[House Report 109-210]
[From the U.S. Government Publishing Office]
109th Congress Rept. 109-210
HOUSE OF REPRESENTATIVES
1st Session Part 1
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DRUG FREE SPORTS ACT
_______
July 27, 2005.--Ordered to be printed
_______
Mr. Barton of Texas, from the Committee on Energy and Commerce,
submitted the following
R E P O R T
[To accompany H.R. 3084]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 3084) to direct the Secretary of Commerce to
issue regulations requiring testing for steroids and other
performance-enhancing substances for certain sports
associations engaged in interstate commerce, having considered
the same, report favorably thereon with an amendment and
recommend that the bill as amended do pass.
CONTENTS
Page
Amendment........................................................ 1
Purpose and Summary.............................................. 4
Background and Need for Legislation.............................. 5
Hearings......................................................... 6
Committee Consideration.......................................... 7
Committee Votes.................................................. 7
Committee Oversight Findings..................................... 9
Statement of General Performance Goals and Objectives............ 9
New Budget Authority, Entitlement Authority, and Tax Expenditures 9
Committee Cost Estimate.......................................... 9
Congressional Budget Office Estimate............................. 9
Federal Mandates Statement....................................... 12
Advisory Committee Statement..................................... 12
Constitutional Authority Statement............................... 12
Applicability to Legislative Branch.............................. 12
Section-by-Section Analysis of the Legislation................... 12
Changes in Existing Law Made by the Bill, as Reported............ 15
AMENDMENT
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Drug Free Sports Act''.
SEC. 2. DEFINITIONS.
As used in this Act--
(1) the term ``Secretary'' refers to the Secretary of
Commerce; and
(2) the term ``professional sports associations'' means Major
League Baseball, the National Basketball Association, the
National Football League, the National Hockey League, Major
League Soccer, the Arena Football League, and any other league
or association that organizes professional athletic
competitions as the Secretary may determine.
SEC. 3. RULES REQUIRING MANDATORY TESTING FOR ATHLETES.
(a) Rulemaking.--Not later than 270 days after the date of enactment
of this Act, the Secretary shall issue regulations requiring
professional sports associations operating in interstate commerce to
adopt and enforce policies and procedures for testing athletes who
participate in their respective associations for the use of
performance-enhancing substances. Such policies and procedures shall,
at minimum, include the following:
(1) Timing and frequency of random testing.--Each athlete
shall be tested a minimum of 5 times each year that such
athlete is participating in the activities organized by the
professional sports association. Tests shall be conducted at
random intervals throughout the entire year, during both the
season of play and the off-season, and neither the athlete, nor
any member of the coaching and training staffs shall be
notified in advance of the test.
(2) Applicable substances.--The Secretary, in consultation
with the Director of the National Institute on Drug Abuse,
shall, by rule, prescribe the substances for which each athlete
shall be tested, which shall include--
(A) substances that--
(i) are determined by the World Anti-Doping
Agency to be prohibited substances; and
(ii) the Secretary determines to be
performance-enhancing substances for any
particular sport, or substances whose purpose
is to conceal the presence of performance-
enhancing substances in the body, and for which
testing is reasonable and practicable; and
(B) such additional substances that the Secretary may
determine to be performance-enhancing substances for
any particular sport, or substances whose purpose is to
conceal the presence of performance-enhancing
substances in the body, and for which testing is
reasonable and practicable.
(3) Therapeutic and medical use exemptions.--The Secretary,
in consultation with the Director of the National Institute on
Drug Abuse, shall establish criteria by which professional
sports associations, after consultation with the athletes who
participate in the activities of such professional sports
association (or the representatives of such athletes), may
provide an athlete with an exemption for a particular
substance, prior to or after any drug test, if such substance
has a legitimate medical or therapeutic use, and if such use is
for a documented medical condition of such athlete.
(4) Method of testing and analysis.--The Secretary, in
consultation with the Director of the National Institute on
Drug Abuse, shall establish criteria whereby tests shall be
administered by an independent party not affiliated with the
professional sports association.
(5) Penalties.--Subject to the determination made pursuant to
an appeal as described in paragraph (6), a positive test shall
result in the following penalties:
(A) Suspension.--
(i) An athlete who tests positive shall be
suspended from participation in the
professional sports association for a period
not less than \1/2\ of a season of play,
including suspension from the number of games
constituting \1/2\ of a season of play.
(ii) An athlete who tests positive, having
once previously violated the policies
concerning prohibited substances, shall be
suspended from participation in the
professional sports association for a period
not less than an entire season of play,
including suspension from the number of games
constituting a full season of play.
(iii) An athlete who tests positive, having
twice previously violated the policies
concerning prohibited substances, shall be
permanently suspended from participation in the
professional sports association.
All suspensions shall include loss of pay for the
period of suspension.
(B) Disclosure.--The name of any athlete having a
positive test result resulting in suspension shall be
disclosed to the public.
(C) Exceptional circumstances.--The Secretary shall
establish criteria by which professional sports
associations may reduce the period of suspension for an
athlete who has tested positive for a prohibited
substance but who establishes that he or she bears no
fault or negligence or no significant fault or
negligence for the violation. In establishing such
criteria, the Secretary shall consider the policies and
practices of the World Anti-Doping Agency regarding
reduced penalties for exceptional circumstances. Such
criteria shall not require a professional sports
association to adopt a policy providing for reductions
in penalties for any circumstances.
(6) Appeals process.--
(A) Hearing and final adjudication.--An athlete who
tests positive and is subject to penalty under
paragraph (5) shall be afforded an opportunity for a
prompt hearing and a right to appeal. Such athlete
shall file an appeal with the professional sports
association within 5 business days after learning of
the positive test. The association shall hold a hearing
before an arbiter established under subparagraph (B)
and such arbiter shall reach a final adjudication not
later than 45 days after receiving notice of the
appeal. The penalties specified in paragraph (5) shall
be stayed pending an appeal and final adjudication.
(B) Arbiter.--The arbiter of the appeals process
described in subparagraph (A) shall be agreed upon
mutually by the professional sports association and the
athletes who participate in the activities of such
professional sports association (or the representatives
of such athletes), and shall be approved by the
Secretary, and such approval shall not be unreasonably
withheld.
(b) Consultation.--In prescribing regulations under this section, the
Secretary may consult with anti-doping authorities, medical experts,
and professional sports associations.
SEC. 4. NONCOMPLIANCE.
Beginning 1 year after the date on which the final rules required by
section 3 are issued, the Secretary may fine any professional sports
association that fails to adopt and enforce testing policies and
procedures consistent with such regulations. An initial fine for
failing to adopt or enforce such policies and procedures under this Act
shall be $5,000,000 and may be increased by the Secretary by $1,000,000
for each day of noncompliance. The Secretary may reduce the fines
specified in this section upon finding such fines to be unduly
burdensome on a professional sports association.
SEC. 5. REPORTS.
(a) Report on Effectiveness of Regulations.--Not later than 2 years
after the date of enactment of this Act and every 2 years thereafter,
the Secretary shall transmit to the Committee on Energy and Commerce of
the House of Representatives and the Committee on Commerce, Science,
and Transportation of the Senate, a report describing the effectiveness
of the regulations prescribed pursuant to this Act, the degree to which
professional sports associations have complied with such regulations,
and any significant examples of noncompliance.
(b) Study on College and Secondary School Testing Policies and
Procedures.--
(1) Study.--The Comptroller General shall conduct a study on
the testing policies and practices (and their implementation)
for performance-enhancing substances for athletes at colleges
and secondary schools. The study shall examine the prohibited
substance policies and testing procedures of--
(A) intercollegiate athletic associations;
(B) college and university athletic departments; and
(C) secondary schools and State and regional
interscholastic athletic associations.
The study shall also include an analysis of the best available
estimates for both licit and illicit use of anabolic steroids
and human growth hormones by such athletes.
(2) Report.--Not later than 1 year after the date of
enactment of this Act, the Comptroller General shall transmit a
report to the Committee on Energy and Commerce of the House of
Representatives and the Committee on Commerce, Science, and
Transportation of the Senate. The report shall assess the
adequacy of such testing policies and procedures in detecting
and preventing the use of performance-enhancing substances, and
shall include any recommendations to Congress regarding
expanding the application of the regulations issued pursuant to
this Act to such intercollegiate and interscholastic athletic
associations.
SEC. 6. RULES OF CONSTRUCTION.
(a) Pre-Existing Policies.--Nothing in this Act shall be construed to
prohibit a professional sports association from continuing to enforce
policies and procedures governing the use of performance-enhancing
substances that were in effect on the date of enactment of this Act
until such time as such professional sports associations adopt policies
and procedures consistent with the rules issued under section 3.
(b) More Stringent Policies.--Nothing in this Act shall be construed
to prohibit a professional sports association and its athletes (or the
representatives of its athletes) from negotiating and agreeing upon
policies and procedures governing the use and testing of performance-
enhancing substances that are more stringent than those required by
this Act.
PURPOSE AND SUMMARY
The purpose of H.R. 3084 is to reduce the use of
performance-enhancing substances by athletes by ensuring
certain professional sports associations maintain minimum
standards regarding their performance-enhancing substance
policies for athletes.
While the Act alone may not entirely eliminate the use of
the performance enhancing substances by professional athletes,
the requirement of uniform, rigorous minimum standards will
provide benefits beyond the professional level. Elite athletes
are viewed as role models by many youths who mimic the
athletes' behavior and attitudes. By reducing the use of
performance-enhancing substances in professional sports, the
Act will establish our commitment to both the integrity and
value of sports and the commitment to reduce performance-
enhancing substance use by youth.
Specifically, H.R. 3084 will require the Secretary of
Commerce to promulgate rules, in consultation with the Director
of the National Institute of Drug Abuse (NIDA) on certain
rules, to require the sports associations to maintain and
enforce policies that meet or exceed the minimums as specified
by the Act. The rules will require the sports associations to
adopt and implement, if they have not already done so,
provisions regarding the minimum number of random tests per
athlete per calendar year, the substances for which an athlete
will be tested and are prohibited for the particular sport,
criteria for therapeutic uses of prohibited substances for
medicinal purposes, the minimum penalties imposed on an athlete
for violations of the policy, the method of testing and
analysis, and an appeals process for an athlete having tested
positive.
Additionally, the Act requires the Secretary to issue
criteria whereby a sports association and its players (or their
representatives) may, but are not required to, adopt a
provision for the reduction of penalties in exceptional
circumstances. The legislation also provides the Secretary with
authority to impose monetary fines on a sports association for
failure to implement and enforce the minimum requirements of
the Act.
Although H.R. 3084 only requires the Secretary to consult
with the Director of NIDA for the purpose of issuing rules
under Sections 3(a) (1, 2, & 3), the Committee expects that the
Secretary will employ all available resources, which may
include consulting with experts other than NIDA, such as other
Federal agencies and medical professionals with experience and
expertise regarding performance-enhancing substances and the
testing thereof.
BACKGROUND AND NEED FOR LEGISLATION
Athletics have played an important role in the cultural
development and identity of the United States. America's
enthusiasm for participation in sports is exceeded only by its
enthusiasm as spectators. Sports at the collegiate, Olympic,
and professional levels have evolved since the latter half of
the twentieth century into a profitable industry for many of
the industry participants. Nowhere is this more apparent than
at the highest level of competition: professional sports.
The average annual player's salary in the most popular
professional team sports is over $1 million dollars, with the
highest paid athletes earning as much as $20 million per season
in salary. Additionally, endorsement opportunities for
individual professional athletes often produce substantial
financial gains. A plethora of media outlets now exist to
provide non-stop coverage and broadcast of major professional
sports, including sport-specific mediums. In total, the
professional sports and related industries are multi-billion
dollar enterprises.
Most sports experts believe the media attention and riches
afforded to top athletes contribute to the temptation facing
many athletes to use performance-enhancing substances for a
competitive advantage. The prospect of earning millions of
dollars can outweigh the risk, if any, of being caught using
illegal or prohibited performance-enhancing substances.
Although the financial rewards in the modern sports era are
greater than at any time in history, they are not the sole
reason for doping in sports. In fact, the history of athletic
doping, particularly through the use of stimulants, has been
traced to the earliest days of the Olympics. Of greater
relevance to the history of modern doping is the gained
acceptance of testosterone and steroid use, along with other
substances and techniques, by some athletes for their
physiological benefits significance in the latter half of the
twentieth century. Steroid use by Olympic athletes is reported
to have been widespread beginning as early as the 1960's, and
naturally began to find its way into professional sports.
To combat doping, the Olympic movement created the World
Anti Doping Agency (WADA) in 1999 to implement and enforce
testing policies for Olympic sports. In the United States, the
U.S. Anti Doping Agency performs the testing for Olympic
athletes. Some professional sports, including professional
tennis, follow the WADA code for prohibited substances and
penalties.
Other professional sports associations and their players
have similarly responded to the growing awareness of doping and
implemented drug-testing programs during the past two decades.
However, not all programs test for the same performance-
enhancing substances, test using strict protocols including
frequency of testing, nor do they enforce violations with
significant penalties--if at all. Some professional sports
associations do not even test for steroids and other
performance enhancing substances. While these provisions have
historically been the subject of negotiation between the
players and the sports associations, many of the programs are
considered by experts to be deficient, particularly in regard
to the penalties imposed on a player for violating the policy.
The integrity of professional sports diminished because
there are inconsistent and inadequate testing policies among
the various leagues. Recent allegations and admissions by
current and former athletes of using steroids have undermined
the credibility of some sports, and their testing programs, and
cast a wider doubt about the prevalence of doping by
professional athletes. More importantly, the effect of the
disparate policies--including those that do not even test for
certain illegal substances nor punish athletes for taking the
substances--is to promote the perception that the use of such
substances by some professional athletes is at best tolerated
and at worst encouraged.
Such an effect is to contribute to the serious problem of
youths increasingly using performance-enhancing substances,
such as illegal steroids. Based on the May 2004 Centers for
Disease Control report, there are more than 800,000 high school
students who have used or are currently using anabolic
steroids. There is no doubt that youths often seek to emulate
sports idols, particularly in the professional ranks. Absent
rigorous testing and penalties for professional athletes who
use performance-enhancing substances, there is a clear message
sent to youths that deterrence is not a priority.
The Committee's concern--and its intent to legislate
minimum standards for performance-enhancing substance testing
in professional sports--is the diminished value of the positive
qualities of sport and the adverse health consequences of
performance-enhancing substances for individuals.
HEARINGS
The Subcommittee on Commerce, Trade and Consumer Protection
held a joint oversight hearing with the Subcommittee on Health
on steroid use on Thursday, March 10, 2005. The hearing was
entitled ``Steroids in Sports: Checking the System and Gambling
Your Health.'' The Subcommittees received testimony from:
Congressman Jim Ryun; Don Hooton, Taylor Hooton Foundation; Dr.
Linn Goldberg, Oregon Health & Science University; Robert
Kanaby, Executive Director, National Federation of State High
School Associations; Sandra Worth, Head Athletic Trainer,
University of Maryland; Dr. Charles Yesalis, Pennsylvania State
University; Dr. Ralph Hale, Chairman, United States Anti-Doping
Agency; Adolpho Birch, Counsel for Labor Relations, National
Football League; Frank Coonelly, Senior Vice President, Major
League Baseball; Mary E. Wilfert, Chief Liaison, Committee on
Competitive Safeguards and Medical Aspects of Sports, The
National Collegiate Athletic Association.
The Subcommittee on Commerce, Trade, and Consumer
Protection did not hold any hearings on H.R. 3084. However, the
Subcommittee held a legislative hearing on H.R. 1862, which was
substantially similar to H.R. 3084, on May 18 and 19, 2005. The
Subcommittee received testimony from: Frank Shorter, former
Chairman of the United States Anti-Doping Agency; Donald
Garber, Commissioner, Major League Soccer; Robert Foose,
Executive Director, Major League Soccer Players Union; Alan H.
(Bud) Selig, Commissioner, Major League Baseball; Donald Fehr,
Executive Director, Major League Baseball Players Association;
Gary Bettman, Commissioner, National Hockey League; Robert
Goodenow, Executive Director, National Hockey League Players
Association; David Stern, Commissioner, National Basketball
Association; William Hunter, Executive Director, National
Basketball Players Association; Paul Tagliabue, Commissioner,
National Football League; and Gene Upshaw, Executive Director,
National Football League Players Association.
COMMITTEE CONSIDERATION
On Wednesday, May 25, 2005, the Subcommittee on Commerce,
Trade, and Consumer Protection met in open markup session and
approved H.R. 1862, the Drug Free Sports Act of 2005, for Full
Committee consideration, amended, by voice vote, a quorum being
present. H.R. 1862 was superseded by H.R. 3084.
On Wednesday, June 29, 2005, the Full Committee met in open
markup session and ordered H.R. 3084 favorably reported to the
House, as amended, by a roll call vote of 38 yeas and 2 nays, a
quorum being present.
COMMITTEE VOTES
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto. The
following is the recorded vote taken on the motion by Mr.
Barton to order H.R. 3084 reported to the House, as amended,
which was agreed to by a recorded vote of 38 yeas and 2 nays.
COMMITTEE OVERSIGHT FINDINGS
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee held an oversight
hearing and made findings that are reflected in this report.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
The objective of H.R. 3084 is to require testing for
steroids and other performance-enhancing substances for certain
sports associations engaged in interstate commerce
NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
3084, the Drug Free Sports Act, would result in no new or
increased budget authority, entitlement authority, or tax
expenditures or revenues.
COMMITTEE COST ESTIMATE
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 18, 2005.
Hon Joe Barton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3084, the Drug
Free Sports Act.
If you wish further detail on this estimate, we will be
pleased to provide them. The CBO staff contact is Melissa E.
Zimmerman.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
H.R. 3084--Drug Free Sports Act
Summary: H.R. 3084 would require professional sports
leagues and associations to follow prescribed procedures for
testing and penalizing athletes for the use of certain
performance-enhancing substances identified by the World Anti-
Doping Agency and the Secretary of Commerce. Under the bill,
the Department of Commerce would create and enforce regulations
for professional sports leagues and associations regarding
performance-enhancing substances and would be directed to
assess and collect fines for violations of these regulations.
(Civil penalties are recorded in the federal budget as
revenues.)
CBO estimates that implementing the bill would cost $1
million in 2006 and $6 million over the 2000-2010 period,
assuming the availability of appropriations funds. Because CBO
expects that professional sports leagues and associations would
comply with the law and the new regulations, we estimate that
enacting H.R. 3084 would not have a significant effect on
revenues. The bill would not affect direct spending.
H.R. 3084 contains an intergovernmental mandate as defined
in the Unfunded Mandates Reform Act (UMRA) because it would
preempt some state privacy laws, but CBO estimates that any
costs to state, local, or tribal governments would be minimal
and would not exceed the threshold established in UMRA ($62
million in 2005, adjusted annually for inflation).
H.R. 3084 would impose several private-sector mandates, as
defined in the UMRA, on major professional sports leagues. CBO
estimates that the total direct cost of those mandates would
fall well below the annual threshold established by UMRA for
private-sector mandates ($123 million in 2005, adjusted
annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact H.R. 3084 is shown in the following table. The
costs of this legislation fall within budget function 370
(commerce and housing credit). CBO assumes that the bill will
be enacted by the end of 2005, that the necessary amounts will
be appropriated for each fiscal year, and that outlays will
follow historical trends. CBO estimates that implementing the
bill would increase spending subject to appropriation by about
$1 million in 2006 and $6 million over the 2006-2010 period for
creating and enforcing regulations related to the use of
performance-enhancing substances by professional athletes.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2006 2007 2008 2009 2010
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level...................................... 1 1 1 1 1
Estimated Outlays.................................................. 1 1 1 1 1
----------------------------------------------------------------------------------------------------------------
Estimated impact on state, local, and tribal governments:
H.R. 3084 would require the public disclosure of the name of
any athlete having a positive test that results in suspension.
Such a requirement would preempt numerous state privacy laws
and would constitute a mandate as defined in UMRA. CBO
estimates that the costs of such a preemption to state, local,
and tribal governments would be minimal and would not exceed
the threshold established in UMRA ($62 million in 2005,
adjusted annually for inflation).
Estimated impact on the private sector: H.R. 3084 would
impose several private-sector mandates, as defined in UMRA, on
major professional sports leagues. CBO estimates that the total
direct cost of those mandates would fall well below the annual
threshold established by UMRA for private-sector mandates ($123
million in 2005, adjusted annually for inflation).
The bill would require Major League Baseball, the National
Football League, the National Basketball Association, the
National Hockey League, Major League Soccer, the Arena Football
League, and any other professional league as determined by the
Secretary of Commerce to implement drug-testing programs for
performance-enhancing substances. The leagues would be required
to test, without advance notice to the athlete or any team
staff member, their players a minimum of five times during the
season of play and in the off-season. The Department of
Commerce would prescribe the substances for which each athlete
would be tested and establish the criteria whereby tests would
be administered. Currently each of the sports leagues conduct
their own testing, so the cost of the mandate would be the
increase in cost attributable to the additional drug testing
required by the bill. Based on information from the United
State Anti-Doping Agency (USADA), the cost of drug testing of
athletes could be up to $600 per test. The cost of the testing
would include locating the athletes in the off-season, shipping
charges, and the comprehensive analysis of samples at an
approved laboratory. According to representatives of the
professional sports leagues, approximately 6,000 athletes would
need to be tested. Therefore, CBO estimates that the direct
cost would fall below the annual threshold.
Under the bill, the leagues also would be required to
publicly disclose the identity of any athlete who has tested
positive resulting in a suspension. In addition, the leagues
must establish an appeals process with an arbiter. Currently,
the leagues provide some public disclosure of test results and
penalties and provide adjudication. Thus, CBO expects that the
cost to comply with those mandates would be small.
Previous CBO estimate: On July 7, 2005, CBO transmitted a
cost estimate for H.R. 2565, the Clean Sports Act of 2005, as
ordered reported by the House Committee on Government Reform on
May 26, 2005. H.R. 2565 would establish similar requirements
for professional sports organizations related to performance-
enhancing substances, although that bill would be implemented
by the Office of National Drug Control Policy rather than the
Department of Commerce. CBO's estimate of the costs for
regulation and enforcement would be similar under both bills;
however, CBO's cost estimate for spending subject to
appropriation for H.R. 2565 is higher than that for H.R. 3084
because a survey of high school and college athletes would not
be required under H.R. 3084.
Both bills would preempt state privacy protections, but
H.R. 2565 contains a potentially costly provision that would
give the director of Office of National Drug Control Policy the
authority to extend testing standards to colleges and athletes
in Divisions I and II of the National Collegiate Athletic
Association (NCAA)--more than half of which are public. The
mandate statements reflect these differences in the two bills.
Both of the bills would require testing for performance-
enhancing substances of professional athletes. H.R. 2565 could
require the professional boxing industry to test their boxers
if the U.S. Boxing Commission is established. That requirement
is not in H.R. 3084. H.R. 3084 would require more professional
sports leagues, adding Major League Soccer and Arena Football,
to test their athletes than H.R. 2565.
Estimate prepared by: Federal Costs: Melissa E. Zimmerman.
Impact on State, Local, and Tribal Governments: Sarah Puro.
Impact on the Private Sector: Paige Piper/Bach.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
FEDERAL MANDATES STATEMENT
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
CONSTITUTIONAL AUTHORITY STATEMENT
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for this legislation is provided in
Article I, section 8, clause 3, which grants Congress the power
to regulate commerce with foreign nations, among the several
States, and with the Indian tribes.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION
Section 1. Short title
Section 1 establishes the legislation as the ``Drug Free
Sports Act.''
Section 2. Definitions
Section 2 defines that the Secretary shall refer to the
Secretary of Commerce. This section also defines ``sports
associations,'' to whom the legislation applies, as the
National Football League, National Basketball League, National
Hockey League, Major League Soccer, Major League Baseball, and
the Arena Football League. The Secretary is authorized to add
other professional sports associations which will be subject to
the Act.
Section 3. Rules requiring mandatory testing for athletes
Section 3 requires the Secretary of Commerce to promulgate
rules within 270 days requiring that sports associations adopt
and enforce policies and procedures for testing athletes in
their sport for the use of performance-enhancing substances.
The Committee recognizes that most of the sports associations
have existing policies and procedures in place. The Committee
does not foresee the Secretary's rulemaking requiring sports
association to rewrite their rules to comply with the Act so
long as they exceed the minimum requirements set forth in
section 3.
This section also requires the sports associations'
programs to test an athlete a minimum of five times a year. The
Committee intentionally did not specify an allocation of the
tests between in-season and out-of-season testing to preserve
the randomness of unannounced testing. Additionally, the
Committee believes that random unannounced testing, coupled
with strict penalties, is the best deterrent for professional
athletes. The requirement for a minimum of five tests per
athlete per year is intended to compliment the random aspect of
testing and assist the programs in ensuring the integrity of
their sport. To further ensure the integrity of the program,
tests are to be unannounced, and neither the athlete nor the
coaching and training staffs may be notified in advance.
Further, this section requires the Secretary to consult
with the Director of the National Institute of Drug Abuse
(NIDA) regarding the list of applicable substances for which an
athlete will be tested. The initial list of substances are
those determined by the World Anti-Doping Agency to be
prohibited substances and which are determined by the Secretary
to be performance-enhancing substances for a particular sport
and which testing is reasonable and practicable. The Secretary
may also add substances determined to be performance-enhancing
for a particular sport as knowledge of such substances and
their performance-enhancing characteristics for a particular
sport becomes available.
In adopting the WADA list as the starting point for
identifying applicable substances under this section, the
Committee believes the anti-doping authorities and their
experts have developed a useful reference point based upon
their expertise. However, the Committee recognizes that the
list promulgated by WADA is meant to apply to all Olympic
sports and therefore includes some substances of no relevance
to the professional sports for which this Act applies. For
example, certain substances--including legal substances--such
as beta blockers are banned for individual sports whose
athletes potentially benefit from their use, such as archery.
The Committee believes that if such a substance offers no
performance-enhancing benefit to other sports, there is no
reason to require testing for such substances to be consistent
with the purposes of this Act. Additionally, nothing in this
Act prohibits a sports association and their players from
agreeing to adopt provisions to test for substances not yet
identified as applicable substances by the Secretary. The
Committee expects that the initial list of substances will, at
a minimum, include all illegal steroids and steroid precursors.
As testing procedures become available and practicable, the
Committee expects that other substances, such as human growth
hormone, will be added to the list if the Secretary determines
it to be performance enhancing.
This section also requires the Secretary to issue criteria
under which an exemption to the athlete for the use of
particular substances for legitimate medical needs may be
granted if the sports organization so chooses. The Committee
intends to provide athletes with ailments or disabilities
access to needed medicine that may otherwise be prohibited,
such as insulin for diabetes. The medical exemption may be
granted either prior to testing, in which case it is on record,
or post-test. The Committee recognizes that medical exemptions
can and have beenprovided to athletes under some existing
programs after athletes initially test positive. Exemptions applied in
this manner meet the intent of this Act and need not require an
existing program to abandon it.
In addition, this section specifies that the Secretary, in
consultation with the Director of NIDA, shall establish
criteria to ensure the testing and analysis under a program is
independent. The Committee intends this provision to limit, to
the extent possible, direct links between the sports
association and the personnel employed for collection and
testing. For purposes of complying with the Act, personnel that
are not affiliated with the sports association, but are paid by
the sports association solely for their functions specifically
related to the sports association's program (such as specimen
collectors) shall be considered independent.
This section also requires sports associations to adopt
minimum suspensions, without pay, for violations including: \1/
2\ year suspension for first violation; one full season for a
second violation; and lifetime suspension for third violation.
Such suspensions shall extend into subsequent seasons of
competition if necessary to meet the criteria. The Committee
believes these penalties are more substantial than the existing
penalties of the professional sports associations and will
serve as a greater deterrent to athletes. Although the
penalties are stronger, they are not unreasonable and will
provide a player the opportunity to continue his career after
serving the suspension.
This section requires the Secretary to issue criteria for
the reduction in penalties (where an athlete bears no fault or
no significant fault for a violation) for which a sports
association may adopt. The Secretary shall look to the WADA
Code in developing such criteria. This provision is intended to
mirror the provisions of the WADA Code providing reduced
penalties in exceptional circumstances where the athlete bears
no fault or no significant fault. The sports associations are
not required to adopt this provision unless they agree to it
with their players. This provision is not intended to provide a
loophole to the penalties, but rather a provision--if agreed
to--that will provide the ability to reduce a suspension in the
very rare instance where the athlete bears no fault. Such
reductions in penalties have been provided under the WADA code
in certain instances where an entire batch of supplements was
contaminated and resulted in athletes who used the supplements
to test positive. The Committee recognizes that some sports
associations adopt a strict liability regime where the athlete
is responsible for anything he puts in his body and therefore
does not anticipate the provision would be relevant to their
program.
Finally, this section provides for an appeals process for
athletes who test positive for a prohibited substance and
provides for a mutually agreeable arbiter for the appeals
process, subject to the approval of the Secretary. This section
provides the athlete the right to appeal if he provides notice
within 5 days of notification of a positive test. A hearing
before an arbiter and final adjudication must be completed
within 45 days of receipt of notice of the appeal. In addition,
this section provides that the arbiter shall be mutually agreed
upon by the sports association and the athletes (or their
representatives) and approved by the Secretary. For purposes of
this provision, the Committee anticipates the Secretary to
approve a mutually agreed upon arbiter absent any evidence the
arbiter is incapable of remaining impartial.
Section 4. Noncompliance
This section provides for monetary penalties for a sports
association not in compliance with the Act. In such instances
where a sports association has failed to adopt or enforce the
Act, the Secretary shall fine the association $5 million
dollars, and may increase the fine by an additional $1 million
for each day of non-compliance thereafter. The provision also
provides the Secretary the discretion to reduce penalties based
on the financial condition of the league. The Committee intends
this discretion to be used judiciously. In the event a sports
association with little or no profits falls out of compliance,
the Committee expects the penalty would be reduced to a level
that would serve as a severe penalty without creating an
insurmountable burden on the league. At this time, the
Committee does not anticipate the reduction in penalties would
apply to the NFL, NBA, or MLB.
Section 5. Reports
Section 5 requires the Secretary to provide a report every
two years on the effectiveness of the regulations. The GAO is
required to study and report on the performance-enhancing
substance testing policies and procedures of intercollegiate
sports associations, individual college and athletic
departments, and interscholastic athletic associations.
Section 6. Rule of construction
Section 6 preserves the sports associations' existing
testing policies before the Secretary promulgates such rules.
The pre-existing policies should continue until such time as
changes--as necessary--are adopted to be in compliance with the
Act. Sec. 6 also clarifies that such rules do not prevent
sports associations from negotiating and agreeing upon more
stringent policies than those required by the Act.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
This legislation does not amend any existing Federal
statute.