[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) 512ï¿½091800  
Fax: (202) 512ï¿½092104 Mail: Stop IDCC, Washington, DC 20402ï¿½090001

              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.]

                                 
