    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

       THE MITCHELL REPORT: THE ILLEGAL USE OF STEROIDS IN MAJOR LEAGUE
                                    BASEBALL

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

                                    HEARING

                                   before the

                             COMMITTEE ON OVERSIGHT
                             AND GOVERNMENT REFORM

                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                JANUARY 15, 2008

                                   __________

                               Serial No. 110-206

                                   __________

    Printed for the use of the Committee on Oversight and Government Reform

      Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                                   index.html
                          http://www.house.gov/reform

                      U.S. GOVERNMENT PRINTING OFFICE
    55-749                    WASHINGTON : 2010
    -----------------------------------------------------------------------
    For Sale by the Superintendent of Documents, U.S. Government Printing Office
    Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512�091800
    Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001

                  COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                     HENRY A. WAXMAN, California, Chairman
    TOM LANTOS, California               TOM DAVIS, Virginia
    EDOLPHUS TOWNS, New York             DAN BURTON, Indiana
    PAUL E. KANJORSKI, Pennsylvania      CHRISTOPHER SHAYS, Connecticut
    CAROLYN B. MALONEY, New York         JOHN M. McHUGH, New York
    ELIJAH E. CUMMINGS, Maryland         JOHN L. MICA, Florida
    DENNIS J. KUCINICH, Ohio             MARK E. SOUDER, Indiana
    DANNY K. DAVIS, Illinois             TODD RUSSELL PLATTS, Pennsylvania
    JOHN F. TIERNEY, Massachusetts       CHRIS CANNON, Utah
    WM. LACY CLAY, Missouri              JOHN J. DUNCAN, Jr., Tennessee
    DIANE E. WATSON, California          MICHAEL R. TURNER, Ohio
    STEPHEN F. LYNCH, Massachusetts      DARRELL E. ISSA, California
    BRIAN HIGGINS, New York              KENNY MARCHANT, Texas
    JOHN A. YARMUTH, Kentucky            LYNN A. WESTMORELAND, Georgia
    BRUCE L. BRALEY, Iowa                PATRICK T. McHENRY, North Carolina
    ELEANOR HOLMES NORTON, District of   VIRGINIA FOXX, North Carolina
        Columbia                         BRIAN P. BILBRAY, California
    BETTY McCOLLUM, Minnesota            BILL SALI, Idaho
    JIM COOPER, Tennessee                JIM JORDAN, Ohio
    CHRIS VAN HOLLEN, Maryland
    PAUL W. HODES, New Hampshire
    CHRISTOPHER S. MURPHY, Connecticut
    JOHN P. SARBANES, Maryland
    PETER WELCH, Vermont

                         Phil Schiliro, Chief of Staff
                          Phil Barnett, Staff Director
                           Earley Green, Chief Clerk
                      David Marin, Minority Staff Director

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on January 15, 2008.................................     1
    Statement of:
        Fehr, Donald M., executive director, Major League Baseball
          Players Association........................................   112
        Mitchell, Hon. George, former U.S. Senator...................    21
        Selig, Allan H. ``Bud'', commissioner, Major League Baseball.    91
    Letters, statements, etc., submitted for the record by:
        Fehr, Donald M., executive director, Major League Baseball
          Players Association, prepared statement of.................   116
        Mitchell, Hon. George, former U.S. Senator, prepared
          statement of...............................................    26
        Selig, Allan H. ``Bud'', commissioner, Major League Baseball,
          prepared statement of......................................    96
        Waxman, Hon. Henry A., a Representative in Congress from the
          State of California:
            Letter dated January 8, 2008.............................    11
            Letter dated January 15, 2008............................     4
            Prepared statement of....................................    14

       THE MITCHELL REPORT: THE ILLEGAL USE OF STEROIDS IN MAJOR LEAGUE
                                    BASEBALL

                                  ----------

                           TUESDAY, JANUARY 15, 2008

                              House of Representatives,
                  Committee on Oversight and Government Reform,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 9:31 a.m., in
    room 2154, Rayburn House Office Building, Hon. Henry A. Waxman
    (chairman of the committee) presiding.
        Present: Representatives Waxman, Towns, Cummings, Davis of
    Illinois, Tierney, Watson, Lynch, Yarmuth, Norton, McCollum,
    Van Hollen, Sarbanes, Welch, Davis of Virginia, Burton, Shays,
    McHugh, Souder, Turner, Issa, and McHenry.
        Staff present: Phil Schiliro, chief of staff; Phil Barnett,
    staff director and chief counsel; Karen Lightfoot,
    communications director and senior policy advisor; Brian Cohen,
    senior investigator and policy advisor; Michael Gordon, senior
    investigative counsel; Steve Glickman, counsel; Earley Green,
    chief clerk; Teresa Coufal, deputy clerk; Caren Auchman and
    Ella Hoffman, press assistants; Zhongrui ``JR'' Deng, chief
    information officer; Leneal Scott, information systems manager;
    Kerry Gutknecht, William Ragland, and Miriam Edelman, staff
    assistants; David Marin, minority staff director; Larry
    Halloran, minority deputy staff director; Jennifer Safavian,
    minority chief counsel for oversight and investigations; Keith
    Ausbrook, minority general counsel; Steve Castor, minority
    counsel; Patrick Lyden, minority parliamentarian and Member
    services coordinator; Brian McNicoll, minority communications
    director; Benjamin Chance, minority clerk; Ali Ahmad, minority
    deputy press secretary; Jill Schmalz, minority professional
    staff member; and John Ohly, minority staff assistant.
        Chairman Waxman. Good morning. The committee will come to
    order.
        When our committee held its first hearing 3 years ago on
    Major League Baseball's steroid scandal, I talked about how the
    culture of Major League clubhouses trickled down to become the
    culture of the high school gym.
        Later that same day, Dan Hooten and Denise and Raymond
    Garibaldi proved that connection with their powerful testimony
    about the deadly impact that steroids had on their sons.
        The Hooten 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'd expect 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 this
    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's
    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 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 have tried to be sensitive to their legitimate
    privacy rights and to the obvious harm this issue can do to
    their reputation. 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 has 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 to 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 taking or 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.
        [The information referred to follows:]

        [GRAPHIC] [TIFF OMITTED] T5749.001

        [GRAPHIC] [TIFF OMITTED] T5749.002

        [GRAPHIC] [TIFF OMITTED] T5749.003

        [GRAPHIC] [TIFF OMITTED] T5749.004

        [GRAPHIC] [TIFF OMITTED] T5749.005

        Chairman Waxman. I also want to make it clear that the
    steroid scandal is not just about ball players. 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 attend the meeting were
    disturbed. The league's medical office seemed to be sending an
    official message of leniency.
        The situation in the league 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 security office appears to have done
    nothing. In another case, a bullpen catcher for the Montreal
    Expos, Luis Perez, gave 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: ``Hallinan told us that 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 trader 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 Giant's general manager, Brian Sabean; and the
    Giant's president, Peter Magowan, are a sad reflection of the
    poor leadership many teams brought to this effort.
        It is a dismal record and it needs to be put front and
    center; not hidden. It helps us understand how the steroid era
    infected baseball and how that virus spread to colleges and
    high school. That is the bad news.
        The good news is, I believe baseball is now taking steroid
    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 steroid 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: ``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've 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.
        [The information referred to follows:]

        [GRAPHIC] [TIFF OMITTED] T5749.006

        [GRAPHIC] [TIFF OMITTED] T5749.007

        Chairman Waxman. I want to close my opening statement by
    reading from their statement: ``simple, honest accountability
    is all we're asking for . . . no family should have to endure
    the 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.''
        To Mr. and Mrs. Marrero, and Mr. Hooten, and to all the
    concerned parents around our Nation, I want you to know we're
    trying to do just that.
        I now want to recognize Mr. Davis, who as chairman of this
    committee held that important hearing and investigation, got us
    started. It is an effort we've worked closely together on, and
    I'm pleased to continue that role with him in this year's
    hearing.
        [The prepared statement of Chairman Henry A. Waxman
    follows:]

    [GRAPHIC] [TIFF OMITTED] T5749.008

    [GRAPHIC] [TIFF OMITTED] T5749.009

    [GRAPHIC] [TIFF OMITTED] T5749.010

    [GRAPHIC] [TIFF OMITTED] T5749.011

        Mr. Davis of Virginia. Thank you, Mr. Chairman. I'd
    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'll 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 clean,'' ``the clear,'' 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 is 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 is 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 3 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
    offenses, 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 abusive 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 backroom drug
    deals involving clubhouse personnel; players injecting each
    other with illegal substances right in their locker rooms; and
    more efforts aimed at obfuscation and confiscation. The report
    names 89 players with varying degrees of involvement with
    steroids and HGH.
        But they are just part of a far wider culture in a sport
    that values home runs and victories over fair play. The report
    confirms that active participation or passive acquiescence and
    drugging cannot coexist with the responsibility to set a proper
    example for those stepping up the lower rungs of the ladder of
    athletic success. In other words, while 2 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 in 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 are 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 remain
    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 5 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 every one 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 coverage to
    appoint Senator Mitchell to undertake this investigation and
    for letting his findings become public. They certainly did not
    reflect well on the commissioners' 10 years as 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 recommendations
    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 ballparks; that
    they'll distribute and post Major League Baseball's policy on
    prohibited substances. Perhaps most significantly, it means the
    24-hour notice of steroid testing will be eliminated. These are
    encouraging first steps, but that is 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.
        Finally, we commend Senator Mitchell for his excellent
    work. Saddled with a daunting list of obstacles--no subpoena
    power, no corporation 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 grounded and realistic, and we'll have the chance to
    probe them further today.
        For example, he urged 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 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
    powers be? How will it work with the players to accomplish its
    goal? Has baseball effectively reorganized itself in setting up
    this office, or has the sport simply reshuffled the deck chairs
    in 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 as big and strong and rich now as possible; he'd worry
    about the rest later.
        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 should not be used as an excuse
    to tolerate or shield illegal activities, activities which
    degrade and damage the very enterprise that employes 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 and the interests of
    millions of Americans who have grown tired of the cloud that is
    still hovering over baseball.
        From this moment, we begin to look into steroids in sports
    and how their use affects impressionable young athletes. Our
    efforts on this issue have been bipartisan. From the beginning
    our committee has come together in a sense of cooperation and
    team work that continues to this day. And 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.
        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. Brought people together in Northern Ireland,
    and brought Democrats and Republicans together on this
    committee, and I thank you for that. You've 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 worked together on
    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 it is the policy of this committee, no matter who
    testifies, that they testify under oath. So if you'd please
    rise and raise your right hand.
        [Witness sworn.]
        Chairman Waxman. Well, I want to recognize you to make your
    presentation to us.

         STATEMENT OF HON. GEORGE MITCHELL, FORMER U.S. SENATOR

        Mr. Mitchell. 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 are 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 is 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 is important to deal with well-known athletes who are
    illegal users, but it is 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 of 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 use 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
    play by 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--share 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 used performance-enhancing
    substances.
        In my report, I acknowledge and even emphasize the obvious.
    There is much about the illegal use of performance-enhancing
    substances in baseball that I did not learn. There were and
    there are other suppliers and other users. 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 detail, but that is unlikely to significantly
    alter the description of baseball's steroidera as set forth in
    my report.
        The commissioner was right to ask for this investigation
    and this report. It would have been impossible to get closure
    on this issue without it or something like it. It is
    appropriate to acknowledge, Mr. Chairman, that it was you and
    this committee who originally suggested that such an inquiry be
    conducted. But it is 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 nontesting 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 the 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 pre-existing
    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 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 the
    mandatory 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 is up to
    the commissioner, the clubs and the players to decide how they
    will proceed. Their actions over the past 6 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.
        [The prepared statement of Mr. Mitchell follows:]

        [GRAPHIC] [TIFF OMITTED] T5749.012

        [GRAPHIC] [TIFF OMITTED] T5749.013

        [GRAPHIC] [TIFF OMITTED] T5749.014

        [GRAPHIC] [TIFF OMITTED] T5749.015

        [GRAPHIC] [TIFF OMITTED] T5749.016

        [GRAPHIC] [TIFF OMITTED] T5749.017

        [GRAPHIC] [TIFF OMITTED] T5749.018

        [GRAPHIC] [TIFF OMITTED] T5749.019

        [GRAPHIC] [TIFF OMITTED] T5749.020

        [GRAPHIC] [TIFF OMITTED] T5749.021

        [GRAPHIC] [TIFF OMITTED] T5749.022

        [GRAPHIC] [TIFF OMITTED] T5749.023

        [GRAPHIC] [TIFF OMITTED] T5749.024

        [GRAPHIC] [TIFF OMITTED] T5749.025

        [GRAPHIC] [TIFF OMITTED] T5749.026

        [GRAPHIC] [TIFF OMITTED] T5749.027

        [GRAPHIC] [TIFF OMITTED] T5749.028

        [GRAPHIC] [TIFF OMITTED] T5749.029

        [GRAPHIC] [TIFF OMITTED] T5749.030

        [GRAPHIC] [TIFF OMITTED] T5749.031

        [GRAPHIC] [TIFF OMITTED] T5749.032

        [GRAPHIC] [TIFF OMITTED] T5749.033

        [GRAPHIC] [TIFF OMITTED] T5749.034

        [GRAPHIC] [TIFF OMITTED] T5749.035

        [GRAPHIC] [TIFF OMITTED] T5749.036

        [GRAPHIC] [TIFF OMITTED] T5749.037

        [GRAPHIC] [TIFF OMITTED] T5749.038

        [GRAPHIC] [TIFF OMITTED] T5749.039

        [GRAPHIC] [TIFF OMITTED] T5749.040

        [GRAPHIC] [TIFF OMITTED] T5749.041

        [GRAPHIC] [TIFF OMITTED] T5749.042

        [GRAPHIC] [TIFF OMITTED] T5749.043

        [GRAPHIC] [TIFF OMITTED] T5749.044

        [GRAPHIC] [TIFF OMITTED] T5749.045

        [GRAPHIC] [TIFF OMITTED] T5749.046

        [GRAPHIC] [TIFF OMITTED] T5749.047

        [GRAPHIC] [TIFF OMITTED] T5749.048

        [GRAPHIC] [TIFF OMITTED] T5749.049

        [GRAPHIC] [TIFF OMITTED] T5749.050

        [GRAPHIC] [TIFF OMITTED] T5749.051

        [GRAPHIC] [TIFF OMITTED] T5749.052

        [GRAPHIC] [TIFF OMITTED] T5749.053

        Chairman Waxman. Thank you very much, Senator Mitchell.
    We'll now proceed to recognize Members for 5 minutes for
    questions for the Senator. We'll start with Mr. Towns.
        Mr. 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 steroid use 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?
        Mr. 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. As a
    consequence--included as part of our recommendations, and they
    are 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 so 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.
        Mr. 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?
        Mr. Mitchell. As I said in my report, the Players
    Association was largely uncooperative.
        Mr. 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, 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 changes on me, when we
    had a hearing 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
    Major League Baseball today to the other sports leagues like
    NCAA and the Olympic sports in terms of how credible and
    effective the drug program is?
        Mr. Mitchell. In my report, I included an analysis of the
    known provisions of all of the 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.
        Chairman Waxman. Thank you, Mr. Towns.
        Mr. Davis.
        Mr. Davis of Virginia. Senator Mitchell, again, thank you
    again for your report. 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 22, 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?
        Mr. Mitchell. Yes.
        Mr. Davis of Virginia. So they couldn't simply appear,
    review the evidence and leave if they concluded they had
    nothing to say about the evidence?
        Mr. Mitchell. That's correct.
        Mr. Davis. Do you have any earlier letters communicating
    your offer to provide the evidence to the players.
        Mr. Mitchell. Yes.
        Mr. Davis of Virginia. Could the decision of players not to
    come in have been a result of their belief that they would be
    required to answer questions?
        Mr. Mitchell. I can't speak for the players. I did not
    communicate with any current players directly. And if I might,
    I would be glad to give a more detailed explanation,
    Congressman Davis, when you complete your question.
        Mr. Davis of Virginia. Go ahead. It is important.
        Mr. Mitchell. 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 30, 2006, the day I publicly accepted this assignment, I
    said, ``We'll provide those whose reputations have been or
    might be called into question by these allegations an
    opportunity to be heard.''
        On January 18, 2007, I addressed the owners in Phoenix, and
    my remarks were made public and widely reported throughout the
    country. I said, I'll 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 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 require 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 received about it. 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, ``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. That is, 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 2007, and each time
    they declined my invitation to meet and talk with me. At your
    request, Mr. Chairman, I've supplied all of this correspondence
    to the committee.
        I should say, just for the record, Congressman Davis, a
    different procedure was followed for former players. They are
    not members of the bargaining unit that is represented by the
    Players Association. 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 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.
        Mr. Davis of Virginia. 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----
        Mr. Mitchell. Yes, one former player retained his own
    lawyer who contacted us and asked 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 whom 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.
        Mr. Davis of Virginia. I asked both, and you just said it
    was a former player. No current player?
        Mr. Mitchell. No. Let me--I don't want to characterize the
    status of the player, if I might.
        Mr. Davis of Virginia. That's fine. Right. Thank you.
        Chairman Waxman. Thank you, Mr. Davis.
        Mr. Cummings.
        Mr. 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 your--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 Hooten, the father of Taylor Hooten, a
    teenage ballplayer who committed suicide after taking steroids.
    Mr. Hooten 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 No. 2 finding went to the whole
    issue of children and the fact that it could have--the steroids
    and illegal substances could have a very detrimental effect on
    children. This committee, Senator, as you probably know, got a
    lot of flack back in 2005 when we took a look at Major League
    Baseball and its handling of steroids. And we are receiving
    similar criticism even today. People are saying, Why are you
    getting involved in that? But I want to take a moment to remind
    everyone why we're here in the first place. We are here--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 is, as you said, extremely dangerous.
    And I think 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
    is what 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, if we--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--kids to stay off steroids.
        Peter Angelos, the owner of the Orioles, who I am glad is
    here, has agreed to be a major part of that program.
        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
    they can perhaps 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 the people
    have committed a crime, as you said, gone against baseball
    policy. And 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 are going to go forward, is there--you know,
    is there a benefit to doing that? And how do you--what is your
    feeling about the way, if any, Major League Baseball should
    help our children, because the fact is that a lot of damage,
    Senator, has already been done? It has already been done. There
    are kids right now who have in their backpacks some of these
    very substances, and they're going to be probably using them
    today, God forbid. But that is a fact. And it is based a lot
    upon the folks that they were trying to emulate. So I know that
    is a packed question. But if you'd try at it, please.
        Mr. Mitchell. I'm happy to do so, Congressman. First, it is
    not a consequence that I began my remarks with a 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 is not widespread. And I tried hard in
    every public appearance that I've 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.
        Second, 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 is a broad
    societal issue that--of which baseball is only a part. Could I
    answer the second part, Mr. Chairman, about----
        Chairman Waxman. It would be welcome, Mr. Mitchell, but we
    do have many Members, and you're trying to get a train. But go
    ahead and see----
        Mr. Mitchell. I 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 forego discipline on
    past users except in those cases where he deems it necessary to
    impose discipline to protect the integrity of the game. My
    recommendation is 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.
        Second, the actions which I describe in my report are
    between 2 and 9 years old. They're dated in time. It is 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 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 5
    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. 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 some times you have to turn the page and look to the
    future. And I sincerely believe, even as I recognize there are
    valid arguments both ways, that baseball has 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.
        Mr. Cummings. Thank you very much, Mr. Chairman.
        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 5-minute timeframe even to anticipate that the
    answer may be part of the 5 minutes; not 5 minutes and then a
    further 5 minutes for the answer itself.
        Mr. Burton. Thank you Mr. Chairman.
        It's nice to see you again, Senator.
        Mr. Mitchell. Thank you, Congressman.
        Mr. Burton. I would like to start off by saying, 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 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 advance copy of the report and not give
    it to the Players Association.
        Mr. Mitchell. No owner received an advance 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.
        Mr. Burton. Along the 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 would just like to know what the response is to that.
        Mr. 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 document.
    And those who seek them we simply directed to the persons who
    own and possess the documents.
        Mr. Burton. Thank you, Senator.
        I yield back my time, Mr. Chairman.
        Chairman Waxman. Thank you very much, Mr. Burton.
        Mr. Tierney.
        Mr. Tierney. Thank you, Senator. Thank you for your report
    and for 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?
        Mr. 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.
        Mr. Tierney. Now, I understand that you were not able to
    obtain them. You didn't have subpoena power, which--it is
    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 committee. And interestingly enough, one of
    the largest number of players receiving exemptions were those
    that sought it for treatment of attention deficit disorder.
        There were drugs like Ritalin and Adderall. My
    understanding is that these are stimulants, similar to
    amphetamines. Some athletes think that they are performance
    enhancers. They're listed by baseball as prohibited stimulants.
    Ritalin is classified as a Schedule II controlled substance.
    According to the Federal Drug Association these ADD drugs can
    cause sudden death, stroke, heart attack and adverse
    psychiatric effects.
        In 2006, ADD drugs were not a major issue. It appears that
    only 28 medical exemptions were granted; but in 2007, over 100
    major 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 would like to know what your reaction is to that.
        Mr. 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 just provided.
        Mr. Tierney. I understand that you weren't able to get the
    information.
        Mr. Mitchell. I would prefer not to comment until I saw the
    full details, Congressman. I don't know anything other than
    what you just stated. And since it was not part of our
    investigation, I don't have any comment at this time.
        Mr. Tierney. I appreciate that. And perhaps we'll save the
    questions for the league and for the Players Association. I
    don't think we have enough information right now, either, on
    that. We will 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 it in baseball,
    and so we'll explore it a little bit more with them. Thank you.
        Mr. Mitchell. Thank you.
        Chairman Waxman. Thank you, Mr. Tierney.
        Mr. Shays.
        Mr. Shays. Thank you, 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 Blackhawks scandal, you had eight
    players; you had a shortstop, two pitchers, two fielders, a
    first baseman, a utility man, a third base. When they tried to
    throw the Chicago White Sox, playing Cincinnati Reds, 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 2003. 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.
        Mr. 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 employer/employee
    situations where a recognized bargaining unit exists.
        Mr. Shays. But isn't there a difference?
        The purpose of these drugs is not to 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?
        Mr. Mitchell. It is indeed. I've described it as such.
        Mr. 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 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?
        Mr. Mitchell. Yes, I do, and I described 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.
        Mr. Shays. I'll just say what the irony of this for me, as
    well, is because of the Blackhawks 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 3 years ago what
    the procedures were, they basically said, they weren't in
    writing.
        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 would 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
    3,000th hit?
        Mr. Mitchell. I'm sorry, before what?
        Mr. Shays. He had his 3,000th hit--Mr. Palmeiro. Is this a
    case you're familiar with?
        Mr. 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
    placed into his system.
        Mr. Shays. I'll 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?
        Mr. Mitchell. He was tested before he received his 3,000th
    hit.
        Mr. Shays. And it was a positive test?
        Mr. Mitchell. Yes.
        Mr. Shays. And Major League Baseball kept it quiet until he
    hit his 3,000th hit; is that correct or not?
        Mr. Mitchell. That I don't know. Someone behind me is
    saying ``no,'' so I think that's a question for Major League
    Baseball.
        Chairman Waxman. Mr. Shays, your time has expired and we're
    on a very tight schedule.
        Ms. Watson.
        Ms. 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 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,
    that Mitchell Report is most exhaustive--it's not completely
    exhaustive 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 a
    position of authority and leadership. And this includes sports
    personalities whom young people seek to emulate in every way.
    And our media-saturated society must always be critically aware
    of the consequences of their action 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-based legacy of the
    late Congresswoman, Juanita Millender-McDonald, a dear friend
    and a really competent colleague--thanks to the partnership of
    Congresswoman Millender-McDonald and Jimmie Lee Solomon, who is
    here, and Baseball Commissioner Bud Selig and Major League
    Baseball--built its first baseball academy for urban minority
    children. There is 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. And 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 would like to see
    some push behind the proliferation of such a program.
        In the remaining time, would you comment? And thank you so
    very much for your dedication and your work.
        Mr. 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 is here; I
    met with him, I've listened to his message. He's gone through
    it painfully, 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 described
    at Compton are just what's needed all around the country.
        Ms. Watson. Thank you so much, Senator.
        Chairman Waxman. Thank you, Ms. Watson.
        Mr. Souder.
        Mr. 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 give a full, complete
    answer, then perhaps you could answer for the record so it's
    part of a complete record.
        Mr. Mitchell. I'll do that, Congressman.
        Mr. Souder. One challenge is this, a 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 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 or 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 mention 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 can actually find out--because most
    of this stuff is 2 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
    the 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, obviously the
    abuser's 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, because there
    really wasn't 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 sports writers 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?
        Mr. 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 judge to be not credible in the
    sense that many said, ``I didn't know anything about
    steroids,'' ``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 is 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 serve in
    that capacity. And that has to always be taken into account in
    trying to achieve the proper balance.
        Mr. Souder. Can that be done--because of HIPA 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?
        Mr. Mitchell. It's very difficult to do in the absence of
    the power of compulsion.
        I prosecuted at the State level. I was the U.S. attorney
    for Maine and a Federal Judge and I've 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. A huge difference.
        Chairman Waxman. Thank you, Mr. Souder.
        Mr. Lynch.
        Mr. 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 in your commission by Mr. Radomski and Mr.
    McNamee.
        Mr. Mitchell. We made no effort to categorize it in
    percentage terms on that basis.
        Mr. Lynch. Well, let me put it in the inverse then. How
    successful do you think you would have been without it?
        Mr. Mitchell. Not as successful as we were with them.
        Mr. Lynch. 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 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 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?
        Mr. 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 is a private investigation
    conducted for a private entity, Major League Baseball, in an
    effort to--first, to respond to the request of the chairman of
    this committee and the committee as a whole, and second 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 U.S.
    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 will 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.
        Mr. Lynch. In yielding back my time, Senator, I just want
    to say that I think there's a distinct difference 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, distinct monetary incentive for them to cheat.
        And I will yield back my time. Thank you, Senator.
        Mr. Mitchell. Thank you, Congressman.
        Chairman Waxman. Thank you, Mr. Lynch.
        Mr. Turner.
        Mr. Turner. Thank you, Mr. Chairman.
        And thank you, Senator, for all your work on this. And I
    want to echo the comments of those who have gone before me on
    this panel that 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 could be done.
        Could you explain that to me?
        Mr. 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 the collective bargaining agreement had not expired.
    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 would report it to them and ask them questions about it,
    they took steps to correct it on an ongoing basis.
        Mr. 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 message to our kids. And I appreciate your
    work to help accomplish that.
        Mr. Mitchell. Thank you, Congressman.
        Chairman Waxman. Thank you very much.
        The Chair now recognizes Mr. Yarmuth.
        Mr. Yarmuth. Thank you, Mr. Chairman.
        Chairman Waxman. Before you begin, Mr. Yarmuth,Senator
    Mitchell, I know you hoped to get out by 11. We have five
    Members, and there are some important issues that we still
    want--my colleagues want to cover. If you would give us another
    20 minutes, I would appreciate it.
        Mr. Mitchell. Yes, that's fine. I will, Mr. Chairman.
        Chairman Waxman. Thank you.
        Mr. Yarmuth. Thank you 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.
        Mr. Mitchell. There has been a lot of speculation about
    bats in recent years, as you know.
        Mr. Yarmuth. But I do want to focus on the issue of the
    concept of performance enhancing, because you mentioned in your
    testimony--you said, the players apparently believe--they took
    HGH because they apparently believe 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 can hit more home runs, 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
    discernible 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
    enhancement, 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?
        Mr. 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, you know 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, on 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 the 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 is taking steroids and he's
    taking 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.
        Mr. Yarmuth. Thank you, Senator. I yield back.
        Chairman Waxman. Thank you, Mr. Yarmuth.
        Mr. McHugh.
        Mr. McHugh. Thank you, Senator. Like all my colleagues I
    deeply appreciate not just this work, but all the work you've
    done in an amazing career.
        In both your written, as well as your presented testimony
    here today, you 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.
        Mr. Mitchell. 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
    clubs, 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.
        Mr. 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 to 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?
        Mr. Mitchell. I've spoken by telephone twice with 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 here to be volunteering to continue my
    participation any longer. But I certainly will do 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.
        Mr. McHugh. So you're optimistic that the entire report, in
    due course, will be implemented?
        Mr. Mitchell. This is not an easy issue. Let's just look at
    the facts. There are 30 clubs, there are dozens of officials.
    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 or 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.
        Mr. McHugh. Thank you, Senator.
        Thank you, Mr. Chairman.
        Chairman Waxman. Thank you, Mr. McHugh.
        Ms. Norton.
        Ms. Norton. Thank you, Mr. Chairman. And thank you
    particularly for the rigorous followup 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 allegation 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 would 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?
        Mr. Mitchell. 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 far 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.
        Ms. Norton. Let me ask you, Senator, because I think those
    are precisely the kinds of sources we would expect you to use
    under the circumstances. But let me ask you about the most
    controversial name in your report, perhaps, Roger Clemens, a
    seven-time Cy Young Award winner who, 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?
        Mr. Mitchell. I do not know why. As I stated earlier,
    Congresswoman Norton, we followed the legal process which we
    were 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--the way it turned out, there were two letters that----
        Ms. Norton. Obviously, he 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 reassess your
    conclusions regarding this credibility that you found in Mr.
    McNamee's allegation?
        Mr. Mitchell. Since the report was issued, Andy Pettite has
    said that Mr. McNamee's statements about him were true. So they
    confirmed the testimony.
        Ms. Norton. And you believe he was a credible--you believe
    he was credible on Roger Clemens, why?
        Mr. 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 U.S. 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 statement 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.
        Chairman Waxman. Senator Mitchell, let me----
        Mr. Mitchell. I just want to make one final statement.
        Thus, Mr. McNamee had an overwhelming incentive to tell the
    truth. And I'll 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
    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
    proceeded on that basis.
        And, as noted, I asked Mr. Clemens to meet with him to give
    him an opportunity to respond to the allegations, and he
    declined.
        Chairman 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?
        Mr. Mitchell. We believe that the statements provided to us
    were truthful.
        Chairman Waxman. Thank you very much.
        Ms. McCollum.
        Ms. McCollum. Thank you, Mr. Chair.
        Senator, if players using these drugs constitute cheating,
    and owner and league officials knew about the use of these
    illegal drugs, as 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 big 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, billions
    of dollars over the past 15 years. If baseball is simply
    another form of entertainment, like going to a concert or
    attending a professional wrestling match, 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 wherein 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
    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: hometown, 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 seat,
    the more money in owners' pockets and the bigger salaries for
    players.
        Major League Baseball is filled with lawbreakers and
    coconspirators who ignore the problem and actively fuel the
    problem.
        In your report you mention two items which I would like you
    to elaborate on. David Segui of the Baltimore Orioles on
    September 24, 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
    Orioles general manager, Mike Flanagan, so two of the top
    Orioles 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 trial. The Giants trainer,
    Stan Conte, 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 hormones,
    what have they done?
        And I thank you for your work on this, because I want to
    get America's game back on track.
        Mr. 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 a performance enhancing
    substance in baseball. But I think we all have to recognize
    that this goes far beyond baseball and it 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.
        Chairman Waxman. Senator Mitchell, let me interrupt you
    because we're trying to help you get to your train. Could you
    address the specific question? Then we have one last question.
        Mr. Mitchell. 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.
        Chairman Waxman. Thank you very much.
        Mr. Welch.
        Mr. Welch. Thank you, Mr. Chairman.
        Senator Mitchell, I agree with the wisdom of your judgment
    to look forward, not look backward. 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 batter struck out,
    most stolen bases--should be stripped of that record?
        Mr. 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 my opinion to have
    greater weight than yours or any other fan on the subject you
    express. 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.
        Mr. Welch. Just a few questions about the role of Major
    League Baseball itself.
        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 risks of taking testosterone, a steroid.
        Can you elaborate on why the medical director would be
    doing this, which appears to be completely in conflict with the
    policy?
        Mr. 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.
        Mr. Welch. There are 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.
        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?
        Mr. 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.
        Mr. Welch. Your report does provide examples of Major
    League Baseball having what I think could be called a ``culture
    of silence''; the desired 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?
        Mr. Mitchell. I made my comments, Congressman, in the
    report and in my opening statement, and I thought about those
    words and believed they best and most accurately and most
    fairly characterized the circumstance.
        Mr. Welch. I yield my time. Thank you.
        Chairman 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.
        Mr. Mitchell. Is this the last one?
        Chairman Waxman. Yes.
        Mr. Mitchell. Go ahead, Mr. Davis.
        Mr. Davis of Illinois. 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?
        Mr. 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 is very important that you don't take
    one sport and think that it is 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 5 years, beginning with the
    adoption of the mandatory random drug testing program and
    continuing through a serious 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'd like.
        And since the problem is dynamic, it is 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.
        Mr. Davis of Illinois. 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?
        Mr. Mitchell. The commissioner was fully cooperative. The
    clubs were cooperative. The Players Association was largely
    uncooperative.
        Mr. Davis of Illinois. Thank you very much, Senator.
        Chairman Waxman. You've been very generous with your time
    and we very much appreciate your work and your presentation to
    us. The committee is now going to take a 10-minute break before
    we call forward our next panel.
        [Recess.]
        Chairman Waxman. The committee will reconvene. Our next two
    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 of the witnesses. I'd like to
    ask if you'd both stand and raise your right hands.
        [Witnesses sworn.]
        Chairman Waxman. The 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 is a
    button on the base of the mic. Be sure it is on.
        Mr. Fehr. Mr. Chairman, if it is green, it is on?
        Chairman Waxman. Yes.

    STATEMENT OF ALLAN H. ``BUD'' SELIG, COMMISSIONER, MAJOR LEAGUE
                                BASEBALL

        Mr. 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 with me today that I'd like to
    introduce. First our advisor, 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 Hooten who has been here before, the head of the Taylor
    Hooten 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 of this, steroid use in
    baseball today has dropped dramatically from more than 90
    violations in the 2003 survey test to just 2 steroid positives
    in 2006 and 3 in 2007.
        This improvement is similar to what we've observed in our
    Minor League program, where positive test results declined from
    9 percent in 2001 to less than 1\1/2\ 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. 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
    committing to keeping Major League Baseball's program the
    strongest in professional sports. Indeed, Senator Mitchell
    confirmed that our current program has been effective and the
    detectable steroid use 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 recommendations 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 unfetterred
    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
    III 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 in the 2002 drug program was not perfect. As
    Senator Mitchell reported, it was a necessary first step toward
    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
    positive tests.
        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 also proposed adding stimulants,
    including amphetamines, as banned substances. After months of
    difficult negotiations, the Players Association accepted my
    proposals in November 2005.
        I fully support each of the 20 recommendations for
    improving our program that Senator Mitchell included in his
    report. Almost all his recommendations that 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 the 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 packet sent to players
    at its facilities; require background checks to be performed on
    all clubhouse personnel; and require all clubhouse personnel to
    be randomly drug tested.
        Also last week, we established the 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'll also be
    developing a program to require top prospects to the Major
    League draft to submit to drug testing before the draft.
        Senator Mitchell also recommends certain changes to the
    joint drug program that clearly require 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 Drug Free America and the Taylor Hooten
    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.
        Senator Mitchell noted an improved educational program
    about the dangers of substance use are critical to any effort
    to deter performance enhancing substance use. Increasing
    awareness of the dangers of these issues 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 Major and Minor Leagues during spring training. We've
    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 is 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 feels there are those who are 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. We'll 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've joined with the U.S. Olympic
    Committee, USADA, and the National Football League in a new
    long-term program of research on performance enhancing
    substances. 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 and the Senate bill 877; Senator
    Grassley, Senate bill 2470; and Senator Biden's bill, Senate
    bill 2237. I'd like to personally thank Representative Lynch
    for introducing the bill that would make HGH a Schedule III
    controlled substance, which I believe is an important
    legislative initiative.
        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, constantly working to
    improve our drug program regardless of the effort of the cost,
    by pursuing new strategies to catch cheaters, and 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 the 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.
        Chairman Waxman. Thank you very much, Mr. Selig. Both of
    your written statements will be made part of the record in
    their entirety.
        [The prepared statement of Mr. Selig follows:]

        [GRAPHIC] [TIFF OMITTED] T5749.054

        [GRAPHIC] [TIFF OMITTED] T5749.055

        [GRAPHIC] [TIFF OMITTED] T5749.056

        [GRAPHIC] [TIFF OMITTED] T5749.057

        [GRAPHIC] [TIFF OMITTED] T5749.058

        [GRAPHIC] [TIFF OMITTED] T5749.059

        [GRAPHIC] [TIFF OMITTED] T5749.060

        [GRAPHIC] [TIFF OMITTED] T5749.061

        [GRAPHIC] [TIFF OMITTED] T5749.062

        [GRAPHIC] [TIFF OMITTED] T5749.063

        [GRAPHIC] [TIFF OMITTED] T5749.064

        [GRAPHIC] [TIFF OMITTED] T5749.065

        [GRAPHIC] [TIFF OMITTED] T5749.066

        [GRAPHIC] [TIFF OMITTED] T5749.067

        [GRAPHIC] [TIFF OMITTED] T5749.068

        [GRAPHIC] [TIFF OMITTED] T5749.069

        Chairman Waxman. Mr. Fehr, we're pleased to welcome you and
    we are looking forward to hearing from you.
        Mr. Fehr. Thank you, Mr. Chairman. Chairman Waxman----
        Chairman Waxman. Would you pull the mic a little closer?
    Thanks.
        Mr. Fehr. Is that better?
        Chairman Waxman. Yeah.

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

        Mr. Fehr. 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, And I appreciate the opportunity
    to speak with you today.
        As I've previously testified before many committees, but
    specifically this one 3 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 substances 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 we appeared before this committee some 3 years
    ago, we have worked vigorously to rid the game of performance
    enhancing substances, and the evidence regarding steroids
    indicates, I believe, that we've 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 as 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 indicated, have been the
    toughest in professional sports and it is a program, as Senator
    Mitchell indicated, that we've worked to improve. Over the last
    2 years, even after the 2005 amendments, without any fanfare or
    controversy, we've 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?
        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 or
    suspended based on evidence other than a positive test, and
    players have been suspended on that basis. It is the so-called
    nonanalytical finding, so should a scientifically accurate,
    commercially viable blood test become available, we'll consider
    it in good faith. But as Senator Mitchell noted in his report,
    the blood tests 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 the substances, the
    parties can do more by way of education.
        We've 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 is not even much of a sports problem. All one has
    to do to appreciate this is to go on to the Google Web site,
    maybe after this hearing, and 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 in marketing of HGH and
    other 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 from the panel in his
    opening statement, or in one of the questions, suggested to
    kids buying stuff in stores. To the extent that is 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 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 is understandable. But I would ask
    you also to recognize that the report contains no new
    allegations of improper drug use in 2006 or 2007 when the
    current program was in effect. In those 2 years, we
    administered some 6,500 tests with only five positive results
    for steroids. I think it is 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'm sure he'll 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 lifeblood 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 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'll suggest
    that Minor League players who currently do not have a neutral
    decisionmaker 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. And I went to college in
    the 1960's, and we had 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. 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 that is a more
    powerful idea than we can yet appreciate.
        Let me just summarize and I'll 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've
    made. Human Growth Hormone is a problem both within sports and
    generally. There is not yet a test, but we'll 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'll not refuse to discuss them here.
    We're 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, action 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.
        Chairman Waxman. Thank you very much, Mr. Fehr.
        [The prepared statement of Mr. Fehr follows:]

        [GRAPHIC] [TIFF OMITTED] T5749.070

        [GRAPHIC] [TIFF OMITTED] T5749.071

        [GRAPHIC] [TIFF OMITTED] T5749.072

        [GRAPHIC] [TIFF OMITTED] T5749.073

        [GRAPHIC] [TIFF OMITTED] T5749.074

        [GRAPHIC] [TIFF OMITTED] T5749.075

        [GRAPHIC] [TIFF OMITTED] T5749.076

        [GRAPHIC] [TIFF OMITTED] T5749.077

        [GRAPHIC] [TIFF OMITTED] T5749.078

        [GRAPHIC] [TIFF OMITTED] T5749.079

        [GRAPHIC] [TIFF OMITTED] T5749.080

        [GRAPHIC] [TIFF OMITTED] T5749.081

        [GRAPHIC] [TIFF OMITTED] T5749.082

        Chairman Waxman. To start off the questioning, the Chair
    would like to recognize Mr. Towns for 5 minutes.
        Mr. Towns. Thank you very much, Mr. Chairman, for holding
    this hearing. There has been considerable discussions on the
    problem that Senator Mitchell had in obtaining cooperation from
    individual players and the Players Association. It appeared
    that there was a wall of silence; that people were not allowed
    to talk or come forward with information. And in some instances
    they said the trainers were not allowed to talk. And 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?
        Mr. Fehr. Thank you for the question. I think it is
    something that came up before and deserves an appropriate
    answer. We are obligated to represent the players in connection
    with the disciplinary investigation. I think that is why
    Senator Mitchell recognized in his press conference that what
    we did was, ``largely understandable.'' 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 has indicated as
    much. Therefore, we had to advise players that nothing they
    said was privileged and that if the authorities wanted it, they
    could compel him to provide it; that there would be possible
    discipline; and to do something which ordinarily a union need
    not do, 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 is a
    difficult situation, and that is about the best way I can
    describe it.
        Mr. Towns. 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 is going to be
    this problem that people are going to feel that you're not
    addressing it in a very vigorous manner.
        Mr. Fehr. I can guess what I can tell you 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're working on will put us in the position
    so that questions as to whether there is a code of silence
    becomes 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.
        Mr. Towns. Mr. Selig, it is 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 is a problem. But this information would not have
    identified individual players, but his staff said that the
    clubs delayed providing this evidence for so long that it
    became too late to use it.
        Mr. Selig. Well, that was--I think Senator Mitchell would
    tell you right from the start that the 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, but--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 all in different States, and State laws are different. I
    can remember there was some problems with Florida law and Texas
    law and other things. So it took a long time to resolve those,
    Congressman.
        Mr. 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?
        Mr. Selig. Well, I don't think Senator Mitchell said that
    he had any problem with that so-called code of silence from the
    club standpoint or from our office. In fact, he said over and
    over again, and he has 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--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, I don't--of course, I don't support a code of silence,
    not in any way, shape, form or manner.
        Chairman Waxman. Thank you, Mr. Towns. Mr. Davis.
        Mr. Davis of Virginia. Thank you very much.
        Commissioner Selig, thanks for moving forward in this. It
    has been sort of easy after you reached your collective
    bargaining agreement to sweep it under the rug and say that is
    the end of it. And you didn't and you let the chips fall where
    they may. And I wish they had fallen differently, and 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?
        Mr. Selig. That is correct, Congressman.
        Mr. Davis of Virginia. Do you have any criteria or give us
    any clue into kind of what you are looking at?
        Mr. Selig. No, I can't, because I'm the judge in this case.
    So I'm sensitive. But what I said to you on December 13th and
    what I'd 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 is other information yet, Congressman Davis, and then
    I'll make my decisions as I move ahead.
        Mr. Davis of Virginia. Thank you. I know you note--you
    stated that Senator Mitchell was given unfetterred 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?
        Mr. Selig. None that I know of. Absolutely none.
        Mr. Davis of Virginia. Mr. Fehr, what would you have liked
    Senator Mitchell to have done differently?
        Mr. 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.
        He didn't do that. He has explained why he thought it was
    the appropriate way to do it, the manner in which he proceeded.
    I would have done it differently.
        Mr. Davis of Virginia. 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?
        Mr. 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 is a little complicated because
    this is the busiest time of the year and it is hard to get hold
    of players. They are negotiating contracts, they are in workout
    routines, and they're spread.
        But I hope we will have those meetings put together in the
    very near future and then we'll begin the process in a more
    formalized way.
        Mr. Davis of Virginia. 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?
        Mr. Fehr. Yes. I'd expect that we'd discuss, as I hope I
    indicated in my opening statement, all of the recommendations
    and any other matters which come up that would be relevant to
    those discussions.
        Mr. Selig. I'd add, Congressman Davis, we've done the ones
    that we felt we should. And I would hope that, frankly, we have
    this all completed before spring training.
        Mr. Davis of Virginia. Commissioner, let me ask you: In the
    book 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?
        Mr. Selig. As far as I know, that was just an allegation.
    Obviously--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 are 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 is an allegation. I don't have any evidence of
    that. But it is impossible today, it has been impossible now
    for quite some time, and we need to continue to strengthen the
    program so that even people can't make those allegations.
        Mr. Davis of Virginia. OK. Thank you.
        Chairman Waxman. Thank you, Mr. Davis. Mr. Cummings.
        Mr. Cummings. Thank you very much, Mr. Chairman.
        Mr. 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 has been very
    good. Also thank you for asking Senator Mitchell to do this
    investigation.
        One of the things that concern 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,
    ``trainer/player privilege,'' which I've never heard of. And
    maybe that is 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?
        Mr. Selig. You know, I've 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. So I've
    become very familiar, they're very professional, they--and they
    have really briefed me as thoroughly as one could the last 7 or
    8 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 was--that
    would violate some type of law, I think that they were very
    forthcoming.
        Mr. Cummings. 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?
        Mr. 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 is a
    failure that we didn't and it is 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.
        Mr. Cummings. Mr. Selig.
        Mr. 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 of my adult life. I agonize over that because
    I consider myself, in the end, a baseball man. In the nineties,
    you know, hindsight is always very beneficial. I watch things.
    I have reread all the articles that Senator Mitchell had. I
    take responsibility for everything. So let's understand that. I
    take it for all the goods things that have happened to make the
    sport as popular as it is today, and when we talk about
    something, I guess there is no question about that. I've
    agonized.
        But I would also remind you--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 and in a difficult environment. My Minor
    League program, Congressman, is going into its eighth year. So
    all the great young players in this sport have now been tested
    8 years. And do I wish we had reacted quicker? Should we have?
    Yes, one can make a compelling case and I've--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.
        Mr. Cummings. Thank you very much, Mr. Chairman.
        Chairman Waxman. Thank you very much, Mr. Cummings. Mr.
    Souder.
        Mr. Souder. Thank you. I want to thank Mr. Selig and Mr.
    Fehr for having taken some steps. And I believe that this
    report and the followup 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?
        Mr. Selig. I'm sorry. I didn't hear you.
        Mr. Souder. Are you looking at gene doping, genetic
    alteration? As a potential testing question, are you looking at
    gene doping, genetic doping.
        Mr. Selig. We've hired the best experts that we can. And we
    certainly will look at that.
        Mr. Souder. Mr. Tagliabue, when we asked him that question
    3 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?
        Mr. Selig. Let me again--because this is all an
    evolutionary process, the answer is yes. Dr. Green, who is
    sitting behind me, is one of the leading experts in the
    country. We have the two gold standard labs--Christian Ayotte,
    whom I wish were here today but isn't, the head of the Montreal
    lab and--and between he and Gary Green and all the other
    experts that we have, all the team doctors who I meet on a
    regular basis, we need to continue to be vigilant, there is no
    question about it. When we think we have a problem solved,
    there are chemists working--creating new products out there.
        Mr. Souder. Are you looking at--I worked in 1989 for
    Senator Coats when we drafted the first drug testing laws on
    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 is potential cause. In other
    words, if the 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 are tripling from 1
    year, then you do extra testing?
        Mr. 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.
        Mr. Souder. Are statistical changes potentially one of the
    reasons?
        Mr. Selig. Are what?
        Mr. Souder. Are statistical anomalies potentially a reason?
        Mr. Selig. That is something that the independent
    administrator would have to do. But I--yes----
        Mr. Souder. I agree that would be something in due process.
    But it is a question. 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 that the tests are accurate and what
    should be tested. And I'd like that--for you to comment on
    that. Every time there is a new variation, does this mean it
    has to be negotiated? Or in between labor agreements, can there
    be decisions that this is being added to the list as long as
    there is 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 who--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'd like you to finish with that question. And also, what
    do you do in between labor agreements?
        Mr. Fehr. Perhaps let me begin. To answer your last
    question first, under the labor law that--when you're between
    agreements, the terms of your preexisting agreement continue by
    law, unless and until somebody does something, there is a
    strike or a lockout or a unilateral change or a new agreement
    is reached. So the period in between is not an issue.
        Second, with respect to gene doping, I don't remember
    precisely the audience that I spoke to. This is 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 that it will make it look
    quaint is if it is 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--for something
    his parents did at the time that he was still being carried by
    his mother. That is 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 is a very difficult
    issue.
        Second, 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 is 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 it of from the lab that they can test for.
        With respect to due process issues--if I can do this very
    succinctly. Where there is an alleged violation, there has to
    be an opportunity to challenge that, an appropriate adversary
    hearing, with neutral decisionmakers, 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 is 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
    in the last several years with respect to detectable steroids.
        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 of
    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.
        Chairman Waxman. The gentleman's time has expired. Mr.
    Tierney.
        Mr. Tierney. Thank you, Mr. Chairman.
        Gentlemen, thank you for being here today. I want to take
    up a train of thought that I had at 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, 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 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 any significance to either of you gentlemen as
    something 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?
        Mr. 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 has
    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.
    To go--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 questions----
        Mr. Tierney. I think the problem with that is Senator
    Mitchell didn't have the information that we had. You could ask
    him about the procedures, but he didn't have this data to look
    at.
        Mr. Fehr. I'm coming to that.
        As to your more general question, 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'd tell us that; he'd 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.
        Mr. Selig. If I can add to that, because I've asked the
    same question over and over. You have to start with two things
    here. No. 1, the player gets a prescription at the local level.
    The player playing for the Chicago Cubs and the Milwaukee
    Brewers, that doctor there gives him that. Then Dr. Smith
    reviews all of 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 is within the limit of the adult population, overall
    population. It is a little higher, but it did go up. And we are
    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 has 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 of the
    team physicians and Dr. Smith and all of the team trainers,
    we'll be able to give you a better answer to that.
        Mr. Tierney. 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?
        Mr. Fehr. Oh, sure. If they are not appropriately medically
    prescribed, yes, then they are prohibited.
        Mr. Selig. That's right. And remember it has to go, as I
    said, through two levels of doctors. Our independent is the
    last one. But you'd hope that a doctor in Kansas City or
    Philadelphia or anywhere else is only prescribing it if he
    feels it is medically necessary.
        Mr. Tierney. Well, I take it from your comments, Mr. Selig,
    you do have a system set up to look at anomalies like this and
    then you are in this instance looking into it and----
        Mr. Selig. Absolutely. No question about it. This is one
    that needs to be dissected.
        Chairman Waxman. Thank you, Mr. Tierney.
        Mr. Burton.
        Mr. Burton. Thank you, Mr. Chairman. I just have one
    question of Mr. Fehr. I was interested in your answer about due
    process. And I wonder, you probably talked 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?
        Mr. 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 wasn't me
    that did that. Having said that, I think that it is probable
    that there was some players that had some concerns in those
    regards. My guess is, because I don't know what the bases 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 which they might get called
    even 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.
        Mr. Burton. Let me just followup 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 be able to
    defend themselves?
        Mr. 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 will be an opportunity for a
    procedure to challenge in a formal way, in 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. Each decision is going to be fact bound.
        Mr. Burton. Thank you. I yield my balance to Mr. Shays. Did
    you want to go further?
        Mr. Fehr. No. I just said I appreciate your question.
        Mr. 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?
        Mr. 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. Second, 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 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 or 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.
        Mr. Shays. I would 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 our young
    people in particular?
        Mr. Selig. Congressman Shays, we have an enormous
    responsibility. There is no 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 the 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 and didn't
    like somebody doing it. I felt 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
    an absolutely very fair concern. And I final 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.
        Chairman 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 your
    reviewing it. Would you keep us apprised of your decisionmaking
    in that area?
        Mr. Selig. Absolutely.
        Mr. Fehr. Yes, of course.
        Chairman Waxman. Ms. Watson.
        Ms. 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 how do we meet this issue head on. And according to
    Senator 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 would like to have you go into your views
    about what actually is needed.
        Mr. 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 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 is no question that more testing
    and off-season testing would be very helpful.
        Mr. Fehr. For my part, one of the things which came out of
    the Mitchell report was the 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 a 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.
        Ms. 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 tests, testing in the post season. 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 efficient or not?
        Mr. Fehr. Sure. I can get the precise numbers after the
    hearing if there's an interest. But we began testing in the
    post season 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.
        Mr. Selig. Yes, we did test----
        Mr. Fehr. Excuse me, I'm sorry. I'm told it was both 2006
    and 2007.
        Mr. Selig. We did test in the post season last year, that's
    correct.
        Ms. Watson. It appears from what the two of you have said
    that the players possibly are under a misunderstanding and they
    feel that there is no opportunity for post-season testing. How
    would you comment?
        Mr. 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.
        Ms. Watson. And probably they ought to be under more
    scrutiny. If this is something that's really widespread I would
    say leadership needs to inform them that random testing after
    the season is something that you're going to see happen. And I
    would hope that we would get word of your followup on post-
    season testing prior to another hearing like this.
        And thank you two for your input. We appreciate it. I yield
    back my time.
        Chairman Waxman. Thank you very much, Ms. Watson.
        Mr. Lynch.
        Mr. 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 a $10,000 fine rather than be
    suspended, which I thought was a slap on the wrist. All that
    has changed, and it 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 viewed, even
    though I was representing Ironworkers who were a heck of a lot
    less well paid I guess than the union members you're
    representing, I always felt that the--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, did note one bit of new information. And I
    think it deserves recognition by both of you. And that is he
    said 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 is
    information we didn't have when you sat down. And I know this
    current agreement goes from 2007 to 2011. December 2011, that's
    the next time, unless we reopen 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, you know, I
    know that Gary Wadler, who 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 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 Mr. Wadler, 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 is my response to that.
    No. 1, you 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.
        Mr. Selig. 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 2 or 3 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
    would adopt it as soon as it's available. So as for the storing
    of these things----
        Mr. Lynch. Commissioner, I guess you're missing my point.
    I'm saying if we take the samples now.
        Mr. Selig. I'm going to get to that right now. According to
    the people that I've talked to and we've talked to Dr. Green,
    Chris 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 is 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
    would 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, absolutely.
        Mr. Lynch. Fair enough, Mr. Commissioner. Mr. Fehr.
        Mr. 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 on to the next available drug. And I indicated in
    my testimony in 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.
        Chairman Waxman. The gentleman's time has expired.
        Mr. Shays.
        Mr. 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 2 years
    later. And I'm going to want to know why you should be able to
    petition 2 years later after you've had that third strike. I
    want to know specifically do either of you see a difference
    between cocaine and heroin use versus steroids and enhanced
    drugs as it relates to baseball.
        Mr. 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
    effect 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.
        Mr. Shays. Commissioner, do you have the same answer? If it
    is, I'll go to the next one.
        Mr. Selig. Look, the cocaine--and by the way this sport had
    a terrible cocaine problem in the 1980's and unfortunately
    there was no testing as a result of that. But the steroids and
    HGH are enhancing as opposed to the others, which are
    recreational.
        Mr. Shays. 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, 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're kicked out. It's inconceivable to me and I think
    to other people as well. So tell me why a player should be
    allowed to cheat three times.
        Mr. 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.
        Mr. Shays. Why should someone be allowed to reform when
    they're 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 to me as
    a huge difference. It would strike me then that your argument
    could be 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 see it?
        Mr. Selig. I'll answer it 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 is 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 where we are and this is the best that we could do, and we
    came a long way.
        Mr. 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, 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 are arguing that they should be
    allowed to. That's the way I'm left with it.
        Mr. 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 the 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 to repeat it once. I hope we don't. If we do
    it will be tougher. Thank you.
        Chairman Waxman. Thank you, Mr. Shays.
        Mr. Yarmuth.
        Mr. Yarmuth. Thank you, Mr. Chairman. Commissioner, the
    Mitchell report details in a number of places incidents in
    which club personnel appear to have been complicit in at least
    enabling the violations of some of the rules. 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?
        Mr. 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.
        Mr. Yarmuth. Thank you for that. I would like to pursue a
    discussion I had with Senator Mitchell about the issue as to
    whether we really know enough about the effects of the
    substances we're talking about. And again I wanted to make a
    distinction between the legality issue and the competitive
    advantage issue. I'm talking strictly about the competitive
    advantage issue. We've heard a lot about what you just
    mentioned, the distinction between cocaine and steroids. And
    you said one is performance enhancing and one is not. And yet
    as I said, there is 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 ate up boxes of
    Wheaties as a kid. I know Wheaties don't do it. But do we have
    enough evidence to really make these types of determinations?
        Mr. Fehr. I'm sorry, the question was directed to you.
        Mr. 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 other team doctors,
    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. 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 that. The fact of the matter is that's something you
    just can't tolerate. And as I said to Senator Mitchell way back
    when, I wanted him to create a road map, that was my reason, 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.
        Mr. Yarmuth. Mr. Fehr, do you have the same conclusion?
        Mr. Fehr. 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.
        Second, 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 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, but I
    have wondered given the anecdotal suggestion 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 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 a musing on my part.
        Chairman Waxman. The gentleman's time has expired. The
    Chair wants to recognize himself to followup on some of the
    points raised.
        Commissioner Selig, I want to ask you about the BALCO
    scandal. Senator Mitchell explored the 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
    steroids 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 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 the suspicion to
    your office?
        Mr. 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
    and should not get in. There should not have been anybody in
    clubhouses. We now have done that. We sent a trainer's 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 have 30 years of practical experience.
        Chairman Waxman. Do you think Sabean should have reported
    this to the Commissioner's Office?
        Mr. Selig. Of course.
        Chairman Waxman. Senator Mitchell----
        Mr. Selig. 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.
        Chairman Waxman. Senator Mitchell also interviewed Giants
    owner, Peter McGowan, about his actions with regards to reports
    that Barry Bonds was using steroids. McGowan told Mitchell that
    he asked Barry Bonds this question in 2004. ``I've really got
    to know, did you take steroids?'' Mr. McGowan said that Mr.
    Bonds admitted that he had taken substances that he later found
    out to be steroids. According to Senator Mitchell, 2 days after
    his interview with Mr. McGowan, Mr. McGowan's lawyer called and
    said that Mr. McGowan 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. McGowan's lawyer meant, lawyers meant when they
    said that Mr. McGowan had misspoke?
        Mr. Selig. Mr. Chairman, 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.
        Chairman 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 McGowan 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
    McGowan'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. McGowan or the Giants organization?
        Mr. 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.
        Chairman Waxman. Well, it's easy to blame the players for
    the entire steroid problem, but the Mitchell report shows that
    the blame runs much deeper. There was a culture throughout
    baseball to just look the other way when it came to responding
    to reports of steroid use.
        I thank you for your responses. Mr. McHenry.
        Mr. McHenry. Thank you, Mr. Chairman. To be honest with
    you, Mr. Chairman, I don't think that Congress' 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, 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, they want to be professional ball players
    that seek it, that crave it, that 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?
        Mr. Fehr. I think for the health and well being of our
    members, is that your question?
        Mr. McHenry. Yes.
        Mr. Fehr. I think a couple of things. Obviously we're
    concerned about that. Obviously it's our role to try to educate
    players as best we can.
        Mr. McHenry. How do you educate them?
        Mr. Fehr. You talk to them, you have doctors talk to them,
    you warn them.
        Mr. McHenry. Do you have programs that do that?
        Mr. Fehr. Yes, we have some. And we've already had before
    you came into the room some discussion about the fact that
    we've had at least one meeting in which we discussed enhancing
    that beginning early this season.
        Mr. McHenry. Do you think, Mr. Selig, Mr. Fehr, your
    actions in 2005 have been enough?
        Mr. Selig. I'm sorry, that question?
        Mr. McHenry. Do you think your actions in 2005 have been
    enough?
        Mr. Selig. We've made enormous progress. I do want to keep
    saying that. Look, this is a process evolving. We need to do
    more. There are things that I think 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 2 minutes of that. But the fact of the matter is for
    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.
        Mr. 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 5 years for there to be an effective testing policy
    to the point where you're--quoting the newspaper, we're still
    in discussions. Why is that? Why did you hesitate adopting an
    anti-doping policy?
        Mr. Fehr. The question I think is more appropriately put,
    why did we oppose mandatory random testing prior to 2002, which
    we did. And the reason why I've 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 revelations about Ken Caminiti and so on in the
    spring of 2002, 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 requests, in a number of different respects,
    including recently, and I expect that to continue.
        Mr. McHenry. Mr. Selig.
        Mr. Selig. One of the virtues of the Mitchell report for 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 we need to look forward and do
    more.
        Mr. McHenry. A final comment.
        Chairman Waxman. The gentleman's time has expired.
        Mr. McHenry. A final comment. You need to think about the
    youth here and the images you're sending to them. And a
    followup question for both of you, a simple yes or no. Do you
    two feel complicit in the rise of steroid use in Major League
    Baseball?
        Mr. Fehr. As I indicated in my testimony, we didn't pay
    enough attention to it soon enough. If that fits your
    definition of ``complicit,'' then the answer is yes.
        Mr. Selig. I said in my testimony and my statement and
    again today I'll take responsibility. I take it for all the
    great things that have happened in the last 16 years. I'll
    certainly taking it for that. And that's why I wanted the
    Mitchell report, because it would show me and show the people
    who come after me a road map of what maybe they should have
    done under the circumstances.
        Chairman Waxman. Thank you, Mr. McHenry.
        Ms. Norton.
        Ms. Norton. Thank you, Mr. Chairman. First, I would 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, and I'm going to quote him, for an entity with,
    ``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 would 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.
        Mr. Selig. Well, I'll give my answer first. I think since
    we've been here 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 from 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, and we've gone into it in 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.
        Ms. Norton. Mr. Fehr.
        Mr. 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 employment.
        Ms. Norton. You don't have to go--I taught labor law, Mr.
    Selig. I'm asking you a question.
        Mr. Fehr. I apologize.
        Ms. 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?
        Mr. Shays. You blew that one.
        Mr. Fehr. It would appear so, yes.
        Ms. Norton. What your views are, your personal views are,
    however you arrived 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 of a completely independent drug testing program?
        Mr. 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 with, 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.
        Ms. Norton. 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. I understand that entirely.
        Mr. Fehr. I appreciate that.
        Ms. Norton. However, from your point of view nothing would
    be better than to take this issue off the table. If you want to
    talk about a deterrent effect. 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 effect of regaining almost instantly the
    credibility that baseball has lost the trust just in time for
    the Nationals to come to Washington?
        Mr. 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 program.
        Ms. Norton. Mr. Fehr, I said a deterrent effect.
        Mr. Fehr. No, I understand.
        Ms. Norton. If you want to go with grievances for the
    players from here to kingdom come, then be my guest.
        Mr. 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----
        Ms. Norton. Well, let me ask Mr. Selig if he would at least
    consider a totally independent administrator. I mean, that's
    one of the recommendations. You say 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?
        Chairman Waxman. Your time has expired to ask questions,
    but we would like to hear your response to the question.
        Mr. Selig. I really believe, as I said to you earlier, that
    this program is working in an independent way. But it's a very
    fair question and it's one we will closely evaluate because we
    need to be totally and completely independent.
        Ms. Norton. Thank you.
        Chairman Waxman. Thank you very much.
        Mr. Davis.
        Mr. Davis of Illinois. 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 nonanalytical evidence; that is, evidence of possession on
    youths. 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?
        Mr. Selig. I can. That was 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 is 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.
        Mr. Davis of Illinois. Mr. Fehr, let me ask you, will the
    Players Association cooperate fully with this new office and
    urge players to do the same?
        Mr. 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 would like to
    talk about is how is this going to work. We have developed, for
    example, procedures to handle investigations for the
    nonanalytical 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.
        Mr. Davis of Illinois. Earlier this morning Senator
    Mitchell indicated that 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?
        Mr. Selig. Well, in the case of the department these
    people's sole responsibility really will be to investigate all
    these things. They won't have to go through layers of people. I
    think the Senator was a little bit troubled by that. There are
    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 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
    somebody else or labor said this to security and security said
    this. They will report to Mr. DuPuy, 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.
        Mr. 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.
        Mr. Davis of Illinois. Nor will they again.
        Mr. Fehr. Given the conflicting interest that our relative
    constituencies have, especially in 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 1994-1995, which was horrible and ugly and ended
    as a result of an injunction as a result of unfair labor
    practices and 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. From
    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.
        Mr. Davis of Illinois. 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. Thank you very
    much.
        Chairman Waxman. Thank you, Mr. Davis.
        Mr. Sarbanes.
        Mr. 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 toward the end here. I'm highly sensitized
    of this issue recently for a couple of reasons. One is a few
    weeks back I 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 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 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 would help him get in
    shape for the baseball season that's coming up and 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 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. 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. 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 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.
        Now, 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 nondetectable drugs to sort of undermine the effort? How
    can we get to a culture of clean? 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,
    both of you?
        Mr. Selig. Well, I would say that I have a lot more
    confidence than I did 3 years ago. All of our educational
    programs that go out, baseball with the Partnership for a Drug-
    Free America and the Hooton Foundation have spent 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
    that all the things that we've done, just think all the things
    in the last week of the Mitchell recommendations about
    certifying from trainers and checking packages and doing all
    the things that support 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
    much clearer understanding that this culture not only needs to
    be changed, is changing and is changing dramatically. We just
    got to keep the pressure on, to be frank with you. Yes, I'm
    optimistic that we can do that. And in fact we have to do it.
    We have no other choice. This must be done.
        Mr. Fehr. I guess from 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 is--to me is
    of really enormous importance. You talked about your son's
    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 at what is up on the shelf. Every tree,
    every grass, every bush, every mineral, everything else anybody
    has 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
    said, as I have said any number of times, this is a very wide
    problem.
        And I will just give you one example of it. I will hand it
    up to the committee when we are done.
        This is an ad in the Continental Airlines magazine. We saw
    it coming down here. It says, ``Choose life, grow young with
    HGH, the reverse aging miracle.''
        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
    have a really tough road to hoe. And so I hope that people
    would consider that.
        Mr. Selig. 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 this, baseball
    can be a leader in doing exactly what you are asking, and that
    is to send a right message.
        Mr. Fehr. If I could 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 are not big enough, you are
    not strong enough, you are 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 is what the coaches want.
        Mr. Sarbanes. Thank you.
        My time is up, Mr. Chairman. I appreciate it. I would just
    say that I hope that the public is watching not just as fans of
    baseball but also does some self-reflection as parents and
    coaches and things about the messages that we are sending and
    how we can participate in this campaign to turn around steroid
    use.
        Chairman 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 in that
    road map so that we can get beyond where baseball has been in
    the past. I think we have made progress, but we still have a
    ways to go.
        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.
        Mr. Selig. Thank you very much.
        Mr. Fehr. Thank you very much.
        Chairman Waxman. Before we close, I want to ask unanimous
    consent to put in the record a statement by the Marreros. If it
    is not already in the record, we want to make sure 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, and we stand adjourned.
        [Whereupon, at 1:50 p.m., the committee was adjourned.]