Transcript: House Committee on Oversight and Government Reform Hearing on Illegal Steroid Use by Major League Baseball Athletes
HOUSE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM HOLDS A HEARING ON ILLEGAL STEROID USE IN MAJOR LEAGUE BASEBALL
REP. HENRY A. WAXMAN, D-CALIF. CHAIRMAN
REP. TOM LANTOS, D-CALIF., REP. EDOLPHUS TOWNS, D-N.Y., REP. PAUL E. KANJORSKI, D-PA., REP. CAROLYN B. MALONEY, D-N.Y., REP. ELIJAH E. CUMMINGS, D-MD., REP. DENNIS J. KUCINICH, D-OHIO, REP. DANNY K. DAVIS, D-ILL., REP. WILLIAM LACY CLAY, D-MO., REP. DIANE WATSON, D-CALIF., REP. STEPHEN F. LYNCH, D-MASS, REP. CHRIS VAN HOLLEN, D-MD., REP. BRIAN HIGGINS, D-N.Y., DEL. ELEANOR HOLMES NORTON, D-D.C., REP. PAUL W. HODES, D-N.H., REP. CHRISTOPHER S. MURPHY, D-CONN., REP. BRUCE BRALEY, D-IOWA, REP. PETER WELCH, D-VT., REP. JOHN YARMUTH, D-KY., REP. BETTY MCCOLLUM, D-MINN., REP. JIM COOPER, D-TENN., REP. JOHN SARBANES, D-MD., REP. JOHN F. TIERNEY, D-MASS.
REP. THOMAS M. DAVIS III, R-VA. RANKING MEMBER
REP. DAN BURTON, R-IND., REP. CHRISTOPHER SHAYS, R-CONN., REP. JOHN M. MCHUGH, R-N.Y., REP. JOHN L. MICA, R-FLA., REP. MARK SOUDER, R-IND., REP. TODD R. PLATTS, R-PA., REP. CHRIS CANNON, R-UTAH, REP. JOHN J. "JIMMY" DUNCAN JR., R-TENN., REP. MICHAEL R. TURNER, R-OHIO, REP. DARRELL ISSA, R-CALIF., REP. KENNY MARCHANT, R-TEXAS, REP. LYNN WESTMORELAND, R-GA., REP. PATRICK T. MCHENRY, R-N.C., REP. VIRGINIA FOXX, R-N.C., REP. BRIAN P. BILBRAY, R-CALIF., REP. BILL SALI, R-IDAHO, REP. JIM JORDAN, R-OHIO
FORMER SEN. GEORGE MITCHELL
MAJOR LEAGUE BASEBALL COMMISSIONER BUD SELIG
DONALD FEHR, EXECUTIVE DIRECTOR, MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION
WAXMAN: Good morning. The committee will come to order.
When our committee held its first hearing three years ago on Major League Baseball's steroids scandal, I talked about how the culture of major league clubhouses trickle down to become the culture of the high school gym.
Later that same day, Dan Hooton and Denise and Raymond Garibaldi proved that connection with their powerful testimony about the deadly impact that steroids had on their sons. The Hooton and Garibaldi families were frustrated that baseball wasn't doing more to confront its role in a growing epidemic.
For our part, this committee made it clear to the players and owners that they needed to take steps -- and major ones -- to deal with this problem.
The first was to dramatically strengthen the league's testing program for performance-enhancing drugs. The second was to investigate the extent of steroid use.
The starting point for addressing any scandal is in the facts. If a cheating scandal broke out at any university, the bare minimum we would expect is a thorough review of what happened and how it happened.
This, unfortunately, wasn't baseball's first impulse. The commissioner, the owners, and the union didn't want to look at the past. The code of silence in baseball clubhouses was threatening to become baseball's official policy.
To his credit, Commissioner Selig listened to the testimony at our hearing and recognized that baseball had a serious problem. He then did the right thing and asked Senator George Mitchell to take a hard look at baseball's steroid era.
I thank Commissioner Selig for that, and I thank Senator Mitchell for taking on an enormous task.
Anyone who reads the Mitchell Report will come to understand how difficult his challenge was. Virtually no one volunteered information to Senator Mitchell. In fact, only one active player, Frank Thomas, agreed to speak with his investigators.
Senator Mitchell and his staff did a superb job, but I think even they would acknowledge that their report isn't a comprehensive accounting of the steroids scandal. If reports had epitaphs, this one would be, "It didn't tell us everything, but it told us enough."
And what it tells us is damning: The illegal use of steroids and performance-enhancing drugs was pervasive for more than a decade; Major League Baseball was slow and ineffective in responding to the scandal; and the use of human growth hormone has been rising.
The Mitchell Report also makes it clear that everyone in baseball is responsible: the owners, the commissioner, the union, and the players.
Despite that shared responsibility, most of the media attention over the past month has focused on the players. They are the face of the game, and they are the ones our kids emulate.
As Chuck Kimmel, the president of the National Athletic Trainers Association, recently pointed out, young athletes are very impressed by what their sports heroes say and do. There's a real authority carryover in these situations. They assume because a person is an expert in one area that they're qualified in another.
Our committee hasn't had an easy experience with individual players. We've tried to be sensitive to their legitimate privacy rights and to the obvious harm this issue can do to their reputations, but too often their responses to legitimate questions have been evasive or incomplete.
This investigation is no different than any other that we undertake. We expect, and the law requires, truthful testimony.
In one important instance, the Mitchell Report provides new information relating to one of our previous inquiries.
Three years ago, we initiated an investigation into testimony that Rafael Palmeiro provided on March 17, 2005. Mr. Palmeiro testified that he never took steroids. Several months later, he's tested positive for Winstrol, a powerful steroid.
As part of that investigation, we interviewed Miguel Tejada for relevant information. A transcript of that interview has never been made public out of respect for Mr. Tejada's privacy, but in that interview Mr. Tejada told the committee that he never used illegal performance-enhancing drugs and that he had no knowledge of other players using or even talking about steroids.
Well, the Mitchell Report, however, directly contradicts key elements of Mr. Tejada's testimony. The conflict is stark and fundamental to the committee's 2005 investigation.
As a result, Ranking Member Tom Davis and I will be writing the Department of Justice today to request an investigation into whether Mr. Tejada gave truthful answers to the committee.
I also want to make it clear that the steroids scandal is not just about ballplayers. In my view, not enough attention has been paid to the Mitchell Report's indictment of the people who run baseball.
The players seem to have been surrounded by enablers and officials willing to look the other way. In the end, the owners and the commissioner's office are every bit at fault as the players.
The report recounts how the medical director for Major League Baseball actually led a presentation in 1998 on the benefits that could be obtained from testosterone. Team doctors who attended the meeting were disturbed; the league's medical office seemed to be sending an official message of leniency.
The situation in the league's security office didn't seem to be much better. Little investigating seems to have been done when reports of illegal steroid use were passed along.
In a steroids case involving former Cleveland Indian outfielder Juan Gonzalez, the league's security office appears to have done nothing. In another case, a bullpen catcher for the Montreal Expos, Luis Perez, and Kevin Hallinan, the director of security for Major League Baseball, a list of eight players who had obtained anabolic steroids, and I want to read from the Mitchell Report about what happened next.
Quote, "Hallinan told us the Perez incident could have been the single most important steroids investigation he conducted. But to his disappointment, he was not given permission to interview the major league players named by Perez."
The Mitchell Report also recounts the efforts of Stan Conte, the chief trainer for the San Francisco Giants, to remove Greg Anderson from the Giants' clubhouse. Mr. Anderson was Barry Bonds' personal trainer.
The different approaches taken by Mr. Conte, the Giants' general manager, Brian Sabean, and the Giants' president, Peter Magowan, are a sad reflection of the poor leadership many teams brought to this effort.
In a dismal record -- and it needs to be put -- it is a dismal record, and it needs to be put front and center, not hidden. It helps us understand how the steroids era infected baseball and how that virus spread to colleges and high school.
WAXMAN: That's the bad news. The good news is that I believe baseball is now taking steroids use seriously and making fundamental changes.
In 2005, Commissioner Selig and Don Fehr, the head of the players' union, voluntarily reopened bargaining. To their credit, they worked together to make baseball's steroids policy one of the toughest in sports.
I might say that in 2005 I had my doubts at whether Mr. Selig and Mr. Fehr would rise to this occasion, but I want to commend them both for the leadership that they have been showing.
And in the wake of the Mitchell report, Mr. Fehr accepted responsibility and said, quote, "In retrospect, we should have done something sooner."
Since the report's release, Commissioner Selig has begun implementing some of the Mitchell recommendations, and both the owners and the players have agreed to try to reach agreement on additional changes.
This committee wants major league baseball to have the most effective program possible. We also want to do everything we can to eliminate the use of these drugs by children.
Frank and Brenda Marrero, the parents of Efrain Marrero, are here this morning, along with Don Hooten. Efrain Marrero was a promising 19-year-old college athlete who turned to steroids and ultimately committed suicide.
In his memory, Mr. and Mrs. Marrero have established a foundation to fight steroids and other performance-enhancing drugs.
They have also submitted testimony for this hearing, and I ask unanimous consent that it be made part of the record. Without objection, that will be the order.
I want to close my opening statement by reading from their statement. "Simple, honest accountability is all we are asking for. No family should have to endure this anguish we've suffered, but tens of thousands of youngsters are at risk. For them, we ask you to dig deep, find the unvarnished truth and report it fairly," end quote.
To Mr. and Mrs. Marrero, Mr. Hooten, and to all the concerned parents around our nation, I want you to know we are trying to do just that.
I want to now recognize Mr. Davis who, as the chairman of this committee, held that important hearing and investigation, got us started. It's an effort that we've worked closely together on, and I'm pleased to continue that role with him in this year's hearing.
T. DAVIS: Thank you, Mr. Chairman. I would associate myself with your opening statement.
I want to note that we, too, have reviewed Mr. Tejada's statement to the committee and the evidence regarding him in the Mitchell report, and as a result of that review we've concluded that further investigation is warranted into whether Mr. Tejada made knowingly false material statements to the committee.
Therefore, we will join the chairman in asking the Justice Department to investigate this matter.
Mr. Chairman, thank you for calling this hearing. In the words of baseball's dugout philosopher Yogi Berra, this is deja vu all over again. The game of baseball, its fans, and aspiring players seem caught in the grip of a recurring drug-induced nightmare.
Let's be clear about our purpose. We're not self-appointed prosecutors trying the claims of the Mitchell report. This is not a court of law, and the guilt or innocence of the players accused in the report of steroid abuse is not our major concern.
Our focus is on Senator Mitchell's recommendations more than his findings. We're here to save lives, not ruin careers. We want steroids and other dangerous drugs out of sports, period.
We want this because we know those who aspire to athletic stardom look up to those who have achieved it and often emulate their methods.
We want young athletes to understand there are no shortcuts to success, that excellence has to be the product of physical exertion, not pharmacology.
In true sport, the road to achievement is paved with hard work, dedication and focus, not the cream, the clear (ph) or human growth hormone.
We know some consider this exercise a waste of time. They say sports are none of our business, and we ought to be sticking to what's important -- winning the war on terror, strengthening homeland security, reviving a flagging economy.
Some even throw a sports metaphor back at us and claim we're only grandstanding. Us, playing to the crowd? Perish the thought.
But seriously, to those critics I say other issues might be more important, but that doesn't make this inquiry unimportant. There's nothing irrelevant or inconsequential about the health of our children and the integrity of the game so many of us love.
I would hope no one would dispute that protecting public health, keeping young athletes safe, is a vital and appropriate function of government.
Nearly three years ago, our first foray into this subject proved extremely productive. After our hearings, then-Ranking Member Henry Waxman and I introduced legislation that turned out to be unnecessary because baseball and other major sports acted quickly, on their own, to enhance drug testing and enforcement programs.
A little governmental sunshine can go a long way. Today, thanks to the leadership of Commissioner Selig and the wise willingness of union chief Don Fehr to urge cooperation among its members, baseball now doles out 50-game suspensions for first offenses, 100-game suspensions for second offense, and lifetime bans for third offenses.
All players are tested twice a year, and testing techniques have been improved to detect more substances at lesser levels.
Baseball also has targeted abuse of amphetamines which in many clubhouses were literally dumped into a coffee pot for communal consumption.
Now we have before us the Mitchell report. Its 409 pages paint a sordid picture of back-room drug deals involving clubhouse personnel, players injecting each other with illegal substances right in their locker rooms, and more efforts aimed at obfuscation than confiscation.
The report names 89 players with varying degrees of involvements with steroids and HGH, but they are just part of a far wider culture within the sport that values home runs and victories over fair play.
The report confirms that active participation or passive acquiescence in drugging cannot coexist with the responsibility to set a proper example for those stepping the lower rungs of the ladder of athletic success.
In other words, while two years ago we hoped otherwise, our work here is definitely not done. Stiffer penalties and stepped-up enforcement have caused some players to back off of steroid use.
Unfortunately, that progress has created a strong perverse incentive to develop substances that can't be detected by current testing regimes.
But as a panelist at our last baseball hearing famously said, we're not here to talk about the past. Our panel today will address, in essence, one question: Going forward, what will the leaders of baseball do to implement the recommendations outlined in this report?
We'll ask Senator Mitchell how these specific recommendations came to be, what makes them particularly important given what the Mitchell panel found. We're watching closely because America's youth are watching closely.
Despite significant efforts, including the ATLAS and ATHENA programs that discourage steroid use among high schoolers, attitudes about steroids and usage levels among young athletes have remained stubbornly constant.
Not surprisingly, rates of steroid use go up as the athletic stakes get higher. Steroid abuse by high school seniors seeking that extra edge to earn a college scholarship is twice that of eighth graders, where the goal is merely to catch the eye of a high school coach.
Over the past five years, more teens have come to believe steroids are dangerous, but the percentage of those who actually disapprove of performance-enhancing drugs remains, sadly, unchanged.
The myth of youthful invulnerability, the allure of athletic success, and the rationale that everyone else is doing it combine to drive an intoxicating culture that won't be countered effectively with slogans, posters and half-hearted enforcement programs.
We commend Commissioner Selig for having the courage to appoint Senator Mitchell to undertake this investigation and for letting his findings become public.
They certainly did not reflect well on the commissioner's sport or his tenure as its leader, but he let the chips fall where they may. Let's applaud him for finally attacking the problem rather than running and hiding from it.
Already the commissioner has ordered all recommendation that he believes did not require union approval to be implemented immediately. This means drug tests and background checks for clubhouse personnel.
It means clubs will maintain a log of all packages sent to major league ball parks, that they will distribute and post major league baseball's policy on prohibited substances.
Perhaps most significantly, it means a 24-hour-notice of steroid testing will be eliminated. These are encouraging steps, but they are all they are -- first steps.
We also commend Mr. Fehr for standing ready to discuss further amendments to the collective bargaining agreement. He leads a union that too often has been, frankly, intransigent and uncooperative.
We know some of the measures suggested in the report -- for example, that baseball should hire an independent firm to conduct testing -- will not be easy to sell.
But he has helped his members see the writing on the wall, which says this: Baseball needs to fix the problem, change this culture, alter how it does business with regards to steroids, human growth hormone and all matter of dangerous performance-enhancing drugs, or -- and this is a promise, not a threat -- Congress will do it for you.
T. DAVIS: Finally, we commend Senator Mitchell for his excellent work. Saddled with a daunting list of obstacles, no subpoena power, no cooperation from the players and little enthusiasm among owners more concerned about keeping turnstiles clicking and home runs flying, he produced a sober, even-handed document whose factual assertions almost universally have stood up to scrutiny.
Senator Mitchell's recommendations, at first glance, seem well rounded and realistic and we'll have the chance to probe them further today.
For example, he urges the commissioner to establish an office with enhanced authority to investigate and report the use of performance-enhancing drugs. Major League Baseball already responded last week, announcing the creation of a new department of investigations.
The recommendations and actions appear to be sound, but I understand the union chief believes the devil will be in the details. How will the new office's power be? How will it work with the players to accomplish its goal?
Has baseball effectively reorganized itself and is setting up this office or has the sport simply reshuffled the deck here as a response to a scandal, like we often do in Congress?
Senator Mitchell also calls for increasing player education about the dangers of steroid use. Former big league manager Phil Garner told the story of confronting one of his players about steroid use and telling him his heart could give out by the age of 40. The player said he didn't care, that he wanted to be and big and strong and rich now as possible. He worry about the rest later.
And, finally, Senator Mitchell recommends increasing independence and transparency of the program, as well as conducting year-round unannounced testing.
Mr. Fehr, I suspect you have your work cut out for you to convince players to embrace these recommendations, but the collective bargaining process shouldn't be used as an excuse to tolerate or shield illegal activities, activities which degrade and damage the very enterprise that employs the players. Negotiation is the right process, but we can't abide inaction or half-measures as its only products.
The health of young athletes across the country is at stake and we won't hesitate to defend their interests or the interests of millions of Americans who have grown tired of the cloud that's still hovering over baseball.
From this moment, we begin to look into steroids in sports and how they're use affects impressionable young athletes. Our efforts from this issue have been bipartisan. In the beginning, our committee has come together in the sense of cooperation and teamwork that continues to this day.
In that spirit, we look forward to a frank and constructive discussion today on how to clean up baseball. When commentators talk about the importance of chemistry in the locker room, that is not what they had in mind.
Thank you, Mr. Chairman.
WAXMAN: Thank you very much, Mr. Davis.
I also want to commend Senator Mitchell for the terrific work he has done on this report. Senator Mitchell, you have an outstanding record as a member of the Senate and the leader of the Senate, and I could go through your many accomplishments, but you may have achieved even more since you left the Senate as an international statesman.
You're well known for your work in bringing divided groups together. You've brought people together in Northern Ireland, you brought Democrats and Republicans together on this committee, and I thank you for that.
You have done a great job and I know how difficult it is to do a job without subpoena power when we were in the minority, but we have worked together in this committee to use what powers we have to accomplish the important things that need to be accomplished.
So I thank you for your work and I'm pleased you're here. I'm also mindful of your time schedule.
I do want to inform you that it's the policy of this committee, no matter who testifies, that they testify under oath. So if you would, please, rise and raise your right hand. Do you solemnly swear that the testimony you will give before this committee will be the truth, the whole truth, and nothing but the truth?
MITCHELL: I do.
WAXMAN: Well, I want to recognize you to make your presentation, please.
MITCHELL: Mr. Chairman, Mr. Chairman, Congressman Davis, members of the committee, thank you for inviting me to appear before you this morning.
In March 2006, I was asked by the commissioner of baseball to conduct an independent investigation into the illegal use of steroids and other performance-enhancing substances in Major League Baseball.
When he asked me to accept this responsibility, the commissioner promised that I would have total independence and his full support. He kept that promise.
Last month I completed and made public my report.
Since then, the public discussion has largely focused on the names of players who were identified in the report. I will focus today on the report's broader findings and recommendations.
I begin with a summary of our conclusions.
The illegal use of steroids, human growth hormone, and other performance enhancing substances by well known athletes may cause serious harm to the user. In addition, their use encourages young people to use them. Because adolescents are already subject to significant hormonal changes, the abuse of steroids and other such substances can have more serious adverse effects on them than on adults.
Many young Americans are placing themselves at serious risk. Some estimates appear to show a recent decline in steroid use by high school students. That's heartening. But the most recent range of estimates is from about 2 percent to 6 percent. Even the lower figure means that hundreds of thousands of high school-aged young people are illegally using steroids.
It's important to deal with well known athletes who are illegal users. But it's at least as important, perhaps even more so, to be concerned about the reality that hundreds of thousands of our children are using these substances. Every American, not just baseball fans, ought to be shocked by that disturbing truth.
During the period discussed in my report, the use of steroids in Major League Baseball was widespread, in violation of federal law and baseball policy. Club officials routinely discussed the possibility of substance use when evaluating players.
The response by baseball was slow to develop and was initially ineffective. The Players Association had for many years opposed a mandatory random drug testing program, but they agreed to the adoption of such a program in 2002, after which the response gained momentum.
Since then, the major league clubs and the Players Association have agreed to a number of improvements to the program, including stronger penalties, that have increased its effectiveness.
The current program has been effective in that detectable steroid use appears to have declined. However, many players have shifted to human growth hormone, which is not detectable in any currently available urine test.
The minority of players who used these substances were wrong. They violated federal law and baseball policy, and they distorted the fairness of competition by trying to gain an unfair advantage over the majority of players who followed the law and the rules. They -- the players who follow the law and the rules -- are faced with the painful choice of either being placed at a competitive disadvantage or becoming illegal users themselves. No one should have to make that choice.
Obviously, the players who illegally used performance-enhancing substances are responsible for their actions, but they did not act in a vacuum. Everyone involved in baseball over the past two decades -- commissioners, club officials, the Players Association, and players -- shares, to some extent, in the responsibility for the steroids era.
There was a collective failure to recognize the problem as it emerged and to deal with it early on. As a result, an environment developed in which illegal use became widespread.
Knowledge and understanding of the past are essential if the problem is to be dealt with effectively in the future. But being chained to the past is not helpful. Baseball does not need and cannot afford to engage in a never-ending search for the name of every player who ever used performance enhancing substances.
In my report, I acknowledged and even emphasized the obvious: there is much about the illegal use of performance-enhancing substances in baseball that I did not learn. There were and are other suppliers and other users. And it is clear that a number of players have obtained these substances through so-called rejuvenation centers, using prescriptions of doubtful validity.
Other investigations will no doubt turn up more names and fill in more details, but that is unlikely to significantly alter the description of baseball's steroids era, as set forth in my report.
The commissioner was right to ask for this investigation and report. It would have been impossible to get closure on this issue without it, or something like it.
It's appropriate to acknowledge, Mr. Chairman, that it was you and this committee who originally suggested that such an inquiry be conducted.
MITCHELL: But it's now time to look to the future, to get on with the important and difficult task that lies ahead.
I urge everyone involved in Major League Baseball to join in a well-planned, well-executed, and sustained effort to bring the era of steroids and human growth hormone to an end and to prevent its recurrence in some other form in the future. That's the only way this cloud will be removed from the game.
The adoption of the recommendations set forth in my report will be a first step in that direction, and I will now summarize them.
While some can be and have been implemented by the commissioner unilaterally, others are subject to collective bargaining, and therefore will require the agreement of the Players Association.
The recommendations focus on three areas. First, there must be an enhanced capacity to conduct investigations based on non-testing evidence.
Some illegal substances are difficult or virtually impossible to detect. Indeed, one leading expert has argued that testing only scratches the surface. The ability to investigate vigorously allegations of violations is an essential part of any meaningful drug prevention program.
The commissioner has accepted my recommendation to create a department of investigations led by a senior executive to respond promptly and aggressively to allegations of illegal use or possession of performance-enhancing substances. To do its job effectively, this department must establish credibility and cooperate closely with law enforcement agencies.
I recommended that the commissioner strengthen preexisting efforts to keep illegal substances out of Major League Baseball clubhouses by logging and tracking packages shipped to players at major league ballparks, conducting background checks and random drug tests on clubhouse employees, and adopting policies to ensure that allegations of a player's possession or use of performance-enhancing substances are reported promptly to the department of investigations.
I also recommended that club personnel with responsibility affecting baseball operations be required to sign annual certifications that they have no unreported knowledge of any possible violation of Major League Baseball's drug prevention policy.
The commissioner has implemented all of these recommendations.
Second, improved educational programs about the dangers of substance use are critical to any effort to deter use. Over the last several years, the commissioner's office and the Players Association have made an increased effort to provide players and club personnel with educational materials on performance-enhancing substances.
Some of these efforts have been effective. Some were criticized by both former players and club personnel. Several suggestions for improvement are set forth in my report.
Third, although it is clear that even the best drug-testing program is by itself not sufficient, drug testing remains an important element of a comprehensive approach to combat illegal use.
The current program was agreed to in 2006 and will remain in effect until 2011. Any changes to the program, therefore, must be negotiated and agreed to by the clubs and the Players Association.
In my report, I set forth the principles that presently characterize a state-of-the-art drug-testing program. And I urge the clubs and the Players Association to incorporate them into baseball's program when they next deal with this issue.
The program should be administered by a truly independent authority that holds exclusive authority over its structure and administration. It should be transparent to the public, allowing for periodic audits of its operations, and providing regular reports of aggregate data on testing and test results.
It should include adequate, year-round, unannounced testing and employ best practices as they develop.
To ensure that the independent administrator can accomplish these objectives, the program should receive sufficient funding, and it should continue to respect the legitimate privacy and due process rights of the players.
Finally, I hope that the commissioner, the clubs, and the Players Association will have a reasonable time and opportunity to consider and discuss these recommendations with their members and constituents and to reach their own conclusions about their implementation.
My report demonstrates that I'm not an apologist for either the commissioner or the Players Association, but in fairness I think we should recognize what they have done to address this problem.
As noted in my report, prior to the 2002 negotiations, the commissioner took several key steps to lay the foundation for an agreement on a mandatory, random drug-testing program, including, in early 2001, he convened a meeting of several respected team physicians, during which they shared their own experiences and concerns about the use of steroids by major league players.
That year, he unilaterally imposed a drug-testing program for minor league players, which he could do because minor league players are not represented by the Players Association.
In 2002, after detailed negotiations, the Players Association agreed to the commissioner's proposal for a mandatory, random testing program in the major leagues. To their credit, this was a significant step by the Players Association, because, as I noted earlier, they had for many years opposed such a program.
The drug-testing programs in all sports, including the Olympics, have evolved over time through a process of trial and error, as the programs were modified to address emerging problems and concerns. In that respect, baseball's program has been like all the others.
As described in my report, since 2002, the commissioner and the Players Association have agreed to several improvements in the program to deal with issues as they arose. They did so even though under federal labor law they were under no obligation to modify their collectively bargained agreement during its term.
Mr. Chairman, members of the committee, I was asked to conduct an inquiry and to report what I found as accurately, as fairly, and as thoroughly as I could. I've done so to the best of my ability, and my work has been completed.
Now it's up to the commissioner, the clubs, and the players to decide how they will proceed.
Their actions over the past six years have demonstrated that they can address this problem through the collective bargaining process. I hope you will encourage and give them the opportunity to do so again.
Thank you again, Mr. Chairman, for inviting me to be here and for your patience. And I'll be pleased now to try to respond to any questions that you or any other member of the committee may have.
WAXMAN: Thank you very much, Senator Mitchell.
We'll now proceed to recognize members for five minutes for questions for the senator.
And we'll start with Mr. Towns.
TOWNS: Thank you very much, Mr. Chairman, for holding this hearing, and, of course, Ranking Member Davis, as well.
Senator Mitchell, thank you so much for your job well done.
At the hearing in 2005, I asked the players whether anyone who had knowledge of steroids should be required to report it. And by anyone, I mean trainers, team doctors, scouts, agents, clubhouse staff, management, everyone officially connected with the game. Some players said yes; some said no.
Senator Mitchell, your report found that a lot of people in and out of baseball knew about steroid use and either turned a blind eye or actively concealed it or "I don't want to get involved" concept.
What should the consequences be for the people who enabled the players to cheat? And has baseball done enough dealing with that problem?
MITCHELL: Thank you, Congressman.
In my report, I noted that for many years baseball has had a policy requiring the disclosure of information about the use of performance-enhancing substances and making possible severe penalties in the form of fines for those who fail to comply with that policy.
We found, however, that very large numbers of persons involved in baseball were unaware of the policy, and even many who were aware did not follow it. We also found that no one has ever been fined for failure to comply with that policy.
MITCHELL: As a consequence, included as part of our recommendations -- and they're found in the report -- we suggest that there be a written policy at the major league level, MLB level, which is distributed to all of the clubs, setting forth the process to be followed when information is available that should be reported, and also that every club should have a policy widely distributed, posted and made known to all employees about the process to be followed when such information is available and should be reported.
I should point out, however, that there are some ethical questions regarding physicians and other medical personnel in terms of legal requirements imposing restraints on the provision of information. And of course, every state has such laws and they must be observed.
With that in mind, we think the policy can be much more clearly articulated and can be much more aggressively disseminated and pursued, and failures to comply with the policy should receive discipline or punishment pursuant to the policy.
TOWNS: Very quickly -- I see the light is about to change on me -- how would you characterize the level of cooperation you received from the players association while conducting your investigation?
MITCHELL: As I said in my report, the players association was largely uncooperative.
TOWNS: You know, I'm concerned about that because, you know, I remember when football -- we had some problems. And of course, they need to understand that this is very serious.
They are role models, even though some say they are not, but I think when young people look at them -- and they see them as role models, and I think they have to understand that. And we have an obligation and responsibility.
Very quickly, just before the light change on me, when we had hearings on baseball a few years ago, one of the things we found was that major league baseball was sweeping the problem of steroids use under the rug.
Other sports like football had a serious steroid problem in the past but had really taken steps to clean up the game.
Senator Mitchell, how would you compare a major-league baseball today to the other sports leagues like the NCAA and the Olympic sports in terms of how credible, effective, the drug program is?
MITCHELL: In my report I included an analysis of the known provisions of all other programs, a point-by-point comparison.
It is clear that in terms of penalties, major league baseball has the strongest program. The penalties are the stiffest when measured in proportion to the length of season and other indicia.
With respect to the operations of the program, we did not have access to the other programs other than that which has been publicly described about them.
And I caution anyone in attempting to make comparisons based solely on the published data about the programs. It really does require a detailed analysis and in-depth knowledge of the actual manner in which the programs are operated to be able to conduct the kind of comparison which I think you're seeking.
WAXMAN: Thank you, Mr. Towns.
T. DAVIS: Senator Mitchell, again, thank you for your report. And let me start. There seems to be some disagreement between the players association and you regarding the opportunity for a player to respond to the evidence against him.
Most of this disagreement appears to be over how and what was communicated to the players prior to October 22nd, 2007.
We have a letter from you on that date stating that during the course of any interview I will inform the player of the evidence of his use, including permitting him to examine and answer questions about copies of any relevant checks, mailing receipts or other documents, and give him an opportunity to respond.
The players association responded in a November 20th letter that the players had been informed that you would provide them with the evidence if they consented to the interview. Your letter talks about an opportunity to respond.
The players association talks about being provided with evidence if they consented to an interview. I guess my question is was a player required to consent to an interview to see the evidence against them?
T. DAVIS: OK. So they couldn't simply appear, review the evidence and leave if they concluded they had nothing to say about the evidence?
MITCHELL: That's correct.
T. DAVIS: OK. Do you have any earlier letters communicating your offer to provide the evidence to the players?
T. DAVIS: Could the decision of players not to come in have been the result of their belief that they would be required to answer questions?
MITCHELL: I can't speak for the players. I did not communicate with any current players directly. And if I might, I'll be glad to give a more detailed explanation, Congressman Davis, when you complete your questions.
T. DAVIS: Well, why don't you go ahead? It's important.
MITCHELL: Right. Well, from the first day of this investigation to the last, I was consistent in my public statements that players would have the opportunity to meet with me, and at that time I would disclose to them all of the evidence that I had and give them an opportunity to respond.
On March 30th, 2006, the day I publicly accepted this assignment, I said, I quote, "We will provide those whose reputations have been or might be called into question by these allegations an opportunity to be heard."
On January 18th, 2007, I addressed the owners in Phoenix, and my remarks were made public and widely reported throughout the country. I said, "I will insist that those who might be adversely affected by this investigation have an opportunity to be heard."
I made similar statements in press interviews during the spring and summer of 2007, and I'll be glad to provide you with references to those statements.
We were informed early in the process by major league baseball officials that we were bound by the provisions of the collective bargaining agreement between major league baseball and the players association, which required that requests for interviews with current players be made through the players association.
As a result, in the summer and fall of 2007, I sent a series of letters to the players association listing the names of those players we sought to interview because we had received allegations that they had used performance-enhancing substances.
We identified the years during which the alleged use had occurred and the clubs with which the players were then affiliated. The players association subsequently responded, in letters, stating that all of the players declined to be interviewed.
In October 2007, in a personal meeting that I had with representatives of the players association, we were informed that they had not previously understood that any player who participated in an interview would, at that interview, be informed of the allegations that we had received about him.
So to make absolutely certain that there could not possibly be any further misunderstanding, I asked them to again contact all of the players involved and inform them of the details of my offer.
I followed that up with a letter in which I reiterated that, and I quote, "To be clear, I have been and remain willing to meet with any player about whom allegations of performance-enhancing substance use have been made in order to provide those players with an opportunity to respond to those allegations. During the course of any such interview, I will inform the players of the evidence of their use, including permitting him to examine and answer questions about copies of any relevant checks, mailing receipts or other documents, and give him an opportunity to respond."
Five weeks later, the players association responded in a letter on behalf of those players -- the letter stated, in part, that some have been in direct contact with you; on behalf of the others, we report that they continue to respectfully decline your request. And those that had been in contact with us declined the request through other lawyers, almost without exception.
Thus, according to the players association, all of the current players about whom allegations were received were contacted twice, once in the summer and early fall of 2007, and then between October and November of 2007, and each time they declined my invitation to meet and talk with me.
At your request, Mr. Chairman, I have supplied all of this correspondence to the committee.
I should say, just for the record, Congressman Davis, that a different procedure was followed for former players. They are not members of the bargaining unit that is represented by the players association.
MITCHELL: We contacted each former player directly by telephone, by letter, or both, to inform them that allegations had been received about them and to invite them to an opportunity to an interview and to provide them with the chance to respond.
Even though we were not required to do so, at the request of the Players Association, we provided to the Players Association a list of all the former players about whom allegations were received.
T. DAVIS: Can I just ask, did any former or current players come forward and have their names cleared as a result of the invitation that you...
MITCHELL: Yes. One former player retained his own lawyer who contacted us and ask to come in and meet with me. I met with him and his lawyer.
He told us that he had, in fact, purchased performance-enhancing substances illegally, as had been alleged by Kirk Radomski, one of the witnesses who we interviewed. He told us, however, that he had not used them.
I asked him whether he had any evidence to support or corroborate his statement. He said that he had, and he provided that evidence to us.
We conducted an independent investigation and concluded that he was telling the truth and that we, therefore, made the decision not to include him in the report.
Now, I'm not clear whether you're talking about current or former players.
T. DAVIS: I asked both, and you just said it was a former player. No current player came forward?
MITCHELL: Let me -- I don't want to characterize the status of the player, if I might.
T. DAVIS: No, that's fine. Right, OK.
MITCHELL: Either current or former.
WAXMAN: Thank you, Mr. Davis.
CUMMINGS: Senator Mitchell, I want to, first of all, thank you for an outstanding report. And I have for a long time been a great admirer of yours, your integrity. And what you bring to public life is just incredible.
I want to just kind of refocus us a little bit. Senator Mitchell, this committee held hearings on this issue of steroid abuse in Major League Baseball in 2005.
One of our most powerful witnesses at that hearing was Donald Hooton, the father of Taylor Hooton, a teenage ballplayer who committed suicide after taking steroids. Mr. Hooton is in the audience at this hearing.
Frank and Brenda Marrero are also here today. Unfortunately, their son, too, Efrain, also committed suicide after taking steroids in an effort to become a better athlete.
I noticed that when you talked about your findings, the number- two finding went to the whole issue of children and the fact that it could have -- these steroids and illegal substances -- could have an effect, a very detrimental effect on children.
This committee, Senator, as you probably know, got a lot of flak back in 2005 when we took a look at Major League Baseball and its handling of steroids. And we're receiving similar criticism even today. People say, "Why are you getting involved in that?"
But I want to take a moment to remind everyone why we are here in the first place. We started this because of our youngsters.
We first took a look at the issue of steroids upon learning of the deeply troubling centers of disease control prevention study that said 1 in 16 students reported using steroids. This was almost three times the amount who reported using steroids 10 years ago.
And I can tell you that steroid use, as you said, is extremely dangerous. And I think, you know, as I listen to you, I want you to help us with this.
You talked about ending the era of steroids. You also talked about how our children are affected. Your recommendations, I know, were going to the league, but I'm just wondering if the bottom line -- see, I don't worry so much about the players, because they're millionaires.
I worry about the kids who are impressionable who are going to those stores on the weekend using their allowance to buy these substances. That's who I worry about. I worry about the kids in my neighborhood whose only dream -- they think the only dream they have is to become a major league athlete and buying this stuff.
And so I guess what I'm asking is -- and we have a program, say, in Baltimore called Powered by ME. And what it does, it works with coaches and the clergy and so many others, parents, to try to get parents to get kids to stay off of steroids.
Peter Angelos, the owner of the Orioles, who I'm glad is here, has agreed to be a major part of that program.
And I want to thank you, Peter.
But I guess what I'm saying is, if we're going to end it, are you looking at some kind of amnesty for these players so that perhaps they can then turn around and help our children? I mean, what did you have in mind?
And these people who -- you know, one of the dilemmas that we find ourselves in is that if people have committed a crime, as you said, gone against baseball policy, at this critical moment, what message do we send, if we were to grant some type of amnesty?
And is the benefit of stopping here and saying, "OK, you did it. We're going to put that aside, but we're going to go forward," is there a benefit to doing that?
And what's your feeling about the way, if any, major baseball should help our children? Because the fact is, is that a lot of damage, Senator, has already been done. It's already been done.
There are kids right now who've got in their backpacks some of these very substances. And they're going to be probably using them today, God forbid. But that's a fact. And it's based a lot upon the folks that they were trying to emulate.
And so I know that's a packed question, but if you try at it, please.
MITCHELL: I'm happy to do so, Congressman.
First, it is not a coincidence that I began my remarks with the reference to the dangers of steroid use by young people. I believe that to be the most shocking fact that I uncovered in the course of this, uncovered in the sense of my knowledge.
It was obviously known before, but it's not widespread. And I tried hard in every public appearance I have made, and will continue to do so, to call attention to that fact.
The fact that hundreds of thousands of American youngsters are using steroids ought to be a wake-up call to every American, whether they're sports fans or baseball fans or not.
Secondly, let's be clear: This goes far beyond baseball, way, way beyond baseball. Baseball players are not the only persons who are role models for young people. All professional athletes are, entertainers are, political leaders are. It's a broad societal issue of which baseball is only a part.
Could I answer the second part, Mr. Chairman, about...
WAXMAN: You're certainly welcome, Mr. Mitchell, but we do have many members, and you're trying to get a train, but go ahead and certainly give an answer.
MITCHELL: I'd just say, respectfully, amnesty is a loaded word in American politics today. What I said in my report was that I believe the commissioner should forgo discipline on past users, except in those cases where he deems it necessary to impose discipline to protect the integrity of the game.
My recommendations are based on several reasons. The first is that I believe that everyone involved should be trying to bring this troubling chapter in baseball's history to a close. The more time you spend in the past, the harder it is to look into the future.
Secondly, the actions which I described in my report are between two and nine years old. They're dated in time. It's a well- established principle of American labor law that if you impose discipline it must be in accordance with the law that existed at the time the act occurred. In many of these instances, there was no punishment under the program or they even predated the program.
Third, more than half of the people mentioned in my report are no longer in Major League Baseball, and therefore the commissioner has no authority to discipline them, even if he wanted to do so.
And, finally -- and I have a fairly long section on this in the report -- I want to just close with one thing. I spent five years working in Northern Ireland. And after many long and painful negotiations and difficult decisions, a conflict that had raged for a long time was brought to an end.
MITCHELL: The most difficult, emotional, and controversial part of the process that we adopted dealt with an analogous circumstance: the release from prison of persons who had been engaged in the struggle who had committed what they believed were acts of patriotism, but which the authorities and the victims and their families believed were brutal criminal acts.
And I learned then that sometimes you have to turn the page and look to the future, and I sincerely believe, even as I recognize that there are valid arguments both ways, that baseball has got to look to the future and the way to do that is to turn the page on the past, to lay the foundation for a well-conceived and well-executed program, and, also, a very strong discipline for future violations, when everybody knows this is what we're going to do.
CUMMINGS: Thank you very much, Mr. Chairman.
WAXMAN: Thank you, Mr. Cummings.
Let me announce that because of the time constraints, we won't recognize any members who have not come to the hearing up to this point to ask questions, and I'd like to ask each member to stay strictly within the five-minute timeframe, even to anticipate that the answer may be part of the five minutes, not five minutes and then a further five minutes for the answer itself.
Mr. Burton, you're recognized.
BURTON: Thank you, Mr. Chairman.
It's nice to see you again, Senator.
MITCHELL: Thank you, Congressman.
BURTON: I would just like to start off by saying that I hope every sport and every commissioner of every sport and all the leaders of the sports will recognize that this is a problem that's very pervasive and I hope that they'll all take their lead from baseball and football and start making sure that they stop steroid use and other drug use in their sports so that we don't have to have these kinds of hearings.
I don't like to see Congress doing this. This doesn't seem to be something that I think Congress should be doing.
Nevertheless, I think it is useful, especially if it gets the message out to all sports figures and high profile figures, that they should not be involved in this.
I just have two questions for you, Senator, and then I'll let my colleagues ask the rest of them.
First of all, some of the sportscasters have asked why did you give the owners an advanced copy of the report and not give it to the Players Association?
MITCHELL: Right. No owner received an advanced copy of the report, Congressman. Under the agreement I reached with the commissioner at the outset, I provided to the commissioner's office a copy of the report, because the commissioner is legally bound to maintain confidentiality of certain information with respect to the drug testing program under the agreement between baseball and the Players Association.
The commissioner wanted, and I believe appropriately, to be able to review the report to make certain that I did not inadvertently disclose any information in violation of his legal obligation to maintain its confidentiality.
He reviewed the -- his attorneys and others reviewed the report on that basis. There were no material changes in the report as a result. To the best of my knowledge, no owner saw the report and certainly it was not my intention, in complying with that agreement, that the report go to the owners.
BURTON: Along those same lines, the chief investigator of the Pete Rose case, John Dowd, said that he was surprised that there was a refusal by you and your staff not to make public to the AP and other news people documents that were referenced in your footnotes.
I'd just like to know what the response is to that.
MITCHELL: Certainly. We received and requested a number of documents, a total of 115,000 in all, in the course of the investigation from others for use in connection with the investigation.
Our investigation is over. My work is completed and the responsibility for the disclosure of those documents rests with the persons who are the owners and possessors of the documents and those who seek them we simply directed to the persons who own and possess the documents.
BURTON: Thank you, Senator.
I yield back my time, Mr. Chairman.
WAXMAN: Thank you very much, Mr. Burton.
TIERNEY: Thank you, Mr. Chairman.
Thank you, Senator. Thank you for your report and your time here today.
I understand, Senator, one of the key features of any drug testing policy is the medical use exemption and athletes who have a legitimate need for a particular banned substance or banned drug are allowed to apply for an exemption in order to use that, and baseball has that kind of a policy, as well as I think the Olympics do.
That's an important exemption, but people are always concerned that it will be abused, obviously, that somebody is going to use that exemption as an excuse to get their hands on a performance-enhancing drug.
I understand that you attempted to obtain, in order to evaluate information on medical use exemptions, that information from the major league testing program, but didn't get it.
Why did you ask for it?
MITCHELL: For the very reason stated in your question, to attempt to satisfy ourselves that the program was being properly operated. There have been published reports involving other programs suggesting that the use of therapeutic use exemptions has been a mechanism to avoid the purposes of the program, and that's the reason we sought the information.
TIERNEY: Now, I understand that you weren't able to obtain them. You didn't have subpoena power, which...
MITCHELL: That's correct.
TIERNEY: ... it's remarkable that you did such a thorough report without that and I commend you for that.
This committee did ask the league for that information and, to their credit, they gave the information to the league and, interestingly enough, one of the largest number of players receiving exemptions were those that sought it for the treatment of attention deficit disorder.
There were drugs like Ritalin and Adderall, and my understanding is that these are stimulants, similar to amphetamines. Some athletes think that they're performance enhancers. They're listed by baseball as prohibited stimulants.
Ritalin is classified as a Schedule 2 controlled substance. According to the Federal Drug Administration, these ADD drugs can cause sudden death, stroke, heart attack, and adverse psychiatric affects.
In 2006, ADD drugs were not a major issue. It appears that only 28 medical exemptions were granted. But in 2007, over 100 Major League Baseball players received medical use exemptions for these types of drugs. That's almost 8 percent of all players saying they had a medical use exemption for an ADD drug.
This would appear to be an exceptionally high percentage, somewhat over 8 percent -- or eight times, rather, the percentage of regular adults taking ADD medication in our population.
I'd like to know what your reaction is to that.
MITCHELL: Amphetamines were not part of our investigation. They were outside the mandate of our investigation. So I don't have any knowledge of the information that you've just provided.
TIERNEY: I understand that you weren't able to get the information, but...
MITCHELL: I would prefer not to comment until I saw the full details, Congressman. I don't know anything other than what you've just stated and since it was not part of our investigation, I don't have any comment at this time.
TIERNEY: I appreciate that. And perhaps we'll save the questions for the league and for the Players Associations. I don't think we have enough information right now either on that and we'll probably want to explore it more, but I think it's certainly concerning that you have eight times the adult population in our society using them in baseball. So we'll explore that a little bit more with them.
MITCHELL: Thank you.
TIERNEY: Yield back, Mr. Chairman.
WAXMAN: Thank you, Mr. Tierney.
SHAYS: Thanks, Senator, for your investigation. This is almost surreal to me.
I first want to compliment the chairman and ranking member for holding this hearing and for working so closely together, and they worked closely together when the now ranking member was the chairman.
And I want to agree with now Ranking Member Davis when he said this is not the most important issue facing the country, but it is still a very important issue.
What I wrestle with is and why I feel this is surrealistic is why should cheaters -- why should cheating be a matter of collective bargaining?
In 1919, the Chicago Black Sox scandal, you had eight players, you had a shortstop, two pitchers, two fielders, a first baseman, utility man, third base, when they tried to throw the Chicago White Sox playing Cincinnati Reds, and they were booted out for life.
You didn't have a commissioner at the time. You had a commission, because the American League and National League were formed in '03.
So now we get a commissioner because of this scandal and they took decisive action because of cheating. They didn't do anything other than fire them, get rid of them, and send a huge message.
So tell me why cheating should be a matter of collective bargaining.
MITCHELL: It has been settled law in the United States for more than 20 years that drug testing in the workplace is a subject of collective bargaining in those employee-employer situations where a recognized bargaining unit exists.
SHAYS: But isn't there a difference? The purpose of these drugs is not give pleasure. It's to give them an unbelievable advantage over the other players. It means they get to play and someone else doesn't get to play.
It means if you're a pitcher, you have an advantage over the hitter. If you're a hitter, you have an advantage over the pitcher, and so on.
This is cheating, isn't it?
MITCHELL: It is, indeed. I've described it as such.
SHAYS: So what I wrestle with is maybe the issue of extracting blood and the testing process -- but it doesn't seem to me that the penalty should be a matter of collective bargaining.
It strikes me if you cheat, that supersedes the issue of drugs. It's an issue of cheating. So where I wrestle -- what I wrestle with -- and I'm wondering if you have the same issue yourself.
Don't you see a difference between someone taking a drug for pleasure and someone taking a drug so that they can cheat?
MITCHELL: Yes, I do, and I describe that in my report. There is a difference, and it's a significant difference. And taking a performance-enhancing substance to gain an unfair competitive advantage is a serious form of cheating, in addition to being a violation of the law.
SHAYS: I'll just say what -- the irony of this for me as well is because of the Black Sox scandal, we established a commissioner so that they would take -- or he or she would take decisive action.
And yet we have a circumstance where we banned steroids in 1991 but didn't have a testing process until 2003.
And when we were asking in our hearing nearly three years ago what the procedures were, they basically said they weren't in writing. And then we found out they were in writing, but they said it was a draft.
And then when we got to see what was in writing, and it wasn't a draft, it was a suspension or a fine. So someone could pay a fine and you'd never know about it.
Let me ask you about Mr. Palmeiro. This case seems to describe to me a continued failure on the part of the commissioner and Major League Baseball to come to grips with this issue.
Was he found to have taken drugs before he hit his 300th hit?
MITCHELL: I'm sorry, before what?
SHAYS: He had his 3,000th hit -- Mr. Palmeiro. Is this a case you're familiar with?
MITCHELL: I'm familiar with the case, but the test concluded that steroids were present in his system. I don't know whether a test can tell precisely when the steroids were...
SHAYS: No, this is the issue, and I'll...
MITCHELL: ... placed into the system.
SHAYS: ... end with this, because I can ask the next panel. What I will want to ask the next panel is when was he found to have taken the drug, the drugs? Was it before or after he had concluded his 3,000th hit?
MITCHELL: Yes, he was tested before he received his 3,000th...
SHAYS: And found to -- and it was a positive test? And it was a positive test.
SHAYS: And Major League Baseball kept it quiet until he hit his 3,000th hit, is that correct or not?
MITCHELL: That I don't know. Someone behind the scene knows, so I think that's a question for Major League Baseball.
SHAYS: Well, then let me quickly ask, should the...
WAXMAN: Mr. Shays, your time has expired, and we're on a very tight schedule.
WATSON: I want to thank the chair and the ranking member for your efforts to thoroughly investigate the topic of illegal steroid and hormone abuse in Major League Baseball.
I also want to commend Mr. Selig, because the Mitchell report is an important tool for the MLB, especially for the reason that you, Senator Mitchell, conducted your investigation independently and released the report unedited by the commissioner's office or the players' union.
And again, I want to caution that although comprehensive, the Mitchell report is most -- it's not completely exhausted of the situation.
So in an effort to take this to another level, I want to focus on the responsibility that major league sports groups, high-profile athletes and the leaders in our society have to the general public.
They must be held accountable to the message we send to other athletes, college students, impressionable high school young adults and small children, and people serving in the position of authority and leadership, and this includes sports personalities, who young people seek to emulate in every way.
And our media-saturated society must always be critically aware of the consequences of their actions and statements.
Now, Major League Baseball does have well-intentioned programs in the field, and I want you to comment -- I'll just make my statement, and whatever time we have left, Senator, I would like you to comment.
For example, the Compton, California, base legacy of the late Congresswoman Juanita Millender-McDonald, a dear friend and a really competent colleague -- and thanks to the partnership of Congresswoman Millender-McDonnell and Jimmie Lee Solomon, who's here, and baseball Commissioner Bud Selig -- and Major League Baseball built its first baseball academy for urban minority children.
There's nothing like it anywhere else in the country. And on the campus of Compton Community College, the baseball academy brings 2,000 Los Angeles area youth per year to play ball, study academics and learn a vocation.
And I look forward to the program's expansion into my neighboring district in the center of Los Angeles. We call it South-Central Los Angeles.
This is a very positive program, but illegal drugs in sports must be eradicated for the messages to truly sink in with our youth. And so I'd like to see some push behind the proliferation of such a program -- and the remaining time, would you comment?
WATSON: And thank you so very much for your dedication and your work.
MITCHELL: Thank you for your kind remarks. I wholeheartedly endorse your suggestion that such programs gain support and proliferate around the country. It is of critical importance.
Reference was earlier made to Don Hooton, who's here. I met with him. I've listened to his message. He's gone through a painful -- as have other families who are here.
I think it is a very serious problem, and it can't be solved solely by the professional leagues themselves. That's the point I tried to make earlier. This goes far beyond baseball or any one organized sport.
It's a broad societal issue and will require a broad response at every level of society. And grassroots programs of the type you describe at Compton are just what's needed all around country.
WATSON: Thank you so much, Senator.
WAXMAN: Thank you, Ms. Watson.
SOUDER: Thank you, Mr. Chairman.
I have a few questions that go to the fundamental question of whether baseball can, in fact, regulate itself. And I want to ask several of them.
If you can't get a full, complete answer in, perhaps you could answer for the record, so it's part of the official record.
MITCHELL: All right. I'll be happy to do that, Congressman.
SOUDER: First, I want to say that the one challenge is this code of protection, this wall of silence that you were met by players was a horrific and terrible role model for Americans all over this country and kids, because we could not prosecute any drug abuse in America if Americans followed the pattern that baseball players did.
That drug abusers and the drug dealers being protected in this way doesn't help the drug abuser, and it harms potentially innocent people and calls into question really how you do collective bargaining.
When they wouldn't respond to you, they won't respond to Major League Baseball -- I mean, literally one either former our current player coming forth is a humiliation. If that were followed by other Americans, we would be in a disaster in our society.
Now, a couple of things. You mentioned on page 309, just before you wind up, that there were other trainers -- Kirk Radomski had mentioned that. There were probably others that came through.
It's pretty clear that the major breakthroughs came because of the BALCO investigation. There was really no legal breakthrough. You didn't have subpoena power. You didn't have the ability to grant immunity, which we usually work with in narcotics cases.
Do you believe that we could actually find out -- because most of this stuff is two years old, not because we have any proof that it's not ongoing. It's because that's when BALCO investigations lost our key people.
Can this be done without Justice Department -- and find out whether it's going currently or not currently -- if you don't have immunity and you don't have the ability to subpoena to find out even what's happening currently?
The second part of my question is did you in the course of -- and this goes to management culpability.
SOUDER: Obviously, the abuser is an abuser. But did you look through e-mails and discussions with the management to find out what they knew, whether they were discussing it, whether they had, in fact, some knowledge that they didn't come forth, and because there wasn't really a lot of that?
You allude to the fact that everybody was involved in this. But if, in fact, under pressure, management can't be trusted to make the decision, this becomes a huge challenge in how we go forward, similarly with the trainers.
The trainers -- it's clear from the statement about Radomski -- they are under the employment of the managers, not under the collective bargaining agreement of labor. Did any of them come forth? If they didn't come forth, why wasn't their management pushing them to come forth?
I have heard from many sportswriters in the first round and in this round who say they saw the stuff in the locker room. They know the trainers were there. Why wouldn't they talk, because they weren't part of the collective bargaining agreement?
MITCHELL: We interviewed over approximately 700 witnesses. A very large number of them were employees of Major League Baseball clubs who were required to participate in interviews as a condition of their employment. And they included many of the persons in the categories that you described.
As I note in my report, quite a number of witnesses provided testimony that we judged to be not credible, in the sense that many said, "I didn't know anything about stories. I never saw anything. This is the first discussion I've ever had involving it."
But a large number came forward, and we also talked to a large number of former persons in the employment categories that you described.
And so I think the comments made that the report is not exhaustive, in the sense that it does not include every single person who used steroids, I don't think it's ever possible to get to that level. It does provide a substantial basis for describing the era as it exists.
One final comment, Congressman, on the issue of trainers and other medical personnel. I repeat what I said earlier: They are subject to certain legal and ethical constraints on what they can and cannot disclose about persons whom they served in that capacity. And that has to always be taken into account in trying to achieve the proper balance.
SOUDER: Can that be done, because of HIPAA and all that type of thing? Can that be done in any format other than the Department of Justice? In fact, won't that come up in future baseball enforcement?
MITCHELL: Yes, it's very difficult to do in the absence of the power of compulsion. I've prosecuted at the state level. I was the United States attorney for Maine and a federal judge, and I have now been through this experience.
And I can tell you, there's a huge difference between conducting an investigation when you can compel testimony and documents and when you have to simply ask for them, huge difference.
WAXMAN: Thank you, Mr. Souder.
LYNCH: Thank you, Mr. Chairman and the ranking member.
Thank you, Senator. And as an Irish-American, I appreciate all your great work in Northern Ireland, as well, although I find it difficult to accept the analogy to what we're doing here.
Let's go back to the previous point about the difficulty of an investigation without the ability to compel. You had very limited tools at your disposal, and still I am quite impressed with the amount of information that you've come up with here.
Could I ask you, what percentage of your report or what portion of your report would you consider the result of the assistance given to you and your commission by Mr. Radomski and Mr. McNamee?
MITCHELL: We made no effort to categorize it in percentage terms on that basis.
LYNCH: Well, let me put it the inverse then. How successful do you think you would have been without it?
MITCHELL: Not as successful as we were with them.
LYNCH: OK. All right, here's what I'm getting at. You conducted this as a voluntary investigation.
From this side of the dais, this is an investigation regarding the Controlled Substances Act, the federal Controlled Substances Act, and you were compelled to conduct this investigation without tools, without the subpoena power, without the ability to plea bargain.
And it seemed to me, in reading the report, that a lot of information came down, a lot of people were named as a result of what Mr. Radomski and what Mr. McNamee brought forward.
Now, their testimony, unlike what you were trying to compel, was not voluntary. They cooperated as part of their plea bargain agreement.
And so the question -- my first question to you is, how fruitful or how worthwhile do you think a further investigation might be conducted by someone else, but with the aid of the ability to subpoena, with the prospect of criminal charges, and with the ability to plea bargain?
MITCHELL: I respectfully do not agree that this was an investigation into the Controlled Substances Act. That was a necessary part of it, since many of the acts involved violated that law and other laws.
But this was a private investigation conducted for a private entity, Major League Baseball, in an effort, first, to response to the request of the chairman of this committee and the committee as a whole and, secondly, to lay the foundation for policies to reduce or eliminate the use of such substances in the future.
Let me just say that it is the policy of the United States government, and has been for many years, not to prosecute individual users of some illegal substances, but to concentrate prosecutorial resources on manufacturers, distributors and dealers.
That's the case today. In the last few years, 250 professional baseball players have been publicly identified as having tested positive in drug tests and suspended, most of them in the minor leagues, because that program has been going on longer, some in the major leagues.
Not a single one has been prosecuted, not a single one, even though the evidence was public and known. That's because we have pursued a policy in this country for decades that we ought to be concentrating on the distributors and the dealers.
Now, if members of Congress believe that is a wrong policy, then, of course, it is within their power to pursue a change in that policy. But if you do that, you'll go back to the arguments made 20, 30, 40 years ago when this policy was first initiated about how best to allocate scarce government and prosecutorial resources.
LYNCH: Well, and yielding back my time, Senator, I just want to say that I think there's a distinct differences between these individuals, these professional athletes, represented by counsel, that have agents, that have a lot of resources, who are not unwittingly being induced to use these drugs, but are seeking them out for a decided advantage.
This isn't some drug pusher going into a neighborhood preying on adolescents. These are adults. These are people who have the resources, the skills, the ability to discern what is good for them and what is not good for them.
And they are deciding to use these drugs at a decided advantage, because there's a monetary incentive there, a distinct monetary incentive for them to cheat.
And I'll yield back my time.
Thank you, Senator.
MITCHELL: Thank you, Congressman.
WAXMAN: Thank you, Mr. Lynch.
TURNER: Thank you, Mr. Chairman.
And thank you, Senator, for all of your work on this.
MITCHELL: Thank you.
TURNER: And I want to echo the comments of those who've gone before me on this panel. The most important issue is how this reflects to our kids and how from this their views are formed of drug use.
In using your analogy on Northern Ireland, you indicated that what we need to do in this is turn the page, get it behind us, and go forward. But you also said that the Players Association was largely uncooperative.
In order to turn the page, we have to at least have an agreement on shared values, but yet you have great optimism that that could be done. Could you explain that to me?
MITCHELL: Yes, I did say the Players Association was largely cooperative in my investigation.
I also said that, in 2002, the Players Association reversed its longstanding policy of opposition to a mandatory, random drug-testing program and agreed to one, the program that exists today.
That was a very significant step forward. And I think they ought to get credit for that, as well as concern about the other aspect of it.
I also pointed out that, since 2002, the Players Association and the commissioner and the clubs on the other hand have agreed to a number of steps to improve and strengthen the program, even though they were not obligated to take them up, because their collective bargaining agreement had not expired.
MITCHELL: It's a policy of the United States to encourage collective bargaining agreements when employees are represented by unions. And to ensure stability, economic stability, once an agreement is entered into, the parties are not obligated to take up any of the provisions until the agreement expires.
Notwithstanding that, both sides have made significant changes, some of which, Congressman, came to light in the course of our investigation. As we reported to them and asked them questions about it, they took steps to correct it on an ongoing basis.
TURNER: Thank you, Senator, because I do think that with all the work that has been done, and our chairman and ranking member need to be congratulated and, of course, for your work, there does have to be some focus on the future and what changes are being made so that we do have an ability to have a different measure to our kids, and I appreciate your work to help accomplish that.
MITCHELL: Thank you, Congressman.
WAXMAN: Thank you very much.
The chair now recognizes Mr. Yarmuth.
YARMUTH: Thank you, Mr. Chairman.
WAXMAN: Before you begin, Mr. Yarmuth. Senator Mitchell, I know you had hoped to get out by 11. We have five members and there are some important issues that our colleagues want to cover. If you would give us another 20 minutes, I would appreciate it.
MITCHELL: That's fine. Yes, I would, Mr. Chairman.
WAXMAN: Thank you.
YARMUTH: Thank you, Senator, for your testimony and for your report, although I must say, as the representative of Louisville, Kentucky, I'm disappointed the report didn't deal with the performance-enhancing qualities of the Louisville Slugger. I'm sure you will take that up at a further time.
MITCHELL: There's been a lot of publicity and speculation about bats in recent years, as you know.
YARMUTH: Yes. But I do want to focus on the issue of the concept of performance-enhancing, because you mentioned in your testimony, you say the players apparently believed -- they took HGH because they apparently believed that it enhanced their ability to recover from injuries and to combat fatigue.
And I think I'm focused, as some of the other members are, Congressman Cummings and others, on the impact, the influence on our young people and I'm sure that our young people are looking at this whole issue of performance enhancement and looking at Barry Bonds and some of the other players who have been named and saying "I could hit more homeruns, I can throw faster pitches."
And I'm sure you're familiar with the op-ed piece that was in the "New York Times" right after your report came out, a sociologist and a statistician analyzed all the players mentioned in your report and found out that there was no discernable statistical difference between their performance before and after they were identified as having taken these enhancement substances and, in fact, there was a slight drop-off, if anything.
So I'm wondering whether, in the course of your investigation, you felt that we really knew enough about what these substances really did, because in terms of providing education for our kids. If, in fact, there is no performance, I mean, in terms of batting average or ERA or those types of statistics, maybe the kids would be less prone to use them if we really found out that there wasn't any quantitative difference in their performance.
Would you comment on that, please?
MITCHELL: I believe that the subject is very complicated and as often happens in life, a phrase has entered into the universe of vocabulary of our society -- performance-enhancing substances.
If you look at and talk to the players who use them, you find that the motives, while they ultimately involve performance, don't always do so in an immediate sense. A lot of it is recovery time, recovery from injury, recovery from strenuous workouts, the ability to work out more often. A lot of it is psychological, "It made me feel good."
Each of us is familiar with that effect. When you walk in to give a speech before 5,000 people at a convention, if you're feeling good, you're going to do a much better job than if you're not. There is a huge placebo effect all throughout American medicine, not just in terms of athletes or performance-enhancing substances.
So I think the subject is more complicated than a simple phrase represents.
However, I think there is also, the other side, substantial evidence that in at least some individual cases, performance was enhanced as a consequence. It might have been psychological, it might have been recovery.
I happen to think, having tried to play baseball myself as a young man, that anybody who makes it to the major leagues is a highly talented person. You have to be a great athlete to get to the major leagues in any event.
So I don't think anybody who gets to the big leagues needs a steroid or some other drug to be able to hit or throw or field a baseball. What they were looking for was a competitive advantage in a highly competitive situation.
In my report, we quote one player who said one of the biggest gripes is "This other guy's taking steroids and he's taken my spot on the roster." And so I think it's more complicated than the phrase itself suggests and as so often happens in life, the motives of the individuals who take them are not always identical.
Indeed, some of them cite different reasons for taking different substances.
YARMUTH: Thank you, Senator.
I yield back.
WAXMAN: Thank you, Mr. Yarmuth.
MCHUGH: Thank you, Mr. Chairman. And, Senator, like all my colleagues, I deeply appreciate...
MITCHELL: Thank you.
MCHUGH: ... not just this work, but all the work you've done and an amazing career.
In both your written as well as your presented testimony here today, you've talked about, in your words, "a truly independent administrator."
I wonder if you could define for the record what you mean by that, particularly with respect to the current administrative approach by Major League Baseball.
MITCHELL: Right. Currently, all of the professional, the major professional sports in the United States operate their programs in a way that retains significant authority in the league and the Players Association.
For example, in baseball, the person who holds the title of independent program administrator may be dismissed at any time by either party for any reason or for no reason.
That person does not have authority over important elements of the program -- the testing regime, in season and off season, the laboratories to be used to analyze the results, a range of issues.
So while he has the title independent program administrator, I do not believe that he qualifies as independent as that term is understood in terms of best practices in the field today.
I cited a couple of examples, but I also said, and I believe this, that the test is not the form adopted or the words used to describe it. The test is the substance of the authority that the person actually has and that's what the two parties, the Players Association and Major League Baseball, the Club, have to decide on what to do.
They're perfectly capable of devising an alternative method, so long as it truly meets the test of independence. And I don't think you'll be able to answer that until you see which process they adopt.
There are models now which exist outside of baseball, which I cited.
MCHUGH: Thank you. I would certainly agree with your observation that both Major League Baseball and the Players Association have come a long way and have acted in a forward-leaning way to implement many of the provisions of your report.
Have you had a chance to sit down with Major League Baseball and the Players Association and talk about the remaining provisions in your report? Do you intend to do that, if you have not? And whether you have or have not, how do you view the likelihood of all of your recommendations being implemented in a timely manner?
MITCHELL: I've spoken by telephone twice each with the commissioner and with Mr. Fehr prior to today and have talked with them and, in both cases, we agreed that we would talk in the future.
I have to say that I'm torn. My work is completed and I'm trying hard to get back to other things in my life. So I don't want to appear to be volunteering to continue this, my participation any longer, but I certainly will do anything...
MCHUGH: So noted.
MITCHELL: ... anything that I'm asked.
My understanding is that they have begun discussions on the issues within their jurisdiction and, as I noted in my remarks, the commissioner has unilaterally adopted the recommendations that I made which he had the authority to act upon unilaterally.
MCHUGH: So you're optimistic that the entire report, in due course, will be implemented.
MITCHELL: This is not an easy issue. Let's just look at the facts.
There are 30 clubs. There are dozens of officials.
MITCHELL: You have constituents. The commissioner has constituents.
There are 1,200 major league players. They're scattered all over the world. They won't be getting together until some time in February and March at spring training. Mr. Fehr has constituents.
So just as you go home on weekends, and hold town meetings, and consult with your constituents, and try to get a sense of what they're feeling, they've got to do what is, in essence, the same thing.
And I think they ought to be given the opportunity to do that and then see what they can accomplish. And then everybody, members of the committee, members of the public, members of the press will have a chance to judge and evaluate what they've done.
MCHUGH: Thank you, Senator.
Thank you, Mr. Chairman.
WAXMAN: Thank you, Mr. McHugh.
NORTON: Thank you, Mr. Chairman. And thank you particularly for your rigorous follow-up on this issue. We all appreciate what you've done.
Senator Mitchell, and as I hinted to you before the hearing, in your spare time, Congress could undoubtedly use your services with a few disputes I could name.
I'm particularly pleased that your report has come up before baseball returns to Washington this spring.
I want to ask you a question about the naming of names, which I think is one of the most valuable parts of your report. And you named 90 players who you alleged used steroids and human growth hormone.
It's interesting to note that few have denied the allegations since. I'm going to ask you about one who has. And to their credit, some have come forward to say that they, indeed, were involved in such use.
I'd like to give you an opportunity to respond to the criticism, however, to the naming of players. And some have alleged that you had too little corroboration in doing so.
Could you tell us what standard of evidence you used in deciding when to name players and when not to name players? Were there some you did not name because you did not think that they had met whatever standard you were using?
MITCHELL: Right. I carefully reviewed and considered all of the information that we received about the purchase, the possession, or the use of performance-enhancing substances by Major League Baseball players.
We received information from a wide variety of sources. And, of course, in every instance, we attempted to establish the truthfulness of the information that we received before anything was placed in our report.
Since the commissioner had made clear from the outset that he wanted this report to be public, we obviously understood that our responsibility was to learn as much as we could and to make public that which we could, in response to the mandate to accurately, fairly and thoroughly provide all the information possible.
Now, we received information from so many sources that it would take more than time permits here in this limited time to deal with every single source of information.
Some of it was documents; some of it was canceled checks, mailing receipts, admissions by persons. A significant number of persons admitted the allegations over the course of time. Some of it, as has been noted previously, came from the testimony of two men, Kirk Radomski and Brian McNamee.
NORTON: Well, let me ask you, Senator, because I think that those are precisely the kinds of sources we would have expected you to use under the circumstances. But let me ask you about the most controversial name in your report, perhaps, Roger Clemens, seven-time Cy Young Award-winner, whom you say was a user of steroids and human growth hormone.
Now we see Mr. Clemens coming out and strongly denying these allegations, and doing so publicly. Why do you think he refused your invitation to talk to you before the release of the report?
MITCHELL: I do not know why. As I stated earlier, Congresswoman Norton, we followed the legal process, which we're required to follow, and that is notification of then-current players through the Players Association.
As I described earlier -- and I will not repeat, so as not to take up all of your time...
NORTON: In fact, let me go forward...
MITCHELL: ... the way it turned out, there were two letters that...
NORTON: He obviously hasn't told you, and he hasn't told us. That's why I wondered.
But could I ask you about Mr. McNamee, on whom you relied heavily for him and perhaps others? Why do you believe that Mr. McNamee was a credible witness? And have you learned anything since the report that would lead you to re-assess your conclusions regarding this credibility that you found in Mr. McNamee's allegations?
MITCHELL: Since the report was issued, Andy Pettitte has said that Mr. McNamee's statements about him were true. So they confirmed the testimony.
NORTON: And you believe he was a credible -- you believe he was credible on Roger Clemens why?
MITCHELL: Well, let me describe the process. We made every effort to establish the truthfulness of his testimony.
Through his attorney, he entered into a written agreement with the United States Attorney's Office for Northern California. That agreement provides that McNamee will cooperate with that office.
No truthful statements can be used against him in any federal prosecution by that office. If, however, he should be untruthful in any statements made pursuant to that agreement, he may be charged with criminal violations, including making false statements, which is a felony.
As part of his cooperation with the U.S. attorney's office and, at his request, Mr. McNamee agreed to be interviewed by me and my staff and to provide truthful information.
I interviewed him three times, once in person, twice by telephone. His personal lawyer participated in each of the interviews.
Also participating were federal prosecutors and agents from the FBI and the Internal Revenue Service.
I told him at the outset of each interview that I wanted nothing but the truth, no exaggeration, no minimizing. Just tell the truth.
Also on each occasion, Mr. McNamee was informed by the federal officials present that if he made any false statements during these interviews he would subject himself to further criminal charges.
WAXMAN: Senator Mitchell, let me...
MITCHELL: I just want to make one final statement. Thus, Mr. McNamee had an overwhelming incentive to tell the truth.
And if I could just finish, Mr. Chairman, the third and last interview was in early December 2007, just before we released the report. The purpose was to make absolutely certain that we had accurately understood and reported his statements to us.
And to make certain that we'd achieved that objective, a senior member of my investigative staff read to him verbatim the portions of the report that were attributed to him.
At the conclusion of the interview, as we had at the beginning, we reminded him that all we wanted was the truth. We asked him if he was completely comfortable with the truth and accuracy of the statements which would be included in the report.
And he said that he was. He had a couple of minor suggestions which had no material effect on the report, and we proceed on that basis.
WAXMAN: Thank you very much.
MITCHELL: And as noted, I asked Mr. Clemens to meet with me to give him an opportunity to respond to the allegations, and he declined.
WAXMAN: Thank you, Ms. Norton.
Senator Mitchell, in other words, despite the public presentation by Mr. Clemens that the testimony was not accurate, you continue to feel comfortable with Mr. McNamee's credibility?
MITCHELL: We believe that the statements provided to us were truthful.
WAXMAN: Thank you very much.
MCCOLLUM: Thank you, Mr. Chair.
Senator, if players using these drugs constitutes cheating, and owner and league officials knew about the use of these illegal drugs -- as it is clear from the report -- then it would appear, for more than a decade, millions of baseball fans were subject to fraud, fixed games played by drug users that illegitimately altered the outcome of the games.
It's my opinion we're here in the middle of a criminal conspiracy that defrauded millions of baseball fans of billions of dollars over the past 15 years.
MCCOLLUM: If baseball is simply another form of entertainment, like going to a concert or attending a professional wrestling match, in which an audience attends solely for pleasure, and they do not attend under the presumption of some form of fair athletic competition, then there would be no difference between Barry Bonds and Britney Spears.
But in fact, Major League Baseball is sold as a legitimate competition in which the outcome of the game is dedicated in a field of transparency and where every fan can watch it.
The fact that league officials, owners, players, and players union all knew of the massive illegal drug abuse problem that existed and continues to exist with the use of human growth hormones -- this demonstrates to me fraud to millions of baseball fans.
Every fan who has bought a ticket to see the game for the past 20 years has been witness to a fraud.
Baseball is sold as America's game -- home town, apple pie. But in fact, it appears that it has been rooted in cheating for profit. The more home runs hit, the more fans in the seats, the more money in owners' pockets and the bigger salaries for players.
Major League Baseball is filled with lawbreakers and co- conspirators who ignore the problem and actively fuel the problem.
In your report you mention two items which I'd like you to elaborate on. David Segui of Baltimore Orioles, on September 24th, 2004, told his general manager, Jim Beattie, that he was going to go see a doctor in Florida to obtain human growth hormone.
This information was related to the second general -- the second Orioles general manager, Mike Flanagan. So two of the top Oriole executives knew about this drug use.
And your report notes that no one in the Orioles organization reported this admission of use of growth hormone to the commissioner's office.
You also discuss another incident, one surrounding Greg Anderson and Barry Bonds' personal trainer. The Giants trainer, Stan Conti, raised concerns about Anderson supplying players with steroids to the team's general manager, Brian Sabean.
So my question to you is what did these individuals do with this information. For example, did Brian Sabean take this information and ask to have Mr. Anderson investigated?
You spoke to the Giants' owner. What did the Giants' owner tell you about this? Did Mr. Beattie or Mr. Flanagan give you any insight as to why they failed to report this very important information to the commissioner?
To your knowledge, has anyone else in the Orioles organization who knew about the use of human growth hormone -- what have they done?
And I thank you for your work on this, because I want to get America's game back on track.
MITCHELL: Let me state as a general matter at the outset, Congresswoman, that I very much share the concern that you expressed about the use of performance-enhancing substance in baseball.
But I think we all have to recognize that this goes far beyond baseball and goes far beyond the modern era. One of the things I did in preparation for this investigation was to read some of the history.
And you can go back to the original Olympics many thousands of years ago to find allegations of people in competitive sports using material to try to gain a competitive advantage.
So I think we should be clear this is not unique to baseball. This is not unique to the modern era. This has existed for a very long time. You're all familiar with the...
WAXMAN: Senator Mitchell, let me interrupt you, because we're trying to help you get to your train.
WAXMAN: Could you address the specific questions? Then we have one last question.
MITCHELL: Yes. We don't have any more knowledge about the incident that you referred to other than -- we put what we knew into the report, and we have no information that any other Orioles official was aware of the allegations.
WAXMAN: OK. Thank you very much.
WELCH: Thank you, Mr. Chairman.
Senator Mitchell, I agree with the wisdom of your judgment to look forward, not look backwards. I also agree with your report that the minority of players who used these drugs violated federal law and baseball policy and distorted the fairness of the game.
The question I have is this. Do you believe that a Major League Baseball player who did use performance-enhancing drugs and is the holder of a Major League Baseball record -- most home runs, most batters struck out, most stolen bases -- should be stripped of that record?
MITCHELL: Congressman, I've done several of these investigations, and in every instance I've been invited to express opinions that go far beyond my mandate and far beyond my authority. And therefore, I have adopted and pursue a policy of restraint.
I answered the questions I was asked to answer in the report. It really is not my responsibility, nor do I have any special knowledge or insight that entitles me to -- my opinion to greater weight than yours or any other fan on the subject you expressed.
That's the responsibility of other officials. That's where it should rest. And I think that I should limit myself to what I was asked to do, which I've done.
WELCH: OK. Just a few questions about the role of Major League Baseball itself.
WELCH: According to your report, the 1998 winter meetings, Dr. Millman, Robert Millman, the medical director of Major League Baseball, gave a presentation that focused on the benefits, not the risk, of taking testosterone, a steroid.
WELCH: Can you elaborate on why the medical director would be doing this, which appears to be completely in conflict with the policy?
MITCHELL: I'm not able to elaborate. We made repeated attempts by telephone, by certified mail and otherwise to contact Dr. Millman. He did not respond. And therefore, we were unable to ask him about that and some of the other information contained in the report.
WELCH: There were a couple of other incidents in your report of apparent complacence by Major League Baseball.
When the Florida Marlins were presented with steroids that were found in the locker of Ricky Bones, that was not reported. In fact, the steroids were returned to him.
WELCH: Another case where the personal trainer of Juan Gonzalez, as you know, an MVP, was caught by Canadian customs with syringes. Do you know what happened in that situation?
MITCHELL: What we found out we put in the report. Beyond that, we don't have any information.
I think it's fair to say that, as we described in the report, the baseball policy requiring reporting of information was not widely known or understood and not widely followed during the era described.
WELCH: OK. Your report does provide examples of Major League Baseball having what I think could be called a culture of silence, the desire of teams to win games at all costs, and the historic inability of the commissioner's office to take the problem seriously for longer than it should have.
Any comments on the role of Major League Baseball in essentially, through this action and inaction, aggravating what was already a very dangerous situation?
MITCHELL: I made my comments, Congressman, in the report and in my opening statement, and I thought about those words and believe they best and most accurately and most fairly characterize the circumstance.
I yield my time. Thank you.
WAXMAN: Thank you very much, Mr. Welch.
I do want to point out that Mr. Davis has been sitting here a long time, and I regret the fact that he's not going to be able to have time to ask any questions.
Are you saying you're willing to have him ask some questions?
MITCHELL: This is the last one?
MITCHELL: Go ahead, Mr. Davis.
WAXMAN: Mr. Davis?
D. DAVIS: Thank you very much, Mr. Chairman, and I want to thank you for your continuing probe of these great issues of significance to the American people.
Senator Mitchell, I want to commend you and your colleagues for the tremendous work that you've done in preparing this report, and I certainly appreciate your giving me these last opportunities.
It is my feeling that Major League Baseball has failed miserably in policing itself relative to the use of illegal drugs and the proliferation of performance-enhancing substances by Major League Baseball players.
The report that you have put together implies certain things to me. My question is do you think that the report suggests that Major League Baseball has the inability to actually police itself?
Or is it going to require further legal legislative action to get beyond the discussions and get beyond where we are to something actually being done that's going to stop the proliferation?
MITCHELL: I do not believe that the report leads to the conclusion that Major League Baseball is incapable of policing itself.
To the contrary, I believe that what has happened in baseball is quite similar to what has happened in almost every other sport, including the Olympics: a slow start to recognize the problem, an ineffective beginning, but gradually an effort increasing in intensity and effectiveness that I believe can be successful.
I think it's very important that you don't take one sport and think that it's unique in that respect. You go back over the Olympics, you go over all the other sports, they've gone through the same process of trial and error, getting started, trying to figure out what to do.
So I believe that, in the past five years, beginning with the adoption of the mandatory, random drug-testing program, and continuing through a series of changes and improvements in that program in an effort to make it more effective, to the contrary, MLB and the Players Association have demonstrated an ability to deal with the problem, not as effectively as I or you would like, not as effectively as they would like.
And since the problem is dynamic, it's constantly changing, at this very moment, in various parts of the world, there are people trying to figure out ways to make new drugs that will enhance performance and not be detectable.
You have to keep at it, and you have to adopt the best program, and you have to be flexible. I believe they can do it; I hope they will.
D. DAVIS: Let me just ask, how cooperative would you say that the officials of Major League Baseball were during your investigation? And how cooperative were the Players Association?
MITCHELL: The commissioner was fully cooperative. The clubs were cooperative. The Players Association was largely uncooperative.
WAXMAN: Senator Mitchell, you've been very generous with your time, and we very much appreciate your work and your presentation to us.
WAXMAN: The committee is now going to take a 10-minute break before we call forward our next panel.
WAXMAN: The committee will reconvene.
Our next witnesses need no introduction to this committee. Commissioner Bud Selig and the President of the Players Association, Don Fehr, have testified before and are the leaders of Major League Baseball.
Don Fehr has led the Players Union since 1985 and Bud Selig has been baseball's commissioner since 1992.
They both are familiar with our committee rules and we welcome you today and, as you know, we swear in all the witnesses. I'd like to ask, if you would, both to stand and raise your right hand. Do you solemnly swear that the testimony you'll give before this committee will be the truth, the whole truth, and nothing but the truth?
Thank you. Our record will indicate our witnesses answered in the affirmative.
We're pleased to have you here and we're looking forward to your presentation and the opportunity to ask questions.
Mr. Selig, why don't you get started first? There's a button on the base of the mike. Be sure it's on.
SELIG: I would like to thank the chairman, the ranking member and the committee members for inviting me to testify today.
I have a number of people here with me today that I'd like to introduce. First, our adviser, Dr. Gary Green, of UCLA, one of America's leading experts on performance-enhancing substances; Steve Pasierb, from the Partnership for a Drug Free America; Donald Hooton, been here before, the head of the Taylor-Hooton Foundation; Peter Angelos, the owner of the Baltimore Orioles, who has been at the table for the last two rounds of labor negotiations; Randy Levine, the president of the New York Yankees; and, Stan Kasten, the president of the Washington Nationals.
On March 30, 2006, I asked Senator Mitchell to conduct a comprehensive investigation of the illegal use of performance- enhancing substances in baseball. I decided to do this investigation so that no one could ever say that baseball had something to hide, because I certainly did not.
Baseball accepts the findings of this investigation and baseball will act favorably on its recommendations.
Before I turn to the Mitchell report, it is important to recall the progress we have made. Baseball now has the strongest drug testing program in professional sports. Our penalty structure is the toughest. We have year-round unannounced testing, including testing on game days, both before and after games.
We use the Olympic certified laboratories in Montreal and UCLA for our testing and the day-to-day administration has been delegated to an independent program administrator.
A whole generation of players has grown up under our strict minor league testing policy, which is entering its eighth season. As a result of all this, steroid use in baseball today has dropped dramatically from more than 90 violations in the 2003 survey test to just two steroid positives in 2006 and three in 2007.
This improvement is similar to what we have observed in our minor league program, where positive test results declined from 9 percent in 2001 to less than one-half of 1 percent in 2007.
Nonetheless, I felt a need to appoint Senator Mitchell to deal with the past. Nothing is more important to me than the integrity of the game of baseball. Baseball needed to fully, honestly and publicly confront the use of performance-enhancing substances by players.
I knew that an investigation would be an extraordinarily difficult undertaking. I knew that an investigation would be painful for all of those associated with the sport.
SELIG: No other sport had confronted its past in such a way, but I knew that baseball must undertake that journey in order to preserve the integrity of our game and maintain credibility with the millions of baseball fans throughout the world.
This investigation had a second purpose, as well. I'm committed to keeping Major League Baseball's program the strongest in professional sports.
Indeed, Senator Mitchell confirmed that our current program has been effective and that detectable use of steroids appears to have declined. But I knew from experience that the development of a state- of-the-art drug program requires continual evaluation and refinement.
My desire was for Senator Mitchell to provide us with recommendation and insights to help make additional progress in the ongoing battle against the illegal use of performance-enhancing substances in sports.
I gave Senator Mitchell complete independence to conduct the investigation, to consider any evidence that he deemed relevant, and to follow that evidence wherever it may lead.
It is extremely unusual to afford a third party such unfettered discretion to conduct an investigation and to make findings public. Yet, I believe that such extraordinary steps were necessary to satisfy my goal of conducting the most exhaustive and credible investigation of this subject that was within my power as the commissioner.
As a lifelong baseball fan, I am deeply saddened and disappointed by the conduct of the players and many other individuals described by the senator in his report.
On the other hand, as the commissioner of baseball, with the responsibility for protecting the integrity of the game for future generations, I'm optimistic that Senator Mitchell's report is a milestone step in dealing with baseball's past and the problems caused by these dangerous and illegal substances in both amateur and professional sports.
Senator Mitchell's report, including his 20 recommendations -- which I fully embrace -- help point a way forward as we continue the battle against the illegal use of performance-enhancing substances.
I want to be clear that I agree with the conclusion reached by Senator Mitchell in his report, including his criticisms of baseball, the union, and our players.
I have personally agonized over this a thousand times and what could have been done differently, and I accept responsibility for everything that happens in our sport.
However, as Senator Mitchell found in his report, by August 1998, when the discovery of andro in Mark McGwire's locker, we immediately took a number of steps to lay the foundation for bargaining a joint drug program in the 2002 negotiations that included random testing for steroids.
These steps included efforts to improve regulation of dietary supplements such as andro and the introduction of a steroid education program.
In addition, in 2001 I unilaterally implemented a drug-testing program in minor leagues, which prohibits all schedule three steroids and required random drug testing.
After contentious negotiations in 2002, we finally reached an agreement that led to the first mandatory drug-testing program in baseball. I am proud of what we've done, but in hindsight we should have done it sooner.
The compromise we reached with the players on the 2002 drug program was not perfect. As Senator Mitchell reported, it was a necessary first step towards achieving the tough drug program that is in effect today.
And as Senator Mitchell recognized, our program has evolved since that time. In January 2005, with the agreement of the Players Association, we revised the drug program to add 17 substances as prohibited substances, including the addition of human growth hormone.
We also increased the penalties for a positive test. In March 2005, with the support of this committee, I sought the Players Association agreement to further increase penalties to a 50-game suspension for first-time offenders, 100-game suspension for second- time offenders, and a permanent ban for third-time offenders. I've also proposed adding stimulants, including amphetamines, as banned substances.
After months of difficult negotiations, the Players Association accepted my proposals in November of 2005.
I fully support each of the 20 recommendations for improving our program that Senator Mitchell included in his report. Almost all the recommendations do not require bargaining with the Players Association have already been implemented.
Just last week, we issued written policies that require all clubs to adopt a uniform, written policy for reporting information about possible substance abuse violations and certify to the commissioner's office that such policies have been complied with, require all major and minor league clubs to establish a system to log every package sent to players at its facilities, require background checks to be performed on all clubhouse personnel, and require all clubhouse personal to be randomly drug tested.
Also, last week we established a department of investigations to deal with the investigation of drug use.
Headed by well-credentialed former law enforcement officers, who are here today, who combine to bring over 50 years of experience, the department has established a hotline for the anonymous reporting of information concerning the use of prohibited substances and has already made initial contacts with law enforcement agencies to pursue continued cooperation.
Although the legal issues are more significant, we will also be developing a program to require top prospects in the major league draft to submit to drug testing before the draft.
Senator Mitchell also recommended certain changes to the joint drug program that clearly require the agreement of the Players Association. In the weeks since the release of his report, we've discussed each of these recommendations with the Players Association.
We have already agreed to eliminate the 24-hour notice that drug- testing collectors had given to the clubs. We have not yet reached an agreement on the other points, but I certainly will continue to press for an agreement to revise the program to adopt all of Senator Mitchell's recommendations.
I'm committed to a program that provides adequate, year-round, unannounced testing.
As commissioner, I recognize that baseball is a social institution. Part of our responsibility is to young people. We have been working closely with the Partnership for a Drug-Free America and the Taylor Hooton Foundation to educate America's youth and their parents about the dangers of performance-enhancing substances.
It is essential that we not only investigate and enforce our policy, but that we educate our players concerning the dangers posed by the use of these substances. As Senator Mitchell noted, improved educational program about the dangers of substance use are critical to any effort to deter performance-enhancing substance use.
Increasing awareness of these dangers of these substances is important not only for the health of the athletes, but also to protect the health of amateur athletes and our nation's youth, who themselves strive to be better on the field of play.
As Senator Mitchell described in his report, for the past decade MLB has conducted educational programs for players in the majors and minor leagues during spring training. We have stepped up these efforts in recent years, striving to find ways to make these programs more effective in reaching the players.
For example, in 2003, I hired Dr. Gary Green, who's seated right here, former director of UCLA's Intercollegiate Drug Testing Program, chairman of the NCAA's subcommittee on drug testing and drug education, and a USADA panel member, to develop and implement educational programs and materials on performance-enhancing substances.
Using Senator Mitchell's recommendations as a guide, we're making even further improvements to our educational program.
Senator Mitchell's report reveals there are those who intent on cheating and will continue to search for ways to avoid detection, such as turning to the use of HGH, human growth hormone, which is not detectable in a urine test. I'm committed to stop the use of HGH in our sport.
Along with the National Football League, baseball is funding an effort by Dr. Donald Catlin, one of the leading drug experts in the world, to develop a urine test for HGH. And we will be convening a summit of the best minds in sports and science to develop a strategy to address the use of HGH by players.
Just recently, we have joined with the United States Olympic Committee, USADA, and the National Football League in a new long-term program of research on performance-enhancing drugs.
Our initial commitment is for $3 million in funding. When a valid, commercially available, and practical test for HGH becomes reality, regardless of whether the test is based on blood or urine, baseball will support the utilization of that test.
I'm also here to ask for your assistance in this fight. The illegal use of performance-enhancing substances is a problem for baseball, but is a social problem that extends well beyond this sport or, frankly, any sport.
We welcome your participation in attacking the problem at its source. There are a number of bills that have been introduced that we wholly support, including Representative Lynch's bill, H.R. 4911, Senator Schumer in the S. 877, Senator Grassley's S. 2470, and Senator Biden's bill, S. 2237.
I'd like to personally thank Representative Lynch for introducing a bill that would make HGH a schedule three controlled substance, which I believe is an important legislative initiative.
SELIG: Even prior to the issuance of the Mitchell Report, we had made great strides in reducing the number of players who used performance-enhancing substances.
I'm confident by adopting Senator Mitchell's recommendations, by constantly working to improve our drug program, regardless of the effort or the cost, by pursuing new strategies to catch cheaters, by enhancing our educational efforts, we can make additional progress in our ongoing battle against the use of performance-enhancing substances in baseball.
The lessons from the past serve only to strengthen my commitment to make Major League Baseball program the strongest and most effective in sports.
Thank you, Mr. Chairman. I ask that a copy of my entire written statement be made part of the record.
WAXMAN: Thank you very much, Mr. Selig.
Both of your written statements will be made part of the record in their entirety.
Mr. Fehr, we're pleased to welcome you and we're looking forward to hearing from you.
FEHR: Thank you, Mr. Chairman.
Chairman Waxman, Ranking Member Davis and members of the committee, as you know, my name is Donald Fehr, and I serve as the executive director of the Major League Baseball Players Association. I appreciate the opportunity to speak with you today.
As I have previously testified before many committees but specifically this one three years ago, playing Major League Baseball requires talent, drive, intelligence, determination and grit.
Steroids and other unlawful performance-enhancing drugs have no place in the game, and we neither support nor condone the use of such substances by players or by anyone else.
We cannot change, but we can learn from, the past. Baseball's problem with performance-enhancing drugs was bigger than I realized. We understood that a number of years ago when we began the testing programs.
In retrospect, action should have been taken and probably could have been taken sooner. The Players Association accepts its share of responsibility for what happened. And as I indicated at my press conference following the issuance of Senator Mitchell's report, so do I.
Since our first joint drug agreement in 2002, and in particular since I appeared before this committee some three years ago, we have worked vigorously to rid the game of performance-enhancing drugs. And the evidence regarding steroids indicates, I believe, that we have been largely successful.
On behalf of the players I reaffirm the commitment to continue that effort. Today, we believe we have the best program in professional sports. It is a program that members of this committee and other members of Congress praised when it was agreed to and implemented.
It is independently administered, has state-of-the-art random unannounced testing procedures, and we use the universally acclaimed WADA-certified Olympic lab in Montreal to analyze the samples.
The penalties, as has been indicated, are the toughest in professional sports. And it is a program, as Senator Mitchell indicated, that we have worked to improve.
Over the last two years, even after the 2005 amendments, without any fanfare or controversy, we have agreed on several improvements, which brings me to human growth hormone. This is a difficult and perhaps a unique challenge.
There are currently no valid blood or urine tests for HGH. So what can be done and what have we done? Well, first we banned HGH. We've agreed to test for it as soon as a scientifically valid urine test exists.
We also have procedures which allow for players to be disciplined, suspended, based on evidence other than a positive test, and players have been suspended on that basis. This is the so-called non-analytical finding.
Should a scientifically accurate, commercially viable blood test become available, we will consider it in good faith. But as Senator Mitchell noted in his report, the blood test now being developed may be of limited practical utility.
And while the union has warned players for years of the risks associated with HGH and other of these substances, the parties can do more by way of education.
We have recently discussed with the commissioner's office having medical experts meet with players early this season to warn of dangers posed by HGH and other bad substances to reinforce that message.
But we can't do it alone. Abuse of human growth hormone, as I think the commissioner and Senator Mitchell have already mentioned, is not just a baseball problem. It's not even very much of a sports problem.
All one has to do to appreciate this is go onto the Google Web site, maybe after this hearing, and to type in the words "where can I buy HGH?" We did this a few days ago and we got 349,000 hits in a quarter of a second.
Ads for human growth hormone and related substances can be found widely distributed in periodicals that everybody reads.
Representative Lynch and others have introduced legislation to reclassify HGH as a Schedule III drug, making its treatment comparable to anabolic steroids. I assume that appropriate consideration will be given by the Congress to that bill.
Consideration might also be given to taking action in some form against the unlawful online sales and marketing of HGH and another of such substances.
Finally, as I have previously suggested, perhaps the Congress should examine whether the Dietary Supplement Health and Education Act -- DSHEA, as it is commonly known -- is being adequately enforced.
One of the members on the panel in his opening statement, or in one of the questions, suggested to kids buying stuff in stores. To the extent that that's true, and I think it is, that means it is available in stores and legally.
Senator Mitchell and his law firm were hired to write a report, and he served his client well. But I ask you to remember that this was a unilateral action taken by management.
As a result, we had no choice but to act as unions are required to act by federal law, to represent our members in connection with an investigation with potential disciplinary consequences. If we had done other otherwise, we would have violated our statutory duty of fair representation.
Even so, while the conduct of the investigation was ongoing, we continued to discuss improvements in our program with the owners.
Most of the media reaction to the report has focused on individual players and what they are alleged to have done. That's understandable.
But I would ask you also to recognize that the report contains no new allegations of improper drug use in 2006 or '07 when the current program was in effect.
In those two years we administered some 6,500 tests, with only five positive results for steroids. I think it's clear our program is working well with respect to steroids, which are capable of being detected.
I recognize that many of you hope that I will today endorse all of Senator Mitchell's recommendations. With respect, I ask that you adopt his suggestion that the parties be allowed time to discuss what can and should be done.
You can be assured that you have my commitment both on behalf of the organization and personally that the players will discuss all of those recommendations.
We have already begun those meetings, and they will need to be expanded to include not only staff but players, and the commissioner, as I am sure he will want an opportunity to express his views directly to the players.
Unfortunately, the situation has been muddied a bit by the commissioner's unilateral imposition of some of the recommendations. He did so even though these unilateral changes affect our members and even though we have never declined to discuss any potential improvements.
In addition, the suggestion is there that we should once again reopen our bargaining agreement. It goes without saying that no union -- and no management, for that matter -- takes lightly the suggestion by the other party that it should reopen the agreement before the term ends.
The contract is the life blood of the union. This makes the process somewhat more difficult. But we're committed to pushing forward notwithstanding that.
There are some subjects that we intend to raise in addition to what Senator Mitchell has proposed. We want to make certain that every major league club has throughout its organization thoroughly vetted and qualified the strength and conditioning personnel.
We believe that unproven allegations against players should not be aired publicly and that fundamental protections of due process should be strictly adhered to.
And we will suggest that minor league players who currently do not have a neutral decision-maker with respect to an alleged violation of the minor league program should have that opportunity if they wish to challenge a failed test.
We also hope to build on one of Senator Mitchell's recommendations. Baseball can do a better job of educating its players and educating the public. And that specifically includes the children that so many of the members here today have mentioned.
Telling our nation's kids that drugs will destroy them is only half the battle. I went to college in the 1960s. We've been telling people that for all of my adult life, and we're still struggling with it.
So perhaps the focus ought to be shifted, in addition to that, to something else, because the nation's high school athletes and their parents will still aspire to scholarships and want to pursue their athletic dreams.
FEHR: So knowing what to do is as important, and perhaps more important, than being told what not to do.
Perhaps players can lead the way in developing nutrition, strength, flexibility and wellness routines and educating America's youth in that regard. And in an era in which we hear a lot about so- called childhood obesity, perhaps the more powerful idea than we can yet appreciate.
Let me just summarize and I will conclude. There is no new evidence in the Mitchell report of steroid use in 2006 or 2007. That does not excuse or condone what happened before that, but it is, I think, relevant to an examination of the steps we have made.
Human growth hormone is a problem both within sports and generally. There is not yet a test, but we will consider in good faith any valid and effective test which is developed and we've agreed that if compelling evidence exists, a violation of our program can be found, even though there is no positive test.
We have not refused to discuss improvements in our program. We will not do so here. We will not refuse to discuss them here.
We are committed to discussing Senator Mitchell's recommendations in good faith and look forward to receiving specific proposals from the commissioner.
Last, we've made progress and, I think, great progress, especially after the amendments we agreed to in 2005. But let me come back to what I began with. In retrospect, actions should have and could have been taken sooner.
As an institution, the Players Association bears some of the responsibility to that. As its leader, so do I.
Thank you, Mr. Chairman.
WAXMAN: Thank you very much, Mr. Fehr.
To start off the questioning, the chair would like to recognize Mr. Towns for five minutes.
TOWNS: Thank you very much, Mr. Chairman, for holding this hearing.
There has been considerable discussion of the problem that Senator Mitchell had in obtaining the cooperation from individual players and Players Association. It appeared that there was a wall of silence, that people were not allowed to talk or to come forward with information, and, in some instances, they said the trainers were not allowed to talk.
Then, of course, some information came forth that trainers were providing the steroids. So why would there be this code of silence? Do you support this, Mr. Fehr?
FEHR: Thank you for the question. I think it's something that came up before and deserves an appropriate answer.
We're obligated to represent the players in connection with a disciplinary investigation. I think that is why Senator Mitchell recognized in his press conference that what we did was, quote, "largely understandable," closed quote, and those were his terms.
Where you have a management investigation with potential discipline, employment consequences, we have an obligation to give the players appropriate advice as to what that could be and what the effect of what they say is.
We asked if discipline would be imposed and we did not get an answer that it would not be.
Further, and this made it very difficult, this process was complicated because there were ongoing criminal investigations in San Francisco, in Albany and elsewhere, and I assume others that we don't know anything about and shouldn't know anything about.
I believe that Senator Mitchell had ongoing relationships with those offices. He's indicated as much. Therefore, we had to advise players that nothing they said was privileged, that if the authorities wanted it, they could compel him to provide him, that there would be possible discipline, and to do something which ordinarily a union need not to, which is to advise players that they may need to secure individual counsel before they made their individual decisions as to whether or not to speak to Senator Mitchell.
It's a difficult situation and that's about the best way I can describe it.
TOWNS: Well, what are you going to do in the future to change this? Are you working to change this in terms of the code of silence? Because as long as you have this, there's going to be this problem and people are going to feel that you're not addressing it in a very vigorous manner.
FEHR: I guess what I can say is this. We would have and any union would have obligations to represent their members and to give them appropriate legal advice. We hope that the programs that we are working on will put us in a position so that questions as to whether there is a code of silence become largely not central in any future situation.
If there are future investigations and we have an opportunity to discuss the parameters and the conditions of those before they get started, I don't know what would happen. But that was not an opportunity we were afforded here.
TOWNS: Mr. Selig, it's my understanding that Senator Mitchell wanted to get data from players' medical records. For example, he wanted data that would show whether there were trends in medical records that might indicate the level of steroid use.
This information would not have identified individual players. We understand if you're going to identify them, that that's a problem. But this information would not have identified individual players.
But his staff said that the clubs' delay in providing this evidence was so long that it became too late to use it.
SELIG: Well, that was a -- I think Senator Mitchell would tell you right from the start that clubs were remarkably cooperative in every way and I, frankly, didn't give them any alternative.
Having said that, there were some clubs who felt that there were some state laws that prevented them from doing it. There were other people that were concerned about it.
In the end, though, we did reach agreement. It took a long time, but I believe, in the end, we resolved those problems, and so I think that they did get the information that they required. It did take a long time, because, frankly, the clubs' lawyers, individual lawyers had a lot of questions and were very difficult.
But we kept going until we were able to satisfy all the individual clubs. We have 30 clubs and 30 outside lawyers and different states and state laws are different. I can remember there were some problems with Florida law and Texas law and other things.
So it took a long time to resolve those, Congressman.
TOWNS: Let me put it this way. Senator Mitchell indicated that there was a tremendous code of silence. Do you support that code of silence?
SELIG: Well, I don't think Senator Mitchell said that he had any problem with a so-called code of silence from the club standpoint or from our office. In fact, he's said over and over again and he's told me over and over again that we cooperated in every way.
I told him the fateful day I called him in late March and said, "You'll have complete cooperation, you go wherever you want to go, wherever you want to take it, I want you to find out what happened, why it happened and how it happened," and I think that he did and he did largely because of the cooperation we got.
No, of course, I don't support a code of silence, not in any way, shape, form or manner.
WAXMAN: Thank you, Mr. Towns.
T. DAVIS: Thank you very much.
Mr. Selig, thanks for moving forward on this. This would have been easy, after you reached your collective bargaining agreement, to sweep it under the rug and say that's the end of it, and you didn't and you let the chips fall where they may. And I wish they had fallen differently, I know you do, too, but it is what it is and we need to move on.
I understand from some of the press reports you are weighing some disciplinary action in some cases; is that correct?
SELIG: That is correct, Congressman.
T. DAVIS: Do you have any criteria or give us any clue into kind of what you're looking at?
SELIG: No, I can't, because I'm the judge in this case. So I'm sensitive. But what I said on December 13 and what I would say to you again today, I have great respect for Senator Mitchell and I know his feeling on this subject, but I'm going to review each one of these matters, management and players, on a case by case basis.
I'm getting a lot of information from him. There's other information to get, Congressman Davis, and then I'll make my decisions as I move ahead.
T. DAVIS: Thank you. I know you stated that Senator Mitchell was given unfettered access to any information that was within your control.
Were there any instances in which you or the clubs denied Senator Mitchell access to information?
SELIG: None that I know of, absolutely none.
T. DAVIS: OK. Mr. Fehr, what would you have liked Senator Mitchell to have done differently?
FEHR: I think that had I been conducting such an investigation, I might have approached it differently. I might have had some preliminary conversations.
I might have tried to see if there were some ways it could be approached other than by someone who is legally a management lawyer doing an investigation.
Having said that, the biggest gripe that I think I have and the players have is that I would have preferred that, at some point before he issued a report, if he was going to write something about Don Fehr, that under the circumstances and the seriousness of it, he would have sent Don Fehr and his lawyer, if he had one, a letter, "I intend to say the following about you. This is why I'm going to say it. This is your last chance to tell me."
FEHR: He didn't do that. He's explained why he thought it was an appropriate way to do it. The manner in which proceeded I would have done differently.
T. DAVIS: Have you and the commissioner had any discussions between yourselves or has it been at the staff level about the report and substantively how you're going to proceed from here?
FEHR: The commissioner and I had a very brief discussion out in Arizona right before the new year, when we met to talk about another important issue. What followed that was a meeting of staff, which occurred last week, to begin to set the ground rules and explore what we needed to talk about.
And what we're going to be trying to do now is figure out when we can have other meetings. And that's a little complicated, because this is the busiest time of the year. And it's hard to get all of the players. They're negotiating contracts; they're in workout routines; and they're spread.
But I hope we'll have those meetings put together in the very near future, and then we'll begin the process in a more formalized way.
T. DAVIS: Is it safe to assume, then, that you and the commissioner and your staffs will take this report, and meet on each aspect of it, and see where you can come to closure, and have some discussions off-camera about implementing this?
FEHR: Yes, I would expect that we would discuss this, I hope I indicated in my opening statement, all of the recommendations and any other matters which come up which would be relevant to those discussions.
SELIG: And I would add, Congressman Davis, that we've done the ones that we felt we should. And I would hope that, frankly, we have this all completed before spring training.
T. DAVIS: Now, Commissioner, let me ask you, in "The Game of Shadows" it was reported that Barry Bonds' trainer, Greg Anderson, was either tipped off about when Bonds was to be tested or he was able to figure it out.
As I understand it, Major League Baseball looked into that allegation. What did you learn? How was Anderson able to determine when Bonds' test would occur? Or was that just an allegation?
SELIG: Well, as far as I know, that was just an allegation. Obviously, you know, the one thing that Senator Mitchell said today -- and I know, in the last decade-plus, I've learned a lot. This is an evolutionary process.
And I think with each time we're able to tighten this program and maybe do something that we should have done X years ago that makes it better. As far as I'm concerned, that's an allegation. I don't have any evidence of that.
But it's impossible today; it has been impossible now for quite some time. And we need to continue to strengthen the program so even people can't make those kinds of allegations.
T. DAVIS: OK. Thank you. That's all.
WAXMAN: Thank you, Mr. Davis.
CUMMINGS: Thank you very much, Mr. Chairman.
Commissioner Selig, I want to join the chairman in thanking you. You know, a lot of people complain about this committee taking on this role. But, I mean, what we've seen done in Major League Baseball has been quite a bit, and I think it's been very good. Also, thank you for asking Senator Mitchell to do this investigation.
One of the things that concerned me is, a few minutes ago, in answering Congressman Towns' questions, he was talking about this whole code of silence. And Senator Mitchell also told us that the clubs refused to allow their trainers to provide information about the steroid use of the individual players.
And I understand that the clubs claim that there was a, quote, "trainer-player privilege," which I've never heard of. And maybe that's a new concept in the law. This obviously made it much more difficult for the senator to do his job.
Are you familiar with that? Is that something new?
SELIG: You know, I have heard the discussion. Let me just talk about trainers, if I may, Congressman, just for a second.
I started meeting with the trainers and team doctors. I just had a meeting on January 9th with 12 team trainers. And so I have become very familiar. They're very professional.
They have really briefed me as thoroughly as one could the last seven to eight years. Rob Manfred of our staff is there. They did it again.
I think that only when there were issues that either the club lawyers felt -- and I'm talking about the individual club lawyers -- felt that they were compromising themselves, in terms that they would have to describe to you.
But other than that, every trainer that they wanted to interview, they interviewed. And I think the trainers were -- at least told me they were very forthcoming.
So I don't think that -- unless you have a situation where there is something that the trainer had that would violate some type of law, I think that they were very forthcoming.
CUMMINGS: All right, keep your voice up. I want to make sure we hear you.
The two of you have a long history with baseball. Mr. Selig, you've been a team owner, a baseball executive for 40 years. You've been commissioner since 1994.
Mr. Fehr, you've been head of the Players Association since 1986. For decades now, you all have been the two most powerful men in the sport.
We all agree that we need to focus on the future, and we will do that, but this scandal happened under your watch. I want that to sink in. It did.
I have a very simple question. Do you all accept, you all, you individually, accept responsibility for this scandal? Or do you think there was nothing you could do to prevent it?
Mr. Fehr, why don't you go first?
FEHR: Thank you, Representative.
I'm thinking a minute, because I don't want to -- I could talk for a long time in response to that question, and I know we don't want to do that. Let me simply say as follows.
If the question is, did we or did I appreciate the depth of the problem prior to the time that we began to work on it hard? The answer is no.
If the question is, should we have? Perhaps we should have. It's a failure that we didn't, and it's a failure that I didn't. We can't change that.
There were a lot of things going on. But if your question more generally is, do the individuals who have responsibility for negotiating the agreements on both sides bear responsibility for what took place for a failure to get at it sooner? As I indicated in my opening statement, of course we do.
CUMMINGS: Mr. Selig?
SELIG: Sure, what I would say to you, as I said in my statement, I thought about this thousands of times. I've been in this sport all my adult life. I agonize over that, because I consider myself, in the end, a baseball man.
In the '90s, you know, hindsight is always very beneficial. I watch things. I've reread all the articles that Senator Mitchell had. I take responsibility for everything. So let's understand that.
I take it. For all of the good things that have happened to make the sport as popular as it is today, and when we talk about something like this, there's no question about that. I've agonized.
But I would also remind you that -- and who knows how long this has gone on? The senator said over 20 years, which is well before me. I was then the owner of the Milwaukee Brewers.
We have come a long way in a difficult environment. My minor league program, Congressman, is going into its eighth year. So all of the great young players in this sport have now been tested eight years.
And do I wish we had reacted quicker? Should we have? Yes, one can make a compelling case. And I do a lot of introspective thinking, and I'll second guess myself.
But as far as responsibility, of course, all of us have to take responsibility, starting with me.
CUMMINGS: Thank you very much, Mr. Chairman.
WAXMAN: Thank you, Mr. Cummings.
SOUDER: Thank you. And I want to thank Mr. Selig and Mr. Fehr for having taken some steps. And I believe that this report and the follow-up are additional steps.
But I don't know -- and what many of us are asking is, would they have been taken if BALCO hadn't occurred? Would they have been taken if the hearings here hadn't occurred?
The leadership part is missing. It tends to be waiting until potentially the law is coming and then trying to fend the law off.
Let me ask a couple of questions. Mr. Selig, are you looking at gene doping?
SELIG: I'm sorry, I didn't hear you.
SOUDER: Are you looking at gene doping, genetic alteration?
SELIG: I'm sorry, I can't...
SOUDER: As a potential testing question, are you looking at gene doping, genetic doping?
SELIG: Well, we've hired the best experts that we can, and we certainly will look at that, along with everything else.
SOUDER: Mr. Tagliabue, when we asked him that question three years ago, said this is the greatest potential challenge and the NFL was looking at this. It raises a fundamental question.
Are you looking at ways that people disguise steroids, such as cream, vitamin B-12, what things can be mixed? And will there be penalties for those?
SELIG: Well, let me -- again, because this is all an evolutionary process, the answer is yes. We have Dr. Green, who's sitting behind me, as one of the leading experts in the country. We have the two gold standard labs.
Christiane Ayotte, which whom I wish were here today, but isn't, the head of the Montreal lab, and between -- and Gary Green and all of the other experts we have, all the team doctors who I meet on a regular basis, we need to continue to be vigilant.
There's no question about it, that as -- when we think we have a problem solved, there are chemists working creating new problems for us.
SOUDER: Are you looking at -- I worked in 1989 for Senator Coats when we drafted the first drug-testing laws and what was allowed for athletes in high school -- and what laws have been upheld by the courts -- it isn't probable cause, because you don't know.
But it's potential cause. In other words, if students are repeatedly late for school, if they drive a car, if there are certain erratic behavior changes, you can do testing.
Are you looking specifically at -- when you see changes in performance in key categories, where they're tripling from one year, then you do extra testing?
SELIG: Well, we are -- you know, we have the program now. We test as frequently as we can. If there are reasons to test more, we're willing and able to do that.
SOUDER: Are statistical changes potentially one of the reasons?
SELIG: Are what?
SOUDER: Are statistical anomalies potentially a reason...
SELIG: Well, that's something that the independent administrator would have to do. But yes, I...
SOUDER: And I realize that...
SELIG: ... would think that that would...
SOUDER: ... that would be part of a labor agreement.
SELIG: Yes, I would think that would be a reason.
SOUDER: I think all of us agree that...
SELIG: Yes. Yes.
SOUDER: ... would be something in due process, but it is a question.
SOUDER: But I raise some of these questions because the problem with an evolutionary process -- and, Mr. Fehr, there is a distinct difference here between due process of penalties, of making sure the tests are accurate, and what should be tested.
And I would like that -- you to comment on that -- is every time there's a new variation, does this mean it has to be negotiated, or in between labor agreements can there be decisions of this as being (inaudible) as long as there's process, from your perspective?
And the second thing is why do both of you feel that not only baseball but all professional sports should be different than the Olympics? What is your criteria for saying that we have this restriction on the Olympic performers -- they aren't kids, either. Many of them are just as old.
They get all kinds of contracts. They may not be paid for performance at the Olympics, but they certainly are paid athletes at this point. In fact, professional basketball plays in the Olympics. I would like you to finish with that question.
And also, what do you do between labor agreements?
FEHR: Well, perhaps let me begin. To answer your last question first, under the labor law, when you're between agreements, the terms of your preexisting agreement continue by law, unless and until somebody does something -- there's a strike, or a lockout, or a unilateral change, or a new agreement is reached. So the period in between is not an issue.
Secondly, with respect to gene doping, I don't remember precisely the audience that I spoke to -- this was a number of years ago now -- but I think I told the group and got people sort of sitting up straight that gene doping will make what we see now look quaint.
And the reason it will make it look quaint is that if it's done right -- my understanding is that people are trying to develop it so that it will be done in utero, and you would be penalizing something for someone his -- for something his parents did at the time that he was still being carried by his mother.
That's a very serious issue, and I don't pretend to have a handle on the ethical or scientific or policy questions that relate to that. But it's a very difficult issue.
Secondly, with respect to mixed and disguised substances, all I can tell you is that the laboratory we use believes it can find those. We do add substances in between agreements.
If something becomes unlawful under federal law, it's added automatically, as androstenedione was when the law was passed in 2005. And we get lists of masking agents and diuretics and all the rest of it from the lab that they can test for.
With respect to due process issues -- and I can do this very succinctly -- where there is an alleged violation, there has to be an opportunity to challenge that in an appropriate adversary hearing with neutral decision makers with whatever arguments are appropriate to be made by the individual so that it can be considered to be a fair hearing.
One of the difficulties with the report we have is that if Senator Mitchell had said Don Fehr did X, used this particular drug unlawfully, I don't have a hearing. I don't confront witnesses. I can't cross-examine anybody.
The most I can do is be interviewed by the same person who is the investigator, the prosecutor and, in that case, would be the judge or the jury. That's inconsistent with most fundamental notions of due process.
On the Olympics, I can say as follows. They have to do what's best, what they think is best. The athletes are not really represented.
We have to do what we think is best, and the test will be whether we're successful in eradicating these drugs, as we believe the evidence has shown that we have been the last several years with respect to detectable steroids.
And I'll give you one example of how it works the other way. This is not my first experience with Senator Mitchell on an investigative panel. He and I were two of the five members on the U.S. Olympic Committee's panel that investigated the Salt Lake City bribery scandal and the report that was written.
And we made a series of recommendations that the USOC adopted in large part as to how they should change their practices. Suffice it to say the IOC had enormous difficulties with our even raising the issue to them. They did make some changes, but grudgingly. Cultures are different.
WAXMAN: The gentleman's time has expired.
TIERNEY: Thank you, Mr. Chairman.
Gentlemen, thank you for being here today. I want to take up on a train of thought that I had in the earlier session with Senator Mitchell, and that is that we had asked the league for some information on exemptions from the drugs on that.
And just looking at the raw numbers here, in 2006 the total number of players that were subjected to testing was 1,356, and there were 35 therapeutic use exemptions granted. Of those, 28 were for ADD or ADHD medications.
In 2007, that number jumped significantly. Of the 1,354 players tested, therapeutic use exemptions granted were 111, of which 103 were for ADD or ADHD medications.
Now, that would make that almost eight times the normal adult usage in our population amongst baseball players. Does that have significance to either of you gentlemen? Is there something that we ought to be looking at?
Have we set up procedures to look for anomalies like this and then determine what we're going to do about it?
FEHR: Let me respond to that, and I appreciate your asking the question, since you did raise it with Senator Mitchell. Thank you for doing so.
First of all, therapeutic use exemptions are granted by the independent program administrator. He must have, in order to do that, appropriate medical documentation from an appropriate doctor who's conducted a legitimate examination, and he is free to question that individual, to secure more recommendations or any of the rest of it. He is a physician. He is expert in sports medicine.
And I believe that Senator Mitchell did interview him with respect to the procedures he utilizes to determine whether therapeutic use exemptions will be granted. No problems were reported by Senator Mitchell in that regard.
As to your more general...
TIERNEY: Can I just -- I think the problem with that is Senator Mitchell didn't have the information that we have. He could ask him about his procedures, but he didn't have this data to look at.
FEHR: I'm coming to that. As to your more general question, I don't personally -- I'm not familiar -- I accept what you say about the use in the adult population.
I suspect, from some personal exposure I've had to hyperactive kids, that the use of such drugs among young adults by prescription may be significantly larger than it is in the general adult population. Having said that, I don't know that to be true.
What I would expect is that if Dr. Smith believes that we have anomalies which should be investigated and looked into more closely, he would do three things. He would tell us that. He would look into it more closely with the doctors granting the exemptions and the players. And if he thought there were changes that should be made, he would so recommend them.
And as Senator Mitchell pointed out, we have not had a recommendation that he made that has not been adopted.
SELIG: If I can add to that, I -- because I've asked the same question over and over. You have to start with two things here. Number one, the player gets a prescription at the local level.
A player playing for the Chicago Cubs and the Milwaukee Brewers -- that doctor there gives him that. Then Dr. Smith reviews all that. So they've been through -- it's been through two levels of medical research -- I mean, the examination and why and how.
And if Dr. Smith accepts it, I guess that we do, too. It's within the limit of the adult population, the overall population. It's a little higher, but it did go up, and we're reviewing that right now, trying to break down exactly why it happened and how it happened.
Interestingly enough, in my meeting with the trainers, that was one of the major subjects last week -- why, how. And everybody had a different view of it, and I was fascinated by that view.
So we just need to keep working at it. And I guess hopefully after we conduct our review with all the team physicians and Dr. Smith and all the team trainers, we'll be able to give you a better answer to that.
TIERNEY: I'd like to, just out of curiosity -- is it perceived to be a performance enhancement, the ADD drugs? Are they perceived to be a performance enhancement to begin with?
FEHR: Oh, sure. If they are not appropriately medically prescribed, yes. And they're prohibited.
SELIG: That's right. And remember, it has to go, as I said, to two levels of doctors -- our independent is the last one, but you would hope that a doctor in Kansas City or Philadelphia or anywhere else is only prescribing it if he feels it's medically necessary.
TIERNEY: Well, I take it from your comments, Mr. Selig, that you do have a system set up to look at anomalies like this and then you are, in this instance, looking into it and in other situations, if you saw a similar...
SELIG: No question about it, absolutely. This is one that needs to be dissected.
TIERNEY: Thank you. I yield back, Mr. Chairman.
WAXMAN: Thank you, Mr. Tierney.
BURTON: Mr. Chairman, I just have one question of Mr. Fehr.
I was interested in your answer about due process and I wonder -- you probably talk to a number of the players. I wondered why some of the players didn't come in.
Was it because they had not been apprised of the allegations against them and they thought if they went in, they would immediately be looked upon in this media age as guilty of something by virtue of the fact that they showed up and is that why they declined? And so they were darned if they do and darned if they don't, because if they went in, it would look like there might be something that was against them, and if they didn't go in, ultimately, when the report came out, they would be judged guilty before they had a chance to defend themselves.
FEHR: I guess I would have a couple of responses to that. First of all, because we are giving legal advice, we wanted to make sure that an attorney retained by the Players Association to give that advice was conversing with the individual players about these subjects, and so it was needed -- that did that.
Having said that, I think that it is probable that there were some players that had some concerns in those regards. My guess is, because I don't know what the basis of individual decisions were that were made by the players and their individual counsel, but my guess is that it was the totality of the circumstances that was involved.
It was the investigation, possible employment consequences, general reluctance to get wrapped up in something, concern that they didn't have precise information as to what the allegations were before they went in, worry about various criminal investigations that were ongoing in which they might get called either as a witness or somebody to talk to Senator Mitchell, and the lack of privilege that would apply, added to the fact that there's no process to resolve in any meaningful way what happens after an allegation is made.
I suspect that it would be very difficult for most attorneys to recommend that their clients go in under that basis.
BURTON: Let me just follow-up real quickly. In the future, if there's an allegation against a baseball player, do you think it should be changed so that they're apprised of the allegations against them before some kind of report like this comes out, so they have a chance to prepare and to be able to defend themselves?
FEHR: Yes. I would hope that one of the subjects that we would discuss in our upcoming meetings would be whether we can agree that, in the future, there'll be an opportunity for a procedure to challenge in a formal way and some sort of a neutral to make a decision before matters are raised publicly.
Whether players would take advantage of that would depend on the individual player and the individual circumstance at the time and without -- each decision is going to be fact-found.
BURTON: Thank you.
FEHR: Thank you, Mr. Burton.
BURTON: I yield my balance to Mr. Shays. Did you want to go further with your...
FEHR: No. I just said I appreciate your question. Thank you.
SHAYS: I thank the gentleman for yielding.
Mr. Fehr, you continually say we have to do what is best, but it's clear to me that involves what is best for the players. You have an obligation, you feel, as the representative of the players.
What I want to ask is what obligations do the players have and Major League Baseball Players Association have to the fans and to the public at large, particularly our young people? What are the obligations there?
FEHR: I think that I can best respond in the following way. They have an obligation -- and this is not necessarily in order of priority -- but they have an obligation, first of all, to comply with the law and not suggest to anyone that they're different and don't have to or shouldn't have to or that it's OK.
Secondly, that to the extent they can, they should be in a position to help educate people both as to what not to do, but, as I said in my other statement, perhaps it would be better to -- as to what they should do.
Third, as a group, you can make certain statements. As an individual who is called before a tribunal or an individual who may be challenged with wrongdoing, that individual faces an entirely different set of circumstances and, theoretically, facts of which he has some knowledge and people making accusations.
What he should do in the context of that case is going to depend on what the situation is, what the best advice is he can have and what he ultimately decides to do.
SHAYS: I'd like to ask the same question to Mr. Selig. What obligations does Major League Baseball have to the public at large, the fans, the public at large and to young people in particular?
SELIG: Congressman Shays, we have an enormous responsibility. There isn't a question. I have often said in my long career that we're a social institution, we have enormous social responsibilities.
One of the reasons that I decided to do the George Mitchell report, and I thought long and hard about all the consequences, various people that could do it, is that I felt that we had an obligation to -- we had toughened our program, we had taken care of the present and future, but we had an obligation to go back and have somebody take a look at what happened so it would be a road map for the future, for people who came after me, and for other people.
But we also, I felt, had an obligation to our fans. There is no question that the impact of this sport socially in this country is enormous and that is really our primary responsibility. So that's why I did the Mitchell report, even though there were a lot of people on all sides who didn't like it, that didn't like somebody doing it.
I felt that given the fact -- I never wanted anybody to say, "What were you hiding? Why wouldn't you let somebody look at it?" And I heard it when I was here and it was a very -- it was an absolutely very fair concern.
And I finally said to myself, "This is going to be a painful journey, but it's a journey we're going on," and I would do it again today.
WAXMAN: The gentleman's time has expired.
Before I recognize Ms. Watson, who will be the next questioner, the two of you talked about the medical exemption issue and you're reviewing it.
Would you keep us apprised of your decision-making in that area?
FEHR: Yes, of course.
WAXMAN: Ms. Watson?
WATSON: Thank you so much, Mr. Chairman. And I want to thank the commissioner and Mr. Fehr for being as forthcoming as you have been.
And I know that one of the concerns with the Mitchell report was that they felt that there was not enough off-season testing and I know the two of you have grappled with, you know, how do we meet this issue head on.
And according to Mr. Mitchell, baseball only conducts 60 off- season tests each year and this means that the average league baseball player will go their whole entire career without being tested even once in the off-season process.
And so, first to the commissioner, Mr. Selig, do you agree with Senator Mitchell that more off-season testing is needed? And I'll ask Mr. Fehr the same thing.
And I'd like to have you go into your views about what actually is needed.
SELIG: Yes. The fact of the matter is that if you were to ask me today what would I do if I could change the program today, we need more testing, more year-round testing. There is no question, in my mind, that that would strengthen the program.
So I not only agree with Senator Mitchell, but I agreed with it even before Senator Mitchell made that observation and did his investigation.
So, yes, there's no question that more testing and off-season testing would be very helpful.
FEHR: For my part, one of the things which came out of the Mitchell report is that players were told the number of off-season tests. Prior to that time, they didn't know how many there were going to be. They didn't know whether there would be few or there would be many.
As far as they knew, that was going to be up to the people that draw the names out of the hat to determine who is going to be tested.
One of the things that Senator Mitchell suggested, and I may not have this precisely right, I didn't review this part of it overnight, was that perhaps the number of tests in season and off season in terms of how they are divided should not be static and should be changeable and all the rest of it, and that probably bears some examination.
WATSON: That goes right to something that Jeff Kent, who is the second baseman, as you know, for the Los Angeles Dodgers and a former most valuable player, and he stated that baseball never conducts testing in the post-session.
And I understand that there was some testing in 2007, but it was limited. And so can you give me an estimate of the testing in 2007 and what you feel as to whether it's sufficient or not?
FEHR: Sure. I can get the precise numbers after the hearing, if there's an interest.
FEHR: But we began posting in the postseason, I believe, in 2007. And we do what is traditional in team sports. As I understand it, a number of people from each team are tested during that process.
I don't know the precise numbers, but one of the improvements we made since 2005 was to increase -- was to provide for testing in October.
SELIG: Yes, we did test...
FEHR: Excuse me, I'm sorry. I am told it was both '06 and '07.
SELIG: Yes, we did a test in the postseason last year. That's correct.
WATSON: It appears from what the two of you have said that the players possibly are under misunderstanding and they feel that there is no opportunity for postseason testing. How would you comment?
FEHR: Well, I hope they're not under that misunderstanding, because if they are and they use drugs that they shouldn't, then the likelihood is that they're going to be caught by the testing procedures.
But part of my job is to try and make sure that players understand what the rules are. And if there's been a failure there, that's one of the things we can emphasize in our spring training meetings.
WATSON: And probably they ought to be under more scrutiny, if this is something that's pretty widespread. I would say leadership needs to inform them that random testing after this season is something that you're going to see happen.
And I would hope that we will get word of your follow-up in postseason testing prior to another hearing like this.
And thank you, the two of you, for your input. We appreciate it.
SELIG: Thank you.
WATSON: I yield back my time.
WAXMAN: Thank you very much, Ms. Watson.
LYNCH: I thank the gentleman for yielding.
Commissioner and Mr. Fehr, I just want to say at the outset that a lot of progress has been made, and I want to congratulate you both on that.
I remember the last hearing we were looking at a collective bargaining agreement that actually allowed a player to leave in the middle of his urine test, and leave unmonitored, and then come back an hour later for no apparent reason.
It also allowed players to pay $10,000 fine rather than be suspended, which I thought was a slap on the wrist. All that has changed and has changed because of the collective bargaining agreement and the whole collective bargaining process that you've engaged in.
And I want to congratulate you on that. And I think it needs to be said here publicly.
But, look, I'm a former union president. And I've negotiated a fair number of contracts myself. And I always view -- even though I was representing ironworkers who were a heck of a lot less well-paid, I guess, then the union members you're representing, I always felt that -- well, I was always one of the biggest advocates for a drug- free workplace.
And I felt that was my rightful position, representing the best interests of the people that I represented.
And I do want to just note one thing. This Mitchell Report, which was well-done, it did note one bit of new information, and I think it deserves recognition by both of you.
And that is he said that, in the report, that while steroid use was down considerably -- and that's a good thing -- he said HGH is on the rise. It is on the rise.
Now, I think that deserves some type of acknowledgement in your agreement. And I respect the sanctity of the collective bargaining agreement, but here's information we didn't have when you sat down.
And I know this current agreement goes from 2007 to 2011, December of 2011. That's the next time, unless we re-open this agreement, that's the next time we're going to be presented with an opportunity to change the drug-testing protocol in this agreement.
And I know that Gary Wadler testified last time we were here about the fact that HGH blood testing was used at the Athens Olympics in 2004. And that's the World Anti-Doping Agency, a fairly reputable outfit regarding drug testing.
And I just think there's a way here to get at that. We know it's on the rise. We know it's being used in the sport. We've got to get at it.
So I'm going to ask each of you. We know it's a problem. There's some testing protocols.
Oh, and I just want to get at -- I understand Mr. Fehr's comments earlier on. You're saying there's no valid testing protocol right now that's commercially available. I think Dr. Wadler would disagree with that.
And you're saying that you don't want to test for it until something is out there. And here's my response to that.
Number one, you've banned it in your agreement. It says HGH is a banned substance under your current collective bargaining agreement, but you're not testing for it. All I'm saying is, test for it now. Test for it now. Get the blood samples, OK?
And when the test becomes commercially effective, if that's your objection, we'll be able to test these retroactively. And I bet you -- I just know that these players, if they know they're being tested for HGH, you'll see the incidence of use drop, just like you did with steroids when we started testing for that.
SELIG: Thank you, Congressman Lynch. If I can just add, I don't disagree with much of what you said. Our deal with the USOC, which you probably read about last week, that's exactly what this is about.
There's no question -- and I agree with Senator Mitchell -- the use of HGH is on the rise. In my meetings with trainers and doctors, frankly, that's a subject that I spend a lot of time on.
What I would say to you today is that, according to our experts -- one of whom, Dr. Green, is sitting right behind me -- there is no commercially available test today. Maybe there will be one in two or three months.
I can speak from our perspective, because I am so concerned -- I'm frustrated by HGH and the lack of a test. It has been -- you know, we're funding Dr. Catlin with the National Football League. We've done a lot of other things. I cannot tell you my level of frustration about this.
So if there comes a test that's available, as I said in my statement, I think that we would have to have very meaningful, expeditious discussions, because I believe that if we're serious about it -- and I think we all are -- that we would adopt that test, and we'd adopt it as soon as it's available.
So as for the storing of these things, I'm...
LYNCH: Commissioner, I guess you're missing my point. I'm saying that if we take the samples now...
SELIG: I'm going to get to that right now.
SELIG: According to the people that I've talked to and we've talked to, Dr. Green, Christiane Ayotte, the head of the Montreal laboratory, there has been a feeling that storing samples is not practical.
I'm not a medical expert. Frankly, if there was a way to do it, I'm not adverse to doing that.
But I've taken the best medical advice that I can get from people. And they tell me that, at least for the moment, that is not the way to do it.
Look, if I really felt that there was a way to do it, and it would really do what you say it would do -- and I believe that may be right -- of course, we'd do it.
So I have to be guided by the head of the labs and everybody else. And if they think it's doable, then it's something that we will seriously consider.
LYNCH: All right, fair enough, Commissioner.
FEHR: Thank you. First of all, I don't know personally whether Senator Mitchell is right that players have switched to HGH because we had workable testing for steroids. It certainly wouldn't surprise me.
That's an old story in athletics, where people move onto the next available drug. And I'd indicated in my testimony response to other questions things which I think we can do about that.
I am not aware of any test or any protocol that says you can store and then test at a later time. And it troubles me to do that.
And I would just remind everybody, although I don't want to bring unnecessarily someone else into a hearing, we had issues -- we, meaning this country -- had issues with stored samples that were looked at years later, in Lance Armstrong's case in France.
So all I can tell you is that when a scientifically valid and effective test is available or some other procedure that the medical experts tell us we can rely on, then we have to look at it very hard, and we will.
WAXMAN: The gentleman's time has expired.
SHAYS: Thank you. I feel Major League Baseball is in a different place now than in 2005.
You do have three strikes and you're out, except for the fact that you can petition two years later. And I'm going to want to know why you should be able to petition two years later after you've had that third strike.
SHAYS: I want to know specifically, do either of you see a difference between cocaine and heroin use vs. steroids and enhanced drugs, as it relates to baseball?
FEHR: I'll take that first since Bud took the last one. I think yes, in one very specific way. And that is that one category of drugs is can, or is alleged, or is believed to affect the play of the game on the field, and the others do not, so far as I know.
And that is a significant difference, and it suggests why you can have different approaches to that kind of an issue.
SHAYS: Could I just leave it right there?
FEHR: I'm sorry.
Commissioner, do you have the same answer? If it is, I'll go to...
SELIG: Well, yes. Look, the cocaine -- and by the way, this sport had a terrible cocaine problem in the '80s, and unfortunately, there was no testing as a result of that. But you know, the steroids and HGH are enhancing as opposed to the others, which are recreational.
SHAYS: OK. So basically, you see a difference. And so what I get to is the issue of collective bargaining. I don't know how you have collective bargaining for cheating, and that's what I wrestle with more than anything else.
I don't know how, Mr. Fehr, how you can even make the argument in the sense that your players should be allowed to cheat once, twice, three times before they are kicked out. It's just inconceivable to me and, I think, to other people as well.
So tell me why a player should be allowed to cheat three times.
FEHR: The best way I can respond, Congressman, I suppose, in the short time we have is as follows. Under the law, we're supposed to negotiate all terms and conditions of employment.
Discipline and increasing levels of discipline for repeat violations is a traditional method which is utilized in collective bargaining agreements all across the country, in sports and out of sports, and has been for longer than I've been alive.
In our case, the way I look at it is we want to have a program which stops the use but does not destroy -- if you can reform people and avoid having repeat problems -- their careers. And therefore, we think that this works.
The commissioner proposed three strikes, as you know, back in 2005, and we agreed to it.
SHAYS: But why would someone be allowed to reform when they are cheating? In other words, that's what I don't get. It seems to me it's a different kind of drug, one they're taking because they want to cheat. They want to have an advantage.
I don't know about its addictive nature, but it strikes me as huge difference. It would strike me, then, that your argument could be, you know, the Black Sox of 1919 should have been allowed three strikes before they were kicked out because it's the same difference and it's the same thing. That's kind of how I'm seeing it.
Mr. Selig, how do you respond?
SELIG: If I can -- I'll answer from my -- look. We have today -- the "three strikes, you're out" is the toughest program in American sports. My father always used to say to me nothing's ever good or bad except by comparison.
Having said that, in a perfect world, Congressman Shays, I would like a tougher program. But this is a subject of collective bargaining. And this is where we are. And this is the best that we could do. And we came a long way.
SHAYS: I hear you, and I appreciate what you did in the minor leagues for taking a stronger action.
And, Mr. Fehr, I understand you're going to speak for your players and you're going to represent them to the best of your ability.
The consequence is, though, that you are really saying to the players that they can cheat three times, and you're arguing that they should be allowed to. That's the way I'm left with it.
FEHR: I think you and I have a disagreement on that, Congressman. But I can assure you of this. I can't envision the player, and I've never met him, who believes that a public disclosure of a steroid violation is something which is anything other than of enormous consequence. And maybe that's why we haven't had repeated ones. I hope we don't. If we do, it'll be tougher. Thank you.
WAXMAN: Thank you, Mr. Shays.
YARMUTH: Thank you, Mr. Chairman.
Commissioner, the Mitchell report details in a number of places incidents in which club personnel appeared to have been complicit in at least enabling the violations of some of the rules.
And in one case we know -- or we heard that club personnel actually returned steroids to a player after he had found it.
We talked about the penalties being imposed upon the players for violations. What plans do you have to hold club personnel accountable for incidents in which they may be complicit in the violation?
SELIG: For the same reason that I said that baseball is a social institution with enormous social responsibilities, I plan to evaluate the club personnel in the same way I'm doing the players.
There is no question that if there were club personnel -- and there have been some pretty serious accusations there. If those people are guilty of doing what was said they are doing, they will face discipline, and very significant discipline.
YARMUTH: OK. Thank you for that.
I'd like to pursue a discussion I had with Senator Mitchell about the issue as to whether we really know enough about the effects of these substances we're talking about.
And again, I wanted to make a distinction between the legality issue and the competitive advantage issue. And I'm talking strictly about the competitive advantage issue.
We've heard a lot about -- you just mentioned the distinction between cocaine and steroids, and you said one's performance-enhancing and one's not. And yet, as I said, there's some evidence at least that there is no -- at least statistically, there's no competitive enhancement.
So my question is do we really know enough to say that taking steroids or HGH improves a player's competitive position any more than chewing tobacco does, any more than chewing on sunflower seeds does, or anything else they might put in their body to relax them or to stimulate them?
I mean, I ate enough boxes of Wheaties as a kid. I know Wheaties don't do it. But do we have enough evidence to really make these type of determinations?
FEHR: I'm sorry, the question was directed to you.
SELIG: My answer to that would be yes. I think there is enough evidence that using performance-enhancing drugs gives a player an advantage.
I've talked to a lot of doctors. I've talked to our own people. I've talked to a lot of team doctors. And I've talked to trainers about it. Yes, I think there is.
And I'll tell you what else it does. When you think about it, and -- it attacks the integrity of the sport. You have some people doing something that others aren't.
And even if one could make a case that well, really, it doesn't help -- I happen not to agree with that, and I think there's a lot of medical evidence that would support it -- the fact of the matter is that that's something you just can't tolerate.
And as I said to Senator Mitchell way back when, the day I asked him to do that, I wanted him to create a road map. That was my reasoning -- a road map which will show us -- which will take history -- and using the way I love to use history, to try to educate us for the future.
And you get into an integrity problem. And so as far as I'm concerned, I don't have a scintilla of doubt that the use of performance-enhancing drugs is a very serious matter for this sport, at its core. At its core.
YARMUTH: Mr. Fehr, do you have the same conclusion?
FEHR: Yes. Let me say a number of things. First of all, I approach it this way. The use of such substances in a fashion not authorized by law is unlawful. That's where you start.
Secondly, players use it for a lot of mixed motives, including to recover and to help train better, as Senator Mitchell indicated. But undoubtedly, there are players, and perhaps most of them, who use it because they believe it has such effects, whether it does or not.
Third, we did a study jointly with Major League Baseball about a decade ago as to whether or not androstenedione built muscle mass. And what the study indicated, if I remember it correctly -- I haven't looked at it in a long time -- is if you take dosages in the amounts recommended on the bottle, nothing much happens.
If you take it in much larger amounts, however, you do build larger muscle mass in a fashion which would otherwise have to be duplicated by more traditional methods of exercise and diet.
Fourth, and to go back to the kids issue, regardless of its effect on adults -- and we do draw distinctions between children and adults in this country for a lot of issues. But the evidence is clear that it's bad for children, and that's something we need to pay some attention to.
The last thing I'll say -- and I want to stress that I am saying this because I'm using a bit in response to your question. I am not saying it because it represents a position of the Players Association or even one that I advocate.
FEHR: But I have wondered, given the anecdotal suggestions, about ability to recover better if some of these things are used, whether, in fact, there are therapeutic doses which could be administered to people who have -- elderly people with broken hips -- I had mentioned that, because we had an experience in my family with that recently -- that would be helpful.
And I don't know whether any of that research has been done, but that's amusing on my part.
WAXMAN: The gentleman's time has expired.
The chair wants to recognize himself to follow up on some of the points raised.
Commissioner Selig, I want to ask you about the BALCO scandal.
Senator Mitchell explored this scandal and the role of the management of the San Francisco Giants in great detail. What he learned provides a case study of everything that went wrong with baseball management's approach to reports of steroid use.
As early as 2000, the Giants' trainer, Stan Conte, expressed concerns about the presence of Greg Anderson in the Giants' locker room, but he received no support from General Manager Brian Sabean to have him removed.
In 2001, another Giants trainer, Barney Nugent, raised concerns about Anderson with Kevin Hallinan, the head of baseball's security office. And Mr. Hallinan promised to do something about this. He did nothing.
In 2002, Stan Conte reported to Giants General Manager Brian Sabean that he believed Greg Anderson was selling steroids to players.
Mr. Sabean did not confront Mr. Anderson or Barry Bonds about these allegations. He did not take steps to have Mr. Anderson removed from the clubhouse. And he did not report Conte's concerns to anyone in the Giants organization or in the commissioner's office.
Finally, in September 2003, a search warrant was executed on Mr. Anderson's residence, and it became public that Anderson was under investigation for steroid distribution. Only then was Anderson barred from the Giants' clubhouse.
And even at this point, Mr. Sabean never reported to the commissioner's office that anyone in the Giants organization had raised concerns about Mr. Anderson.
Commissioner Selig, Stan Conte did the right thing here. He warned Brian Sabean repeatedly about Anderson's ties to steroids, but Mr. Sabean never did a thing about it. Instead, he seemed to go out of his way to allow the suspicious behavior to continue.
How do you account for Mr. Sabean's behavior? And at the very least, should Sabean have reported this suspicion to your office?
SELIG: Well, it's a subject that I'm familiar with, Mr. Chairman, because I ran a club for almost 30 years, and I understand the sanctity of a clubhouse and who should get in, who should not get in.
There should not have been anybody in clubhouses. We now have done that. You know, we sent a trainers letter out in 2003 telling people that the clubhouses now would be carefully watched. They are; we've changed all that.
But this is one of the matters that, frankly, is under review and under discussion. You've raised a very valid point. It's a point of great concern to me.
The fact of the matter is, why anybody is ever in a clubhouse, other than the trainer, is beyond my comprehension. And I say I have 30 years of practical experience.
WAXMAN: Do you think Sabean should have reported this to the commissioner's office?
SELIG: Of course.
Senator Mitchell also...
SELIG: But I don't really want to say any more, because it is a matter that I have under review. But the answer to your last question is yes.
WAXMAN: Senator Mitchell also interviewed Giants owner Peter Magowan about his actions with regard to reports that Barry Bonds was using steroids.
Magowan told Mitchell that he asked Barry Bonds this question in 2004. Quote, "I've really got to know. Did you take steroids?" Mr. Magowan said that Mr. Bonds admitted that he had taken substances that he later found out to be steroids.
According to Senator Mitchell, two days after his interview with Mr. Magowan, Mr. Magowan's lawyer called and said that Mr. Magowan had misspoke about this conversation with Mr. Bonds.
Commissioner Selig, what do you think was going on here? Do you think the Giants' owner had any knowledge or at least suspicions that Barry Bonds was taking steroids? What do you think Mr. Magowan's lawyer meant when they -- lawyers meant when they said that Mr. Magowan had misspoke?
SELIG: Mr. Chairman, you know, again, it's a matter under review. But it's something that I'll have to look into. But I can tell you right now: I've already started to look into it, and I will continue to.
WAXMAN: Well, this incident shows why it's important for baseball's management to take the problem of steroids seriously. It's possible that the BALCO scandal could have been averted had Brian Sabean and Peter Magowan acted in a responsible fashion.
Instead, they seemed more intent on protecting Barry Bonds. And it seems clear that Brian Sabean violated baseball rules by failing to report information about alleged steroid use to the commissioner's office.
And Peter Magowan's answer to Senator Mitchell's questions don't seem to clarify his role at all.
Will Sabean be sanctioned by your office? What about Mr. Magowan or the Giants organization?
SELIG: Well, I'm going to give you the same answer, and I think you'll understand since I'm the judge, that it's one of many matters under review.
WAXMAN: Well, it's easy to blame the players for the entire steroid problem. But what the Mitchell Report shows is that the blame runs much deeper. There was a culture throughout baseball that just looked the other way when it came to responding to reports of steroid use.
And I thank you for your responses.
MCHENRY: Thank you, Mr. Chairman.
I mean, to be honest with you, Mr. Chairman, I don't think that Congress's proper role is to mediate disputes between those that make tens of millions of dollars and those that make hundreds of millions of dollars.
And to be honest with you, the substance of this hearing is really about the images that your players are sending to our youth.
To be honest with you, you know, Canseco, McGwire, Sosa, Palmeiro, it's not really about their health and well-being we're talking about. We're talking about the sanctity of the game that we love, but, more importantly, the images we're sending to those kids in high school that want to be professional ballplayers, that seek it, that crave it, to look up to these guys as heroes.
And so my questions are going to be about that, centered around that, and that's my main concern here, is the images we're sending to our youth.
I know there are questions about your social responsibility, but it goes beyond professional athletes. It goes beyond the Players Association and the owners.
But the actions you took in 2005 were good. You have a tough testing program. We want to make sure it remains strong. But it did take a long time for you to get there.
My question to you, Mr. Fehr, what responsibility does the Players Association have for the health and well-being of your members?
FEHR: I think -- for the health and well-being of our members, is that your question?
I think a couple of things. Obviously, we're concerned about that. Obviously, it's our role to try and educate players as best we can.
MCHENRY: How do you educate them?
FEHR: You talk to them. You have doctors talk to them. You warn them.
MCHENRY: Do you have programs that do that?
FEHR: Yes, we have some, and we've already had -- I think, before you came into the room, some discussion about the fact that we've had at least one meeting in which we've discussed enhancing that, beginning early this season.
MCHENRY: OK. OK.
Do you think, Mr. Selig, Mr. Fehr, your actions in 2005 have been enough? Do you think your actions in 2005 have been enough?
SELIG: Well, we've made enormous progress. I do want to keep saying that, because I think -- but, look, this is a process evolving.
We need to do more. There are things that I think that we can do. I think that we can do them together in some cases. And we need to expand our educational program.
One of the things I have to say today that I'll never forget as long as I live is Donald Hooton's presentation with the Garibaldis. I sat over there. And it stunned me.
And I think Mr. Hooton will tell you I called him the next morning. He didn't believe it was me, so we had to go through two minutes of that.
But the fact of the matter is, our own people, it's a tough enough situation, and it attacks the integrity of the sport and everything else. But the message that we send is critical.
And I have since talked to a lot of athletic directors, coaches, football, and basketball, and other sports, and baseball. And there's no question that we need to tighten this program, and we need to continue to tighten this program.
And so I agree -- you know, I agree with Senator Mitchell over and over. This is an evolutionary thing, and we can't rest because we don't know what else is out there. And that's what we need to do.
MCHENRY: Mr. Fehr, why was the union so hesitant to allow the adoption of an anti-steroid policy? The Major League Baseball did it unilaterally with the minor leagues in 2001. And it took five years for there to be an effective testing policy, to the point where you're quoting in the newspaper, "We're still in discussions."
Why is that? Why did you hesitate adopting an anti-doping policy?
FEHR: The question I think is more appropriately put, why did we oppose mandatory random testing prior to 2002.
MCHENRY: Yes. It sees like that is...
FEHR: Which we did. And the reason why I previously testified, I'll try and succinctly respond to your question today, I believed, the players believed that fundamental principles of probable cause bore a role here, that before you did a search or invaded the privacy of an individual, you ought to have cause related to that individual to do that.
It became apparent a year after or some months after the 2001 program was introduced in the minor leagues, with the revelations about Ken Caminiti and so on in the spring of 2002, that that approach may have not been as well thought through as we thought it would.
And as I testified at this committee in 2005, we had a lot of discussions and we decided that the best approach was to test it empirically and we did a survey test and the survey test came back significantly higher than I believed it would and certainly than I hoped it would.
We then went to program testing. I thought at the time that the testing we had in effect in 2004 would probably have done the trick with respect to steroids. A lot of people didn't, including a lot of members of this committee, and so we took the additional steps.
And since 2002, we have modified the agreement, sometimes formally, sometimes administratively, in a number of different respects, including recently, and I expect that to continue.
MCHENRY: Go ahead, Mr. Selig, final comment.
SELIG: Well, I was just going to say the thing that -- one of the virtues of the Mitchell report, to me, was to point out, again, even though we had done all these things, how much more we had to do, which answers your basic question, that this thing is changing so rapidly that we not only will continue to do it, but that we need to look forward and do more.
MCHENRY: Final comment.
WAXMAN: The gentleman's time has expired.
MCHENRY: Final comment. You need to think about the youth here and the images you're sending to them.
And a final question for both you, a simple yes or no. Do you two feel complicit in the rise of steroid use in Major League Baseball?
FEHR: As I indicated in my testimony, we didn't pay enough attention to it soon enough. If that fits your...
FEHR: ... definition of complicit, then the answer is yes.
SELIG: I said in my testimony, my statement, and again today, I'll take responsibility. I take it for all the great things that have happened the last 16 years. I'll certainly take it for that, and that's why I wanted the Mitchell report, because it would show me and show the people who'll come after me a road map of what maybe they should have done under the circumstance.
WAXMAN: Thank you, Mr. McHenry.
NORTON: Thank you, Mr. Chairman.
First, I'd like to commend both of you on the progress you've made, especially since our hearings.
In my view, the most important recommendation in Senator Mitchell's report is his recommendation, I'm going to quote him, for an entity with, quote, "exclusive authority over all aspects of the formulation and administration of the drug program."
Commissioner Selig, you mentioned in your testimony an independent program administrator. I'd like to know what your version of an independent entity would look like and to ask Mr. Fehr what his thoughts are concerning a completely independent drug testing program.
SELIG: Well, I'll give my answer first. I think since we've been here, we have gone -- we're much more independent. We have two of the gold standard labs on the North American continent, in Montreal and UCLA. We have Dr. Brian Smith (ph) of the University of North Carolina, who Dr. Green had recommended to us.
I think that everybody involved in the program will tell you that nobody has overturned any of his decisions. So he has been independent.
It's a matter that we'll continue to review, but I think, frankly, based on the results, we've gone into very significant detail and surrounded these with the best labs and the best people, whose reputations are impeccable.
And Dr. Smith, I think, if he were here today, would tell you that he has been independent and it's up to us to make sure that he is.
NORTON: Mr. Fehr?
FEHR: Thank you, Congresswoman.
Let me begin by stating something which is obvious to labor lawyers, but perhaps, in this day and age, isn't as well known.
Under the law, we have the legal right, but, more importantly, the responsibility to negotiate all terms and conditions of...
NORTON: You don't have to go -- I taught law. I'm asking you a question.
FEHR: I apologize.
NORTON: Because I'm aware of -- I have great respect for collective bargaining. It was one of the subjects I taught at Georgetown Law School.
I'm asking what your views are on a completely...
FEHR: It would appear so, yes.
NORTON: ... what your views, your personal views are, however you arrive at that. And you're talking about someone who respects the collective bargaining process, not somebody who thinks we or anybody ought to override it.
What are your views...
FEHR: Let me try.
NORTON: ... of a completely independent drug testing program.
FEHR: Let me try again. I believe that there should be an independent program administrator. We have one, as has been indicated. None of his recommendations have been other than complied with.
Senator Mitchell indicated, and I agree -- in his report, and I agree with it, that there are a number of different alternatives that might be considered. The precise formula that would be adopted needs to be decided in bargaining.
I haven't closed yet on the kinds of recommendations that I will make to the players as to what changes make sense. We do expect to get some proposals from the commissioner's office and we'll look at it in good faith and we'll let you know what we come up with.
NORTON: Well, I appreciate that answer and, by the way, I understand the position you're put in. I'm not asking you to bargain at the witness table.
I do want to indicate that you have a terrible burden, Mr. Fehr, because you do represent players. There's no way for players to feel good about any kind of additional oversight.
So I understand that entirely.
FEHR: I appreciate it.
NORTON: However, from your point of view, nothing would be better than to take this issue off the table. And you want to talk about deterrent effects? Imagine the deterrent effect of knowing that an independent entity, having nothing to do with anybody, not just doctors or scientists whom you trust, is who is going to conduct these random tests.
Then the union does not have to worry about grievances where they've got to represent the player no matter what. It's out of your hands.
And, therefore, I must ask you, what would be your objection to adopting the World and U.S. Anti-Doping Agency standards in baseball? After all you've gone through, just to get this off the table, to -- imagine the -- after regaining almost instantly the credibility that baseball has lost, the trust, just in time for the nationals to come to Washington.
FEHR: I think they would say they're already here, but we are having a new stadium.
Let me just try and respond. I don't think my responsibilities are consistent with doing something just to get it off the table. Our responsibilities are to do two things.
We have to negotiate what we think is a fair and appropriate...
NORTON: Mr. Fehr, I said deterrent effect.
FEHR: I understand.
NORTON: You want to go to grievances...
FEHR: And then to represent...
NORTON: ... for players for the rest -- from here to kingdom come, then be my guest.
FEHR: All I can tell you is that I believe we can and have and will continue to achieve that deterrent effect and we'll see where these discussions take us.
And I'm sure that this committee...
NORTON: Would you -- well, let me ask -- let me ask Mr. Selig whether he would...
WAXMAN: Ms. Norton, your -- Ms. Norton?
NORTON: ... if he would at least consider a totally independent -- I mean, that's one of the recommendations. You said you supported all 20 recommendations. He knew what you all have just said to me. He knew about the vast improvement that you've already done and still he said you needed a totally transparent, independent commission.
Mr. Selig, what would be your response to at least considering that?
WAXMAN: As I've said before, I'd like to let the witnesses answer the question. Her time has expired to ask questions, but we'd like to hear your response to the question.
SELIG: I really believe, as I said to you earlier, that this program is working, independent, but it's a very fair question and it's one we will closely evaluate, because we need to be totally and completely independent.
NORTON: Thank you.
WAXMAN: Thank you very much.
WAXMAN: Mr. Davis?
D. DAVIS: Thank you very much, Mr. Chairman.
The focus of this committee's work on baseball has mainly been with regards to its drug-testing policy. But Senator Mitchell notes that improvements to the drug-testing program by itself will not be sufficient and that the commissioner's office should place a higher priority on the aggressive investigation of non-analytical evidence, that is, evidence of possession or use.
Commissioner Selig, you acted quickly on this recommendation, and I commend you for it, because on Friday of last week you appointed a new office of investigations for your office.
Could you tell us the purpose of that office and what it's intended to do?
SELIG: I can. I think Senator Mitchell found in the course of our history, Congressman, that we didn't have enough of an independent arm, so to speak, just doing investigation, which would help us overall.
So we've taken two people, one who's a former deputy police chief in New York, the other an FBI man for over 30 years. They're here today; they have over 53 years of experience in law enforcement.
They are to track every possible rumor, everything that's said on this subject, so that I can say to myself, and to people in baseball, and to all of you: We now have a department that will do nothing but that, so that nothing escapes us, and that will be their primary and really sole responsibility.
D. DAVIS: Mr. Fehr, let me ask you, will the Players Association cooperate fully with this new office and urge players to do the same?
FEHR: One of the difficulties I have in responding is I don't yet know what the department is going to do; I don't know what techniques it's going to follow. It's my understanding that the protocols have not yet been developed.
One of the things we've indicated to the commissioner we'd like to talk about is, how is this going to work?
We have developed, for example, procedures to handle investigations for the non-analytical positives that have resulted in suspensions the last several years. I don't know whether there will be differences or not; I can't evaluate it until we look at that.
I certainly hope that we're going to be in a position to say, at the end of the day, that we'll represent our players in connection with any such investigations, but the investigations are going to be conducted in a way which does not suggest there are fundamental problems with it. We'll let you know.
D. DAVIS: Earlier this morning, Senator Mitchell indicated he did have some faith and confidence that baseball would be able to adequately police itself.
Could the two of you tell me what as a team that you expect to do that you have not already done that's going to vindicate this kind of faith that the senator expressed?
SELIG: Well, in the case of the department, these people's sole responsibility really will be to investigate all of these things. They won't have to go through layers of people. I think the senator was a little bit troubled by that.
They're people with, as I said, 53 years of law enforcement experience, so that they will be -- they will not only be in touch with all the law enforcement departments everywhere in all of our -- where all our franchises are, but here in Washington and everything else.
And that is their job now -- and it is a big one -- so that we can never again say, "Well, we didn't know," or, "This guy told this guy something else," or, "Labor said this to security, and security said this."
They'll report to (inaudible) the president of Major League Baseball, directly, and there will be no question about it. And as I said, both of these very well-trained people will do nothing but follow this subject in every way shape, form and manner.
FEHR: Congressman, in all the years I've been in baseball, and in the 30-odd years I've known the commissioner, I don't think anybody has ever previously referred to us as a "team," either actual or potential.
SELIG: Nor will they again, probably.
FEHR: And given the conflicting interests that our relative constituencies have, especially on the economic matters, and the adversarial nature of the collective bargaining process that our law enshrines, it may not happen again. Mr. Selig may be right.
All I can tell you is this: Since the strike in '94, '95, which was horrible and ugly and ended as a result of an injunction as a result of unfair labor practices, and then it took a long time to get an agreement afterwards, there's been a change in the relationship.
We were able to reach agreements in 2002 and in 2006, although not without difficulty, but without stoppages, and without -- the last time around, threats of stoppages.
We have been able to negotiate agreements dealing with performance-enhancing drugs and to amend those a number of times, both administratively and formally.
What I can tell you is that we should be in a position to cooperate where we can. Where we can't, where the constituencies differ, I assume that we'll have to work those out. That's the nature of bargaining.
But the object is to cooperate where we can and minimize the areas of dispute.
For my part, I had a long time with a lot of disputes with Major League Baseball. I'm willing to have another one, if we have to. That's far from my first choice.
D. DAVIS: Thank you very much, Mr. Chairman.
And I just hope that you can find enough common ground to protect and preserve not only the integrity of the game, but also to promote the public interest and send the right signals and the right messages to our young people.
SELIG: Thank you.
D. DAVIS: Thank you very much.
WAXMAN: Thank you, Mr. Davis.
SARBANES: Thank you, Mr. Chairman, for holding the hearing.
You all have been very patient. And you'll be glad to know you're getting towards the end here.
I'm highly sensitized to this issue recently for a couple of reasons. One is I, a few weeks back, introduced legislation that would create a foundation to support the President's Council on Physical Fitness and education, which I hope will take the lead with others in a campaign nationally that we have to undertake to combat the use of steroids.
But in the process, I've been visiting a lot of youth sports programs and so forth around my district over the last few weeks just to promote the mission of the president's council and, you know, have seen firsthand, obviously, the impact that professional athletes have, I mean, the posters that are on the walls, the comments of the kids.
And so the effect that that modeling has on them is, I think, obvious to all of us.
The other thing is a little thing that happened yesterday. My 14-year-old son loves baseball. He wants to play baseball. He's been playing it. So I thought I'd help him get in shape for the baseball season that's coming up.
And I went out and bought him one of these push-up things, where there's a piece of equipment. There's a tape that comes with it, so last night we went down to watch the tape. It seemed innocent enough.
But at the end of it, the person on the videotape said, "So what you need is three things: You need the equipment; you need this instruction booklet on how to make sure your form is good; and then, of course, you need these supplements that you can go buy, too."
So that pretty much drove it home. This was last night at 9 o'clock. So I was ready for the hearing just based on that.
There seem to be three categories of athletes that we're talking about. One of those who are not using any performance-enhancing drugs, and it sounds like it requires quite a bit of discipline to resist it.
The second group would be those who are doing it and don't care. I mean, they've just decided that it's all about the detection. If they can escape detection, they will, and they'll use these drugs to get a competitive advantage.
And then I think there's a group in the middle, which has been described, which are the athletes who say, "You know, I don't want to do this, but if I'm losing out competitively to these other folks who aren't being taken to task, I'm not just going to sit idly by." And so they get pulled into it.
And what I'm curious about is, how can we move the culture away from this notion that you don't do it because you don't want to be detected, which leaves you open to the arrival of new, non-detectable drugs to sort of undermine the effort?
How can we get to a culture of clean? I mean, do you have any confidence that the enforcement mechanisms that you've implemented and will agree to implement further going forward can actually lead to that, so that those who don't use and those who don't want to use, but are, can take over the game in a positive way and drive that culture, so it's not about whether you're getting detected or not, it's about doing the right thing?
I don't want to sound naive about it. But can we get to that point where that's the sort of cultural norm? How much confidence do you have in that?
SELIG: Well, I would say that I have a lot more confidence than I did three years ago. All of our educational programs that go out -- baseball, with the Partnership for a Drug-Free America and the Hooton Foundation and others, spend an enormous amount of time and money. And we're getting the message across.
Now, with all the internal things we're doing in baseball to change the culture -- and I think the culture has been changed in a lot of ways, maybe even more than we know.
But I would hope all the things that we've done -- just think all the things in the last week -- the Mitchell recommendations about certifying from trainers, and checking packages, and doing all the things we do -- the new department, which I think is going to be very important.
I think today everybody in this sport -- and I'm talking on the field and off the field -- has a more clearer understanding that this culture not only needs to be changed, is changing, and is changing dramatically.
We've just got to keep the pressure on, to be frank with you. Yes, I'm optimistic that we can do that. And in fact, I don't -- we have to do it. We have no other choice. This must be done.
FEHR: I guess for my part, I hope we can. I think we're moving and have made some big strides in that direction. I have no doubt that this or other committees of the Congress will be interested in whether history proves out that we have. And we'll see. Our task is to keep working at it.
But let me address one thing you said which to me is of really enormous importance. You talked about your son seeing a video that said he should take supplements.
If any of you haven't done it, please go to the drugstore or GNC or somewhere else and look what's up on the shelves. Every tree, every grass, every bush, every mineral, every -- everything else anybody's ever heard of is there.
When I mentioned in my prepared testimony in my opening remarks that one of the things that may bear consideration is a review of the dietary supplements act, DSHEA, to see if it makes sense -- so that we don't, in effect, advertise to kids.
Because as Senator Mitchell has said, as the commissioner has said, as I've said any number of times, this is a very wide problem. And I'll just give you one example of it. I'll hand it up to the committee when we're done.
This is an ad from Continental Airlines magazine that we saw coming down here. It says, "Choose life, grow young with HGH, the reverse-aging miracle." OK?
It is one thing to say that athletes should do whatever they can and we don't question that. But if the messages generally are not consistent with that, especially to kids, we've got a really tough row to hoe. And so I hope people would consider that.
SELIG: You know, the public service announcements that we are doing with the Partnership for a Drug-Free America, which shows what it does to people's bodies -- that needs to go on at every level.
As I said earlier, I've talked to a lot of people in college sports and high school sports and other things, and there is no question -- and hopefully, out of all of this, baseball can be a leader in doing exactly what you're asking, and that is to send the right message.
FEHR: If I could just make -- I apologize and ask your indulgence for 30 more seconds.
If you go to young people's athletic programs, one of the messages you will see most consistently delivered in any variety of ways will be you're not big enough, you're not strong enough, you're not fast enough, do something about it. And the kids want to.
In wrestling, we approach this in different ways -- we have things like weight classes. We don't otherwise. If the message is going to be in the main competitive team sports that most people are not big enough, strong enough or fast enough, that makes it even more difficult.
And I haven't got a clue as to how to attack that, because that's what the coaches want.
SARBANES: Thank you. My time is up.
Mr. Chairman, I appreciate it. I would just say that I hope that the public watching is watching not just as fans of baseball but also does some self-reflection as parents and coaches and thinks about the messages that we're sending and how we can participate in this campaign to turn around steroid use. Thank you.
WAXMAN: Thank you very much, Mr. Sarbanes.
And, Mr. Selig, Mr. Fehr, I thank you so much for your patience and your willingness to be here.
Senator Mitchell described a pretty sad and, in many ways, depressing history of baseball in the era of steroids, but he also laid out a road map.
And I appreciate the fact that both of you are willing to consider those recommendations and that road map so that we can get beyond where baseball has been in the past. I think you've made progress, but we still have a ways to go.
But I thank you very much for your leadership, your efforts, and I hope we can hear continued good news from both of you about this subject.
SELIG: Thank you very much.
FEHR: Thank you very much.
WAXMAN: Thank you.
Before we close, I want to ask unanimous consent to put in the record a statement by the Marreros. If it's not already in the record, we want to be sure that they are able to put their statement in the record on behalf of the Efrain Anthony Marrero Foundation. Without objection, that will be the order.
That concludes our business today. We stand adjourned.
Source: CQ Transcriptions