"Yes, I think so. I think there are probably four or five critical areas. One, what I’ve mentioned in terms of the role of NIDA instead of the role of a non-U.S. agency, located outside of the United States. The second is on discipline, where I think our program is very effective."

"Even there I read in the LA Times yesterday that WADA’s chairman himself says there’s a range of penalties that goes from zero to two years depending on the circumstances. I think that is a second key area. A third key area, and I don’t want to make a mountain out of a mole hill, is the issue of the National Labor Relations Act. I think there could be language to make it clear that collective bargaining continues in this area, because I do feel due to the way the bill is currently written, successors to me and successors to Mr. Upshaw could take the view let’s just proceed to the minimum standards of the bill. I think that approach of receding to the lowest common denominator would be inappropriate and unfortunate. I’m not going to do it, and he’s (Upshaw) not going to do it, but neither one of us is going to be around forever. The future is a long time. I think clarifying that point about the continued importance and respect for collective bargaining in this area is a key thing, coupled with whatever provisions that might go into federal law. Those would be some of our key thoughts."

"You could assume that."

"Mr. Chairman let me say two things, which is my focal point here. If there are federal standards and they’re high, and they’re demanding, fine. What I do not want to see happen here is that our ability to effectively run the best program in the country is limited. If I want to fire somebody because the report comes to me that a collector didn’t do his/her job, I want to be able to fire that person and not have to go to the Secretary of Commerce. I don’t want to have to have long regulatory hearings about arbitration, incumbency and back-pay rights and all the other stuff. When we find that a player has substituted some substance for his urine, the collector is fired if he didn’t do his job. That’s one key thing.

The second key thing is I don’t want to run around and do things that the best scientific opinion can’t agree is necessary. We are already having a discussion on this issue in respect to HGH. WADA is already talking about testing for HGH. They are talking about going from urine testing to blood testing, which I’m told is the only way you can test for HGH. Our scientific people are not satisfied that the blood test has been properly validated.

I don’t want to be forced to spend millions of dollars on a test that someone is saying you have to do because it makes them look good in some international forum, when our scientific people say the test has not yet been validated. We do have a validated test, like Mr. Upshaw said on any substance, as came up with THG. We’re the only one, the only one that I’m aware of who went back and got 2,000 samples of urine previously collected and went back and tested all of them for THG. We tested all of them, once the test had been identified. I am not aware of any other organization that did that. I think that shows our bone fides here, but by the same token, I don’t want to be forced to spin my wheels and spend money on something that has not been proven just because someone else thinks it’s in their interest to say they’re the world leaders in ant-doping."

"I guess I would say that on first blush I think it’s a little anomalous that this would go to the Department of Commerce, but I would also have to add that even though I practiced law in Washington for twenty years, I’m not the world’s greatest expert on the scope of the authority of the Secretary of Commerce. As I did say, I think that NIDA should have a major role here because it is within the National Institute of Health. It does administer drug testing programs in other areas that are critical to our society such as transportation and the federal workplace. It just seems to me that taking advantage of that expertise, plus their relationships with the Department of Justice, and the White House, and the FDA, and the DEA makes sense. We all know our government works best when a bunch of agencies works together on the civil side and on the criminal side, and I think the NIDA can be that linchpin. I don’t see how WADA fits into that picture."

"That is a critical issue. NIDA can talk to WADA and see what their list is and can take advantage of WADA’s expertise. It doesn’t have to be farmed out to Montreal or to Switzerland for that purpose."

"We do extensive counseling and treatment, both on a mandatory and on an optional basis for which we pay under our health insurance plans when it comes to the drugs of abuse. We do less of that under these performance enhancing substances because I believe that our advice has been that this is more of a matter of choice, and less a matter of addiction here. We are certainly into the multi-faceted approach to deterrence which starts with education and can go to counseling, goes to strict penalties, goes to rehabilitation if there’s evidence that it works. But, if it’s just a matter a player trying to get an edge as Mr. Upshaw suggests, then the best deterrent is to eliminate them form the game by suspending them and not get too carried away with counseling."

"Yes, I think we definitely feel that way. I think our basic attitude is that we operate under the Federal Trade Commission Act; we operate under the Food and Drug Act; we operate under the anti-trust laws; and we can operate something in this area so long as it is written in a thoughtful and effective way."

"Absolutely, Mr. Chairman. This goes back 20 years. It’s as basic as spare of the rod, spoil the child. When a player delivers his urine sample he must be naked from the knees to the nose. This idea that all of a sudden there’s been a new world-renowned discovery because there is a device for delivering someone else’s urine is something we have been addressing for twenty-five years. It’s treated as a positive automatically. Any effort to dilute, subvert, adulterate, ignore, miss-deliver is a positive and results in an automatic suspension."

"That’s a different issue. It’s illegal for us."

"It should be. There are a lot of things that should be illegal."

"Our supervisors spot-check our collectors on an unannounced basis to make sure the collectors are enforcing the knees to nose requirement. If they find they are not, then the collector is fired."

(On if increasing the number of tests, streamlining the regulatory process so that we move more rapidly to add new doping agents to the prohibited list, giving the Secretary of Commerce discretion to make adjustments to the world anti-doping regiment, and perhaps moving the jurisdiction to NIDA, and adjusting the penalties so they affect a set percentage of the season rather than a set amount of days, would the NFL be able to support the bill…)

"I think the answer is yes, and I guess the way I would summarize the points you made, as I said at the outset, I think putting NIDA in here is very important in place of WADA. It seems to me that is a critical point. Secondly, as you said, the legislation can and should clarify the relationship of this bill to the NLRA. I think the key thing there is by having a collectively bargained component to whatever program that will be going forward is it insulates it from challenge in a very effective way. I think Mr. Upshaw’s main point is it effectively insulates it from challenge in ways that might not otherwise be the case."

"The player. If you just have a regulatory scheme, a player can come in with an agent and file a lawsuit under federal court or in a state court and rely on state statute that has to do with employment terms and conditions. There are a lot of them out there, and some of them are specific to the rights of professional athletes. Those kinds of suits are barred by collective bargaining because the union is the sole exclusive bargaining representative of the members of the unit and therefore deference is required to union negotiated agreements. I think that is a very important element of preempting collateral challenges to suspensions."

"Yes, I think so. I think the three key points that we would make on the five areas that you’ve raised are: NIDA role rather than WADA; clarifying the point of collective barging authority, which I think is more than a theoretical point; and thirdly, addressing the penalty provision in a way that is less Draconian and allows somewhat greater discretion to the individual sports, none-the-less stiff and clear, but less Draconian than a two-year suspension. The other issues about flexibility and getting things in and getting things out, those are real concerns, but I would assume in the process going forward that could be managed.

Just to make one example. When we banned ephedera, we were the first to do it. There were industry groups saying they were going to sue us if we banned ephedera. We said we are banning ephedera for our athletes, not for society generally. You want to sue us, sue us."

"No, because we tailored our program to our athletes. Did they sue generally? Yes. As you know a federal court in Utah has struck down part of the FDA ban. I don’t want to be in a situation where by taking this from where we’re at and where we’re going that suddenly we fall in the general rubric of ok you live with the rest of society on ephedera. If our doctors find that ephedera is dangerous to our athletes in the kinds of high-level physical activity that they engage in, we’re going to ban it, and we don’t want to lose that authority by under what might happen here under the Administrative Procedure Act or anything else."

(On curing that when we draft out the legislation that it could sustain a challenge in court…)

"I would hope so, but knowing what ephedera represents for our athletes I’m astonished that there’s a federal court decision out there in the last two months saying that the FDA’s authority to deal with ephedera is not as extensive as the FDA thought."

"I think it would still be too much. We’ve had 54 suspensions in 15 years, and only two repeats out of 54 and both of those players retired. I think that shows a very effective program because it’s not just the four-game suspension, but the fact that once you’ve tested positive you’re tested 24 times a year on an unannounced basis. That is more effective as a deterrent than another six months, another nine months and another 12 months. I think when you look at our program, 54 suspensions in 15 years, it is working."

"This player has been in the league I think for two or three years, and has already been suspended for four games under our drugs of abuse program. Which means he has either already tested positive, twice or three times. In other words, the program has caught him twice or three times in his first two years in the league. So whatever he’s using, it’s not very effective."

"We have with us some scientists who work on our program, and I’ll try to recap what they’ve been telling me over the months. Number one, we’re working with other organizations, including WADA, trying to share learning in this area. Secondly, it appears the actual performance-enhancing effects of the HGH may be miss-perceived. In other words, they may be over-blown, that the actual performance-enhancing effects are less than some athletes expect. We are going to educate our players in this area, and hopefully education here is going to be an important deterrent. Thirdly, we’re actively looking at the two types of tests that are being developed in the labs. Both, as I understand it, are blood tests rather than urine-based tests. They test different elements, one test for HGH, the other as I understand it, tests for the chemical consequences within the body of the use of the substance. As I said earlier, in the judgment of our experts, neither test has yet been adequately validated as reliable. WADA did test 300 athletes in Athens out of 11,000 and there were no positive tests. That could either be the test is not effective or they’re not using it. We are on top of it; we regard it as an important issue; and in fact, we the NFL raised this as a critical issue in congress back in 1992, ’93, and ’94 when this was first coming up with the pharmaceutical firms. We’ve been on it since it’s been on the horizon."

"To your point, we have published a four-part health series for young athletes through our Youth Football Fund. Two of the four volumes deal directly with strength and conditioning and the evils of using performance-enhancing substances. This has been produced for us under the direction of a leading physician at the Yale University Medical Center. It’s been produced in conjunction with the American College of Sports Medicine, the American Red Cross, and the Institute for the Study of Youth Sports at Michigan State University, and other such organizations. We give this as wide a circulation as we can. It’s on our internet site. It’s on the internet site of the USA Football Organization, which is a not-for-profit advocacy group that we endowed in this area.

We think we’ve been doing as much as we can do here. We can’t prosecute people; we can’t indict them; but we can educate, and we’ve been very pro-active in this area of youth education not only through these materials, but as Mr. Upshaw gave his own example last night he was out speaking to kids, and we have many, many players out speaking to kids about how to play the game and the fact that you play it without performance-enhancing drugs. We have a video series that goes with this. We have clinics for high school coaches every year, including out at the Hall of Fame at the beginning of our season. We emphasize throughout the ways of dealing with these issues of performance-enhancing drugs and that they have no place in the game whatsoever."

"The way that it works is that our program advisor at Ohio State University has a computer program that randomly identifies seven players on every team, every week. That list of players that is randomly generated at Ohio State University is delivered to the team early in the week, and a team representative or a program representative then says, Upshaw, Hederson, Tagliabue give us your urine right now."

"It does not matter. It’s a computer in Columbus, Ohio that’s identifying the names, and there’s not time to say not him, do him. This idea that people can shove, shift, jump, and jive, it doesn’t make sense. It doesn’t work that way. You get a list early in the week, and it’s you, you, you, and you right now, and if you don’t give us your urine right now, you’re suspended."

"No. I think that collective bargaining is appropriate for all aspects of employee health care, including the quality of our physicians, the right of an athlete to get a second opinion if he wishes to get a second medical opinion that’s different from the team physician, including the allocation of the cost of psychological counseling and all of these matters. I think this is part of the broader area of health care for the players, and to Mr. Upshaw’s credit and his association’s credit they have viewed this issue that way. They have not viewed it as a fourth amendment issue, or a privacy issue. I think it works fine."

"I said earlier, as the bill is currently written, there are some perverse incentives that can reduce programs in this area to the lowest common denominator, but we have identified the areas we feel changes could be made and that would be rectified."

"I guess the only thing I would say about the Carolina investigation is that we don’t know enough yet to be definitive, but it does involve a unique substance which is the so-called ratio between naturally appearing testosterone in the body and epitestosterone, and whatever the issues that are there would be an issue under any drug testing program. They have to do with the limitations of science, medicine and testing technology, not with the limitations of our program. Whatever those issues are, so far as what is being investigated there, they would exist under a WADA program, an IOC program or any program anyone can come up with given the current state of the art."

"It’s a thought worth considering. I think the deterrent of unannounced random testing ,the way it is, is pretty comprehensive."

"We have each year what is called the combine in Indianapolis, where we invite about 600 collegiate players to a timing, testing and physical evaluation program that lasts about a week. In addition to all medical testing, we do test the players for drugs abuse and steroids."

"At the moment, he goes into unannounced testing which I think in this context would be 24 tests a year the moment he signs a contract with a team."

"At this point we do not have discipline for pre-employment positive tests. We do mandate that as soon as a player signs a contract, if he does a sign a contract with the NFL team, he goes into the automatic program of 24 tests per year."

"The way we’ve handled this is that I appoint a law professor to sit as the appeal officer. In other cases it might even be our general council if the Players Assocation is ok with that. Generally, Mr. Upshaw and I have agreed that since the buck stops with me and it stops with the league when it comes to liability and responsibility for everything that goes on in the NFL, he’s comfortable that I have the authority to designate appeal officers. I feel very strongly that I have the responsibility to make sure the NFL is a safe and sound place for people to play, and I want to make sure that we’re ultimately overseeing the safety in the terms and conditions of working in the NFL, including the designation of appeal officers and the union has been comfortable with that."

"I think it’s a great exaggeration. We have thousands of players in the league every year. We’ve been at this for almost 20 years. We’ve had 54 players violate the policy. We’ve have had only two players out of those 54 ever be a repeat and both of those players resigned rather than face the humiliation, embarrassment, and financial concequences of being a repeat offender. I think the discipline clearly works. With respect to the entering player, if we’ve been testing them like I think we have. We’ve tested between 5,000 and 10,000 players in recent years and we’ve had one incident, this year’s incident. To think that this suggests that this shows the college players think that the rewards outweigh the risks is not supported by the record."

"Just one other point I read just this week, several people in the media saying that in this area saying there is a wink and a nod and there’s rhetoric and there’s no hard problem, we spend 10 million dollars a year on our anti-substance abuse programs. That is a pretty costly way of approaching rhetoric."