(s).

        *A Therapeutic Use Exemption is not valid if an Athlete's urine 
        contains a diuretic in association with threshold or sub-
        threshold levels of a Prohibited Substance(s).

Prohibited Methods

M1. Enhancement of Oxygen Transfer
    The following are prohibited:

        a. Blood doping, including the use of autologous, homologous or 
        heterologous blood or red blood cell products of any origin, 
        other than for medical treatment.

        b. Artificially enhancing the uptake, transport or delivery of 
        oxygen, including but not limited to perfluorochemicals, 
        efaproxiral (RSR13) and modified haemoglobin products (e.g. 
        haemoglobin-based blood substitutes, microencapsulated 
        haemoglobin products).

M2. Chemical and Physical Manipulation
    The following is prohibited:
    Tampering, or attempting to tamper, in order to alter the integrity 
and validity of Samples collected in Doping Controls.
    These include but are not limited to intravenous infusions*, 
catheterisation, and urine substitution.

        *Except as a legitimate acute medical treatment, intravenous 
        infusions are prohibited.

M3. Gene Doping
    The non-therapeutic use of cells, genes, genetic elements, or of 
the modulation of gene expression, having the capacity to enhance 
athletic performance, is prohibited.

    Senator McCain. Thank you.
    Mr. Saskin.

 STATEMENT OF TED SASKIN, EXECUTIVE DIRECTOR, NATIONAL HOCKEY 
                  LEAGUE PLAYERS' ASSOCIATION

    Mr. Saskin. Mr. Chairman, and Committee Members. I want to 
at the outset, clearly and emphatically state to this Committee 
that the NHLPA membership and officials in our organization, 
including myself, are strongly opposed to the use of 
performance-enhancing substances by anyone in our sport. There 
are three main reasons for this position. First, the NHLPA is 
keenly concerned with protecting its members personal health. 
Second, NHLPA members want to protect the competitive integrity 
and fairness of their sport. And third, because NHLPA members 
are seen by young aspiring hockey players and fans around the 
world as important role models, they want to leave no doubt 
about their opposition to performance-enhancing substances.
    To further the Committee goal today to obtain information 
through testimony in an efficient manner, I will avoid further 
describing details of our new program. It has been adequately 
explained by Commissioner Bettman, I support everything he has 
said in describing our program.
    I would, however, refer you to our written submissions 
which have some additional background on that. However, I think 
it would be appropriate to make just a few comments on your 
proposed legislation, because--and this is given with the 
greatest of respect to the good intentions behind the 
legislation, it is an area in our view that is best left for 
individual sports leagues and players associations to address 
as we have recently done through our collective bargaining 
process, particularly so that the specific and different 
circumstances of each sport can be taken into account.
    There are a number of points I've detailed in my written 
submission from how to address frequency of testing when over 
85 percent of our members are not American citizens and how 
that relates to off-season testing. There are other points with 
respect to the actual list of prohibited substances, the WADA 
code, which we've had much experience with when we participate 
in the Olympics, has specific provisions for hockey, and you 
have to look at what is particular to hockey, which our program 
doctors have recently done in developing our program.
    On the therapeutic use exemptions, there is a reference to 
American doctors being the ones who have to provide those use 
exceptions. With six clubs in Canada, and Canadian doctors, 
allowances would have to be made so that Canadian doctors 
properly registered medical practitioners could provide those 
therapeutic use exemptions for Canadian players.
    In short, the one-size-fits-all aspect of the legislation 
would be very problematic for hockey with the international 
nature and constitution of our membership.
    Those are my comments, thank you.
    [The prepared statement of Mr. Saskin follows:]

 Prepared Statement of Ted Saskin, Executive Director, National Hockey 
                      League Players' Association

    Mr. Chairman and Members of the Committee:
    My name is Ted Saskin and I serve as the Executive Director and 
General Counsel of the National Hockey League Players' Association 
(NHLPA). I appreciate the opportunity to provide this Committee with 
our perspective on the proposed S. 1114 Clean Sports Act of 2005 (S. 
1114) and S. 1334 Professional Sports Integrity and Accountability Act 
(S. 1334).
    Given that this is my first opportunity to appear before your 
Committee, I thought it would be useful for me to spend a few minutes 
providing some background on how we have addressed substance abuse and 
the use of steroids and other performance-enhancing drugs in our sport. 
I will then provide my comments on your proposed legislation.
    However, before I address those two matters I want to clearly and 
emphatically state to the Committee that the NHLPA membership, and 
officials in our organization including myself, are strongly opposed to 
the use of performance-enhancing substances by anyone in our sport. 
There are three main reasons for this position. First, the NHLPA is 
keenly concerned with protecting its members' personal health. Second, 
NHLPA members want to protect the competitive integrity and fairness of 
their sport. Third, because NHLPA members are seen by young aspiring 
hockey players and fans around the world as important role models, they 
want to leave no doubt about their opposition to performance-enhancing 
substances.

NHLPA/NHL Performance-Enhancing Substances Program
    The strong commitment of the NHLPA membership to keep hockey free 
of performance-enhancing substances is best evidenced by the testing 
program that was recently adopted as part of the new Collective 
Bargaining Agreement (CBA) between the NHLPA and the National Hockey 
League (NHL). The performance-enhancing Substances Program (the 
Program), which went into effect with the execution of the CBA on July 
15, 2005, is the first attempt to deal specifically with the issue of 
performance-enhancing substances through a system of testing and 
discipline. It is my firm belief that when this Program is fully 
developed and operational, it will serve as an effective deterrent to 
the use of performance-enhancing substances. The Program features a 
comprehensive educational component, the prohibition of substances that 
would actually enhance performance in the sport of hockey and strong 
sanctions designed to rid the sport of these substances. We believe 
that by tailoring the Program to the specific circumstances of 
professional hockey, including the unique realities of playing in the 
NHL and the international nature of the sport, we have significantly 
enhanced the Program's effectiveness.
    To further the Committee's goal today to obtain information through 
testimony in an efficient manner I will avoid further describing 
details of the Program's purposes, design and operation. Instead I will 
refer you to the NHL's submission on the Program because I understand 
that information to be accurate.

NHLPA/NHL Substance Abuse and Behavioural Health Program
    While the Program represents a dramatic and important new step in 
dealing with performance-enhancing substances, it should be noted that 
the NHLPA and the NHL have a long-standing commitment to addressing the 
issues of substance abuse and the use of performance-enhancing 
substances. In 1995, in conjunction with the negotiation of our 
previous CBA, the NHLPA and NHL jointly implemented the ``NHL/NHLPA 
Substance Abuse and Behavioral Health Program (SABH Program). The SABH 
Program was broadly designed to address any potential substance abuse 
among NHL players and their families and to treat those problems in a 
confidential, fair and effective way. The SABH Program incorporates 
education, counseling, inpatient and outpatient treatment and testing, 
follow-up care and, where appropriate, punitive sanctions, up to and 
including permanent suspension from play.
    Our SABH Program has worked very well for the purposes it was 
designed for. Both the NHLPA and NHL have been pleased with its 
operation and results. However, over the past 10 years, and 
particularly in recent years, the issue of performance-enhancing drugs 
in sport has become more prominent. In response to this change, our 
SABH Program Doctors developed and presented educational materials to 
the players specifically highlighting the dangers of steroid use in at 
least 4 of the last 7 years. Our SABH Program Doctors have confirmed to 
us that there is virtually no steroid use in hockey, which is not 
surprising when one considers that the alleged benefits of such steroid 
use (enhanced bulk muscle mass) do not benefit elite hockey players.
    The purported benefits of steroid use are simply not applicable to 
skilled NHL players. This viewpoint is strongly supported by the fact 
that we are not aware of a single instance over the last 10 years in 
which an NHL player has tested positive for performance-enhancing drugs 
during any of the many International Ice Hockey competitions our 
players have participated in where there has been mandatory testing.
    Specifically, in the past 10 years, hundreds of NHL players have 
participated in the International Ice Hockey Federation World 
Championships, the 1998 and 2002 Olympics and the 2004 World Cup of 
Hockey Competition. These NHL players were subject to the drug testing 
protocols in connection with their participation in these events. These 
protocols utilized a substance list and testing procedures equivalent 
to the current WADA Code. We are aware of only 3 positive tests for 
performance-enhancing drugs. Of these 3, one of the players tested 
positive for Salbutamol, a drug that was being used for asthma as a 
Proventil inhaler and may be used with a therapeutic use exemption. A 
second player tested positive for Tramadol, a substance which is 
designated as an ``allowed narcotic.'' The third player established a 
``mistaken use defense'' in connection with his use of over the counter 
nutritional supplements.
    In short, we have been fortunate to have no issue to date with the 
use of performance-enhancing drugs by elite hockey players. Having said 
that, I can give this Committee my complete assurance that our new 
Program is designed to prevent the use of performance-enhancing 
substances by any Players, however rare and isolated those cases may 
be. We fully recognize the importance of an effective Program. The 
players I represent see no place for the use of performance-enhancing 
substances in our sport and are sensitive to their position as role 
models to many aspiring hockey players and fans around the world.

Comments on S. 1114, The Clean Sports Act of 2005 and S. 1334, The 
        Professional Sports Integrity and Accountability Act
    My initial comment, which is given with the greatest of respect to 
the good intentions behind the proposed legislation, is that this is an 
area that is best left for the individual sports leagues and player 
associations to address through collective bargaining so that the 
specific and different circumstances of each sport can be taken into 
account. We believe that the recently adopted NHLPA/NHL Program offers 
strong support for the proposition that collective bargaining is the 
appropriate avenue for producing effective and workable programs in 
professional sports.
    Now, with respect to the specifics of the proposed legislation, I 
would make the following comments:
    Frequency of testing. Consistent with the NHL/NHLPA Program, both 
S. 1114 and S. 1334 provide for random, no-notice testing. With respect 
to testing frequency, Section 4(b)(1)(A) of S. 1114 mandates 5 tests in 
each calendar year that a player competes and Section 5(d)(1)(A) of S. 
1334 mandates 3 such tests. These requirements would not be practicable 
in our sport given the unique nature of hockey and the way Players pass 
in and out of the League over the course of a season. For example, 
during the 2003-04 season there were 1,433 Players under contract to an 
NHL Club, but only 1,105 actually competed in an NHL game. Of these 
Players, 32 played in only one game, 145 played in 5 or less games and 
205 played in 10 or less games. These numbers reflect the reality that 
Players under NHL contract may spend the entire season in the Minor 
Leagues, play only a handful of NHL games or come up to play in a 
single game as a fill-in before flying right back to the Minor League 
club the next day. It is difficult to see how a program mandating three 
to five tests for such Players could be implemented. It is with this 
reality in mind that the NHLPA and NHL adopted a more flexible policy 
on frequency of testing--a policy that will allow regular NHL Players 
to be tested with sufficient frequency to ensure the effectiveness of 
the Program.
    Timing of testing. With respect to timing, both pieces of proposed 
legislation mandate testing during the off-season, with Section 
4(b)(1)(B)(ii) of S. 1114 requiring at least 2 such tests. Once again, 
the reality of NHL hockey would render these requirements unworkable. 
More than four fifths of NHL Players are from outside the United States 
and many of these Players return to their home countries in the off-
season, making year-round testing impracticable. In addition, we 
believe that timing parameters should take into account the scheduling 
difficulties faced by Players and Clubs. For example, it can often 
times take several hours to provide a urine sample after a player has 
become dehydrated following completion of a hockey game. Travel 
requirements to upcoming games will often require that players leave an 
arena within one hour of completing a game to board a flight to their 
next city. The newly adopted NHLPA/NHL Program prohibits game day 
testing in recognition of these hockey-specific challenges.
    Prohibited substances. Section 4(b) of S. 1114 and Section 5(b) of 
S. 1334 specify that the list of prohibited substances should be 
equivalent to the list established by the United States Anti Doping 
Agency (USADA). It is our view that the list of substances prohibited 
in the NHL should be developed on a basis that is relevant to the 
particular sport and not simply by adopting the list formulated by 
USADA or the World Anti Doping Agency (WADA) for Olympic competitions. 
Some of the substances prohibited on the USADA/WADA lists are not 
performance-enhancing and should not be included as part of any testing 
regimen governing hockey players.
    Penalties. Section 4(b)(7)(A)(i) of S. 1114 and Section 
(5)(e)(1)(A) of S. 1334 contemplate a minimum 2 year suspension for a 
first offense. We believe that 2 years is an unreasonably long 
punishment for a professional hockey player. Unlike the Olympics, which 
take place every 4 years, and are mainly a forum for amateur athletes, 
the National Hockey League represents a career opportunity that can 
only be obtained after many years of hard work and a substantial amount 
of good fortune. A 2-year suspension would effectively end a hockey 
player's career, stripping him of his livelihood on the basis of a 
first offence. We agree that meaningful punishment is an important part 
of any testing regimen and we believe that our recently adopted Program 
finds the correct balance. The prescribed 20-game suspension for a 
first-time offender, coupled with the negative public coverage such an 
individual will receive, will have a significant effect on the 
offender's future behavior and the behavior of all players. In 
addition, the 60-game suspension for a second offense and the lifetime 
ban for a third offense are very substantial penalties that should 
operate to prevent repeat offenses.
    Public Disclosure. Both pieces of legislation call for public 
disclosure of an offending player's identity within a defined time 
period from the date of a positive test or notice of a positive test 
(30 days under Section 4(b)(9) of S. 1114 and 10 days under Section 
5(e)(2)(A) of S. 1334). We believe that in the interests of due 
process, no disclosure should be made until the applicable appeal 
process has run its full course. A Player who is able to exonerate 
himself should not be subject to premature and possibly mistaken 
identification as an offender.
    Therapeutic use exemptions. Both pieces of proposed legislation 
provide for therapeutic use exemptions (TUE's), which are also an 
important component of the NHLPA/NHL Program. However, Section 4(b)(4) 
of S. 1114 and Section 5(d)(3)(B)(iii) of S. 1334 require that the 
substance in question be prescribed by a doctor licensed in the United 
States. This requirement would not be appropriate for the NHL, where 
the six Clubs based in Canada employ Canadian doctors, who administer 
to mostly Canadian and European Players. These Players should be able 
to seek TUE's on the basis of their Canadian doctors' prescriptions. 
Once again, we believe that the collective bargaining process provides 
parties with the ability to achieve the same goals as the proposed 
legislation, but in a manner that is consistent with the unique 
realities of their sports.
    To close I want to again share the NHLPA members' sentiment that 
they want to do their part to maintain the public's confidence that our 
sport is free of the use of performance-enhancing drugs.
    Thank you for inviting us to appear today.

    Senator McCain. Well, Mr. Saskin, if they play in the 
United States of America, if they're paid in the United States 
of America, and it's Americans that patronize their games, I am 
not sympathetic to some problem that may be caused by the fact 
that they live overseas. I don't think anyone has put a gun to 
their heads and asked them, or forced them to come and play 
here. If they're going to play in the United States of America, 
they should play by our rules.
    Mr. Fehr, you and I have known each other for many years, 
and we have been friends for many years. It was April 25th, 
more than 5 months ago that Commissioner Selig made his 
proposal. More than 5 months ago. And you came here today and 
said well, we're close but we have to observe the Jewish 
holidays and we hope to have an agreement by then. Are you and 
the players living in such a rarified atmosphere that you do 
not appreciate that this is a transcendent issue. It was also 
intimated in your remarks that this is tied to other collective 
bargaining issues. Don't you get it? Don't you get it, that 
this is an issue which is greater than the issue of collective 
bargaining as I tried to say in my opening statement? It's 
about young Americans who are tempted to take these substances 
and some of them commit suicide.
    Don't you understand that this is an issue of such 
transcendent importance that you should have acted months ago? 
There should have been some agreement months ago. We wouldn't 
be having this hearing I believe, the Palmiero case aside, if 
you had come to some agreement. The patience of this body, 
reflected by our constituents, is at an end. Now could you give 
me a definitive date when you will reach a final agreement with 
Mr. Selig, not associated with any other collective bargaining 
issue?
    Mr. Fehr. A number of things, Mr. Chairman. First of all, 
we have known each other and been friends for many years, and I 
certainly hope that will continue.
    Second, our bargaining is not tied to other issues if I 
inadvertently made that suggestion that was incorrect and I was 
not speaking precisely. I was referring to a process of 
bargaining in prior years, and criticism about whether we said 
things publicly or whether we didn't, with the press around the 
negotiations.
    Third, after the hearings on the House side in March, and 
after receiving the Commissioner's letter, we had discussions 
both before and after that. There was an agreement at the 
beginning that it would be unfair to have a change in the 
middle of the season. That's why the Commissioner had the Minor 
League changes take effect in 2006.
    Senator McCain. Did that preclude you from reaching an 
agreement?
    Mr. Fehr. No, no. Let me finish Mr. Chairman, please. I 
then went--sent the tapes of the hearings to all of the players 
and I have an obligation to meet with them all. Which I did. It 
was always known and understood that we would get back to it. 
There were ongoing discussions all summer long. And although 
more intensively after my meetings with the players ended. Now 
in answer to your specific question about a time deadline. Can 
I give you a precise date, no. Do I expect to know within the 
reasonably near future whether that will done, yes. Would I 
expect it to be by the end of the World Series, I would 
certainly hope so.
    Senator McCain. Well, the last thing that the Senator from 
Kentucky and I and members of this Committee want to do, is 
pass legislation. But we're at the end of the line, Mr. Fehr. 
We're at the end of the line here. How many more Rafael 
Palmieros are there going to be? How many statements by David 
Wells saying that ``I'm sure that there are still plenty of 
guys in this game using steroids?'' We're at the end here, and 
I don't want to do it, but we need an agreement and we need it 
soon. It's not complicated. All sports fans understand it. So I 
would, in all due respect to the Jewish holidays, or any other 
logistical problems you might have, I suggest you act, and act 
soon.
    Commissioner Tagliabue, there was a program called ``Costas 
Now'' on HBO. On August 12, 2005, they interviewed Dr. James 
Shortt. Dr. James Shortt said that he gave a number of NFL 
players anabolic steroids according to Arman Keteyian, who was 
the one who interviewed him. ``The NFL laws are such that it's 
prohibited to take anabolic steroids while you're playing in 
the NFL. Are you aware of that?'' ``Yes, absolutely.'' ``But 
were you aware of it at the time were you prescribing anabolic 
steroids to NFL players?'' ``Possibly at some point.'' ``How 
many NFL players did you work with?'' ``Let's say one to two 
dozen.'' Arman Keteyian says, ``I've heard 18, Dr. Shortt.'' 
``That would be somewhere in that range. (Smile.)'' If that's 
true why haven't we had some detection of this kind of anabolic 
steroid use, Commissioner?
    Commissioner Tagliabue. Well, those players, Mr. Chairman, 
were engaged in a course of conduct to evade detection. This is 
a unique substance, testosterone, it's a naturally appearing 
substance, with a very complicated test. And they were staying 
under the radar screen, in effect. And we have a report on 
this, a comprehensive report done by our investigators. We'd be 
glad to give it to you. Dr. Shortt has now been indicted. We 
are now addressing the other issue that comes up in that 
situation which is----
    Senator McCain. Including the players that were implicated 
in BALCO. There were a number of baseball players that were 
implicated there as well.
    Commissioner Tagliabue. You mean football?
    Senator McCain. I mean football players.
    Commissioner Tagliabue. Yes, that was a substance for which 
there was no test known at the time. As soon as the test was 
known, we applied the test not only to current players, but to 
one year's worth of samples, I believe that we had been holding 
from the prior year and we found no other violations of that 
THG substance. We were very aggressive there in going back to 
tests that were taken, I believe, as long as a year earlier.
    Senator McCain. Senator Bunning.
    Senator Bunning. Thank you, Mr. Chairman. First of all, if 
you wonder why we're really pushing this, this letter will 
indicate to you why. This is from a Boy Scout, from the State 
of Kentucky. ``My name is Joseph Mattingly. I am a Boy Scout 
from Troop 327. At this year's summer camp, I am working on a 
merit badge that requires me to write a letter to a Member of 
Congress, representing my state, Kentucky. This letter was 
required to be about a national issue which I share the same 
view with you. I wrote to you because I am a fan of Major 
League Baseball and would agree that Congress should get 
involved in the steroids scandal. I say this for many reasons. 
One is that Major League Baseball needs some help. If they 
can't clear up this problem, Congress could. Another reason is 
that taking performance-enhancing drugs is cheating. Cheating 
should not be the American way of doing things. A third reason 
is that steroids are drugs. Performance-enhancing drugs should 
be made illegal without a prescription.'' And then it goes into 
the Hall of Fame and things like that. That's the reason that 
we're here today. Whether you like it, or whether you don't 
like it. Now, Don Fehr, I've known you for longer than John 
McCain has.
    Mr. Fehr. That's certainly correct, probably about a decade 
longer.
    Senator Bunning. Now do you believe that there is a problem 
with steroids and amphetamines in baseball?
    Mr. Fehr. I believe with respect to steroids that there has 
been, the data we compiled in 2003 demonstrated that. I believe 
it is well on the way to being eradicated. And I think that the 
agreement that I hope to be able to reach and that I'm certain 
that the players will ratify will make that beyond question.
    Senator Bunning. Do you think players who use steroids are 
cheaters?
    Mr. Fehr. I was asked and answered that question 
affirmatively at the Government Reform Hearing last month.
    Senator Bunning. Do you think cheaters should be allowed to 
stay in the game?
    Mr. Fehr. I think that with respect to penalties, two 
things have to apply. That you have to look at the facts and 
circumstances of every case. You have to make a judgment as to 
what level of penalty should be applied in every case, and the 
players should have an opportunity to tell his story if he 
thinks there are mitigating circumstances----
    Senator Bunning. Even though they test positive?
    Mr. Fehr. Yes. And that's--and I don't understand Senator 
one thing, with respect to a lot of the criticism. It's 
traditional in this country that when someone is accused of 
something that they have an opportunity to tell their story, to 
a neutral. To somebody who's----
    Senator Bunning. That's why an independent----
    Mr. Fehr. That's right, to a neutral, to an independent. 
And to say, this is why you shouldn't find that I did whatever 
it is they're accused of and if you find that I do, this is why 
it shouldn't be treated as seriously as you otherwise might. 
And the prosecutor, or in our business, the clubs, the 
Commissioner's office would certainly have the right to say, 
well that evidence isn't very persuasive, but not only that, we 
think the penalties ought to be increased beyond the 
presumptive penalty. And the structure we've proposed, does 
that.
    Senator Bunning. Let me ask both of you, Comissioner Fehr 
and you----
    Mr. Fehr. I don't quite have the title, but thank you.
    Senator Bunning. Commissioner Selig, and you, Don. It's 
obvious to everyone in this room that baseball and the players 
only act when Congress threatens you. Unless we hit you, you 
don't do anything. So why should we believe you're serious now, 
instead of just passing a new law and making a meaningful drug 
test for your players and for the integrity of baseball.
    Mr. Fehr. Let me respond first, since it was directed at 
the players, I think. And I would say two things. First of all 
we've renegotiated a number of times in response to specific 
criticisms and to changing events and we're in the process of 
doing it again. Second, within the reasonably forseeable 
future, I believe we will have a new agreement and that can be 
judged on it's own merits. Third, in the end, you and your 
colleagues, and your colleagues in the House will make a 
decision as to whether or not its sufficient. Part of the 
reason, although far from the only reason that I went to meet 
with the players this summer was to explain to them, and to 
every one of them individually that wanted to come to the 
meetings exactly what the reaction----
    Senator Bunning. Do they understand how serious a problem 
it is in the public?
    Mr. Fehr. I think they do, although as you know like with 
any group----
    Senator Bunning. You're taking all my time, and I don't 
have time.
    Mr. Fehr. I apologize.
    Senator Bunning. That's OK.
    Mr. Fehr. I apologize.
    Senator Bunning. But in your written statement, your 
legalese in your written statement, there are serious questions 
as to whether the bills before the Committee are consistent 
with the Constitution. And then you cite Chandler versus 
Miller, a case in which the Supreme Court held unconstitutional 
as a violation of the Fourth Amendment. I think that's very 
interesting. Commissioner, would you like to answer that?
    Commissioner Selig. Thank you, Senator Bunning, I would. 
There's no question that from the late 1990s when I began to 
believe that there was a problem I think we did everything we 
could, and I know people have said that we've been slow to 
react and that's a fair criticism. Although, as I look back 
retrospectively, I'm not sure there's any more we could have 
done. The Minor League program is now five years old. We're 
testing all over everywhere we can. In 2002 we got the first 
drug testing program the sport had ever had, albeit not strong 
enough. And I made a conscientious decision at that time at 
6:30 in the morning that the sport couldn't take another 
lockout or strike. And while I wanted a tougher program, it 
wasn't there. There's no question that I wish we were in a 
different position than we're in today. I've meant what I've 
said here, I've said it all over the country. I think Senator 
Cantwell heard me say this in Seattle. This is an integrity 
issue.
    Senator Bunning. You'll have a chance to prove yourself by 
the end of the World Series according to the Director.
    Commissioner Selig. Well, you know I have been as everybody 
around me knows very restless, it's been five months. Some 
people have even been critical that these penalties aren't 
severe. But I think they fit our sport. I really do. I think 
the independent testing is important. Frankly I'm anxious to 
get our people out of it. There should never be a scintilla of 
doubt whether the program is working--I've said this many times 
but just sitting here again, just the fact that we're sitting 
here and discussing this, we need to have tougher penalties, 
independent testings, so we have established once and for all 
that we are really serious about this.
    Senator McCain. Senator Dorgan.
    Senator Dorgan. Mr. Chairman, thank you. Mr. Fehr, you 
appeared at the hearing I chaired in 2002, and many of the same 
points of discussion occurred then, and I indicated in my 
opening statement I think obviously there's been some progress. 
But Mr. Fehr, you still speak as if this is negotiable. I 
submit, that if you listen carefully to Senator McCain's 
opening statement and other statements from the House and 
Senate, I think this is non-negotiable at this point. I think 
you waited too long.
    And by that I simply mean that we've gone way past the 
point now of no return. It's quite clear, Congress is simply 
going to slap on a routine here, or an approach to testing, and 
penalties unless the Commissioner and you do it first, and so 
you might respond to this, but you still sound this morning as 
if this is something that's part of your negotiation. I submit, 
I think it's non-negotiable at this point.
    Mr. Fehr. Senator, first of all I appreciate your comments 
and the sense of the hearings that you've referred to. Some 
other ones on the House side have been conveyed to the players, 
it's part of what I did. In some fashion when tapes are 
available of this hearing, I'm going to make those available to 
the players too, although it will be the off-season and a 
little more difficult to reach everybody. I think that the 
majority of the players understand what the sense of the 
Congress is, I can't speak for every single one, but that's my 
sense meeting with them. That's why we're engaged in this 
process. And when I use the term negotiation, what I mean by it 
is this. My obligation as a representative of the players, both 
generally and under the National Labor Relations Act, is to 
negotiate on their behalf what they believe to be an 
appropriate and fair agreement under all circumstances, and 
that's what I'm trying to do.
    Senator Dorgan. Well, then, perhaps I was too personal. 
Maybe it's just the message to the players, that they've waited 
too long. They've waited too long. It's over. I mean this is 
not in my judgment negotiable. And I think that Chairman McCain 
and others have made that point. Let me just ask Commissioner 
Selig. As I understand it, you have a Minor League program that 
you put in place.
    Commissioner Selig. Yes, that is correct.
    Senator Dorgan. And tell me about that program, just a 
thumbnail sketch very quickly.
    Commissioner Selig. We put it in effect in 2001, and it has 
worked well. I've toughened the penalties up once I began to 
really understand the dimension of the integrity problem. So 
next year the very penalties that I'm asking the Major League 
Players Association to do, are in effect in the Minor Leagues 
and everybody is tested.
    Senator Dorgan. Why did you put that in place in 2001, in 
the Minor Leagues?
    Commissioner Selig. Because I was very concerned, I thought 
that baseball already had a very significant problem.
    Senator Dorgan. And you had the authority unilaterally to 
do that in 2001?
    Commissioner Selig. I did have the authority to 
unilaterally do it.
    Senator Dorgan. Minor League only?
    Commissioner Selig. In the Minor Leagues, yes Senator.
    Senator Dorgan. And did you propose that to the Major 
League Ball Players in the----
    Commissioner Selig. It was the last very contentious issue 
in the 2002 negotiation and I, of course, yes, I was very 
hopeful we could do that. But as I said to Senator Bunning, I 
made a decision, which I think I would make again as tough as 
it was, that we couldn't get that program. We got the first 
testing program, but obviously it didn't have the same teeth, 
and it wasn't able to produce what we know we must pursue.
    Senator Dorgan. If you could have imposed it unilaterally 
as you did for the Minor Leagues, would you have for the Major 
Leagues?
    Commissioner Selig. Oh, of course I would have, absolutely.
    Senator Dorgan. Same program?
    Commissioner Selig. Same program absolutely.
    Senator Dorgan. Mr. Chairman, you know this is the third 
hearing we've had and frankly, with all sports I think we had 
some pediatric physicians testify at the first hearing, talking 
about 12, 13, 14 year old kids that are out looking for things 
that will build their bodies and enhance their performance. 
Why? Because they read about others doing it. So this has a 
profound influence in our country, the issue of drugs and 
sports. And I know some of the other professional sports have 
taken great strides. Mr. Upshaw made the point that I'd written 
down somewhere that the football players believe taking these 
drugs is cheating and they want cheaters out of football.
    I would assume that baseball players would feel exactly the 
same way and if they don't, I'm surprised. If they do feel the 
same way, it's strange that we haven't gotten to the point 
where this is solved, so that you don't have to come to the 
Congress about it, or that we don't have to call you in.
    Mr. Fehr. Would you like me to respond?
    Senator Dorgan. Yes I'd be happy to.
    Mr. Fehr. Thank you, Senator. A couple of things, first of 
all, the players of course feel that way, they always have. 
That's why we have been engaged in this process. That's why I 
was given the authority to enter into the negotiations. I don't 
have that authority on my own.
    Senator Dorgan. But you see my point, sorry for 
interrupting you, but now you're talking about your 
negotiations. My point is, I think its over. So you're still 
negotiating on what this might be. I think the Commissioner and 
the owners have told you what it has to be, the Congress has 
told you what it has to be, and you're still negotiating. 
That's why I think the game is up here. I'm sorry to interrupt 
you.
    Mr. Fehr. Senator, I will certainly convey your feelings as 
I have in the past and your colleagues in the House, and the 
other members of this body. That's something that I not only do 
I have an obligation to do, but is very important to do. And 
very important for everybody to understand.
    As I indicated in my opening statement. I think we're very 
close to an agreement. I'll be surprised if we can't work it 
out. You'll be in a position to make judgment as to the 
appropriate role of the Congress when you see the results of 
that.
    Senator Dorgan. Mr. Chairman, as my final comment let me 
just say that I am thrilled as a young boy from a town of 300 
people to see these Hall of Famers here today. And I hope every 
baseball player in America, every baseball player in America, 
from little kids on up to the Major Leagues will understand 
what they said. This is an important and really interesting 
national pastime. It's a wonderful game. They said it very 
clearly. The first five statements made to this Committee said 
it all. And I hope everyone takes notice of that.
    Senator McCain. Thank you, Senator.
    Senator Allen.
    Senator Allen. Thank you, Mr. Chairman. I want to commend 
the NBA, and the NHL for your recent strong action against and 
putting in a program to combat drugs, the NHL in particular in 
the midst of all sorts of other negotiations. The model, if you 
look at past performance, is the National Football League and 
the joint statement of Mr. Upshaw and Mr. Tagliabue points that 
out. As I understand it, and I'll address you, too, Mr. Upshaw 
and Commissioner Tagliabue, as I understand it, the NFL banned 
Andro, they banned Ephedra, before the FTC, before the Office 
of Drug Control Policy, before the FDA, or most recently we 
passed a law last year, which I've co-sponsored on Ephedra, but 
you did that before Congress, or all these agencies acted. And 
isn't that true?
    Commissioner Tagliabue. Yes, we banned Andro seven years 
before it was banned by the Federal Government. We banned 
Ephedra years before it was banned by anybody else, and we have 
maintained our ban in light of Federal court rulings that have 
challenged the FDA's ban. So we have been very proactive in 
those areas and others.
    Senator Allen. In your testimony, your joint testimony, you 
talked about this legislation that in this legislation could 
actually lower the standards in the NFL and reduce the 
effectiveness of your drug program, could you elaborate 
specifically how this legislation could weaken it.
    Commissioner Tagliabue. Well, I feel as I said earlier, 
that the strict liability approach is very important here. And 
a player is responsible for anything in his body. And any 
approach which gets into I didn't know, I didn't intend, I was 
told otherwise, I felt the doctor was reliable, fill in the 
blank, is very problematic. I've been in hearings over the 
years where it was my sister the registered nurse who doped the 
NyQuil or it was my girlfriend who put the Ephedra in my beer. 
It was this guy who came into my apartment to rob my stereo who 
put the Andro in my Wheaties. You can't have that. And I notice 
that Commissioner Stern referred to their program as a strict 
liability program and that's what our standard is, you are 
charged with knowing its wrong. Kids know it's wrong, high 
school coaches know it's wrong, college people know it's wrong. 
You're obligated as an NFL player getting paid hundreds of 
thousands of dollars a year to know it's wrong. And that's what 
are penalties are geared to, and I think that is the most 
effective approach and I think we can mesh our approach with 
the legislation. And that's why we've suggested that a program 
like ours could be certified hopefully if it served all of the 
purposes, even though maybe every individual element might not 
be exactly the same. But we are comfortable with this 
legislation on the basis set forth in our statement.
    Senator Allen. Your statement, Mr. Upshaw, your joint 
statement said a concept, I assume it would be like what we've 
done in welfare reform, Mr. Chairman, to set certain standards 
and states meet it and they're certified, so they do their own 
approach and those who do not meet the standard would be under 
the Federal laws and dictates. Is that your understanding of 
not wanting to lower your standards, because you all feel in 
the NFL that you exceed what's in this legislation?
    Mr. Upshaw. I think our statement points that out, that we 
would be very comfortable with a certification procedure that 
allowed us to continue doing what we do, because we strongly 
feel that it's working. So if we met all of the standards, we 
should be able to be certified out of it.
    Senator Allen. I heard your motivation previously and why 
you all wanted to act, let me finish off here with Mr. Fehr, 
and Major League Baseball, and this is the main reason that 
we're here and looking at legislation. We've heard from the NFL 
and others and why they want to do this, their motivations in a 
variety of ways of acting before Congress acts. I read on page 
five of your testimony you say that you've now banned--one 
reason that you waited, is that there were perfectly legal 
substances until last January, now illegal as a result of the 
passage of the Anabolic Steroid Control Act of 2004. And before 
then they were legal, and then they were illegal, and then you 
banned them. Note what Mr. Upshaw was working with Mr. 
Tagliabue, Commissioner Tagliabue have done. For the sake of 
the players health--in other words their point is they didn't 
wait for Congress, or the Federal Drug Administration to act, 
they realized that it was not a level playing field it was 
cheating, they banned it. Now for the sake of the health of the 
players, for the integrity of the game, the message it sends to 
young people, and there's a matter of your attitude and 
motivation, Mr. Fehr? Why can't you be more like Gene Upshaw?
    Mr. Fehr. Well, let me say a couple of things. First of 
all, I would love to have been able to play any sport at the 
level that he did.
    Senator Allen. I was saying attitude and motivation, I 
don't expect you to be an offensive tackle.
    Mr. Fehr. I grew up in Kansas City, Senator, and Mr. Upshaw 
had the pleasure I'm sure from his standpoint, of making my 
rooting for the Kansas City Chiefs miserable on numerous 
occasions, and so I am very familiar with him, both before and 
now. Let me just say two things about what you've said. First 
of all, given what has transpired, would we have made the same 
judgments retrospectively about Androstenedione that were made 
at the time, I'm not sure. But I think there is a respectable 
and important argument that a lot of players felt should be 
seriously considered. And I just basically want to mention what 
it is. It was that if the Congress of the United States and the 
appropriate Federal agencies in their wisdom say that 
Androstenedione is perfectly legal, that anyone can go into the 
store and buy it. There isn't even an age restriction on it. 
Then the question becomes, should someone because he's employed 
in this particular industry be prohibited from doing that which 
any other person in the country could do. You may disagree with 
it, as I said in retrospect I'm not sure we would have the same 
view, but I don't think it's an inappropriate view. One of the 
things that I liked very much----
    Senator McCain. Senator Cantwell.
    Mr. Fehr. I apologize, Mr. Chairman.
    Senator Cantwell. Thank you, Mr. Chairman. Mr. Fehr, that, 
I've read your letter, I've read it several times. It seems to 
me that Major League Baseball has gotten the message. But the 
players union hasn't. And when I read your letter I don't think 
you're so close to an agreement. It seems to me that Major 
League Baseball is saying clearly, ``three strikes and you're 
out.'' You're saying ``three strikes and you might be safe.''
    Mr. Fehr. No, I don't think that's right.
    Senator Cantwell. Can I finish?
    Mr. Fehr. I apologize.
    Senator Cantwell. My colleagues here, on the Committee and 
other committees are saying it should be two strikes and you're 
out. If you go to the individual issues at debate here, first 
time offense, Major League Baseball is saying 50-game ban. You 
want less than that, a 20-game ban. My colleagues are saying 2 
years. You go to the second time, again Major League Baseball 
has a 100-game ban, again my colleagues here are saying that's 
it. You're done. So to me it seems like you are at a much 
different place. It seems like Major League Baseball said we're 
serious about this, and they went out and got serious about it 
in this proposal. This response that we just got, I'm assuming 
it just came out in the last couple of days. So we had 5 months 
of not hearing a lot, now we have this proposal. And so I don't 
get it--I don't understand what is your sticking point about 
``three strikes and you're out.'' I don't understand how you 
want to carve something out, that guess what, you might have 
violated it, but now you can stay in Major League Baseball, 
because the whole point here is a zero-tolerance policy that we 
want to get to. And it's very hard to get to a zero-tolerance 
policy. You can't have one and 16 teenagers using illegal 
steroids and say that the Major League Baseball philosophy is 
``three strikes and you still might be able to play baseball.''
    Mr. Fehr. Let me try and respond succinctly. I don't want 
to respond to everything you said. I'm sure that would be far 
too long for purposes of this hearing. But I'll be glad to talk 
with you at a later time if you would hope, or if you would 
like me to. Basically we have accepted the framework of ``three 
strikes and you're out.'' Our proposal is and this is not--
because the specific proposal is not reflected in that letter. 
Our proposal on the table at the moment is----
    Senator Cantwell. So this letter that just came out on 
September 26th, does not reflect the current proposal?
    Mr. Fehr. That letter was a summary of bargaining positions 
that have been taken over the summer. As I indicated in my 
opening statement, the current proposals on the table are 
these, for a third violation the Commissioner may impose 
whatever penalty he believes is appropriate, that the facts and 
circumstances justify. Provided it's reviewed, the player has 
an opportunity to tell his story and indicate why he believes 
it shouldn't be, and that includes permanent ineligibility. The 
difference between us at the moment is this. The Commissioner 
believes that an arbitrator should not be able to reduce the 
penalty below 2 years, our position is that the arbitrator 
should not be able to reduce it below 1 year. One year for a 
third violation is the penalty in some of the other sports that 
you have heard today.
    When I indicated in my opening statement that I thought we 
were very close to an agreement, I think that's an indication 
of it.
    Senator Cantwell. Mr. Selig, does that sound like an 
agreement to you? It seems to me if the primary premise here is 
to say that we're going to have a zero tolerance, and your 
third time of using a substance that is banned you're supposed 
to gone from Major League Baseball, it's pretty hard to say, 
well you know what we'll have somebody and they can decide at 
their discretion. Those are two different approaches.
    Commissioner Selig. Well, Senator Cantwell, as you know, I 
have been very specific all over this country in the last 5 
months about my proposal and I really believe--it is that. Thus 
50 games, 100 games, and life. And anything less than that I 
don't believe deals with the integrity problem of the sport 
which I've described before. The independent testing, it also 
cleans up that. But the penalties have to be severe enough, not 
because I don't believe the current program is working. I think 
we've established that. But for people to understand that we 
really get it. And that this is an integrity question, and as 
far as I'm concerned this and I've said this to our own people 
and I've said it to the owners who are very supportive, there's 
no dissent at all. One of the few subjects in my long tenure 
where there's no dissent, that it's 50, 100 and life. And 
that's exactly what it is.
    Senator Cantwell. Well, I may have a little chip on my 
shoulder because when I get up in the morning I can't always 
find the Seattle Mariners sports scores. But I can tell you 
that we've had some very positive sports news in the Northwest, 
when Ichiro broke an 84-year single hit record, and we retired 
a Seattle Mariner who spent his entire life, not shopping 
around for higher salaries, but his entire life playing for the 
Seattle Mariners, Edgar Martinez, and had a very great career, 
a seven time all-star who won two batting titles. But those 
stories don't get coverage, this story is what gets coverage. 
It's very frustrating that we're not moving faster. And I'd 
love to see Mr. Fehr, your latest, but I just have a feeling 
that you're a lot farther apart on this than your letter or 
even your testimony will acknowledge today. Thank you, Mr. 
Chairman.
    Mr. Fehr. Well, I hope that turns out not to be true.
    Senator McCain. Senator Lautenberg.
    Senator Lautenberg. Thanks, Mr. Chairman. And I hope that 
something I might ask not be redundant and if it is please call 
it to my attention so we don't waste any time. Mr. Fehr, there 
used to be an old song, ``I Stand Alone.'' You obviously are 
standing alone in the face of what looks like an easy one for 
me. Because your resistance suggests that well, this isn't so 
severe after all. I mean the problem isn't really that violent. 
That it scares all of us who worry about the future generations 
and about the sport that all of us are committed to. I'm old 
enough that I'd be embarrassed to tell you the players that I 
knew in my day. One of them I went to high school with was 
Larry Dobie, from Patterson and he's a great hero. But so why 
is there any resistance? This sounds like a reasonable thing. 
It's punishment fits the crime, period. And rather than ask the 
Commissioner of Baseball, whoever that might be at the time, to 
levy a punishment, how does the Commissioner feel when, if he's 
got a hitter who's broken all the records, and has his team up 
on the edge, why shouldn't it be a pro forma, perfunctory kind 
of thing that says, that's it, brother, there's no question 
about it.
    Mr. Fehr. Let me just say a couple of things in response to 
that, and try and articulate our position. I'll try again not 
to repeat my prior comments also. I'm mindful of your 
suggestions about redundancy. Fundamentally we believe this. 
That where someone is accused of wrongdoing there needs to be 
an examination of what happened. Not generally, not in the 
abstract, but in the individual case. And we believe you should 
have a presumptive penalty. That's our proposal and that 
structure is the one the Commissioner's office is working with. 
But that if the player can demonstrate to an arbitrator, that 
you know in my circumstance there are things which you don't 
know, which aren't apparent, which I think ought to influence a 
decision, could be reduced a little bit. If the Commissioner 
believes there are things which aggravate it, it could be 
increased. In terms of the other sports and in standing alone, 
let me just say as follows: I think if you look at the penalty 
levels under our proposal, putting aside the Commissioner's 
proposal for a moment I don't think that's accurate. Our 
proposal is for a presumptive 20-game penalty. Twenty-game 
suspension for a first positive. That's the fractional 
equivalent of 10 games in the National Basketball Association 
because they half as many games as we do. Our proposal that a 
presumptive 75 games for a second penalty exceeds I believe by 
some percentage, with the possibility of 100 games what the 
NFL's is for second, and we have if the facts warrant it, the 
possibility of a lifetime ban on a third, which I believe is 
sooner than in some of the other sports.
    Senator Lautenberg. You know, Mr. Fehr, I think the 
question revolves around, whether or not this is a serious 
thing that we're discussing. And instead of trying to 
arbitrate, well, is this one tough, or is that one tough. Why 
not give it the maximum penalty required? It looks like 
baseball has gotten the message over the years and why not just 
close that door once and for all. I ask----
    Mr. Fehr. I'm sorry.
    Senator Lautenberg. Well, I'd like to ask the other----
    Mr. Fehr. Mr. Chair, I have a specific comment I'd like to 
make if I may?
    Senator McCain. OK.
    Mr. Fehr. OK. I'll be brief and I apologize, but let me 
draw a deliberately grossly exaggerated analogy for purposes of 
making the point, and perhaps this will inform you as to what 
our thinking is on this matter.
    Suppose you have two individuals, with a first violation. 
One of them is a 36-year-old with a college degree, who went 
and sought out Jose Conseco, and asked who is your supplier and 
got his stuff that way, and the other one is a 19-year-old who 
was hurt and ended up taking something that somebody gave his 
mother that she gave him, because they thought it would help 
him rehabilitate faster. I'm not sure those two people ought to 
be treated the same way. And they ought to have an opportunity 
to tell their story. I don't know why we're afraid to have 
people tell their story and let somebody decide.
    Senator Lautenberg. Well, I assume that there isn't a 
single person doing the test that's saying, hey, this guy had 
this, this guy had that. If the 19-year-old that you talk about 
is top drawer enough to play in the Major Leagues with the 
accompanying salary, with the accompanying opportunities, he 
ought to know darn well the difference between right and wrong.
    Mr. Fehr. I agree. Let me read to you the standard we have.
    Senator Lautenberg. No, but I think what you want to do is 
kind of negotiate around the edges. And in my view that doesn't 
sound like it's a real assessment of how serious this problem 
is.
    Senator McCain. Senator's time has expired.
    Senator Lautenberg. Just when I was getting so interesting. 
Thank you, Mr. Chairman.
    Mr. Fehr. Thank you, Senator.
    Senator McCain. Mr. Fehr, you say you want to probably get 
an agreement by the World Series. One of your excuses for not 
doing it is that players are spread all over the world. Are you 
going to be able to do that?
    Mr. Fehr. One of the things that came about as a result of 
my meeting with the players is I think I know what agreement 
will be passed and be ratified, and I would expect to do that, 
get the executive order to ratify it. And then work on some 
sort of a procedure to get the players to ratify it off-season. 
Obviously that will be more cumbersome than in season.
    Senator McCain. So in the intervening 5 months we have been 
unable to reach an agreement. And by the way, Commissioner 
Selig, I don't agree with your decision that you made at the 
last round of bargaining to discard the steroid performance-
enhancing drugs issue. I think it was a mistake. Commissioner 
Stern, why have you decided not to conduct random testing in 
the off-season?
    Commissioner Stern. Senator, because as Commissioner 
Bettman has said, it was also our belief that the muscle mass 
and bulking up that steroids provide was not a problem in our 
sport, it wasn't an issue in the NBA and that explained why we 
didn't have an issue. We've also--we've been so accused of 
having the longest season. Which we do. We concluded with our 
players that testing within the nine-month season, rather than 
chasing the players all over during the summertime was an 
appropriate response to the level of our concern.
    Senator McCain. Your policy allows for discretionary 
reinstatement after a fourth positive test. What's the 
rationale for that?
    Commissioner Stern. Well, you know, we always been of the 
view that the quality of mercy is never strained.
    Senator McCain. Well, that's an interesting statement but 
it's--I don't think----
    Commissioner Stern. Well, Shakespeare I think made it 
first, and I just associate myself with it. It's been our 
experience that the suspension--a lifetime suspension with the 
possibility of reinstatement has usually been a lifetime 
suspension. But if there is some exception, some example for 
the world, for the kids, for the very reasons that we're 
talking about, we don't want to rule out the possibility that 
it's appropriate in the precise circumstances.
    Senator McCain. The organization that has great credibility 
with those who are familiar with the all aspects of this issue 
as you sought, is the United States Anti-Doping Agency. By the 
way, before I say that, the Congressional Research Service has 
reported the anti-doping policies for the Olympic movement are 
more independent of the sports they regulate, than are the 
policies of Major League Baseball, NBA, and the NFL. They 
didn't include the NHL because they didn't have any regimen at 
that time. USADA argues that in order to have a truly 
independent and therefore truly effective performance-enhancing 
drug testing policy, four basic components are necessary: one, 
independent development and management of the drug testing 
program; two, independent sample collectors; three, independent 
analysis of the samples; and four, an independent adjudication. 
All of you have some elements probably. The NFL may argue that 
they have all those components. I'd like you to respond in 
writing as to how you are in compliance with those four 
criteria for the Committee and I would appreciate that. I've 
kept you here way too long. Mr. Fehr, when you contact your 
players you might include a letter that was written to you and 
to Commissioner Selig, by the President of Little League 
Baseball, and I quote from this letter. ``We all must accept 
the fact that children that are affected by the actions of 
Major Leaguers. In the vast majority of cases professional 
athletes provide fine role models, but as we have seen, a few 
highly publicized cases can cause the public to perceive a 
stain on the national pastime.'' I hope you will include that 
letter, along with the testimony of these five initial 
witnesses we had before this Committee and perhaps it can 
motivate you to act in a more expeditious fashion than you have 
in the last five months.
    Senator Bunning.
    Senator Bunning. Thank you, Mr. Chairman. You know Congress 
has had within its power to do something that nobody really 
wants to do, and that is to bring up the fact that Major League 
Baseball has had an exemption, for over I guess 80 years now, 
from the Sherman Antitrust Act. The only part of it that is not 
exempt is labor negotiations. The use of collective bargaining 
in labor negotiations is under the Sherman Antitrust Act, by 
mutual agreement. You both agreed that. You look puzzled.
    Mr. Fehr. I look puzzled Senator, because I guess, three 
things. The Major League Baseball has long had the exemption, 
the Congress changed that with respect to players and said that 
our players have the same rights that players in the other 
professional sports do in the late 1990s, in the Curt Flood 
Act, but then the Supreme Court in the middle 1990s, I believe 
it was the Brown case essentially said, that if you're 
operating as a union, the antitrust laws have no role. That's 
my understanding of the current state of the law.
    Senator Bunning. But you did have a mutually-bargained 
agreement between owners and players to exempt all labor 
negotiations?
    Mr. Fehr. We don't get to determine what the law is, as 
you've been reminding us all morning. That's the general law 
applicable as I understand it to all labor negotiations.
    Senator Bunning. But you did collectively bargain that? 
Wrong or right?
    Mr. Fehr. We bargain collectively----
    Senator Bunning. Because I was with Bob----
    Mr. Fehr.--under the National Labor Relations Act, yes.
    Senator Bunning. Donald, do you really believe that after a 
third positive test, there's a chance that a player is not 
using some banned substances?
    Mr. Fehr. I think two things. I think it's very unlikely, 
and I think the stipulation we have that even that would apply 
to a first case on what the strict liability is demonstrates 
our view on that. Which I'll be glad to share with you, or read 
into the record. Second, however, in response to your direct 
question, I believe that when anyone is accused of wrongdoing 
he has to have an opportunity as every American does anywhere 
to tell his side of the story, and to say if he believes----
    Senator Bunning. You've made that perfectly clear to 
everybody on the panel.
    Mr. Fehr. That's my view.
    Senator Bunning. Mr. Selig, or Mr. Commissioner, do you 
think it's possible to work something out before the end of the 
World Series?
    Commissioner Selig. I think it's imperative, Senator 
Bunning, I hope we can, this has been a long journey, and I'm 
hopeful that we can because frankly, the consequences of not 
doing it are really troubling. And you've articulated it and so 
has Senator McCain, but I've worried about that, so the answer 
is that I don't see that we have a choice. But I would say this 
to you again----
    Senator Bunning. Well, we're watching with bated breath 
almost.
    Commissioner Selig. And nobody understands that better than 
I do.
    Senator Bunning. You talked about international positions 
of your players. What do you think we have at the Major League 
Baseball level? We have Japanese, we have Puerto Rican, we have 
Dominicans, we have Venezuelans, we have Nicaraguans, we have 
all kinds of different nationalities represented at the Major 
League Baseball level. So your exceptions fit Major League 
Baseball also. And we don't think that has a darn thing to do 
with exceptions to the laws of this country.
    Mr. Bettman. Actually I don't think we're seeking to be 
exempt from the laws of this country. I think it's more a 
question of the practicalities of administering the testing in 
the off-season.
    Senator Bunning. They have the same problem and they have 
made a commitment to make sure that they can test in the off-
season in those various countries.
    Mr. Bettman. Although 85 percent of our players are from 
outside of the United States.
    Senator Bunning. I don't know what the numbers are anymore 
at the Major League Baseball level, but there are more and more 
international players.
    Commissioner Selig. A very significant number, yes.
    Mr. Bettman. Senator, the only point that I was seeking to 
make that as the possibility of legislation moves forward, 
individual circumstances of the respective leagues.
    Senator Bunning. We would love to make the one size not 
fits all. If the penalties involved fit the problem.
    Mr. Bettman. We support that view. Our program has stiff 
penalties. We're not looking to exempt our players from the 
penalties because of national origin, although we do have a 
practical issue in terms of the proposed legislation limiting, 
for example, the therapeutic use exemption to licensed U.S. 
physicians since our players play as home teams and visiting 
teams in Canada. We think Canadian doctors, licensed Canadian 
physicians, should be able to submit the therapeutic use 
exemption. We think that a WADA-sanctioned lab in Canada should 
be appropriate as a WADA-sanctioned U.S. lab is appropriate for 
testing. Again we're not looking to exempt ourselves from the 
legislation, we want to hopefully be in a position where it 
makes sense because our business needs are a little bit 
different than the other sports.
    Senator Bunning. Thank you, Mr. Chairman.
    Senator McCain. Senator Allen.
    Senator Allen. Thank you, Mr. Chairman and Senator Bunning 
for your leadership on this issue, it's one that I share your 
concern with. I thank all our witnesses for being here, the 
bottom line is that there are different ways that that each of 
these leagues operate, and I don't know how many of the Major 
League Baseball players, while they may come from the Dominican 
Republic, or Panama or Venezuela, or other countries, how many 
become U.S. citizens versus those that are Canadians, or Czechs 
or Swedes. Regardless, here's the message that all of you--I 
think most of the leagues have understood this, and I think the 
Commissioner's understood it in Major League Baseball and that 
is, that you ought to care as union leaders for the health of 
your players. For the image, the integrity, the honesty, of a 
level playing field over your sport, you should care about 
that. And I know the leagues are all trying to get young people 
interested in every one of your sports. And it is important for 
a lot of these young folks and to the extent that you are 
international, recognize that it is also affecting a lot of 
young people. And they look at sport as a ticket out of the 
situation they're in. It's an opportunity to live a better 
life. Not only to get a home for themselves, but actually maybe 
buy a home for their mother, and so it is very important when 
you understand the competitiveness of sports, the motivation of 
athletes, that if you told athletes that if you didn't sleep, 
you'll be better, they would try to stay awake all night long. 
Some of them do for the fun of it, but regardless the point of 
the matter is you do have a responsibility, and I think three 
of the four leagues here are addressing it, and I hope that, 
Mr. Fehr, you understand, that as far as this Committee and the 
patience, and I'm not one who likes the Federal Government 
meddling in things that are best decided by the private sector 
and collective bargaining should be respected. There's going to 
be a third strike for you all, if you don't listen to what Hank 
Aaron and Robin Roberts, and Lou Brock said. Those are powerful 
words from the greats of the sport. And as far as Hank Aaron is 
concerned, if a certain player breaks his home run record, it's 
not a question of an asterisk, there's going to be a lot of 
debate. There probably ought to an Rx next to it, if Hank 
Aaron's record is broken by a certain individual. But thank 
you, Mr. Chairman, for this hearing, I hope the pressure will 
be on, we'll be watching the World Series not just for the--on 
the diamond, but hopefully getting a reasonable drug testing 
program for Major League Baseball. Thank you.
    Senator McCain. I know that all the witnesses who came here 
today had very busy schedules. We're very appreciative that you 
would take the time to be with us, and I sincerely hope that 
this is the last hearing that we will ever have on this 
particular issue. And again, I am very appreciative of a lot of 
the progress that has already been made. And I look forward, 
being an eternal optimist, that we will soon see a resolution 
of this issue without necessity or requirement of legislation. 
I thank the witnesses for being here today. And this hearing is 
adjourned.
    [Whereupon, at 12:05 p.m., the hearing was adjourned.]

                            A P P E N D I X

 Prepared Statement of Frank D. Uryasz, President, The National Center 
                       for Drug Free Sport, Inc.

    My name is Frank D. Uryasz, President of The National Center for 
Drug Free Sport, Inc.
    Drug Free Sport, a private company based in Kansas City, Missouri, 
administers sports drug-testing programs throughout the United States. 
Our staff also provides drug and dietary supplement education programs 
for high schools and colleges and sponsors a ``drug information 
hotline'' through our Resource Exchange Center (REC) ( 
www.drugfreesport.com/rec).
    I have been involved in managing national drug-testing programs for 
athletes for nearly 20 years. In July 1986, I was hired by The National 
Collegiate Athletic Association (NCAA) to establish its first drug-
testing program. While at the NCAA, I was also responsible for 
administration of all collegiate health and safety programs under the 
guidance of the NCAA's medical committee. Under my guidance, the NCAA 
drug-testing program grew from a post-season program involving about 
1,200 tests per year to a year-round, short-notice testing program that 
included about 10,000 tests annually.
    In the late 1990s, I was also serving on the U.S. Olympic Committee 
Anti-Doping Committee, which was looking for a new model for Olympic 
drug-testing program administration. This preceded the formation of the 
World Anti-Doping Agency (WADA) and the U.S. Anti-Doping Agency 
(USADA). The impetus for a new model was the desire for sports 
organizations to avoid the actual and perceived conflicts of interests 
that existed by operating their own testing programs. Critics believed 
such testing programs when operated in house were lacking the necessary 
impartiality that would prevent preferential treatment of high-profile 
athletes. Some embarrassing cases involving sports stars supported this 
belief. It was at this time that sports drug testing began to embrace 
concepts such as harmonization, externalization and transparency and 
independent entities such as USADA and WADA were formed.
    In 1999, I left the NCAA to start The National Center for Drug Free 
Sport. The NCAA externalized its drug-testing program to Drug Free 
Sport that year. At that time, many colleges and universities also 
began to see the value of outside administration for their drug-testing 
programs. Today, Drug Free Sport runs the NCAA's testing programs, 
testing programs for over 150 colleges and universities. testing for 
AAU Powerlifting and as of March 2005, the testing for the Minor 
Leagues through Major League Baseball.
    When Drug Free Sport administers an organization's testing program, 
the organization agrees to allow Drug Free Sport to select when and 
where athletes will be tested and agrees to follow our strict protocol 
on collection and management of positive results.
    The National Football League and Major League Baseball (for the 
Minor Leagues) utilize Drug Free Sport's ``drug hotline'' for its 
athletes and medical personnel.
    Drug Free Sport supports the Committee's desire to deter the use of 
banned anabolic steroids at all levels of sport. The public debate of 
the anabolic steroid use problem in the United States has prompted many 
communities to begin a dialogue on how best to keep young people from 
using these drugs. I have been involved in community forums in Texas, 
Illinois and other states, which would never have occurred if Congress 
hadn't brought the problem to a greater level of awareness. The 
National Federation of State High School Associations developed an 
excellent steroid-education campaign. This, too, grew out of Congress' 
actions to bring attention to the fact that high school students use 
steroids to enhance their appearance and to improve athletic 
performance.
    There is no question in my mind that the Federal Government has an 
important role to play in helping sport deter the use of anabolic 
steroids and other performance-enhancing drugs such as growth hormone. 
My twenty years of experience in athletics drug-use deterrence has 
convinced me that the government's resources are best utilized in two 
areas: reducing access to and the supply of anabolic steroids and other 
performance-enhancing drugs in the U.S. and funding research into the 
detection of growth hormone and other dangerous banned drugs.
    Despite the best intentions of members of this Committee, the 
provisions of S. 1114, the Clean Sports Act of 2005, and S. 1334, the 
Professional Sports Integrity and Accountability Act, are flawed. 
Although the intent of this proposed legislation--drug free 
professional sports--is laudable and no doubt supported by anyone who 
cares about sport and the athletes who participate, the legislation 
itself will not lead to the desired outcome.
    Sport drug-testing programs are complicated to operate. The drugs 
change, the patterns of use change, athletes can be hard to find, some 
athletes try to cheat, high profile athletes surround themselves with 
people who enable their drug use and an entire industry exists to 
develop performance-enhancing drugs that cannot be detected. All of 
this can be managed, but this management requires approaches that are 
appropriate to the population of athletes being served. What works for 
the colleges probably doesn't work for the Olympic athletes and what 
works for Olympic athletes in all likelihood will not work for the 
pros.
    It is not possible for me within the constraints of this written 
statement to thoroughly outline what needs to happen in the U.S. to rid 
all levels of sport of the use of performance-enhancing drugs including 
steroids. However, I hope the members of this Committee consider the 
following as they proceed with Federal legislation to deter athletes' 
use of drugs:

        1. We lack evidence that the drug-testing models implemented in 
        Olympic sport over the past five years have reduced the use of 
        drugs in that population. It is simply too soon to tell and to 
        my knowledge there is no known plan to measure this.

        2. The creation of WADA and USADA have ameliorated many of the 
        problems associated with adjudication of Olympic doping cases 
        but their processes and protocols are extremely expensive to 
        operate and to use them as a model for other levels of sport 
        will lead to fewer resources being used for testing and 
        research.

        3. The goal of a sports drug-testing program is to deter drug 
        use. The achievement of this goal cannot be measured by the 
        number of people ``caught.'' Sports entities should be required 
        to develop tools to measure whether their testing programs are 
        reducing drug use and should be required to publish this 
        information.

        4. It is too soon to evaluate the effectiveness of MLB's 
        revised drug-deterrence programs and to force an Olympic 
        testing model on that population at this point is without 
        merit.

        5. Although we do not know with certainty the extent of growth 
        hormone use at the collegiate and professional sport level, we 
        know that it is being used. The Federal Government must get 
        research dollars directly to the scientists who can best solve 
        this problem quickly.

        6. My extensive experience with college football players has 
        convinced me that the NCAA's and NFL's steroid testing programs 
        have significantly reduced the use of anabolic steroid use in 
        the college football population. The NCAA's published national 
        drug use studies support my position.

        7. Even after working in the sports drug-testing field for 
        nearly twenty years, I remain uncomfortable with the title 
        ``sports drug-testing expert'' when associated with my name. 
        However, there are many people who enjoy having this term 
        associated with their work, even though they have never run a 
        sports drug-testing program, have never collected a urine 
        specimen from an athlete, have never done the analytical work 
        on a urine or blood specimen from an athlete, have never spent 
        a week in a courtroom trying to explain to a judge the 
        complexities of steroid chemistry nor have they done any 
        original research in the anti-doping field. These so called 
        ``experts'' criticism of existing drug-testing programs in 
        sport undermine the public's trust in what we do and the 
        Federal Government should be careful when considering the 
        accuracy of what they say.

        8. The Federal Government must help sport by reducing the 
        supply of anabolic steroids and growth hormone. The flow of 
        anabolic steroids and growth hormone across the borders and 
        their availability for purchase over the Internet are problems 
        sport cannot solve.

    Thank you for the opportunity to get my thoughts before the 
Committee.
                                 ______
                                 
Response to Written Questions Submitted by Hon. John D. Rockefeller IV 
                           to Allan H. Selig

    Question 1. Commissioner Selig, it occurs to me that you may be a 
late convert to the anti-steroids fold. In the last 10-15 years, when 
players who had never hit more than a few home runs a year suddenly 
were hitting 30, 40, or more home runs, didn't Major League Baseball 
look the other way at what could very well have been evidence of the 
abuse of performance-enhancing drugs?
    Answer. The change in home run totals became obvious in the 1990s. 
Baseball followers, including members of the media, offered a number of 
explanations for the change, including expansion, weak pitching and 
smaller ballparks. There was little or no mention in the press or 
otherwise of performance-enhancing substances as a possible cause. Late 
in the 1990s, Baseball--as a result of the McGwire revelations of Andro 
use and other developments--became concerned that drugs might be a 
factor. At that time, Baseball, under my leadership, began an 
aggressive effort to deal with steroids. My staff gathered information 
on steroids and how they worked. Educational programs were developed at 
the Major and Minor League level. We also developed and implemented the 
industry's first Minor League testing program. Progress at the Major 
League level was slower due to our collective bargaining obligations, 
but Baseball was certainly not ``looking the other way.'' In fact, in 
2002, Baseball was able to negotiate our first ever drug testing 
program for the Major Leagues by making that topic a key priority in 
collective bargaining.

    Question 2.  What do you have to say about MLB's marketing during 
that period? Did you market the home run? Didn't you use the McGwire-
Sosa home run race to ``save'' Baseball? Did it ever occur to you to 
make sure that all these home runs--and I don't mean to single out just 
these two players--but did it ever occur to you to make sure that the 
numbers people were putting up were not tainted?
    Answer. As an initial matter, it is important to point out that 
Baseball had no centralized marketing effort based on the popularity of 
the home run. The home run race occurred, it captured the imagination 
of our fans, and therefore, generated tremendous interest. The great 
growth of the game in recent years is due to an array of reasons more 
fundamental than the appeal of home runs.
    In terms of investigating whether home run numbers were tainted, 
one must begin with the proposition that the only way to determine 
accurately steroid use is through testing. In 1998, Baseball was in the 
middle of a collective bargaining agreement that did not allow random 
testing for steroids.

    Question 3.  Even if it was the official policy of MLB to ban 
steroids and other performance-enhancing drugs--if you weren't 
technically condoning their use--why isn't it fair for observers to 
accuse you of being willfully blind to what was going on?
    Answer. Major League Baseball cannot fairly be accused of being 
willfully blind to steroid use. In the 1990s people were not talking or 
writing about steroid use in Baseball. Over the period in question, 
Baseball gradually became aware of the problem with steroids. As that 
awareness grew, Baseball took steps to combat the problem. Educational 
materials were prepared outlining the dangers of steroid use. Major and 
Minor League players were required to attend training sessions on 
steroids. Major League Baseball developed and implemented the first 
ever drug policy covering Minor League players.
    Federal labor laws, of course, prevented Baseball from unilaterally 
implementing a similar policy at the Major League level. Consistent 
with its collective bargaining obligations, Baseball proposed a new 
policy in the next round of bargaining that occurred in 2001-2002. That 
policy was ultimately agreed upon in 2002 and, for the first time, 
Baseball had testing. The policy has been improved twice since that 
time.
    Baseball believes that this course of conduct is inconsistent with 
an assertion of willful blindness.
                                 ______
                                 
Response to Written Questions Submitted by Hon. Frank R. Lautenberg to 
                             Allan H. Selig

    Question 1. Isn't there an advantage to having uniformity in 
testing for all the major league sports teams?
    Answer. It is very difficult to develop a uniform program that is 
applicable to all sports because each sport has unique issues. For 
example, on penalties, a fixed period has different ramifications in 
different sports. In track and field, a two-year ban would probably 
cause the athlete to miss less than 10 important competitions. In 
Baseball, a two-year ban would cover at least 324 games, not including 
the post-season. A better approach would be collectively bargained 
policies designed to address the unique circumstances of each sport, 
assuming the policies are each strong enough to deter use.

    Question 2. The current testing method doesn't detect all 
performance-enhancing substances. Why don't you use blood tests which 
are better at detecting substances like human growth hormone?
    Answer. The short answer is that the Major League Baseball Players 
Association has been unwilling to agree to blood tests. Blood testing 
is obviously more intrusive than urine testing and, in fact, urine 
testing is very accurate for all substances, except human growth 
hormone. Major League Baseball has funded a three-year grant for Dr. 
Donald Catlin, of the UCLA Laboratory, directed at developing a urine 
test for human growth hormone. It is also important to note that there 
is no definitive proof as to scientific validity of the available blood 
test for human growth hormone. No governing body of a sport has 
disciplined an athlete based on that test.
                                 ______
                                 
Response to Written Questions Submitted by Hon. John D. Rockefeller IV 
                           to Donald M. Fehr

    Question 1. In your testimony before this Committee in 2004, you 
stated that the Players Association ``neither condones nor supports the 
use by players, or by anyone else, of any unlawful substance...'' In 
your testimony this year, you seem to imply the only reason that the 
MLB Players Association agreed to negotiate a stronger steroids testing 
regime was because of Congressional pressure. I do not get the feeling 
that you believe that steroid or unlawful substance abuse constitutes a 
real problem. Mr. Fehr, your previous testimony before this Committee 
and your written statement today hardly gives a strong impression that 
the Players Union is particularly concerned about illegal substance use 
and its impact on the game. What is the Players Association doing 
internally to prevent its members from cheating? I know it is a strong 
word, but let's call it what it is. What are the union's internal 
policies to prevent use of illegal substances before it occurs?
    Answer. It is simply counterintuitive to suggest that anyone or any 
entity cares more about the health of the players than those people who 
have dedicated their professional careers to their protection. We have 
long been concerned with the potential consequences of illegal 
substances. Indeed, it was our concern with the use of substances 
Congress said can be legally purchased that led to our groundbreaking 
study of andostendione, a copy of which was provided to the Committee 
in conjunction with prior testimony. Every year, the Players 
Association meets with its constituents during spring training to talk 
about, among other things, information concerning the use, abuse and 
potential consequences of steroids, nutritional supplements, and other 
substances believed to augment or enhance training routines or 
performance. In addition, every year each player is given written 
materials, prepared in cooperation with Major League Baseball, 
concerning these substances. To ensure our information is as current as 
possible, we also employ the services of a highly qualified, licensed 
medical practitioner to review existing medical literature that may be 
pertinent to our members. Moreover, at meetings with players, during 
spring training and throughout the year, we also discuss with players 
the importance of exercising care before taking any substance reported 
or claimed to improve training capacity, to increase strength and 
endurance, or to improve performance. Finally, players are reminded 
that they can contact the Association at any time if they have 
questions about a product, our program, or where they can receive 
additional information if needed.

    Question 2. In your testimony, you do not even mention the impact 
that your players' conduct has on younger athletes. In fact, your 
testimony does not even condemn the use of these illegal substances as 
all of the other player's testimony does. Given the fact that so many 
young baseball players are taking steroids, do you not feel an 
obligation to lead on this issue rather than be obstructionist?
    Answer. That is not the record. I have repeatedly made it clear 
that we are committed to dispelling any notion that the route to 
becoming a Major League athlete somehow includes taking illegal 
performance-enhancing substances like steroids. I have stated in both 
written and oral testimony before Congress that playing Major League 
Baseball requires talent, drive, intelligence, determination, and grit, 
and that steroids have no place in the equation. As I have noted in 
past testimony to this same Committee, neither the Players Association 
nor its constituents condone nor support the use of any unlawful 
substance, nor do they support or condone the unlawful use of any legal 
substance. We recognize our role in this issue and have repeatedly 
taken, and continue to take, steps to eliminate the presence of illegal 
substances in our sport and to dispel the myth that steroids and other 
illegal performance-enhancing substances are the key to athletic 
success. We also believe we have a responsibility to our members and 
those who hope to play baseball in the future to ensure that our 
testing program is as accurate as is scientifically possible, that its 
administration is fair and just, and that the penalties are designed to 
deter use and prevent repeat offenses, as opposed to simply punishing 
for punishment's sake.

    Question 3. Isn't your strong opposition a potent signal to young 
baseball players that these products are not really harmful and imply 
that they may even be necessary?
    Answer. Our testing program and our members' support for it are, in 
fact, evidence that we strongly oppose the use of illegal performance-
enhancing substances by anyone, especially young people. We do believe, 
however, that eliminating the presence of performance-enhancing 
substances in professional sports is only part of what needs to be done 
to combat the growing use and abuse of both legal and illegal 
substances by our Nation's youth. I hope the Committee will not limit 
its attention to a top-down review of just testing programs, but will 
also focus on other components of the problem. For example, attention 
needs to be given to the unfortunate reality that for many young 
people, steroids are still only a mouse click away on the Internet. We 
are now seeing that use of these products is not limited to individuals 
seeking athletic success. And, as I have testified before, it is 
unfortunate that our culture does not have a uniformly negative image 
of steroids, as evidenced in the marketing campaigns of corporate 
giants like 3-M and Saab, or by the promotion of the new video game, 
Blitz: The League. I hope Congress will focus on these issues as well.

Response to Written Questions Submitted by Hon. Frank R. Lautenberg to 
                             Donald M. Fehr

    Question. What is it about baseball players that justifies more 
lenient penalties for taking steroids than athletes of other sports?
    Answer. Nothing. The penalties in baseball are not more lenient. 
They are simply tailored, as they are in other leagues, to the 
particular circumstances in the sport. The Players Association believes 
the goal of our program is--and should be--to deter use of illegal 
substances and to prevent repeat offense. Today, in baseball, our 
players are tested throughout the year on an unannounced, random basis, 
which is not the case in other sports. They are tested for all the 
substances that the United States has determined to be illegal steroids 
and steroid precursors. The tests are administered by independent, 
qualified experts. The evidence so far indicates that our current 
penalties are sufficient to deter initial use and repeat offenses 
without destroying careers. Nonetheless, as evidenced by our current 
negotiations, we are continuing to work to strengthen our program. The 
penalty structure for steroids we have proposed to the owners, and 
shared with the Committee, is more restrictive than the NFL's program 
with regard to repeat offenders, and it is either equal to or more 
stringent than the existing programs for steroids in the NBA and the 
NHL.
                                 ______
                                 
Response to Written Questions Submitted by Hon. Frank R. Lautenberg to 
                             Paul Tagliabue

    Question 1. Isn't there an advantage to having uniformity in 
testing for all the major league sports teams?
    Answer. As between the member teams of an individual sports league, 
we strongly agree that there is an advantage to uniformity and that is 
a key element of the NFL's program. No individual team selects players 
for testing, conducts or schedules tests, reviews test data, represents 
the player on appeal, or makes disciplinary decisions. This 
centralization of administration is critical in ensuring that the 
testing program operates fairly and consistently for all teams and all 
players.
    As among sports leagues, there is substantial consistency in 
testing but there are important differences among the sports that 
warrant tailored administration. For example, some leagues have adopted 
a distinction between so-called ``in season'' and ``out-of-
competition'' testing. Under that model, certain substances are 
prohibited only when used during a particular competition, and athletes 
are free to use those substances, without fear of penalty, during the 
``off-season'' in that sport. The NFL has never embraced that 
distinction, believing instead that a single set of rules should apply 
to all players throughout the year. Accordingly, our testing program 
insists upon uniform testing for all substances on our prohibited list 
throughout the year, both in season and out-of-season. Indeed, at a 
time when the Olympic testing program has reduced its out-of-
competition testing program by as much as fifty percent, the NFL and 
NFL Players Association have agreed to increase--by a factor of three--
the number of off-season tests to which NFL players are subject. We 
believe that within certain parameters, leagues should be able to 
determine the testing program that best fits the needs of that 
particular sport.

    Question 2. The current testing method doesn't detect all 
performance-enhancing substances. Why don't you use blood tests which 
are better at detecting substances like human growth hormone?
    Answer. Until the 2004 summer Olympic Games in Athens, human growth 
hormone was not tested for in any sport--amateur, professional or 
Olympic. At the Athens Olympics, 300 athletes--out of more than 
11,000--gave blood samples that were tested for human growth hormone. 
No positives were reported. We have reviewed closely the results of 
those tests and other efforts to identify testing methods for growth 
hormone and other substances. Our own advisors, many of whom have 
consulted closely with the Olympic movement and other sports 
organizations for years, do not believe that the blood test used last 
year is sufficiently validated and reliable to use on a widespread 
basis in the NFL. Moreover, no lab in the United States is yet 
certified to perform the blood test used at the Athens Olympics. We do 
not believe it would be sound policy to extract blood samples from NFL 
players and ship them across the ocean for testing in a lab in 
Australia or Europe. Moreover, blood test results have often been 
highly controversial and at times inconclusive. One example is the 
recent suspension of American cyclist Tyler Hamilton, whose appeal was 
lengthy, contentious and subject to continuing debate.
    Equally important, converting to blood testing would not strengthen 
the overall effectiveness of doping policies. With respect to the vast 
majority of performance-enhancing drugs including steroids and 
stimulants, urine testing is scientifically more accurate, efficient 
and reliable. The arguable benefits of blood testing relate only to 
growth hormones and blood doping. Notwithstanding, we will continue to 
work both independently and in conjunction with the United States Anti-
Doping Agency and other organizations to develop better methods of 
testing for performance-enhancing substances, including. human growth 
hormone. As part of that effort, we have partnered with USADA to fund 
the development of a new laboratory, the Sports Medicine Research and 
Testing Laboratory, which is based at the University of Utah.
                                 ______
                                 
Response to Written Questions Submitted by Hon. Frank R. Lautenberg to 
                             David J. Stern

    Question 1. Isn't there an advantage to having uniformity in 
testing for all the Major League sports teams?
    Answer. The NBA does not believe that a ``one-size-fits-all'' 
approach is sensible for a drug testing policy. NBA players are 
different from athletes in other sports. Their bodies are different 
(tall and lean); their skill sets are different (quickness, leaping 
ability); their training regimens and schedules are different. 
Substances that may be of substantial advantage to athletes in other 
sports--such as football or baseball players--may provide no advantage 
to basketball players.
    A drug testing regime that was designed for, among others, cyclists 
and weightlifters (such as the WADA Code) is certainly not appropriate 
for basketball players.
    There are also other relevant differences between the sports. For 
example, some leagues (such as the NBA) have longer seasons than 
others, making off-season testing less important. Some leagues play 
games every day; some only play once a week. Each individual league 
needs the flexibility to design a drug policy and testing program that 
is correctly tailored to its unique circumstances.
    The NBA believes that collective bargaining is the best method for 
accomplishing this. The parties to the collective bargaining 
relationship--here, the NBA and the National Basketball Players 
Association--are most knowledgeable about their particular issues and 
needs. Moreover, a policy that is the product of agreement is almost 
always superior to one imposed from the outside, as the parties will be 
invested in its success. This is certainly true in the NBA, where the 
collective bargaining process has led to a strong and effective policy 
against steroids and performance-enhancing drugs in our sport.

    Question 2. The current testing method doesn't detect all 
performance-enhancing substances. Why don't you use blood tests which 
are better at detecting substances like human growth hormone?
    Answer. Blood testing is more invasive than urine testing, and it 
raises health and safety issues that are not present with urine 
testing. Further, blood testing is only useful for a select number of 
specialized substances, such as EPO. (It is our understanding that 
there is no universally accepted blood test, for example, for human 
growth hormone.) Urine testing picks up all of the substances on the 
NBA's broad list of prohibited drugs. Since there is scant evidence of 
even minimal use of steroids and illicit performance-enhancing drugs in 
the NBA, much less any evidence of the use of EPO, there no substantial 
justification for changing our accepted method of drug testing.
                                 ______
                                 
                                     National Hockey League
                                                   October 25, 2005
Hon. John McCain,
Senate Committee on Commerce, Science, and Transportation
Washington, DC.
                               Re: NHL Drug Testing Program

    Dear Senator McCain:

    Commissioner Bettman requested that I respond to your request for 
an explanation as to whether the National Hockey League/National Hockey 
League Players' Association's performance-enhancing Substances Program 
(the ``Program'') features the following four basic components:
1. Independent Development and Management of the Drug Testing Program:
    The Program will be managed by an independent entity that will be 
responsible for hiring independent collectors and determining when 
random no-notice testing will occur. The independent entity will also 
coordinate with a WADA-certified testing laboratory to create reports 
of the test results.
    The Program was developed jointly by the NHL and the NHLPA, and is 
jointly administered by a Program Committee comprised of an equal 
number of League and NHLPA representatives and two (2) consulting 
expert doctors, one (1) nominated by each party. (The Program Committee 
determined that an independent entity shall manage the Program, as 
described above.) The NHL and the NHLPA strongly believe that our 
collective knowledge regarding our sport, including but not limited to 
our intimate familiarity with our schedule (in-season and off-season, 
game day and non-game day), the international make-up of our player 
population, and the history (or lack thereof) of performance-enhancing 
drug use had enabled us to develop an effective and meaningful Program. 
We also believe that our active management of the Program will enable 
us to jointly monitor its effectiveness and to modify it, as necessary, 
over time, to ensure that it functions to address and eliminate the 
use, however negligible, of performance-enhancing substances in our 
sport.
2. Independent Sample Collectors:
    The Program will provide for independent, third-party sample 
collectors.
3. Independent Analysis of the Sample:
    The samples will be independently analyzed by a WADA-approved 
laboratory.
4. Independent Adjudication:
    The Program provides for the independent adjudication of appeals of 
positive test results. Specifically, the Program provides the ``NHLPA 
may, on a Player's behalf, appeal a positive test to the Impartial 
Arbitrator on an expedited basis, utilizing the procedures set forth in 
Article 17 of the Agreement.'' Article 17 of the Collective Bargaining 
Agreement between the National Hockey League and National Hockey League 
Players' Association provides for the parties to jointly appoint an 
Impartial Arbitrator who serves for a period of at least one (1) year 
and hears and issues decisions regarding disputes involving the CBA.
    We appreciate the opportunity to express our views regarding the 
issues and questions set forth above. We look forward to continuing to 
work with you on this important matter.
        Sincerely,
                                           William L. Daly,
                                                Deputy Commissioner
                                 ______
                                 
                                     National Hockey League
                                                   October 25, 2005
Hon. Frank R. Lautenberg
Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
                               Re: NHL Drug Testing Program

    Dear Senator Lautenberg:
    Please accept this letter as the National Hockey League's response 
to the following questions raised by you regarding testing for 
performance-enhancing substances:
    Question 1. Is there an advantage to having uniformity in testing 
for all the Major League sports teams?
    Answer. We believe that it would only be advantageous to impose 
uniform standards on all major league professional sports if such 
standards were to appropriately recognize and reflect the unique 
circumstances and traits applicable to each particular sport, without 
unduly lowering or raising the bar applicable to all sports. The major 
league professional sports are not ``uniform,'' and indeed, have 
numerous and significant differences in, inter alia, the length of and 
number of games in their playing seasons and the corresponding length 
of their off-seasons, the national or international make-up of their 
players and teams, the average age and career length of each league's 
players, and significantly, the history of problems associated with the 
use of performance-enhancing drugs in the sport. For example, with 
respect to NHL players, the applicable standards would need to 
recognize and reflect the practicalities and legalities that would 
arise from mandatory off-season testing of NHL players, given that our 
players come from twenty-two (22) countries across the globe, and 
eighty-five (85) percent of our players come from outside the United 
States, many of whom return to their country of origin during the off-
season. Other sports simply may not need to address these 
circumstances. In addition, while it may be appropriate to spend the 
financial resources necessary to test players five (5) times during the 
calendar year in a sport that has a suspected or confirmed history of 
performance-enhancing drug use, it may not be necessary or appropriate 
to do so in a sport such as hockey which has no such historical 
experience. \1\ Reducing the attributes of the testing program to the 
least common denominator may result in an insufficient program in 
certain sports, and rising to the highest common denominator may be 
unduly burdensome on other sports, without justification. For these 
reasons, we are not convinced that it would be advantageous to impose 
uniform standards on all sports.
---------------------------------------------------------------------------
    \1\ Our belief that steroid use is not desired by or prevelant 
among skilled hockey players is seemingly confirmed by the fact that 
there have been only eight positive results in approximately 3,100 
tests of NHL and non-NHL players administered at the World Hockey 
Championships (conducted by the International Ice Hockey Federation 
(IIHF)) since 1993/1994.

    Question 2. Why doesn't the League use blood tests, which are 
better at detecting substances like the human growth hormone?
    Answer. First, we have not seen scientific evidence that the blood 
tests currently administered do, in fact, materially enhance the 
ability to accurately and reliably detect substances such as the human 
growth hormone. Second, we believe that administering 3,500 blood tests 
annually (five tests per player for 700 NHL players) would be 
excessively invasive, costly and time-consuming. Notably, WADA will 
conduct a total of only 88 in-competition blood tests during the 2006 
Olympic Games, which involve numerous different competitions and many 
hundreds of athletes. To the extent blood tests are used at all outside 
of the context of international athletic competitions, we believe it is 
similarly appropriate to do so only in very limited circumstances.
    We appreciate the opportunity to express our views regarding the 
issues and questions set forth above. We look forward to continuing to 
work with you on this important matter.
        Sincerely,
                                           William L. Daly,
                                               Deputy Commissioner.