Congress to emphasize independent testing

Congress is prepared to impose harsh measures against Major League Baseball and its players' union unless the two sides agree to an independent drug-testing program and most of the other recommendations in the Mitchell Report, a congressman said.

Rep. Tom Davis, the ranking Republican on the committee that called for a Jan. 15 hearing on Capitol Hill to discuss performance-enhancing drugs in baseball, said pressure will be placed on the players' union to agree to more stringent testing procedures. Baseball commissioner Bud Selig, union boss Donald Fehr and former Sen. George Mitchell – who authored the 409-page report released last week – are scheduled to testify before the committee.

Congress will be paying close attention, according to Davis.

"I don't think it's out of question that many members would want to take action if baseball says, 'Thank you for the recommendations,' and does nothing,'' he said.

No decision about whether to call players to testify has been made, according to representatives for Rep. Henry Waxman, chairman of the Committee on Oversight and Government Reform. Davis was quoted in USA Today as saying players would not be called, but Waxman's representatives said Waxman has not made that decision.

Waxman called for the hearings hours after the Mitchell Report was released Dec. 13, prompting speculation over whether pitcher Roger Clemens and other notable players tied to the use of banned substances in the report would be asked to appear before Congress.

Although the appearance of Clemens or other marquee players would dominate media coverage, Davis said cooperation between Selig and Fehr will determine Congress' role.

Selig already has agreed to adopt all of Mitchell's 20 or so recommendations, which include hiring an independent body to oversee the testing program and set up an investigative department to pursue allegations of the use of banned substances.

Soon after the report was released, Fehr called a news conference and said he would not offer substantive remarks until he had adequate time to review the document. He expressed frustration that Mitchell had allowed Selig to review the report before it was released but denied the union's request for the same opportunity.

Fehr also cited the collective bargaining agreement between Major League Baseball and the players that runs through 2012 as a potential impediment to implementing all of the recommendations. Players would have to vote to re-open collective bargaining discussions.

Later, however, Fehr expressed a willingness to discuss Mitchell's recommendations, and Davis expressed cautious optimism that the players would take the necessary steps.

"It's not a small hurdle,'' Davis said. "It's a large hurdle.''

When asked why the union should comply with the wishes of Congress, Davis said, "We can enact something that is far more Draconian (than Mitchell's recommendations). … We've tried to honor the collective bargaining process on this issue, but no resolution means congressional action.''

The threat stems from a powerful source: antitrust exemption that protects baseball from outside competition, and an exemption Congress could rescind with enough votes. The special status given baseball by the government could empower Congress to unilaterally pass a drug-testing program. The same holds for other professional sports such as the NFL that also enjoy an antitrust exemption, Davis said.

"From where I sit, I'm optimistic,'' Davis said. "It should be pretty easy to implement. It's not brain surgery. This isn't complicated stuff.

"As you get down on the ground, into union negotiations sometimes, the perspective of the employees, I think it's very, very different. And we're here to get a handle on that.''

Davis also said baseball has made significant strides since the 2005 Congressional hearings, when Davis was chairman of the committee that grilled Selig and players such as Mark McGwire, Sammy Sosa and Rafael Palmeiro about the collective failure to address rampant use of performance-enhancing drugs.

Since then, baseball increased the penalties for violations of its drug policy and initiated Mitchell's investigation.

"At the end of the day, baseball has showed a lot of courage moving forward with this investigation,'' Davis said. "Now that the recommendations are in, it should be pretty easy to implement those.''

In addition to hiring an independent body to oversee the drug-testing program and creating a department of investigations, the key Mitchell recommendations call for:

• Unannounced, year-round drug testing.

• Drug-testing top prospects before the Major League draft.

• Greater cooperation between the commissioner's office and law enforcement agencies.

Davis said the union might have "legitimate concerns" over some aspects of certain recommendations. For example, he said, the players will want due process when they believe a positive test is false.

"I want to hear their story,'' Davis said. "But I think that the Congress is going to say, 'Guys, let's move on. Let's put this behind us. Let's not make this a soap opera where every year we're hearing more and more about steroids.

"You shouldn't take steroids. If you do, you're going to be punished. And we have to have a testing program that people can trust and that can safeguard the game.''

Davis said Congress is not interested in punishing players who were named in the Mitchell Report as former users of performance-enhancing drugs. Selig said he will consider discipline on a case-by-case basis.

"The commissioner reserved that right and should,'' Davis said. "But it's our position that that is not in our purview at all. And that was not the purpose, ever, entering into hearings.''

He said the important thing is for baseball to seriously address the issue by implementing Mitchell's plan. Everyone involved in the game would benefit, Davis said, even players who think they are giving something up without getting anything in return.

"They get a cleaner game,'' Davis said. "They get the respect of their fans.

"When the turnstiles are moving, when people are watching games on TV and they sell more ads, those profits are distributed in higher contracts. So just cleaning up the game is to everybody's benefit.

"It shouldn't be something that divides management and players.''