[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]







  THE NFL STARCAPS CASE: ARE SPORTS' ANTI-DOPING PROGRAMS AT A LEGAL 
                              CROSSROADS?

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

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON COMMERCE, TRADE,
                        AND CONSUMER PROTECTION

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 3, 2009

                               __________

                           Serial No. 111-78



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                    COMMITTEE ON ENERGY AND COMMERCE

                 HENRY A. WAXMAN, California, Chairman

JOHN D. DINGELL, Michigan            JOE BARTON, Texas
  Chairman Emeritus                    Ranking Member
EDWARD J. MARKEY, Massachusetts      RALPH M. HALL, Texas
RICK BOUCHER, Virginia               FRED UPTON, Michigan
FRANK PALLONE, Jr., New Jersey       CLIFF STEARNS, Florida
BART GORDON, Tennessee               NATHAN DEAL, Georgia
BOBBY L. RUSH, Illinois              ED WHITFIELD, Kentucky
ANNA G. ESHOO, California            JOHN SHIMKUS, Illinois
BART STUPAK, Michigan                JOHN B. SHADEGG, Arizona
ELIOT L. ENGEL, New York             ROY BLUNT, Missouri
GENE GREEN, Texas                    STEVE BUYER, Indiana
DIANA DeGETTE, Colorado              GEORGE RADANOVICH, California
  Vice Chairman                      JOSEPH R. PITTS, Pennsylvania
LOIS CAPPS, California               MARY BONO MACK, California
MICHAEL F. DOYLE, Pennsylvania       GREG WALDEN, Oregon
JANE HARMAN, California              LEE TERRY, Nebraska
TOM ALLEN, Maine                     MIKE ROGERS, Michigan
JANICE D. SCHAKOWSKY, Illinois       SUE WILKINS MYRICK, North Carolina
CHARLES A. GONZALEZ, Texas           JOHN SULLIVAN, Oklahoma
JAY INSLEE, Washington               TIM MURPHY, Pennsylvania
TAMMY BALDWIN, Wisconsin             MICHAEL C. BURGESS, Texas
MIKE ROSS, Arkansas                  MARSHA BLACKBURN, Tennessee
ANTHONY D. WEINER, New York          PHIL GINGREY, Georgia
JIM MATHESON, Utah                   STEVE SCALISE, Louisiana
G.K. BUTTERFIELD, North Carolina
CHARLIE MELANCON, Louisiana
JOHN BARROW, Georgia
BARON P. HILL, Indiana
DORIS O. MATSUI, California
DONNA M. CHRISTENSEN, Virgin 
Islands
KATHY CASTOR, Florida
JOHN P. SARBANES, Maryland
CHRISTOPHER S. MURPHY, Connecticut
ZACHARY T. SPACE, Ohio
JERRY McNERNEY, California
BETTY SUTTON, Ohio
BRUCE L. BRALEY, Iowa
PETER WELCH, Vermont

                                  (ii)
        Subcommittee on Commerce, Trade, and Consumer Protection

                        BOBBY L. RUSH, Illinois
                                  Chairman
JANICE SCHAKOWSKY, Illinois          CLIFF STEARNS, Florida
    Vice Chair                            Ranking Member
JOHN P. SARBANES, Maryland           RALPH M. HALL, Texas
BETTY SUTTON, Ohio                   ED WHITFIELD, Kentucky
FRANK PALLONE, Jr. New Jersey        GEORGE RADANOVICH, California
BART GORDON, Tennessee               JOSEPH R. PITTS, Pennsylvania
BART STUPAK, Michigan                MARY BONO MACK, California
GENE GREEN, Texas                    LEE TERRY, Nebraska
CHARLES A. GONZALEZ, Texas           MIKE ROGERS, Michigan
ANTHONY D. WEINER, New York          SUE WILKINS MYRICK, North Carolina
JIM MATHESON, Utah                   MICHAEL C. BURGESS, Texas
G.K. BUTTERFIELD, North Carolina
JOHN BARROW, Georgia
DORIS O. MATSUI, California
KATHY CASTOR, Florida
ZACHARY T. SPACE, Ohio
BRUCE L. BRALEY, Iowa
DIANA DeGETTE, Colorado
JOHN D. DINGELL, Michigan (ex 
    officio)










                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. Bobby L. Rush, a Representative in Congress from the State 
  of Illinois, opening statement.................................     1
    Prepared statement...........................................     3
Hon. George Radanovich, a Representative in Congress from the 
  State of California, opening statement.........................     5
    Prepared statement...........................................     7
Hon. Henry A. Waxman, a Representative in Congress from the State 
  of California, opening statement...............................    10
Hon. Steve Scalise, a Representative in Congress from the State 
  of Louisiana, opening statement................................    11
    Prepared statement...........................................    13
Hon. Phil Gingrey, a Representative in Congress from the State of 
  Georgia, opening statement.....................................    16
Hon. Cliff Stearns, a Representative in Congress from the State 
  of Florida, opening statement..................................    17
Hon. Gene Green, a Representative in Congress from the State of 
  Texas, prepared statement......................................   181
Hon. G.K. Butterfield, a Representative in Congress from the 
  State of North Carolina, opening statement.....................   183
Hon. Joe Barton, a Representative in Congress from the State of 
  Texas, prepared statement......................................   187

                               Witnesses

Robert D. Manfred, Jr., Executive Vice President, Labor and Human 
  Resources, Office of the Commissioner of Baseball, Major League 
  Baseball.......................................................    20
    Prepared statement...........................................    23
Roger Goodell, Commissioner, National Football League............    28
    Prepared statement...........................................    33
DeMaurice Smith, Executive Director, National Football League 
  Players Association............................................    45
    Prepared statement...........................................    78
Michael S. Weiner, General Counsel, Major League Baseball Players 
  Association....................................................    85
    Prepared statement...........................................    87
Travis T. Tygart, Chief Executive Officer, United States Anti-
  Doping Agency..................................................    94
    Prepared statement...........................................    96
Gabriel A. Feldman, Associate Professor of Law and Director, 
  Sports Law Program, Tulane University Law School...............   105
    Prepared statement...........................................   108
Jeffrey Standen, Professor of Law, Willamette University College 
  of Law.........................................................   143
    Prepared statement...........................................   145

                           Submitted Material

Letter of June 25, 2009, from Mr. Goodell to Mr. Smith...........    30
Memorandum of September, 2009, from Messrs. Goodell and Smith to 
  NFL players....................................................    46

 
  THE NFL STARCAPS CASE: ARE SPORTS' ANTI-DOPING PROGRAMS AT A LEGAL 
                              CROSSROADS?

                              ----------                              


                       TUESDAY, NOVEMBER 3, 2009

              House of Representatives,    
           Subcommittee on Commerce, Trade,
                           and Consumer Protection,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 11:40 a.m., in 
Room 2123, Rayburn House Office Building, Hon. Bobby L. Rush 
[chairman of the subcommittee] presiding.
    Present: Representatives Rush, Schakowsky, Sarbanes, 
Sutton, Butterfield, Barrow, Space, Waxman (ex officio), 
Radanovich, Stearns, Terry, Gingrey, and Scalise.
    Staff Present: Michelle Ash, Chief Counsel; Brian Cohen, 
Senior Investigator and Policy Advisor; Timothy Robinson, 
counsel; Will Cusey, Special Assistant; Theresa Cederoth, 
Intern; Aaron Ampaw, CBC Fellow; Bruce Wolpe, Senior Advisor; 
Angelle Kwemo, Counsel; Brian McCullough, Minority Senior 
Professional Staff; Shannon Weinberg, Minority Counsel; Will 
Carty, Minority Professional Staff; and Chad Grant, Minority 
Legislative Analyst.

 OPENING STATEMENT OF HON. BOBBY L. RUSH, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF ILLINOIS

    Mr. Rush. The committee will now come to order. This 
subcommittee is called today to hear testimony based on the 
title, ``NFL StarCaps: Are Sports' Anti-Doping Programs At a 
Legal Crossroads?'' The Chair recognizes himself for 5 minutes 
for the purposes of an opening statement.
    The major reason for being here today is the StarCaps case, 
which is now before the 8th Circuit Court of Appeals and the 
Minnesota State District Court.
    Sports industry analysts and legal experts everywhere are 
of the mind that Williams v. The NFL will have a major effect 
on how future collective bargaining negotiations in 
professional sports are weighed and concluded.
    Let me be real clear here, we are not here to debate the 
particular merits of the Williams case, or to judge which 
parties were at fault. We are also not here to second guess the 
choice of law rulings made by the three-judge panel from the 
8th Circuit Court of Appeals or to predict how the case will 
unfold as an employment complaint under State drug and alcohol 
testing workplace laws.
    Instead, what we should be here to do is to listen closely 
to our panel of expert witnesses. Two of our witnesses are key 
protagonists in the Williams v. NFL disagreement. We should 
also hone in on what they don't say and what we could say to 
encourage these parties to work out their serious differences.
    It is in all of our interests for these parties to reach an 
agreement on this enormously important matter, and we are very 
fortunate today to have access to Commissioner Goodell, and 
also to Mr. Smith, and to hear that are testimony and answers 
of all our distinguished witnesses.
    For me it would be very useful to understand better why 
agreement over discipline between the NFL and Kevin and Pat 
Williams could not be reached. What obstacles block the road to 
agreement?
    I hope that we will also spend some time thinking about 
whether collective bargaining has become too soured as a 
consequence of this case. Will the collective bargaining 
agreement still be the preferred avenue for hammering out 
league union agreements on disciplined players.
    A word about the Members of Congress, about the U.S. 
Congress. We as Members of Congress and we as parents are 
especially concerned about the serious health and safety harms 
to youth and to student athletes from illegal performance 
enhancers. Notwithstanding high profile steroid cases and 
scandals, a good number of young athletes still find it hard to 
resist performance enhancers that guarantee on-the-field 
performances resulting in off-the-field fame and riches.
    The institution of strong anti-doping policies is what 
Congress has been bargaining for with the professional sports 
community and industry over the past 5 years. By this hearing 
today you can enable us to help you to achieve what is a 
preferred and a nonnegotiable outcome for all the stakeholders, 
including and most importantly your fans, our constituents, and 
the American people.
    I look forward to hearing from all of the witnesses today, 
and I yield back the balance of my time.
    And now I want to recognize the chairman of the full 
committee--no.
    [The prepared statement of Mr. Rush follows:]


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    Mr. Radanovich. Thank you.
    Mr. Rush. Right now I am recognizing the ranking member of 
this subcommittee for 5 minutes for the purposes of opening 
statement. Mr. Radanovich, you're recognized for 5 minutes.

 OPENING STATEMENT OF HON. GEORGE RADANOVICH, A REPRESENTATIVE 
            IN CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Radanovich. Thank you, Mr. Chairman, and it is a 
pleasure to be here with you at this hearing today. I want to 
thank you for holding this hearing, and I believe that this 
hearing will continue this committee's interest in making sure 
that performance enhancing substances are not part of sports. 
The work we have done in the past has I believe produced 
positive changes to the existing drug changing policies of the 
professional sports leagues, and those policies are restoring 
integrity to the legacy of many sports that were severely 
tainted over the last 2 decades.
    The pervasiveness of steroids gave way to designer steroids 
produced by entrepreneurial drug pushers, and the trickle down 
to younger athletes not surprisingly remains an issue, as 
hundreds of thousands of high school age and even younger 
athletes continue to risk their health through the use of 
steroids.
    Steroids have a legitimate medical purpose and are often 
used to help treat and cure illnesses, but those substances are 
for the sick and must be administered under care of trained 
medical professionals. They are not for the healthy athlete who 
is looking for a fast track to obtain a competitive edge. That 
is cheating and it is pure and simple that it is cheating. It 
is also incredibly dangerous and unhealthy. Whether it is the 
blinding desire of an athlete to improve or the lure of 
increasingly lucrative careers in professional sports for the 
few who succeed, it is unacceptable behavior.
    Mr. Chairman, I fully support the committee's interest in 
making sure that the stronger drug policies that have been 
adopted are not in jeopardy of being undermined. A legal case 
involving NFL players has focused attention on the collective 
bargaining agreement between the players and the league and the 
relationship to State law. I am interested to hear the facts of 
the case as it currently stands and the implications for any 
professional sports collectively bargained drug programs.
    As a side note it seems a stretch to consider whether the 
original roots of labor law meant to protect workers from 
unfair and dangerous working conditions were intended to 
undermine a policy meant to increase the health and safety of 
participants while at the same time ensuring the integrity of 
the sport.
    As I understand it, the case is going and could eventually 
resolve the legal uncertainty depending on its outcome. 
However, because of the initial determinations made by the 
courts, a final result in the case may present issues that 
challenge the balance of our Federalist approach to worker 
protections in the area of drug testing policies, which permits 
States to enact laws for worker protections that may be 
stricter than those collectively bargained.
    The case obviously raises doubts about whether and to what 
extent collectively bargained agreements' drug policies in 
professional sports are affected by such State laws.
    Additionally those questions may have implications for 
other sports, including at the Olympic and collegiate levels. 
If the drug policies are only as strong as the minimum that can 
be tested under State law, the significant advances in drug 
testing policies achieved in the last several years which were 
agreed to by both players and management may be erased. That is 
not the result that anyone of us want to see.
    Mr. Chairman, I am very interested to hear the perspectives 
of our witnesses today, and I look forward to working with you 
on this issue and I yield back.
    [The prepared statement of Mr. Radanovich follows:]


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    Mr. Rush. Thank you. The Chair now recognizes for the 
purposes of opening statement the chairman of the full 
committee, the gentleman from California, Chairman Waxman.

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Waxman. Thank you very much, Mr. Chairman. Thank you 
for holding this hearing.
    As a result of congressional hearings, public outrage, and 
the actions of professional sports leagues and players 
associations, progress has been made in reducing steroid use by 
professional athletes. Unfortunately, this recent ruling in the 
case of Williams v. The NFL, better known as the StarCaps case, 
threatens to undermine this progress, and we are holding this 
hearing to understand the implications of these rulings and to 
assess whether congressional intervention is required.
    When Mark McGwire and Rafael Palmeiro and other 
professional baseball players appeared before the House 
Oversight Committee in 2005, I said we were holding the hearing 
because there was a absolute correlation between what happens 
in major league locker rooms and what happens in high school 
locker rooms. Rampant steroid abuse in the pros sends an 
unmistakable message to our kids.
    Since that hearing and the hearing last year with Roger 
Clemens, steroid use by high school students has been dropping. 
The latest survey data shows that steroid use among 8th and 
10th graders is at a 20-year low. In part this is attributable 
to examples set by professional sports and their player unions. 
As the scope of the problem became evident major league 
baseball, the NFL, and their player unions establish tougher 
testing policies and new codes of conduct regarding drug use. 
These changes have not completely eliminated steroid use, but 
they have made it tougher for players to cheat and increase the 
consequences when they are caught.
    The reason we are having this hearing is that the recent 
court decisions involving the National Football League's drug 
testing policy have put this progress at risk.
    We all know the story. The Federal court in Minnesota has 
ruled and it has been upheld by the court of appeals that State 
laws governing workplace drug testing may trump the collective 
bargaining agreement of the NFL, Major League Baseball, and 
other sports leagues. This is a serious problem because State 
laws undermine the stringent sanctions established by the 
sports leagues and their players associations.
    If these rulings prevail, they could wreak havoc with 
policies designed to curb performance enhancing drug use in 
professional sports. In fact, if the rulings are taken to 
logical conclusion, players on one team could be allowed to use 
drugs that would subject players on another team to suspensions 
and fines.
    The NFL, Major League Baseball, and other leagues could be 
limited as to how and when it could test players in Minnesota, 
but not players on the other teams in the league. Some players 
could be penalized for performance enhancing drug use while 
others would get away scot free.
    In short, these new legal interpretations could render the 
NFL and Major League Baseball drug testing programs 
unenforceable, loophole ridden, and unacceptably weak and 
ineffective. I believe we can and must avoid this outcome.
    Our panelists today will offer guidance on how they expect 
the legal issues to be resolved and how to solve the problems 
caused by these new legal interpretations. I am hopeful the 
courts will ultimately rule that the strong collectively 
bargained drug policies can stand against State law that would 
weaken them. But if this is not the case, then we need to find 
out if the collective bargaining process can solve these 
problems or whether congressional action is needed.
    One thing is clear, we should not allow the drug policies 
that the NFL, Major League Baseball, and other sports leagues 
have put in place to be rendered null and void. That is an 
invitation to steroid abuse in professional sports, and it will 
inevitably lead to more steroid use on high school football 
fields and baseball diamonds.
    I look forward to the testimony today, and I thank all of 
our witnesses for being here.
    Mr. Rush. The Chair now recognizes the gentleman from 
Louisiana for 2 minutes for the purpose of opening statements.

 OPENING STATEMENT OF HON. STEVE SCALISE, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF LOUISIANA

    Mr. Scalise. Thank you, Mr. Chairman. My voice is a little 
sore. I was watching the Saints go 7 and 0 last night with some 
friends. My friend from Atlanta is not really happy about that, 
but in New Orleans we are very happy.
    Sports are part of our culture and part of the very social 
fabric of our Nation. Unfortunately we have recently seen how 
performance enhancing drugs can cast a cloud over athletes and 
jeopardize the integrity of sports. Professional athletes in 
particular bear a special responsibility. Whether they like it 
or not, professional athletes are role models. They have a 
great influence over our young people and can bring a lot of 
good to our local communities.
    We have see this first hand in south Louisiana. We have 
seen the influence, a league, a team and its players can have. 
The NFL has been committed to helping New Orleans and the Gulf 
Coast region since Hurricane Katrina. By the end of 2005 the 
NFL had raised over $20 million for hurricane relief.
    Commissioner Goodell, on behalf of my constituents and 
those that have been helped by the NFL in our region, thank you 
for your hard work and the NFL's commitment to our recovery. I 
also want to thank you for selecting New Orleans as the host of 
the Super Bowl in 2013, which will mark our 10th Super Bowl. 
This is yet another sign that New Orleans is still a world 
class city that can host major events, and it is another 
milestone in our recovery.
    The Saints organization must also be commended for the 
support it has shown to the city and the State it calls home. 
Following Hurricane Katrina, the Saints set up a relief fund 
that provided much needed resources to charities around our 
region. They also made a commitment to return to New Orleans 
after not being able to play a single game in the city during 
the 2005 season.
    I am proud to have the Saints headquartered in my district. 
In 2006, in their first game back in New Orleans the Saints 
showed what a team can do for a city and for its fans. The 
atmosphere that night in September in the Super Dome was 
electric, and the Saints started their most successful season 
in franchise history until this year with a resounding victory 
over the Falcons ironically.
    More importantly, the Saints gave the people of Louisiana 
hope that their way of life was slowly returning to normal. 
They galvanized our region and provided a much needed boost and 
distraction from the difficult recovery process. The spirit and 
generosity of the New Orleans Satins started at the top with 
its owner Tom Benson, his wife Gail, and his granddaughter Rita 
LeBlanc, who are active in the community, but we also need to 
remember the players. Drew Brees has become actively involved 
in our region with his Brees Dream Foundation----
    Mr. Rush. The gentleman's time is up.
    Mr. Scalise. [continuing]. Which has given millions of 
dollars. So many other players, the Manning family still has a 
great impact.
    I will look forward to the testimony. I would have 
appreciated us having an opportunity in the Energy and Commerce 
Committee to have a hearing on the health care bill, because 
this week we are going to be taking that up.
    Mr. Rush. The gentleman's time is up.
    Mr. Scalise. Unfortunately, we didn't get that opportunity, 
but I look forward to hearing from the panel.
    [The prepared statement of Mr. Scalise follows:]


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    Mr. Rush. The Chair now recognizes Dr. Gingrey, the 
gentleman from Georgia, for 2 minutes.

  OPENING STATEMENT OF HON. PHIL GINGREY, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF GEORGIA

    Dr. Gingrey. Mr. Chairman. Thank you. I thank you for 
calling this hearing today on an issue that impacts a very 
unique industry in the United States, professional sports. In 
recent years Congress, including this committee, has carefully 
examined the use of performance enhancing substances in our 
professional sports leagues at a time when the public 
rightfully questions the role that Congress has on this matter 
due to other pressing issues facing our Nation, mainly the 
economy and health care reform. We are here to review the anti-
doping policies and the collective bargaining agreements of the 
major sports in this country.
    There is no question that for millions of fans professional 
sports provides a way for them to take pride in their city, it 
helps create jobs for countless hardworking Americans, and 
gives us tales of athletic lore that we share with future 
generations.
    Mr. Chairman, professional sports therefore have a large 
impact on our society and our way of life. However, the use of 
performance enhancing substances not only endangers the 
integrity of the athletic institutions, but they also are 
troublesome for the health of the players, and they set a very 
poor example for our Nation's youth who rightly or wrongly look 
up to athletes as their role models.
    Yet today's hearing is not about whether or not major 
sports leagues, particularly the NFL, implement anti-doping 
policies. Instead, today's hearing is about how these policies 
should be enforced after they have been enacted in collective 
bargaining agreements to provide for fair treatment of players 
while maintaining a level playing field for competition within 
each league.
    It can be argued that the current framework in which we 
operate does not provide that level playing field for which we 
strive. The NFL StarCaps case illustrates how a patchwork of 
State laws compromises the ability for anti-doping policies in 
leagues to be backed up by the enforcement tools necessary to 
eliminate the use of performance enhancers.
    Mr. Chairman, given that professional sports inherently 
operate in the realm of interstate commerce, this is not just 
an issue of State and Federal labor laws and how they operate.
    I look forward to hearing from our distinguished panel on 
these issues, and I see that my time is gone and I will yield 
back.
    Mr. Rush. The Chair thanks the gentleman.
    The gentlelady from Illinois, Ms. Schakowsky, the Vice 
Chair of the subcommittee, is recognized for 2 minutes for the 
purposes of opening statements.
    Ms. Schakowsky. Thank you, Chairman Rush, for holding this 
hearing. I also want to thank Chairman Waxman for his 
commitment and extensive work over the years on this issue. It 
is really largely due to his ongoing efforts, along with the 
work of this committee, that led the major sports leagues to 
establish stronger policies banning the use of steroids in 
recent years. I congratulate the leagues for doing that.
    My principal concern, as I think everyone on this 
committee's is, has to do with young athletes. They see 
professional athletes making millions after juicing, and what 
do they learn? That it pays off, despite health costs, their 
own health and even sometimes fatal consequences, they continue 
to do it. So there has to be real consequences, real penalties 
that directly bear on the game itself and the right to 
participate, which gets me to the question today.
    At the heart of this hearing is the interaction of State 
labor laws and league steroid policies that were developed as 
part of collective bargaining agreements and then overruled by 
the courts. We want to make sure that the policies are as 
strong as possible, and so I really look forward to hearing 
from the witnesses today on your recommendations on how we can 
resolve this and make sure that we keep in place those strong 
sanctions when the steroid policies are violated, and I yield 
back.
    Mr. Rush. The Chair recognizes the gentleman from Florida, 
Mr. Stearns, for 2 minutes.

 OPENING STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF FLORIDA

    Mr. Stearns. Thank you, Mr. Chairman, and thank you for 
having this hearing. As former chairman of the CTCP 
Subcommittee in the 109th Congress, I held hearings on steroids 
and sports. Jan Schakowsky was the ranking member at that 
point. We were the first in Congress to hold hearings on 
performance enhancing drugs, and that was in 2003. These 
hearings led me to introduce legislation, the Drug Free Sports 
Act, which would have required the Secretary of Commerce to 
issue regulations requiring random testing for steroids and 
other performance enhancing substances and would have called 
for a permanent suspension from participation in a professional 
sport association following two previous violations.
    As a result, I believe, of my legislation Major League 
Baseball adopted a ``3 strikes and you're out'' policy. Today, 
however, we are examining an NFL case in which two players have 
managed to simply escape suspension for testing positive for a 
banned masking agent. With the help of the NFL Players 
Association, the players have been successful so far in using 
the State of Minnesota's more lenient workplace laws to escape 
a mandatory 4 game suspension, as simply dictated by the NFL's 
collectively bargained policy in anabolic steroids. This was 
done and agreed upon.
    The use of steroids and other performance enhancing drugs, 
in addition to being illegal, undermines the integrity of 
sports and poses significant health risks to the athletes. 
Allowing more lenient State laws to undermine and preempt 
collective bargaining agreements made between players and 
unions and professional sports associations such as the NFL 
sets a bad precedent for players and jeopardizes public 
confidence in professional sports. Collectively bargained 
uniformed steroid policies are made for a reason and should be 
governed by Federal labor law, if not for the integrity of 
professional sports as a whole, but for the health and well-
being of professional athletes who are also looked to, as 
mentioned by Jan Schakowsky, as role models by aspiring high 
school athletes.
    Thank you, Mr. Chairman.
    Mr. Rush. The Chair now recognizes the gentlelady from 
Ohio, Ms. Sutton, for 2 minutes.
    Ms. Sutton. I thank the chairman. I thank you for holding 
today's hearing on the NFL StarCaps case.
    This situation raises several important issues, including 
the public health concerns that we have heard expressed here 
from steroid use. When a player takes steroids or a masking 
agent, the player's health, integrity, and accomplishments are 
at risk, and we would be naive to dismiss that young people 
look up to and admire professional athletes, imitating their 
behavior, whether that athlete wants that to happen or not.
    A University of Michigan survey found that an estimated 
200,000 high school students used steroids in 2008, and the 
motivation is obvious. Professional athletes' achievements are 
celebrated and glamorized, team owners and professional sports 
leagues profit considerably from the players' performances, but 
to protect the health and well-being of our athletes and most 
importantly our young people we must stand together to say that 
athletes should not use performance enhancing drugs.
    I want to add, Mr. Chairman, if I can, that at this point 
Ohio, I come from Ohio, I represent a great State, Ohio's 
unemployment rate right now stands at 10.1 percent. With so 
many people unemployed, it is more than unfortunate that well 
paid professional athletes who serve as role models to our 
youth refuse to play by the rules and engage in 
irresponsibility and unlawful behavior.
    So I am hoping that as a result of this hearing we will 
settle the ambiguity that exists and that we will resolve 
somehow to make sure the collective bargaining agreements do 
prevail.
    Thank you.
    Mr. Rush. The Chair now recognizes the gentleman from 
Nebraska, Mr. Terry, for 2 minutes.
    Mr. Terry. Thank you, Mr. Chairman. I thank the witnesses 
here today to tell us your position on the Pelosi health care 
bill. That is humor. All right, I will interpret that for you.
    It is nice to have a little diversion here and talk sports, 
as a sports fan, a true sports fan, all sports, NFL, Major 
League Baseball, NHL, all of them. And I dearly want to make 
sure that the competition is pure and it is clean. Now, the 
gentlelady from Ohio used the word ``naive.'' I want to make 
sure that Mr. Weiner and Mr. Smith, representing players here, 
are not approaching this in a naive position, and don't think 
that this committee and subcommittee and this Congress won't 
take this issue up and pass Federal legislation that will 
preempt State law, that will be a drug testing policy that will 
be imposed on you, and I will guarantee we will be much harsher 
in trying to clean up the sports than the directors have been.
    I am greatly disappointed in the Williamses' lawsuit 
challenging the collective bargaining agreement. The basic 
agreement between this committee and the major league sports 
was that they would handle this internally and we wouldn't 
have. Well, that has been breached by the players now.
    So I think there is two fundamental questions here that 
face this committee today and that is do we need to draft a 
national drug testing policy to be imposed upon all major 
league professional sports? If that is necessary, let's begin 
the work, Mr. Chairman. Otherwise, if you don't think it is 
necessary, maybe it is necessary that major league sports pull 
out of the States who claim their State laws will supersede the 
collective bargaining. Maybe Minneapolis without the Vikings is 
the appropriate remedy.
    I yield back.
    Mr. Rush. The Chair recognizes the gentleman from Georgia, 
Mr. Barrow.
    Mr. Barrow. I thank the Chair.
    Mr. Rush. The Chair thanks the gentleman. Mr. Sarbanes of 
Maryland is recognized for 2 minutes.
    Mr. Sarbanes. Thank you, Mr. Chairman. I won't need 2 
minutes.
    The public has been very adamant in its call for more 
practices and policies, and so forth, that will curb the use of 
performance enhancing drugs in sports, as they should be. We 
have had plenty of hearings in the Congress when the Oversight 
and Government Reform Committee in the last session under 
Chairman Waxman's leadership there we examined the issue quite 
closely. And the reason to pursue it is, number one, because of 
the discredit it brings to the sport. But secondly, and more 
importantly, it has already been alluded to is the harmful, 
dangerous conduct that it can lead to among our young people 
who aspire to these professional sports folks and hold them up 
as models.
    Now there is these recent legal cases that have highlighted 
and in some instances, I guess, may have created complications 
in pursuing this goal of reducing the use of performance 
enhancing drugs. So it is important that we got that resolved.
    I look forward to the testimony of the panel today to help 
us do that, and I yield back my time.
    Mr. Rush. The Chair now recognizes the gentleman from North 
Carolina, Mr. Butterfield.
    The Chair now recognizes the gentleman from Ohio for 2 
minutes, Mr. Space.
    Mr. Space. In the interest of time I waive.
    Mr. Rush. The Chair thanks all the members here who are 
really cooperating in an outstanding way.
    Now it is time to introduce the witnesses and we are going 
to begin at my left. The witnesses today is one, Mr. Roger 
Goodell, who is the Commissioner of the National Football 
League.
    Seated next to Mr. Goodell is Mr. Robert D. Manfred, Jr. He 
is Executive Vice President for Labor and Human Resources, the 
Office of the Commissioner of Baseball, Major League Baseball.
    Sitting next to Mr. Manfred, Jr., is Mr. DeMaurice Smith, 
the Executive Director of the National Football Leagues Players 
Association.
    Next to Mr. Smith is Mr. Michael S. Weiner, who is the 
General Counsel for the Major League Baseball Players 
Association.
    Seated next to Mr. Weiner is Mr. Travis T. Tygart. He is 
the Chief Executive Officer of the U.S. Anti-Doping Agency.
    Next to him is Mr. Gabriel A. Feldman, who is an Associate 
Professor of Law and Director of the Sports Law Program at the 
Tulane University Law School.
    And then the final witness today is Mr. Jeffrey Standen. He 
is a Professor of Law at the Willamette University College of 
Law.
    I want to thank all the witnesses who are appearing before 
the subcommittee today, and I want to ask that you would join 
with me now in swearing in, raising your right-hand to be sworn 
in. Will all the witnesses stand and raise their right-hand?
    [Witnesses sworn.]

 STATEMENTS OF ROGER GOODELL, COMMISSIONER, NATIONAL FOOTBALL 
LEAGUE; ROBERT D. MANFRED, JR., EXECUTIVE VICE PRESIDENT, LABOR 
 AND HUMAN RESOURCES, OFFICE OF THE COMMISSIONER OF BASEBALL, 
  MAJOR LEAGUE BASEBALL; DEMAURICE SMITH, EXECUTIVE DIRECTOR, 
   NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION; MICHAEL S. 
    WEINER, GENERAL COUNSEL, MAJOR LEAGUE BASEBALL PLAYERS 
ASSOCIATION; TRAVIS T. TYGART, CHIEF EXECUTIVE OFFICER, UNITED 
   STATES ANTI-DOPING AGENCY; GABRIEL A. FELDMAN, ASSOCIATE 
   PROFESSOR OF LAW AND DIRECTOR, SPORTS LAW PROGRAM, TULANE 
 UNIVERSITY LAW SCHOOL; AND JEFFREY STANDEN, PROFESSOR OF LAW, 
              WILLAMETTE UNIVERSITY COLLEGE OF LAW

    Mr. Rush. Please take your seats. Let the record reflect 
that the witnesses have all answered in the affirmative.
    And now I must announce to you that there is a vote in 
progress on the floor of the House, and so the committee will 
stand in recess until 15 minutes after the final vote. There 
are three votes and after these three votes we will reconvene 
15 minutes after the final vote.
    The subcommittee stands in recess.
    [Recess.]
    Mr. Rush. The subcommittee will again be called to order.
    I understand that Commissioner Goodell is on his way back 
in, so in the interest of time, I am going to ask Mr. Manfred 
to start.
    But before you start, Mr. Manfred, I just want to say to 
all of the witnesses and those who are present, we really thank 
you so much for your patience, for your indulgence. We do have 
votes that occur from time to time on the floor and we have to 
leave to go vote on the floor. But you have been very patient 
and kind to us, and we really appreciate that.
    So with that said, the Chair recognizes Mr. Manfred for 5 
minutes for an opening statement.

              STATEMENT OF ROBERT D. MANFRED, JR.

    Mr. Manfred. Chairman Rush, Ranking Member Radanovich and 
members of the committee, thank you for the opportunity to be 
here today to address an issue of concern to Major League 
Baseball.
    Baseball Commissioner Allan Selig has made the eradication 
of the use of performance-enhancing substances a strategic 
priority for Major League Baseball. Under Commissioner Selig's 
leadership, drug programs have been developed, deployed, 
updated and constantly improved at both the Major League and 
minor league level. Baseball's programs call for pre- and post-
game testing for both steroids and stimulants out of 
competition and off-season testing is required. In total, we 
conducted 13,000 tests of our players in 2009.
    Baseball uses the most up-to-date drug testing technologies 
at laboratories certified by the World Anti-Doping Agency. And 
our programs are transparent in that all suspensions are 
announced publicly and testing statistics are published 
annually.
    These programs have been effective in reducing the use of 
performance enhancing substances. We had only two steroid 
positives in 2009 and have been equally effective in detecting 
players, including high profile players, who have persisted in 
the inappropriate use of such substances.
    Without exception, the progress baseball has made at the 
Major League level has been accomplished in the collective 
bargaining process. The first drug testing program was 
negotiated as part of our 2002 agreement when it became 
apparent that improvements needed to be made. Baseball and the 
Players Association took the unprecedented step of twice 
reopening the agreement to strengthen the drug programs. The 
collective parties made further improvements in the 2006 round 
of negotiations and then reopened that contract to deal with 
the recommendations made by former Senator George Mitchell.
    Based on our experience, Major League Baseball believes 
that the substantive terms of drug testing programs should 
continue to be established by the collective bargaining process 
created and regulated by the National Labor Relations Act. The 
recent decision by the United States Court of Appeals for the 
Eighth Circuit in Williams v. NFL, however, has raised the 
possibility that State laws could interfere with the uniform 
enforcement of baseball's collectively bargained drug program.
    It is well-settled law that section 301 of the NLRA 
preempts State claims that are inextricably intertwined with 
the consideration of the terms of labor contracts. Prior to the 
Eighth Circuit decision, we assumed that claims based on State 
laws establishing standards for drug testing programs would be 
preempted in the context of a collectively bargained program.
    Uniformity of enforcement is an essential element of any 
drug testing program in the context of professional sports. The 
essence of sport is fair competition, the use of performance-
enhancing drugs undermines fair competition. In a nationwide 
sport such as professional baseball, all athletes must be held 
to a single standard of clean competition. Once Major League 
Baseball and its players association have agreed on a drug 
testing program, individual States and local governments cannot 
be allowed to undermine the program with employee protective 
statutes.
    Unfortunately, the problem of inconsistent State and local 
regulations is not merely hypothetical. There are a number of 
States and municipalities that have laws related to drug 
testing that could create claims for players covered by our 
programs. Such claims could lead to uneven enforcement of the 
drug policy which, in turn, would undermine the credibility of 
our program and the integrity of the competition known as Major 
League Baseball.
    Because we have always believed that claims based on State 
drug testing laws would be preempted, we have never bargained 
with our Players Association in an attempt to deal with the 
problem of State claims. I am a firm believer in the process of 
collective bargaining and the utility of that process in 
dealing with difficult issues. Having said that, I doubt that 
the collective bargaining parties had the legal power to waive 
in advance State law claims of individual union members.
    Major League Baseball, of course, recognizes the legitimate 
right of States to pass employee protective legislation in the 
area of drug testing. Even a cursory review of the applicable 
State laws, however, demonstrates that such statutes were 
intended to deal with programs that regulate drugs of abuse in 
traditional workplaces such as factories and hospitals, not the 
use of performance-enhancing drugs by professional athletes. 
Given this fact, it would seem that a narrowly drafted statute 
could solve the problem faced by professional sports without 
creating undue interference with the prerogatives of the 
States, while preserving the primary role of collective 
bargaining in setting the substantive terms of drug testing 
programs.
    I thank you for giving us the opportunity to be here today, 
Mr. Chairman.
    Mr. Rush. The Chair thanks the witness.
    [The prepared statement of Mr. Manfred follows:]


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    Mr. Rush. The Chair now recognizes the Commissioner of the 
National Football League, Mr. Goodell, for 5 minutes.

                   STATEMENT OF ROGER GOODELL

    Mr. Goodell. Mr. Chairman, thank you. And I apologize for 
being late. Ranking member, members of the committee thank you 
for having me here today. I do appreciate the opportunity to 
appear again today to discuss the NFL's longstanding commitment 
to eliminate steroids and other performance-enhancing 
substances from sports.
    In recent years, several committees of Congress reviewed 
our collectively bargained antisteroid policies and have 
commended us on a strong and effective program that 
accomplishes three main goals: first, protects the health and 
safety of our players; two, upholds the integrity of 
competition on the field; three, sends an important message to 
young people that these substances are dangerous and wrong.
    For the last 20 years, a central principle of our policy 
has been the player is responsible for what is in his body. The 
player is responsible for what is in his body. As Gene Upshaw, 
the late head of the Players Association testified only last 
year, and I quote, ``We have strict liability for players. 
There is no excuse for any player that says he was not aware of 
a banned substance in what he was taking. That is his 
responsibility. He is responsible for what goes into his 
body,'' end of quote. This principle ensures that the program 
will operate in a fair and uniform manner throughout the 
league, and that is the essential issue today whether we can 
continue to have a uniform program with credibility and 
integrity that applies on an equal basis to all players.
    In the past, we have always testified with the full support 
of our Players Association. I am sorry to report today, for the 
first time, our Players Association sits next to me, but does 
not stand with us on this issue. Last season, three players 
from the New Orleans Saints and two players from the Minnesota 
Vikings tested positive for a banned substance. The particular 
substance is banned because both it can be used as a masking 
for steroid use and because of potential adverse health 
effects.
    Based on the positive test, each player was suspended for 
four games, 25 percent of our regular season. The five players 
appealed and argued that they had ingested the banned substance 
inadvertently by using a supplement that did not list a 
diuretic on the label. Following lengthy hearings, the 
suspensions were upheld.
    The Minnesota players then sued the NFL in State court in 
Minneapolis arguing that the suspensions violated Minnesota 
State law. A State court judge issued an injunction that same 
day allowing the two players to participate in critical late 
season games.
    The next day, the Players Association sued the league in 
Federal court on behalf of all five players, even though doing 
so expressly violated the collective bargaining agreement. Last 
May, the Federal judge dismissed every one of the Player 
Association's challenges and the Eighth Circuit Court of 
Appeals unanimously upheld that ruling in September.
    There were claims of impropriety, bias and the like in the 
proceeding and you may hear such claims today. But all of those 
claims were fully considered and rejected by every Federal 
judge to hear them. Regrettably, the Federal courts permitted 
the two Minnesota players to proceed with a different set of 
claims under State law. That is why we are here today.
    We have vigorously opposed the application of State law to 
our antisteroid program and will continue to do so. The Players 
Association, that for nearly two decades has been our partner 
in developing and administering this program, has refused to 
support us on this issue, even after I wrote to DeMaurice Smith 
in June and specifically asked for his support.
    Mr. Chairman, to that point I ask that this be entered into 
the record. It is the letter I sent to DeMaurice back in June.
    Mr. Rush. Hearing no objection, so ordered.
    [The information follows:]


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    Mr. Goodell. As a result of these court rulings, there is 
no barrier to suspending the New Orleans players. But 
considerations of fairness and uniformity led me to defer those 
suspensions while we addressed the Minnesota State law issue.
    More broadly, our collectively bargained policy, which was 
intended to apply on a uniform basis to all players on all 
teams, is now subject to individual State laws, as interpreted 
by individual State court judges. Every sports organization has 
recognized it is simply impossible to operate a credible and 
effective program on this basis.
    For example, the Minnesota players claim that they are 
permitted under State law to use any banned substance so long 
as they do so outside of the locker room. If that is the law, 
it will effectively end antisteroids programs in all sports in 
the State of Minnesota.
    We have always supported collectively bargained solutions 
in this area. While we are reluctant to seek action from 
Congress, we believe this presents the rare case in which 
narrow and tailored Federal legislative action is warranted to 
confirm the primacy of Federal labor law and respect agreements 
on this important subject.
    The NFL's policy is straightforward: Substances banned 
under our steroid policy are bad for players' health and 
undermine the integrity of the game. We have made that policy 
clearly known to players, and we have zero tolerance for 
failure to follow it.
    I appreciate your time and look forward to your questions.
    Mr. Rush. Thank you, Mr. Goodell.
    [The prepared statement of Mr. Goodell follows:]


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    The Chair now recognizes the Executive Director of the 
National Football League Players Association, Mr. DeMaurice 
Smith. You are recognized for 5 minutes, Mr. Smith.

                  STATEMENT OF DEMAURICE SMITH

    Mr. Smith. Thank you, Mr. Chairman, Subcommittee Chairman 
Mr. Rush, Mr. Ranking Member. Good afternoon. My name is 
DeMaurice Smith, and I thank you for the opportunity to testify 
concerning the important issues being considered by your 
subcommittee.
    I serve as the Executive Director of the National Football 
League Players Association. Having been elected to that 
position in March of this year, one of my first priorities was 
to become fully conversant with the NFL and the NFLPA's policy 
on anabolic steroids and related substances. The policy has 
been in place for many years and it has been successful in 
terms of preventing the use of performing enhancing substances 
in the National Football League.
    Let me make one thing clear. The National Football League 
Players Association believes in this policy. I believe in this 
policy. It is a collectively bargained policy. That is why in 
September of 2009, myself, along with Roger Goodell, sent a 
memorandum to every player in the National Football League, 
reminding them of the applicability of the policy, signed at 
the bottom, Mr. Roger Goodell, Commissioner, Mr. DeMaurice 
Smith, NFLPA Executive Director. And with permission, I would 
like this to be added to the record.
    Mr. Rush. Hearing no objection, so ordered.
    [The information follows:]


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    Mr. Smith. Is extremely important to me that our players 
compete on a playing field that is level and that the 
competition among these elite athletes occurs without the help 
of any performance-enhancing substances.
    I am keenly aware that our players' choices, both on and 
off the field, not only affect themselves but also members of 
the vast audience who watch them. I am also keenly aware that 
there are serious and adverse health effects from using 
steroids and other substance. It is why the health of our 
players is paramount.
    The safety of our players remains paramount, and I will 
always stand with the National Football League when we fight 
and work together to ensure player safety. It is for those 
reasons that our union first negotiated this very strict policy 
in the early 1990s.
    Over time, we have made collectively bargained changes to 
that policy to ensure safety, to ensure that the players who 
play this game play so at an even playing surface. As a result, 
we have always agreed to the strict liability feature which 
makes every player responsible for what he puts in his bodies. 
As a result, players will be suspended under the policy even 
when they do not know that a product they are using contains a 
prohibited substance.
    We test at least 10 players per week per team during the 
season, and the player is likely to be tested about six times 
in the off season. A player's first positive test typically 
brings an automatic game suspension; a second positive test 
brings an eight-game suspension; And a third positive test and 
a suspension of up to 1 year.
    As a testament to the success of this policy, there have 
only been five two-time offenders since the policy was put in 
place in 1993. No player--no player in our history has ever 
been suspended for a third offense.
    We have also placed great emphasis on education under the 
policy. We have developed various educational materials to warn 
our players about the health risks of using steroids. Players 
are encouraged to call a hotline number to check on the 
acceptability of various products under the policy. That 
hotline is a crucial safety measure that was inspired by the 
National Football League and our union to ensure that our 
players have immediate access to the best information.
    We have also created the Sports Nutrition Label 
Certification Program which certifies to players that products 
of any company participating in the program are free from any 
substances.
    Against this background it is unfortunate that the policy 
has attracted some negative attention related to this StarCaps 
case.
    Most importantly today, Mr. Chairman, I want to emphasize 
what StarCaps is not about. StarCaps is not about any player 
who used a product to gain a competitive advantage. It is not a 
case about any player who used a product to enhance their 
performance. Instead, it is about the use of a product called 
StarCaps, which was used by players to help them lose weight.
    It is not a steroid. StarCaps was marketed over the counter 
as an all-natural product, and the list of ingredients on its 
packaging did not include any banned substances. The players 
who ingested the product did not know nor were they ever told 
that StarCaps actually contained bumetanide, an unlisted 
ingredient and a prescription diuretic that is prohibited under 
our policy.
    In normal circumstances, of course, it does not matter 
under the policy whether the players knew this or not since 
they are responsible for everything they put in their bodies. 
But this case did not involve normal circumstances. That is 
because, unknown to the players, the person appointed by the 
National Football League as the independent administrator of 
the program had previously become aware that StarCaps contained 
bumetanide. He, along with other League officials, failed to 
inform the players of this fact.
    Making matters worse, a League lawyer interfered with the 
administrator's independence by dictating that he change his 
response to such cases to ensure that players who unknowingly 
took StarCaps would be suspended.
    I remain concerned about these revelations for two reasons. 
First, I believe our policy contemplates that an independent 
administrator, who in this case is a medical doctor, well 
credentialed in his field, must at all times have the health of 
the players as his first priority. He should not serve as 
strictly a functionary. He must serve as a doctor who is 
obligated to inform players as patients when their health is at 
risk. That did not happen in this case.
    The same goes for a League lawyer who also failed to convey 
the information that he knew to the players or to the hotline 
that they used to make sure that the information is accurate. 
That is why we filed our action in Minnesota. That is why we 
sought this appeal.
    That being said, as a result of the StarCaps case, I 
believe that we have to make some changes to the policy. But 
the issues with the collectively bargained program that emerge 
in the context of StarCaps can and should first be addressed by 
working with the league through the collective bargaining 
process.
    I believe in the collectively bargained process. I believe 
in the program that resulted from collective bargaining. I 
believe that the league should have adhered to that 
collectively bargained process.
    Mr. Chairman and the subcommittee, let me conclude by 
saying that we appreciate this committee's and this 
subcommittee's continuing interest in the health of players at 
all levels of the game. We believe that the most effective way 
to ensure that our collectively bargained policy does not 
conflict with State law is for the league and our union to 
draft carefully crafted language in the new CBA, that we are 
currently negotiating, that reflects our acute awareness of 
these issues.
    We are confident that we can effectively work through the 
process with the league to implement these changes as we have 
done in the past. We will do so together to strengthen our 
policy.
    I look forward to working with this subcommittee. I 
appreciate all of your efforts, and I am happy to ask and 
answer--I am sorry--answer, any of your questions today. Thank 
you very much.
    Mr. Rush. The Chair thanks the gentleman.
    [The prepared statement of Mr. Smith follows:]


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    Mr. Rush. The Chair recognizes Mr. Michael Weiner, who is 
the General Counsel for Major League Baseball Players 
Association.
    Mr. Weiner, you are recognized for 5 minutes and, to be 
fair, thereabouts. OK?

                  STATEMENT OF MICHAEL WEINER

    Mr. Weiner. Thank you, Mr. Chairman, Ranking Member 
Radanovich and members of the committee. Thank you for the 
opportunity to testify today. In addition to my comments now, I 
would ask that my written testimony be made a part of the 
official record of today's proceeding.
    As Mr. Manfred indicated, we have an effective joint drug 
program in Major League Baseball. It has been collectively 
bargained, it is comprehensive, its science is state of the art 
and it contains elements of fundamental fairness to all 
involved with the program. We have an independent program 
administrator, we have year-round testing both during the 
playing season and during the off season and, of importance, 
the collective bargaining parties have demonstrated the 
flexibility and the program itself calls for this flexibility 
for us to respond to developments--legal developments, 
scientific developments--and we have through the bargaining 
process responded to those developments to maintain the 
effectiveness of our program.
    The Williams decision that is the impetus for today's 
hearing has had no impact on the operation of the joint drug 
program in Major League Baseball, and the Players Association 
does not believe that the ongoing litigation in Williams 
warrants congressional intervention. That intervention would 
implicate longstanding congressional policy, longstanding 
Supreme Court precedence that accommodates State prerogatives 
that pass laws to regulate workers in the workplace.
    The bargaining parties in Major League Baseball and those 
in many industries regularly bargain collective bargaining 
agreements against a backdrop of State laws. It is something 
that unions and management do all the time. And because of 
that, both Congress and the Supreme Court have repeatedly 
expressed reluctance to--and I will now quote from the Allis-
Chalmers decision of the United States Supreme Court--to grant 
to collective bargaining parties the ability to contract for 
what is illegal under State law.
    The Williams case again does not warrant deviation from 
that principle. As I indicated, it is ongoing litigation. The 
decision of the Eighth Circuit is not even necessarily the 
final word of the Eighth Circuit. There is a petition for 
rehearing pending before the Eighth Circuit right now and there 
are other possibilities for further appellate proceedings. In 
addition, if the case is ultimately remanded, sent back to the 
State court, at that point there will be a trial of the State 
law claims.
    I emphasize that nothing has been decided with respect to 
the State law claims other than that they can be heard. In 
addition, as Mr. Smith emphasized in some detail, the Williams 
case is not about steroids. The substance involved, as he 
indicated, is StarCaps, an over-the-counter weight loss 
supplement that turned out to contain a prescription drug that 
was not listed on its label. And as he said--Mr. Smith said--
that litigation has focused in large part on the administration 
of the agreement as it relates to StarCaps, the fact that the 
NFL had knowledge of--that StarCaps contained the prescription 
medication and the lack of disclosure of that to players and to 
the union. These are relevant facts in weighing the league's 
request for congressional intervention.
    Turning to the Minnesota statutes involved, again it is 
important to note that there has been no determination at this 
point that those statutes even apply or affect in any way 
professional sports. I have had the opportunity to read 
Professor Feldman's written testimony, and we agree with him 
that in the end there may well be no conflict at all between 
the Minnesota statutes and the collective bargaining agreements 
that govern professional athletes in the State of Minnesota.
    We have also, in advance of this hearing, spoken with the 
AFL-CIO. It is their position that they do not support 
congressional intervention in a matter such as this. They 
believe that collective bargaining should be permitted to work 
to address any problem that might exist.
    So, in summary, the Players Association--the Baseball 
Players Association, I should say--hopes that this committee 
and the Congress will allow the Williams litigation to play 
itself out fully. At that point, all concerned about this issue 
can determine whether any problem actually exists, and if there 
is a problem, all involved can make a determination as to the 
best solution.
    Thank you for your time, and I welcome the chance to answer 
any of your questions.
    Mr. Rush. Thank you.
    [The prepared statement of Mr. Weiner follows:]


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    Mr. Rush. The Chair now recognizes Mr. Travis T. Tygart, 
the CEO of the United States anti-doping agency. Mr. Tygart, 
you are recognized for 5 minutes.

                 STATEMENT OF TRAVIS T. TYGART

    Mr. Tygart. Thank you, Mr. Chairman, Ranking Member 
Radanovich, members of the committee. Good afternoon. My name 
is Travis Tygart, and I am the Chief Executive Officer of the 
United States Anti-Doping Agency. I want to thank you for the 
opportunity to be here today and for your longstanding interest 
in the rights of clean athletes and the integrity of 
competition.
    USADA, as you probably know, has been recognized as the 
national anti-doping agency for the U.S. Olympic Movement; and 
while our current mandate does not extend to professional 
sport, we do not work in a vacuum. The elimination of doping in 
professional sports is equally important to the elimination of 
doping at all levels of sport in this country.
    Sport in America has taken on a significance that extends 
well beyond a form of entertainment. In its purest form, sports 
builds character, promotes selfless teamwork, dedication and 
commitment to a greater cause. Sadly, when doping is 
introduced, its corrosive effects eat away at the core 
attributes and compromises everything valuable about sports. 
The existence of doping in professional sport hurts us all.
    Last year, the subcommittee conducted hearings on the 
Mitchell Report. Major League Baseball and its players were not 
the only sports organization or players hurt by those 
revelations; unfortunately, the accomplishments of clean 
athletes at all levels of sports in this country were hurt.
    I would like to digress momentarily to the StarCaps problem 
that led to the Williams case. Recently I testified in the 
Senate and outlined a series of legislative changes that we 
believe are necessary to protect athletes of all ages and other 
consumers from mislabeled dietary supplements, in particular, 
those supplements that contain undisclosed drugs that are 
dangerous to consumers like the one in this case.
    With respect to today's issues, we strongly support Federal 
legislation that protects uniform national enforcement of a 
sports league's sound anti-doping program against interference 
from inconsistent State laws. This preemption should be 
available for all sound sport anti-doping policies, not just 
those collectively bargained. Where a sports league has a 
national scope, its anti-doping program cannot be effective 
unless it is uniform and national in scope. We have learned 
that lesson from the history of anti-doping in the Olympic 
Movement, from the adoption of the World Anti-Doping Code and 
the acceptance of the world code by the U.S. and other 
governments through the ratification of UNESCO's International 
Convention against Doping in Sport. That convention commits the 
U.S. to coordinate the fight against doping in sport in the 
U.S. through appropriate measures including legislation 
consistent with principles of the code.
    As described in the code, sport anti-doping programs are 
based on three fundamental objectives to maintain a level 
playing field for athletes, to protect the health of athletes 
and to preserve the spirit of sport. If application or 
enforcement of anti-doping rules can vary depending on where a 
particular competition takes place or where an athlete or a 
team is located, the playing field is not even and clean, 
athletes' rights are violated.
    There could be unique or inconsistent State regulations 
pertaining to conduct which constitute a violation of anti-
doping rules, the selection of athletes to be tested, the 
sample collection process, the laboratory analysis of samples, 
the results management process and the imposition of 
discipline.
    The problem of an uneven playing field caused by nonuniform 
anti-doping rules was the primary reason behind the adoption 
worldwide of the World Anti-Doping Code. Before the enactment 
of the code, the rules of international sports federations like 
FIFA, the world governing body for soccer, could not be 
uniformly enforced worldwide because of the patchwork of 
inconsistent national anti-doping rules and laws.
    USADA follows all of the requirements of the code in the 
operation of our Olympic program. Some professional leagues, 
like the ATP and the WTA, have now also adopted the code. Any 
sports league that adopts the gold standard, the code, should 
receive the benefit of Federal preemption of any inconsistent 
State law.
    Now, whether viewed from the perspective of the obligations 
under the UNESCO convention or simply from the public policy 
goal of eliminating doping in America, sports that adopt sound 
anti-doping programs that substantially comply with the basic 
principles of the code should also be protected from 
inconsistent State laws. There is much less justification, 
however, for preempting State laws in favor of professional 
sports league programs that are not fair or effective.
    To obtain the protection of Federal preemption as a matter 
of public policy, of sports anti-doping programs, should, most 
importantly, be independent and transparent in addition to 
being required to satisfy the following criteria: effective 
out-of-season and out-of-competition testing; a full list of 
prohibited substances and methods that are prohibited; and 
implementation of best legal and scientific policies, 
investments into education, investments into research, 
partnerships with law enforcement to hold those accountable who 
manufacture or illegally distribute these dangerous drugs.
    In conclusion, requiring these minimal principles is 
consistent with the WADA code, the USADA protocol and the 
recommendations you heard from Senator Mitchell. If all U.S. 
professional sports leagues implemented anti-doping programs 
that met these criteria, it would go a long way towards 
eliminating doping in the U.S., in restoring public confidence 
and the integrity of achievement and the value of true sport as 
a teacher of life lessons. Most importantly, it would be a 
significant step toward protecting the health our young 
athletes who emulate our professional heroes. Thank you.
    [The prepared statement of Mr. Tygart follows:]


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    Mr. Rush. The Chair now recognizes Professor Gabriel A. 
Feldman for 5 minutes for the purposes of an opening statement, 
5 minutes or thereabouts.

                STATEMENT OF GABRIEL A. FELDMAN

    Mr. Feldman. Mr. Chairman, Ranking Member Radanovich and 
other members of the committee, I want to emphasize that the 
Eighth Circuit's decision in NFL v. Williams has only created a 
potential problem.
    The Eighth Circuit did not hold that the suspension of the 
Williamses violated Minnesota State law. The Eighth Circuit 
only held that the Williamses may challenge those suspensions 
in Minnesota State court under Minnesota State law because that 
independent Minnesota State law was not preempted by section 
301 of the LMRA.
    That is an important point to focus on because we only have 
a problem if the Minnesota State court then determines that the 
suspensions of the Williamses violated that Minnesota State 
law. That would be the problem. If that is the problem, we can 
focus our solution on that particular problem.
    We don't have that problem yet. If we get there, then we 
need to recognize we only have a narrow problem. We have the 
laws of one State, Minnesota, potentially interfering with the 
NFL's performance-enhancing drug policy--just one State.
    I do not think it is appropriate or wise for Congress to 
pass a Federal law providing a broad exemption for professional 
sport leagues from State law just because of this narrow 
problem involving one State. Granting an exemption to any 
industry to protect it from State law should only be done for 
compelling reasons, even if it is a narrow exemption, because 
even a narrow exemption has potential for producing harmful 
unintended and unanticipated consequences.
    And to put a spin on an old cliche, for Congress to pass a 
law now based on this particular problem would be like the man 
who uses a shotgun to kill an ant that has crawled into his 
house. Except here we are not even sure the ant is in the 
house.
    I think the more appropriate way to fix this narrow problem 
is with a narrow solution. I think the most appropriate narrow 
solution, the first step, is for the NFL to litigate this case 
in State court and convince the State court that the 
suspensions of the Williamses do not violate Minnesota State 
law. That may seem like an obvious solution, but it addresses 
the problem head on, and I think it is likely to be successful.
    And here is why I think it is likely to be successful: 
Putting aside the merits of the claims--and we are dealing with 
two different Minnesota State statutes, the DATWA and the CPA. 
Neither of those statutes was intended to apply to the 
performance-enhancing drug policies of professional sport 
leagues.
    Look at each one briefly. DATWA was designed to regulate 
the testing of recreational drug use by employees in Minnesota. 
It was a byproduct of the War on Drugs in the 1980s. Employees 
were coming to work under the influence of drugs; they were 
causing accidents, they were unproductive, they weren't showing 
up at all. So private employers started instituting strict 
drug-testing policies for their employees.
    States responded with regulations like DATWA to protect 
these employees. And those regulations had protections in place 
such as ensuring that the testing procedures were not overly 
invasive and ensuring that employees who did test positive for 
recreational drug use were given treatment and rehabilitation, 
not just simply punishment and termination.
    As an important aside, those goals are completely 
consistent with the goals of the leagues' recreational drug-
testing policies, but there is simply no indication nor any 
reason to believe that DATWA's was intended to regulate or 
limit the ability of professional sport leagues to test their 
athletes for performance-enhancing drug use.
    The Minnesota legislature was concerned about the use of 
performance-detracting and addictive drugs by employees; the 
legislature was not concerned about the use of performance-
enhancing drugs or cheating by professional athletes. They are 
very different purposes.
    I think the best argument the NFL has is, these laws should 
not apply at all. Even if there were technical violations--and 
I think the NFL has a strong argument that there were no 
technical violations; but even if there were technical 
violations, those laws simply should not apply here.
    The suspension of the Williamses does not violate the 
spirit or the purpose of DATWA. The argument with respect to 
the CPA is even stronger. CPA was essentially passed to prevent 
employers from disciplining employees for using alcohol and 
tobacco off work site in nonworking hours--nothing to do with 
performance-enhancing drugs of professional athletes.
    If litigation in State court is unsuccessful, then the 
NFL's next step should just seek an exemption from the 
Minnesota State legislature. Ask the Minnesota State 
legislature to carve out an exception from its drug-testing 
statutes. Louisiana has carved out an exception from its drug-
testing statutes to make it clear that it does not apply to 
professional athletes; Minnesota could do the same thing.
    In fact, Minnesota amended the DATWA in 2005 to allow 
sports leagues to use random drug testing for its pro athletes. 
They did it in 2005; there is no reason to think they wouldn't 
do it now. If both of those solutions are unsuccessful and if 
the players in the league can't negotiate around it, then and 
only then do we have a problem.
    Then we have this one law potentially interfering with the 
NFL's drug policy. There are not many other laws out there that 
pose the same problem. They are looked to be two State statutes 
that have minor conflicts with the NFL policy, just two others 
in addition to Minnesota.
    If we get to the point, though, that in Minnesota State 
court has said that the suspension of NFL players is not 
allowed because it violates Minnesota law, then Congress should 
consider passing a Federal exemption, but that must be a narrow 
exemption. The risk of having a broad exemption or providing 
too much protection for the leagues is pretty clear.
    Congress right now may think it is a good idea for the NFL 
policy to trump State law because Congress likes the current 
policy. What happens in the next round of collective bargaining 
negotiations if the players in the league agree to a different 
policy that Congress doesn't like? What if it is too lenient? 
What if it is too strict? What if it doesn't supply a list of 
banned substances? What if it gives the Commissioner the 
ability to increase or decrease a particular penalty as he sees 
fit? Do we want that policy protected under attacks from State 
law?
    I think we have a long way to go before this is a problem 
that Congress should be concerned with. Thank you.
    [The prepared statement of Mr. Feldman follows:]


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    Mr. Rush. The Chair now recognizes Professor Standen for 5 
minutes for an opening statement.

                  STATEMENT OF JEFFREY STANDEN

    Mr. Standen. Thank you, Chairman Rush and Mr. Ranking 
Member, for inviting me here today to testify. I am Jeffrey 
Standen from Willamette University in Salem, Oregon; and in my 
view, the Williams decision is built on a simple premise and 
that premise is erroneous.
    Professional sports leagues, such as the NFL, are not 
typical multistate business organizations. They are hybrid 
business organizations, neither fish nor fowl, and do not 
easily fit within the mold anticipated by section 301 of the 
LMRA and the judicial decisions interpreting it.
    The NFL and the other major American professional sports 
leagues are unique business operations. The NFL requires its 
franchises to be owned by a single individual or group of 
individuals, and to be owned locally. In other words, a single 
owner may not own more than one franchise. This aspect of the 
business arrangement provides incentives for local teams to 
promote local marketing opportunities and ticket sales. Local 
ownership gives teams strong incentives to hire and retain the 
best players and coaches possible to enhance their chances for 
on field success.
    Yet the fact that teams are individually owned by local 
interests does not mean that NFL teams are competitors in a 
regular business sense. NFL teams compete, but they do not wish 
to drive their competitors out of business. Instead, NFL teams 
rely on a high degree of cooperation in both obvious and 
nonobvious ways. Teams cooperate to create uniform game rules, 
game schedules and championship tournaments. They cooperate to 
create and sell national and international marketing 
opportunities, including broadcast rights, digital media and 
national sponsorships.
    This obvious cooperation, which is currently under scrutiny 
by the Supreme Court of the United States and the American 
Needle antitrust litigation masks a deeper codependency among 
teams. When one franchise does poorly, the entire league 
suffers, even to the extent that professional leagues have been 
known to take over ailing franchises rather than allowing them 
to fail.
    As co-venturers, franchises actively help ensure the 
financial health and continuing viability of their competitors, 
devising rules to assist their nominal opponents in the hiring 
of high-quality players and coaches. These rules promote 
competitive parity and include salary caps, wage scales, luxury 
taxes and entry drafts, preferential draft and waiver rights to 
the least competitive teams, restrictions on draft picks, 
prohibitions on one-sided trades, weighted schedules and so 
forth.
    In short, the multistate location of the franchises of a 
sports league tends to mask the nearly complete dependency that 
teams, in fact, have on each other to ensure the overall 
success of the league.
    In my view, the NFL and other professional sports leagues 
are better characterized as single national firms and not as a 
number of independent companies that cooperate in small matters 
such as game schedules or rules of play. Yet, even as a single 
entity, the sports leagues have unique needs that require 
special consideration under the law.
    Ordinary national businesses that have operations in 
several States must abide by the respective State laws, for 
example, drug-testing restrictions, minimum-wage rules and the 
like. But the NFL differs from the ordinary single entity 
because, although teams are financial co-venturers, they are 
also, of course, on-field competitors. The league relies on 
competition among its cooperators. As a result, where a State 
law or other law strikes down a term of employment that 
directly or indirectly creates competitive balance, then the 
very continuation of the NFL as a business enterprise is 
threatened. Such decisions might make sense in the context of a 
single national business that happened to have local operations 
in multiple States, but in the context of a professional sports 
league, such applications of State law would be devastating to 
the chief product the league produces--competitive and exciting 
game contests.
    One important way that leagues ensure competitive parity is 
by prohibitions on player doping. Doping is prohibited in part 
because it allows certain players and their respective teams an 
unfair advantage over their competitors. As a result, I would 
suggest to this subcommittee that the Congress amend section 
301 of the LMRA to preempt any State claim that would conflict 
with any drug-testing policy that is incorporated as part of a 
valid collective bargaining agreement.
    Thank you, Mr. Chairman.
    Mr. Rush. The Chair thanks the gentleman.
    [The prepared statement of Mr. Standen follows:]


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    Mr. Rush. And the Chair thanks all of the witnesses for 
their very provocative and insightful testimony. The Chair 
recognizes himself for 5 minutes to question the witnesses.
    One of the concerns raised by the Williams v. NFL decision 
is that it takes control of league performance-enhancing drug 
policies out of the hands of the league and the players, 
leaving their collectively bargained policies to the whims of 
State legislatures that may weaken these policies. And if this 
is the case, it is impossible, in my opinion, to see how these 
collectively bargained drug agreements can be deemed offensive.
    My first question is, Mr. Smith, you represent the NFL 
players union and you brought this case to the courts. What is 
your view? Can the implications of the courts' decision in this 
case be resolved through the collective bargaining processes?
    Mr. Smith. Mr. Chairman, I do not believe that that is the 
case. As Mr. Feldman pointed out, the StarCaps decision from 
the Eighth Circuit, just to be absolutely clear, did not 
conclude that the NFL in our joint drug policy was suspended 
because of State law.
    The other point that Mr. Feldman made absolutely clear is 
also true. That case is not yet over. So it is not a situation 
where anyone has ruled that our drug policy is now null and 
void. That has not happened.
    The other fact that is absolutely clear, as he has taken a 
look at the issue, as I as not only the executive director, but 
still a lawyer who every now and then is consumed by arcane 
legal principles, when we looked at the issues of what States 
could pose problems to this drug policy, there were three--
Minnesota, Maryland and North Carolina.
    When you look at those three States, the three issues that 
could be problems if the case concluded in a way that was 
adverse to the policy if that happened, the three issues--one, 
that an employee would have the right to explain a positive 
test--that is one hurdle that could be placed in front of our 
NFL policy; the second hurdle deals with the certification of 
the labs that conduct the test; and the third hurdle is that it 
would have to change the testing procedures to allow for 
testing of masking agents.
    As we look at what could happen, if this case proceeded to 
the worst possibility, three States would be affected and those 
are the three primary hurdles that would need to be addressed.
    So as I look at a fix to the problem, I see the collective 
bargaining process as the best way not only to fix the problems 
of preemption that we now know to have popped up in our 
program, because we didn't know before; but also if we did have 
those problems in those three States, those three things can be 
specifically addressed in the collective bargaining process. 
And, no, I do not believe it would subject our collective 
bargaining agreement to the individual judgments of a State 
legislature.
    Mr. Rush. Mr. Goodell, would you respond to Mr. Smith's 
testimony, please?
    Mr. Goodell. Yes, I would appreciate the opportunity.
    Just on the final point that has been raised here is that 
this may be a potential problem. We have gone through, in the 
National Football League, months of litigation and uncertainty 
on this issue. In addition, the players continue to play on the 
field during this period of time; and as many of you discussed 
early on, what message is that sending to the young people that 
look up to the National Football League?
    In addition, I--as you may know, I had to make a decision 
recently where the two Minnesota Viking players were prohibited 
from being suspended under our policy so they could pursue the 
State claim there are two other players at the New Orleans 
Saints that were not under that restriction and could have been 
suspended. On the basis of fairness and making sure that our 
policy is applied on a uniform basis, I did not think it was 
appropriate to suspend those two Saints players. There is a 
competitive issue, there are fairness issues, and there are 
uniformity issues; and I did not do that. And I believe it was 
the right decision.
    But it has impacted the National Football League right now 
in our drug program, and I want to try to make this very clear 
to this committee. This is not a potential problem, it is an 
existing problem; and all of us have to deal with this now. We 
cannot wait.
    The last issue and a couple of points that were raised here 
that we should adhere to our collective bargaining, I agree we 
should adhere to our collective bargaining. The union went 
outside of our collective bargaining and challenged our 
program. Not once, but twice we are told by Federal courts that 
there is no merit to their claims.
    The other issue is, this isn't about steroids in this 
specific case. This is about another drug that is prohibited 
under our policy because of two reasons. One, it is a masking 
agent for performance-enhancing drugs, a masking agent. That 
means that potentially someone could be taking this drug to 
cover up the use of a performance-enhancing drug. And I am not 
saying that happened in this case. I don't know.
    The second issue is that players were specifically warned 
that weight loss products can be tainted. They are unregulated, 
and products can be tainted and put in--products that are 
prohibited by our program can be put into these products. What 
happens unfortunately--and we saw this tragically with a 
Minnesota Viking player, ironically, that died on the practice 
field from dehydration. Weight loss products can be very 
dangerous if not properly supervised, particularly when they 
are competing at the level that they are competing on.
    So there is risk right now. This is not a potential 
problem. This is a health problem now, and we believe it should 
be addressed now.
    Mr. Rush. The Chair's time has been used up.
    The Chair recognizes the ranking member, Mr. Radanovich, 
for 5 minutes.
    Mr. Radanovich. Thank you, Chairman Rush. And I want to 
thank the panel for being here for questions today.
    Mr. Smith, I do have a question for you. And I did see you 
offer a letter for the record; so just to clarify, it is my 
understanding that Commissioner Goodell testified that he sent 
you a letter in June asking you to support the league in your 
collectively bargained drug program against challenges under 
the Minnesota State law.
    According to the Commissioner, you have not responded to 
the letter. Is that correct? And if so, why not?
    Mr. Smith. No, that is not correct.
    There was a request, after the union filed their initial 
challenge in the Eighth Circuit, which challenged the procedure 
and the fairness of the applicability of the process. The 
Williamses retained their own lawyers. They filed a State law 
claim. It was during that claim that, for the first time, this 
issue of State preemption was raised by the individual lawyer 
on behalf of those players.
    What Mr. Goodell asked the union to do was to take a 
position against its players where they had raised the 
applicability of the Minnesota State drug-testing statute. We 
decided not to take that position against our own players.
    So I believe that is the issue to what you are referring 
to. The letter that I have is the joint statement issued by 
myself and Roger, saying that the NFL's drug testing policy is 
still in effect, players will still be disciplined.
    And to follow up on----
    Mr. Radanovich. That is not happening?
    Mr. Smith. It is. Players are currently being tested. 
Players are currently being tested. Players are proceeding 
through the adjudication process. That process of this drug 
policy, Mr. Congressman, has not stopped. It has not stopped at 
all.
    Mr. Radanovich. Mr. Goodell.
    Mr. Goodell. Yes.
    Well, I guess I ask a question: What happens if another 
player from Minnesota is detected to have violated our policy? 
My assumption is they would fall and go under the same claims 
that the Williamses did.
    Mr. Radanovich. And they would still be playing?
    Mr. Goodell. I believe that is correct.
    Second of all, in the letter that I wrote to De--and I am 
not a lawyer, so I will profess to that up front. But it is 
specifically asks the plaintiff, NFL's Players Association, 
that they submit an amicus brief in support of the league's 
position on the Williams appeal on the applicability of State 
law. This was after the trial judge ruled in favor of the NFL 
and said that we followed the procedures by the policy, and it 
was before the Federal appeals court had made the decision in 
August.
    Mr. Radanovich. Thank you.
    Mr. Smith, what is your response to the fact that, as Mr. 
Goodell had mentioned, players were warned that the substance 
may not appear on the label of some of these products, but the 
warning was there that that may not be an excuse?
    Mr. Smith. Sure. I would love to answer that question. I 
agree with Roger on one thing. The players' safety and their 
health is important. And when we proceeded through----
    Mr. Radanovich. If you could be specific to the question, 
and that is that you were warned that some of those substances 
may not appear on the label, but that really is not an excuse.
    Mr. Smith. They are warned, and they are warned that what 
they take and put in their body they would be held responsible 
for.
    What our policy also includes is to have a doctor who is an 
independent administrator make a decision about what to do. And 
when I found out that that independent administrator was told 
by a league lawyer to change his decision, that is a problem. 
When I am told that a lawyer is representing and advising a 
team about this issue on one day, and then turns around and now 
becomes the judge, jury and decision-maker for the players in 
the same issue, that is a problem.
    Mr. Radanovich. Thank you, Mr. Smith. Thank you. I don't 
have a lot of time.
    I want to ask Mr. Tygart on that and your response to these 
exceptions; and then perhaps Mr. Goodell, if I can, after that.
    Mr. Tygart. And specifically on the warnings?
    Mr. Radanovich. Yes, to the fact that there is warning.
    Mr. Tygart. Yes, I think all players; certainly within the 
NFL's program, what has been evidenced through the StarCaps 
case, the players were generally warned. And that is the 
approach that most leagues take.
    We all know that the industry is highly unregulated and 
there is the potential for dangerous drugs showing up in these 
dietary supplements, and players are on notice of that and they 
assume the risk if they take those.
    Mr. Radanovich. Mr. Goodell, could you respond to that plus 
the physicians weighing in on this and changing decisions?
    Mr. Goodell. Yes. If I can just go back and just correct 
one thing on the record here.
    Our lawyers did not tell the independent doctor to change 
his decision. They told him to enforce the program. That is 
what they are supposed to do: enforce the program. That is 
first.
    Second, on your issue about warnings, even in the lengthy 
hearings that took place in the case with these five players--
one player has since retired--each of those players recognized 
that they had been warned, that they were aware of the policy 
on supplements and that they could be tainted. They were fully 
cognizant of all of that; and in fact, the two players in 
Minnesota have a specifically negotiated provision in their 
contracts about weight loss that would result in a bonus if 
they made their weight loss.
    So they were fully aware of the fact that they were taking 
something the team would not approve.
    Mr. Radanovich. Thank you very much, Mr. Chairman. Thank 
you very much.
    Mr. Rush. The Chair now recognizes the gentleman from 
Louisiana, Mr. Scalise, for 5 minutes.
    Mr. Scalise. Thank you, Mr. Chairman. There are a few 
things I am trying to get a handle on.
    Mr. Smith, if I can ask you, first of all, on the StarCaps 
case--and I am going to ask Mr. Goodell this, too, because 
there does seem to be a little bit of differentiation between 
what you are saying and what he is saying.
    But, first of all, in your testimony you said that--you 
made reference to players--I will quote--``players who 
unknowingly took StarCaps.'' Do you know of any players who 
took StarCaps without knowing it was StarCaps? How can you 
unknowingly take StarCaps?
    Mr. Smith. It was unknowingly taking something that 
contained a banned substance.
    Mr. Scalise. They knew they were taking StarCaps?
    Mr. Smith. Correct.
    Mr. Scalise. They knew they were taking StarCaps. You are 
just questioning whether or not they knew the substance was----
    Mr. Smith. No, I am not questioning anything. I am saying, 
they did not know that it contained bumetanide.
    What we do know is that the league knew that StarCaps had 
bumetanide in it. What we also know, after testimony under 
oath, is that even though the league knew that it contained 
that substance, they did not tell the hotline, and the doctor 
who knew never told the players.
    Mr. Scalise. And I am going to ask Mr. Goodell what the 
league knew because you made specific references to the league 
attorneys knowing this and withholding it. But earlier you also 
said--and both of you, I think, agreed on the policy--that a 
player is responsible for what goes into their body.
    So whether or not the league knew it--maybe the league 
didn't know. If the league did or didn't know it, and it did 
contain substances that are banned under the policy that 
ultimately, if your earlier statement, agreement by both 
parties, is that the player is responsible for what goes into 
their body, how does that mesh with maybe they took it, but 
they didn't know something banned was in it?
    Mr. Smith. I think the difference would be in what we 
consider to be not only absolute fairness but procedural 
fairness.
    This should not a ``gotcha'' game.
    When a doctor who advises players about their own safety 
knows that there is something in a pill that could hurt them--
Mr. Goodell referred to Korey Stringer and the diuretics. So we 
lost a Minnesota player because of among other things, massive 
loss in body water.
    Mr. Smith. So it does seem to me that when you have a 
doctor who, A, has a Hippocratic oath to first do no harm but 
also to help, when you have that doctor who is also the 
independent administrator of that program to make those 
decisions and that doctor knows, hey, there is something in 
this pill that could hurt people, the one thing that I would 
hope would happen is that doctor telling people that that is in 
it. And we know under testimony that that doctor knew. We also 
know under testimony that the league lawyer knew.
    So the challenge to those suspensions recognizes that, yes, 
players are responsible for what occurs in their bodies, but, 
at the same time, all of us would also agree that when you do 
have a collectively bargained drug program, the one thing that 
is implicit in that program is fairness. And that is why those 
suspensions were challenged, not only on those facts, about the 
facts that eight people who had tested positive for bumetinide 
previous to the Williams players were not punished.
    So when someone steps in and changes the decisional 
framework, changes that discretionary point from not punishing 
somebody on day one to punishing them later on, that's when the 
players raise that claim as a violation.
    Mr. Scalise. And I know my time is limited. Mr. Goodell, if 
you could----
    Mr. Goodell. Yes, let me just go back again, because the 
chairman said at the outset of this hearing that we weren't 
going to litigate something that's already been litigated.
    As I stated before, the claims that DeMaurice are making 
here are exactly the points raised in their litigation. The 
trial court rejected them, and the appeals court rejected them. 
That is not why we're here today. We're here today to talk 
about the difference in Minnesota State law versus what is 
going to essentially gut our performance-enhancing program. 
That's the core issue.
    The second issue is we make this extremely clear to our 
players at every opportunity supplements are unregulated and 
they can be tainted with products that are prohibited by our 
drug program. You are responsible for what's in your body. We 
do not do product-by-product warnings. As you saw, that does 
not do product-by-product warnings.
    This is something we have done collectively in our program. 
If we want to change the program, I am more than happy to sit 
down with our Players Association and try to figure out how we 
can strengthen our program. We have done that consistently 
since I have been Commissioner and even prior to my becoming 
Commissioner.
    Mr. Rush. I'm sorry----
    Mr. Scalise. I yield back to the Chair.
    Mr. Rush. The Chair now recognizes the gentleman from 
Georgia for 5 minutes.
    Dr. Gingrey. Mr. Chairman, thank you.
    I will direct my first question, Mr. Smith, to you.
    Mr. Smith, your predecessor, Gene Upshaw, made the 
following forthright statement before the Senate Commerce 
Committee in 2005, and I quote, ``We think we're doing a very 
good job in the National Football League. We do not wait for 
anyone else to act. We want it off the field because our 
players believe that anyone who uses drugs are really cheaters. 
There is no room for cheaters in sports. It also affects the 
integrity of the game and integrity of the contest. We do not 
want cheaters in our sport and will do whatever we have to do 
to keep it out. We have had unanimous support from players on 
this issue.'' That ends the quote.
    The result of the Minnesota litigation has been to stay the 
suspension of the players who did test positive. Despite the 
fact they cheated, they remain on the field and you intervene 
to support them. With your actions to intervene, is it 
incorrect to state the Players Association has departed from 
its previous position of unanimous support to get cheaters off 
the field as stated by Mr. Upshaw?
    Mr. Smith. Mr. Congressman, that quote by Mr. Upshaw--I 
can't remember it verbatim, but if you wanted to cross out or 
add my name to that quote, you can. I stand by everything that 
he said.
    At the same time, there isn't a day, not a day, where Mr. 
Upshaw also didn't believe in the fairness of the applicability 
of that same program. When he spoke about cheaters, he believed 
it. So do I. When he spoke about the support of our program, so 
do I.
    On September--I'm sorry, September of 2009, I wrote and 
agreed with Roger, it is important for all players to 
understand that the policy on anabolic steroids remains in 
place. I stand by that. We did not depart from that at all. 
What we challenged, we challenged the health and safety issues 
as related to these players. We challenged the fairness of the 
applicability of that collectively bargained program.
    Dr. Gingrey. Mr. Smith, let me ask you this question then. 
Are you concerned about the signal sent to young athletes when 
the professional players and their union challenge positive 
drug tests?
    Mr. Smith. I am only concerned if anyone believes that I 
don't take this seriously. I am concerned if they believe that 
we don't support our system. It is why on September of 2009 I 
agreed with the Commissioner and put out a statement that I 
support our program.
    Let's be clear. Our program continues. People are currently 
tested. People are being adjudicated through the system. What I 
will challenge is if that system, so collectively bargained, is 
applied to them in an unfair manner.
    Dr. Gingrey. Let me continue with you, Mr. Smith, and I'm 
not picking on you.
    Mr. Smith. No, it is all right.
    Dr. Gingrey. I wish I had enough time so I could also ask 
Mr. Goodell a line of questioning, but I need to continue this. 
Do you support, then, the NFL's efforts to have the 8th 
circuit's decision overturned? And, if so, why haven't you 
filed a brief? And if not, why not?
    Mr. Smith. That case, we are no longer in--we are not a 
party to that case. Roger indicated that the court ruled 
against us in our case. The Williamses have separate lawyers 
that have filed another case. We are not parties to it.
    What we have agreed to support is the existence and 
continuance of our policy. I believe in our policy, but I also 
believe that we have to get it right. If we're in a situation 
where a doctor from the league knows that there is a substance 
in a pill and that doctor can make a decision not to tell our 
players, that is something we have to get fixed.
    Dr. Gingrey. Two more quick points. Do you support the 
Williams suit in the Minnesota State court?
    Mr. Smith. I support--I support their right to pursue 
fairness. And what they are have claimed is they have claimed 
that the Minnesota State law was violated with respect to the 
league and the NFLPA's drug-testing policy. Interestingly, the 
Williamses lawyer in that case has not identified what 
particular issues under the Michigan--I'm sorry, Minnesota 
State law that were violated, so I haven't seen that yet.
    Dr. Gingrey. Mr. Chairman, I know I'm about to run out of 
time, but there is one last point I want to make, and I'll do 
it quickly. Thank you so much.
    Mr. Smith, this will be my last question. Your predecessor, 
Mr. Upshaw, testified less than 2 years ago that a suspended 
player cannot sue in an effort to overturn a suspension. Since 
then, not only have players sued in their individual capacity, 
but the union has as well. Was Mr. Upshaw incorrect in his 
testimony before this committee several years ago?
    Mr. Smith. Mr. Upshaw was a spirited leader of a great 
union. My guess is if that he knew that this policy was applied 
in an unfair way, he would seek any and all avenues to make 
sure that it was applied in a fair way.
    Dr. Gingrey. Mr. Chairman, thank you.
    Mr. Rush. The Chair thanks the gentleman, and the Chair is 
willing to entertain a second round for a brief period of time. 
There are some questions that I have that I want to ask.
    Frankly, I would like to ask Mr. Goodell and Mr. Smith, Mr. 
Tygart, Professor Feldman and Dr. Standen, I'll ask you this 
question. I don't want to get too involved, too deeply involved 
in the details of the suspension of the two Minnesota Viking 
players. Our concern in this hearing, as I stated earlier, is 
the broader legal question of preemption and that was raised as 
a point as the case went through the courts.
    One detail of the StarCaps case I would like to discuss is 
the question of arbitration and appeals. When the Williams 
initially appealed their positive test, it was not heard by a 
neutral official. And under NFL rules it was heard by a 
representative of the league.
    Mr. Goodell, in retrospect, would it have made for sense 
for the NFL policy to require a neutral arbiter? Could that 
help avoiding this legal morass that we're involved in?
    And I would like to ask again your comments on neutral 
arbitration, and I would like to ask Mr. Smith and others also 
the same question.
    Mr. Goodell. Yes, this is not a decision that I made. This 
is a decision that came out of our collective bargaining. The 
arbitration system that we have was collectively bargained. It 
was agreed to roughly 25 years ago. It was agreed to multiple 
times as part of extensions of our collective bargaining 
agreement during that period of time. And I would submit to you 
that probably no arbitration system is perfect, but we have a 
collective interest in making sure that our policy has got 
integrity and credibility, and that's how it was enforced, and 
that's how we have stood by our program, collectively with our 
union.
    I would take issue with Mr. Smith about Gene Upshaw. As the 
Congressman points out, he has made it very clear here, players 
cannot sue against this agreement. Yes, he fought hard for his 
players, very hard for his players, and he respected them, but 
he respected the system.
    Mr. Rush. I want to move forward. Mr. Smith, would you 
respond on the issue of neutral arbitration?
    Mr. Smith. Sure. Baseball has a neutral arbitrator, 
basketball, neutral arbitrator. What Mr.--Mr. Goodell is right. 
This is a collectively bargained process. But where a league 
lawyer is advising the Minnesota Vikings on one day about the 
steroid issue and then on the next day sits in judgment of the 
players, that was a process that was challenged well before I 
became executive director.
    Where we have, according to the court's ruling, a situation 
where a league lawyer informed the so-called independent 
administrator sometime in late 2006 or sometime in early 2007 
that if a player tested positive for a banned substance, then 
assuming he had no therapeutic reason the player must be 
referred to the NFL for discipline. That was a change from what 
that independent administrator had done prior to that time. So 
to get to the point of your issue, we collectively bargained a 
process that should have been fairly implemented.
    When we found out----
    Mr. Rush. I do understand exactly what you're saying. But 
my point, and I ask Mr. Weiner this, going forward, is there a 
role for neutral arbiter, a neutral arbitration in these types 
of negotiations?
    Mr. Weiner. Absolutely, yes. Our program has always 
incorporated a neutral arbitrator as a fact finder. And I guess 
I would put it this simply.
    I think everybody at this table stands united against the 
use of performance-enhancing drugs, but you can be against the 
use of performance-enhancing drugs and still be in favor of 
fairness. And our view has always been that fairness requires 
adjudication of these matters by a neutral.
    Mr. Rush. Mr. Tygart.
    Mr. Tygart. Yes, we'd add that. And we agree, obviously, 
due process is an important aspect. Because there are several 
different rights of athletes that you are dealing with through 
the arbitration process, and we do have external arbitration 
process as the dispute resolution over doping cases in the 
Olympic movement.
    But the rights are of the accused. So is there the 
opportunity to have notice of the charge, cross-examine 
witnesses, have a well-written, reasoned decision? But there is 
also the rights of all the other clean athletes out there who 
have to be equally balanced in this analysis. Ours goes to 
independent arbitration, the NFL's obviously has gone to the 
Commissioner as designee, and you see the result of that in 
this case.
    Mr. Rush. Professor Feldman.
    Mr. Feldman. I would agree. I think there is no question 
that the best result is to have a neutral arbitrator. You don't 
always get the best result as a result of a collective 
bargaining agreement. You get a compromise. I think here the 
compromise was not a neutral arbitrator. I think they would be 
better off with a neutral arbitrator, but that's for the 
parties to decide. And I don't think anyone here is in favor of 
interfering with the collective bargaining process.
    Mr. Rush. Professor Standen.
    Mr. Standen. Yes. First, I would state that whether there 
was a neutral arbitrator or not in this case would not have 
changed the results in the 8th Circuit Court of Appeals. So it 
wouldn't matter in that regard. But I can understand why the 
parties would agree to have someone inside the Commissioner's 
office to arbitrate the claims. The insider knows the story 
better, knows the industry. And so it can make sense for 
parties sometimes to have arbitration done by a non-neutral, 
non-outside party. Whether they do that or not of course is up 
to the parties.
    Mr. Rush. I want--Mr. Goodell, we are at a point of 
impasse, it seems. I hope not, but it is pretty obvious that 
there is some definite lines of demarcation that exist, and I'm 
not sure how permanent they are. What do you see going forward? 
How do you see--are you going to wait until the court process 
and the litigation process is over? How do you see the future?
    Mr. Goodell. No, we are going to continue to defend, as I 
said in my opening statement, our program in the Minnesota 
State court. We will defend that vigorously, as I said in my 
opening.
    In addition, just as recently as 2 weeks ago, we made 
proposals to the union about how to strengthen our program, our 
drug program. So we will continue with the collective 
bargaining process.
    The issue here though, Mr. Chairman, as you properly 
brought out and was just raised, this can't be solved by the 
collective bargaining process. This issue was created by the 
NFLPA, it is exacerbated by the CBA, and now they don't know 
how to fix it.
    The problem is this has gotten beyond the control of the 
two parties to negotiate in collective bargaining. That is why 
your committee is looking at this; and that is why we believe 
some narrow, tailored legislation would be appropriate.
    Mr. Rush. The Chair now recognizes the gentleman from 
Georgia.
    Dr. Gingrey. Commissioner Goodell, in your testimony, you 
summarize the history of the NFL's policy on performance-
enhancing substances and the partnership the league has had 
with the NFL Players Association on the issue since the early 
1990s. Unfortunately, as you outlined, the case involving two 
Minnesota Vikings testing positive for the masking agent 
bumetinide--I'm the only doctor up here, and you guys all can 
pronounce it correctly, and I can't. Hopefully, that was close 
enough. Did that masking agent----
    Let me start over. Unfortunately, as you outlined, the case 
involving two Minnesota Vikings testing positive for the mask 
agent undermines the ability of the league to enforce the very 
policy that was negotiated with the NFL and the Players 
Association. We have already seen ramifications of this due to 
the fact that the players from the New Orleans Saints have not 
been formally suspended for testing positive for the same 
masking agent, simply because Louisiana has different laws in 
Minnesota. Because the NFL has not been able to carry out the 
suspension of these players, the Saints players, are there 
other instances to date to which you can point where the 
outcome of this StarCaps case hinges on other suspensions or 
are there examples where the league is now hesitant to carry 
out the drug-testing policy because of purported inequitable 
treatment?
    Mr. Goodell. Well, not specifically right now. But, as you 
point out, you cannot have an effective, credible program for 
anti-steroid use and have the integrity in that program if 
players are subject by different States to different standards. 
You just cannot do it.
    And that is the issue that is at hand today. We have to 
have the ability to enforce a program across all 50 States, 
allow every player in the NFL and other sports to be subject to 
the same fairness, the same standards, the same policy and, if 
necessary, the same discipline. That is at the core of what's 
going on here, and that is why the letter that DeMaurice refers 
to I asked DeMaurice if he would sign with me, because of the 
doubt and the uncertainty that presented by the StarCaps case.
    It created doubt in the player's mind. Do we have a 
program? If I'm in Minnesota, am I subject to the same policy?
    And they will probably take that defense. If a player in 
Minnesota is caught, whether it is in baseball or football or 
another sport, we will probably come in and try to use the 
State laws of Minnesota to protect them. That is not managing 
and adhering to a policy in a consistent and uniform 
businesses.
    Dr. Gingrey. Real quickly, let me ask you a series of 
questions.
    Did the Players Association agree to the drug policy 
program, including the process for appeal?
    Mr. Goodell. Absolutely. Multiple, multiple times, 
Congressman.
    Dr. Gingrey. Has the Players Association ever challenged a 
suspension before?
    Mr. Goodell. In our appeals process, yes; not outside of 
the appeals process that I am aware of.
    Dr. Gingrey. Do you know why they challenged this one?
    Mr. Goodell. I take Mr. Smith at his word.
    Dr. Gingrey. Can State laws that offer employees the right 
to explain positive test results indicating they took a banned 
substance effectively give every player a free pass to take 
banned substances if the NFL drug policy is not upheld?
    Mr. Goodell. I know this, Congressman. What we'd be doing 
is deserting the principle that DeMaurice said at the 
beginning, and I stated, that every player is responsible for 
what's in their body. If we allow people the excuse, you will 
inherently damage the credibility of your program.
    And I use an example. When you're talking to your son about 
drinking and driving, you have to give that individual, you are 
responsible for what's in your body. You may not drink beer, 
you may not drink vodka and soda, but if you drink punch and 
there's some type of liquor in there and you're driving, you've 
violated the law. You're responsible for that, and you have to 
recognize that principle.
    And I do not want to desert that principle, and I don't 
believe anybody up here who wants to have an effective program 
should desert that principle.
    Dr. Gingrey. Does the Minnesota State law recognize WADA, 
the World Anti-Doping Agency, certified labs outside Minnesota 
for the purpose of meeting their State requirements?
    Mr. Goodell. I don't believe they do, Congressman.
    Dr. Gingrey. Mr. Smith, do you know the answer to that?
    Mr. Smith. I don't know.
    Dr. Gingrey. Mr. Chairman, I thank you; and I yield back at 
this point.
    Mr. Rush. The Chair has a couple of other issues. I want to 
say this, and I want to say this with all sincerity. We are 
very much concerned, as you know, about this drug policy and 
any violations of it. We are concerned about the safety of your 
players, the safety of America's youth. We are concerned about 
fairness on the filed and in other arenas.
    It certainly is within the realm of our responsibilities to 
come up with legislation to address this problem, but it would 
be something that we would do only as a last resort. We're not 
anxious to get involved legislatively here. We really want to 
see the parties work this out and try to come up with some kind 
of resolution to this particular issue.
    The question that I have is, Mr. Goodell, have you all gone 
to the Minnesota legislature and asked them to change the State 
law? Have you all used that as an option?
    Mr. Goodell. We can certainly do that. It doesn't prevent 
another State from changing their law and gutting the program 
in the same fashion. So I don't believe that's a fix. It may 
fix this hole, but there will be two or three others that will 
develop on the side.
    Mr. Rush. It seems as though the Players Association and 
the League, their lobby heads----
    Professor Feldman, I watched your body language as you have 
listened to the testimony, and it seems to me that you might 
have something to say that would be able to help us get out of 
this dilemma that we're in. Can you offer this committee and 
your fellow witnesses any insight into how do we resolve this 
without Federal intervention or Federal legislation?
    Mr. Feldman. First, I'll have to be careful with my body 
language in the future, but I think that, whether we call it a 
potential problem or a small current problem, it is still a 
narrow problem. We have the Minnesota laws. I think it is easy 
to make an argument that those laws do not apply to the NFL's 
performance-enhancing drug-testing policy. I think it is easy. 
I think you can win that case in State court. If you lose, I 
think you can make a very persuasive argument that the State 
legislature should change the laws.
    Now the Commissioner just said, well, that is just doing it 
one State at a time and then another State can pass a law and 
another State can pass a law. Well, looking at the actual 
reality, there are only two other States right now, as has been 
mentioned, Maryland and North Carolina, that have State 
statutes that might conflict.
    In addition to those two States, plus Minnesota, only two 
other States even have mandatory drug-testing regulations that 
would impact the NFL. Only five have regulations whatsoever. 
Only three of those conflict.
    It may be the case that down the road some other States may 
add regulations and those regulations may conflict with the 
NFL, but there is no reason to believe they will. There is no 
reason to believe that any of the current State legislation is 
intended to deal with the NFL. So there is no reason to believe 
that any States will come up with new legislation.
    So I think the better fix here is the narrow fix. Go to the 
Minnesota State legislature and say, your laws are creating 
this potential problem, clarify your laws, make it clear that 
they are not intended to apply to the NFL. That's exactly what 
the Louisiana statute says. I don't see why other statutes 
couldn't do it.
    Someone had mentioned earlier the choices, either Minnesota 
modifies their laws or professional teams thinking about 
leaving the State. I think there is no question what the 
Minnesota legislature would do. And it is not forcing them to 
do anything. It is just saying, modify your law, make it clear. 
You want to protect your employees from recreational drug 
testing, do that. Just don't interfere with what the 
professional sports leagues are doing.
    Mr. Rush. I want to thank all of witnesses for your 
interest, your intensity and the time that you have given this 
committee. I really look forward to working with you and this 
committee looks forward would working with you to try to 
resolve this issue.
    I believe that if, in fact, this became more of a one, two 
or three matter, then the Congress would rush--no pun 
intended--to solve the problem and to provide for some type of 
legislative remedy, some type of preemption. But, right now, I 
think we're reluctant to do that. But, at the same time, we are 
concerned about the effects of this, and we want to keep a wary 
eye on this procedure and on this process, and we want to work 
with the Players Association and with the NFL to try to 
encourage you to come up with a remedy to this problem and come 
up with it fairly quickly. This is not an issue that we can 
take a lot of time on, because it sends--and is currently 
sending--the wrong message to far too many people.
    I have to commend the NFL for coming to the Congress and 
asking us to intervene. Mr. Goodell, when you were in my 
office, you asked us to intervene. I think that was a proper 
and responsible thing to do.
    Again, we will be looking at this issue. If legislation is 
necessary, we love to write laws, so we won't hesitate to write 
them, but I think we need to go slow on this. And I'm going to 
ask--simply request that the Players Association and the NFL 
you all get together and try to work this thing out, if you 
possibly can.
    You don't want to have 435 Members of Congress writing a 
law that will have in any way some immediate conduct and effect 
on your players. Because you never can tell. We might come up 
with some laws that might prohibit--put a ceiling on salaries. 
You don't want us to get involved in this. You can't tell what 
Members of Congress will ultimately do once you open up this 
Pandora's box.
    So I just would ask that you all try to work this thing 
out. Ask--what's his name? Rodney--ask Rodney King for some 
advice. Can't we all get along?
    Thank you so very much. This committee stands adjourned.
    [Whereupon, at 2:28 p.m., the committee was adjourned.]
    [Material submitted for inclusion in the record follows:]


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