Should the US Congress Be Involved in Setting Drug Policies for Professional Sports?
Joshua H. Whitman, JD, former National Football League (NFL) player, in his Jan. 2008 University of Illinois Law Review article “Winning at all Costs: Using Law & Economics to Determine the Proper Role of Government in Regulating the Use of Performance Enhancing Drugs in Professional Sports,” wrote:
“This note recommends that the federal government, in an effort to address growing national concerns related to the use of PEDs [performance-enhancing drugs] in society, assume an active role in developing comprehensive drug management strategies governing the use of PEDs in American professional sports…
Congress is uniquely situated to tackle the complex issues presented by PEDs in professional sports. First, by removing drug testing from the bargaining table and putting it under the auspice of federal regulation, the government would greatly reduce the transaction costs involved in collective bargaining. Second, by instituting more thorough and uniform testing, imposing stiffer penalties for failed tests, and better informing athletes of the widespread social side effects of their actions, the federal government could proactively encourage and incentivize the athletes to internalize and mitigate, to a large extent, the negative externalities from their decisions. Third, by identifying and counteracting the cognitive biases and decision-making heuristics exhibited by professional athletes when deciding whether to use PEDs, the federal government could facilitate more socially desirable decisions by the athletes…
Faced with the overwhelming incentives present in modern sports — whether tangible like money or intangible like the competitor’s inner drive — it is both unrealistic and arguably unfair to ask the athletes to protect themselves from the innate parts of their own character that we cheer so heartily while they are within the competitive arena. Thus, this note proposes that Congress should remove the onus of developing drug-testing provisions from the individual parties and should itself create drug management strategies aimed at reducing PED use in American professional sports to a socially desirable level.”Jan. 2008 - Joshua H. Whitman, JD
Robert Housman, JD, Partner at Book Hill Partners consulting firm, and former Assistant Director for Strategic Planning in the White House Office of National Drug Control Policy (ONDCP), in his Apr. 6, 2005 Washington Times article “Steroids and the Feds,” wrote:
“When the House Government Reform Committee recently called baseball stars and league officials to testify about steroid use, critics complained that Congress and the federal government should not get involved in sports, even regarding drug use. These critics were off the mark.
First, the federal government already has a role in this issue. It is a federal crime to possess and distribute steroids and certain other performance-enhancing drugs…
Second, the federal government already has a moral and statutory responsibility to educate young people about the dangers of illegal drug use, including steroids…
Third, critics of federal involvement erroneously portray sports as somehow different. In fact, sports, especially Major League Baseball and the other pro leagues, are big businesses…
In business terms, use of steroids has essentially cooked the recordbooks of these companies. If such fraud and abuse occurred in any other market sector, there would be no question federal involvement is appropriate. There should be none here. Moreover, the sports leagues enjoy substantial federal benefits under law, including a vital antitrust exemption. In the other sectors, such as broadcasting, where special privileges are granted by the federal government, companies are subject to public responsibilities and federal oversight.
Fourth, some critics have the simply wrongheaded idea that the unique nature of sports makes impossible a positive federal role in fixing this problem. Overwhelmingly in other nations, professional sports leagues are subject to independent drug testing and enforcement agencies that are, one way or another, governmental or quasi-governmental bodies. For example, sports-crazed Australia operates the Australian Sports Drug Agency, one of the world’s finest programs…
[G]iven the problems professional baseball faces in this scandal, the league might well consider federal help as something like a relief pitcher coming in late in the game to rescue it from a very costly loss.”Apr. 6, 2005 - Robert Housman, JD
Frank Deford, Senior Contributing Writer at Sports Illustrated, in his Feb. 13, 2008 commentary aired on National Public Radio’s (NPR’s) Morning Edition, stated:
“There are some, of course, who believe that this sort of thing is nonsense, that government should not bother umpiring sports, that that’s a diversion from the more pressing business of the republic.
Myself, however, I incline my thinking in the other direction, that we need government to intrude occasionally, because sports is too popular, too important culturally to be left to the coaches and commissioners…
A great many countries have a ministry of sports which oversees athletics, and in nations where soccer is uber alles — which is most of them — the country’s soccer coach is often a national figure on the par with the prime minister.
While we don’t care that much about international sport, our domestic leagues and our big-time college sports are so prominent in our public consciousness that, yes, especially when it comes to matters of cheating, the government has every good reason to investigate, no less than it would peer into possible improprieties in other institutions.
Yes, if professional players are taking illegal drugs and affecting the outcomes of games and influencing the behavior of young athletes, then elected officials are right to step in.”Feb. 13, 2008 - Frank Deford
Henry Waxman, JD, US Representative (D-CA), in his opening statement for the May 19, 2005 hearing “Steroid Use in Sports Part III: Examining the National Basketball Association’s
Steroid Testing Program,” before the US House of Representatives Committee on Government Reform, stated:
“The baseball results tell us that we need to guard against relying on assumptions. We won’t really know what’s going on in the NBA [National Basketball Association] until the league implements an effective steroids testing policy…
In the meantime, Congress stands ready to act. I will soon join Chairman Davis [US Representative (R-VA)] in introducing bipartisan legislation that would ensure that all major professional sports have strong performance-enhancing drug policies that are consistent with the Olympic standard…
Ultimately, I believe that this is the direction we must take if we want to set an example for young athletes and rid professional sports of performance-enhancing drugs.”May 19, 2005 - Henry A. Waxman, JD
John McCain, US Senator (R-AZ), was quoted in the May 24, 2005 Canadian Broadcasting Corporation (CBC) Sports Online article “John McCain Wants USADA to Oversee Pro Sports’ Testing,” as having said:
“There’s got to be some kind of legislation that will absolutely test and punish professional athletes that use performance-enhancing drugs…
There are a lot of issues we would much rather address…And if the professional leagues had taken action, we would not be here today. But they have not taken sufficient action.
We may be falling behind in what is truly an arms race of doping.”May 24, 2005 - John McCain
Jose Canseco, former Major League Baseball player, in the Mar. 17, 2005 hearing on “Restoring Faith in America’s Pastime: Evaluating Major League Baseball’s Efforts to Eradicate Steroid Use,” before the US House of Representatives Committee on Government Reform, stated:
“[I]f Congress does nothing about this issue, it will go on forever. That I guarantee you…
I don’t know how the policy for Major League Baseball is structured right now, but I heard it’s a complete joke. Obviously if there were a proper system completely educating athletes and so forth, I truly believe that no Major League player would do steroids…
I don’t believe it [Major League Baseball] can [heal itself], unless Congress steps in, because of the frugal testing programs that Major League Baseball has. It will just be a joke…
If Congress does nothing about this, Major League Baseball will not regulate themselves. The Players Association will not regulate these players, that I guarantee. I have been a Major League Baseball player for 17 years. Sure, the Players Association and the owners disagree on most things, but when it comes to making money they are on the same page.”Mar. 17, 2005 - Jose Canseco
Gene Upshaw, former Executive Director of the National Football League Players Association, in the Feb. 27, 2008 hearing on “Drugs in Sports: Compromising the Health of Athletes and Undermining the Integrity of Competition” before the US House of Representatives Subcommittee on Commerce, Trade, and Consumer Protection of the Committee on Energy and Commerce, stated [as transcribed by ProCon.org]:
“I believe that this whole area should be dealt with through collective bargaining. That is the proper form to do it. I don’t see how legislation would be effective because all of our sports, everything we do, is all so different. We have handled it this way, we will continue to handle it this way, and when it comes to performance-enhancing drugs or substances, it’s never a subject of trading one thing for another. It’s something we want out of the game, it’s something we started to get out of the game in 1987, and we’ll continue to do so in the future. If there is a new substance that comes on, we will add it to our banned list. We totally agree, the players totally support the program that we have in place, and I would hate to see us move in a direction that would take that confidence out of what we are already doing.”Feb. 27, 2008 - Gene Upshaw
Donald M. Fehr, JD, Executive Director of the Major League Baseball Players Association, in his Feb. 27, 2008 written statement for the hearing on “Drugs in Sports: Compromising the Health of Athletes and Undermining the Integrity of Competition” before the US House of Representatives Subcommittee on Commerce, Trade, and Consumer Protection of the Committee on Energy and Commerce, wrote:
“I am aware that some members of Congress…are considering introducing legislation to create federally-mandated drug-testing in professional sports. With due respect, I do not think any such action is necessary, warranted, or appropriate.
When I testified before this Committee in 2005 I said then that we believed that we had negotiated a program that would work. I said then that all the evidence we had then indicated we were on the right track…And now we have even more evidence, all of which indicates that our efforts are succeeding…
[I]t should come as no surprise that the Players Association does not believe that any such legislation should be enacted. As Congress has repeatedly noted, collective bargaining is the appropriate forum in which to deal with matters affecting terms and conditions of employment, even matters as controversial and politically volatile as random suspicionless employee drug testing in the absence of significant concerns about public safety. And the recent record in baseball clearly shows that we are dealing with our problems.
Finally, it should be noted that any legislation governing drug testing in private industry surely raises troubling constitutional questions. Suspicionless drug testing, mandated by the federal government, can run afoul of the general Fourth Amendment requirement that searches must be based on individualized suspicion of wrongdoing.”Feb. 27, 2008 - Donald M. Fehr, JD
David J. Stern, JD, Commissioner of the National Basketball Association (NBA), in his Feb. 27, 2008 written statement for the hearing on “Drugs in Sports: Compromising the Health of Athletes and Undermining the Integrity of Competition” before the US House of Representatives Subcommittee on Commerce, Trade, and Consumer Protection of the Committee on Energy and Commerce, wrote:
“I believe that the NBA’s current anti-drug program is strong, effective, and appropriate for our sport, and remain committed to ensuring that it remains state-of-the-art. I am confident that any necessary modifications to our program can be made through the collective bargaining process with the Players Association, as we have successfully done in the past. Indeed, a drug program that is the product of agreement between management and labor will always be superior to one that is imposed from the outside, as the parties to the agreement will be invested, as we are, in its success.
For this reason, federal legislation in this area is not necessary for the NBA. Nor do I believe that a uniform, federally-mandated approach to drug testing for all sports leagues would be appropriate. For example, while we believe it is important to prohibit a broad list of performance-enhancing substances, as we do in our Program, we do not believe that the entire WADA [World Anti-Doping Agency] list of prohibited substances is right for the NBA. Similarly, while stiff penalties are necessary for the legitimacy of any anti-drug program, we believe that the penalties contained in our labor contract – and not the excessive penalties that were previously proposed by Congress – are fair and appropriate for our sport.
And finally, we do not believe that the involvement of an entity like WADA will improve our Program in any respect. As discussed above, the NBA’s Program is already managed by independent entities and individuals with substantial expertise and integrity.
Moreover, because the NBA and the Players Association jointly created our Program, NBA players have confidence in its legitimacy and impartiality, and that trust is critical to making the Program run smoothly.”Feb. 27, 2008 - David J. Stern, JD
Jasmin Guénette, MA, Academic Programs Director of the Institute of Humane Studies at George Mason University, wrote in his article “In Defence of Steroids,” published June 18, 2006 in the webzine Le Québécois Libre:
“Although performance-enhancing drugs may be hazardous to health, the decision to use them should be left to the individual, not the state. Private companies and sports associations can prohibit the use of performance-enhancing drugs because people have the choice to accept or reject the rules. Statewide prohibition, however, makes the use of performance-enhancing drugs a social problem rather than an individual choice. Moreover, prohibition will not prevent the use of drugs. As long as people want to use performance-enhancing drugs, someone will produce and sell them…
Private companies and associations should be able to define what rules will govern them without any intervention from politicians. A private association has no obligation to accept me if I don’t agree to their rules, just as I should not be forced to join any associations I don’t think are fit for me. This logic should also prevail when it comes to the sale and use of steroids. If a group of people, let’s say Bodybuilders and Co., think performance-enhancing drugs are OK, they should be left alone if they don’t force anybody to follow their path. Sadly, this is not how things are done. Today, the debate about steroid use is widely dominated by morally superior do-gooders who believe it’s not right for an athlete to use products that help him or her perform better.”June 18, 2006 - Jasmin Guénette, MA
Barack Obama, JD, US Senator (D-IL), in his Oct. 2, 2008 interview on ESPN’s Radio show Mike & Mike in the Morning, stated [as transcribed by ProCon.org]:
“I got to admit that seeing a lot of congressional hearings around steroid use is not probably the best use of congressional time…
Kids are watching sports. They’re modeling themselves on the athletes. It’s a serious problem. But it’s one that you want to see the leagues themselves handle in a more appropriate way. We’ve got nuclear weapons and a financial meltdown to worry about. We shouldn’t be worrying about steroids as much as I think sometimes we do.”Oct. 2, 3008 - Barack Obama, JD
Raphael Palmeiro, former Major League Baseball player, in the Mar. 17, 2005 hearing on “Restoring Faith in America’s Pastime: Evaluating Major League Baseball’s Efforts to Eradicate Steroid Use,” before the US House of Representatives Committee on Government Reform, stated:
“I don’t believe it will take an act of Congress. I believe that our game will get straightened out and I believe it will get cleaned up. We just need to give this policy [on steroids] a chance. Like I said before, if we need to enhance it, let’s do it…
I believe that we are policing ourselves right now, and I believe that we will clean the game because I believe that players, like Curt [Schilling, Major League Baseball pitcher] said, want a level playing field.”Mar. 17, 2005 - Raphael Palmeiro