Drug Testing in Sports: Proposed Legislation

Order Code RS22156

Updated June 10, 2005

CRS Report for Congress

Received through the CRS Web

Drug Testing in Sports: Proposed Legislation

Nathan Brooks

Legislative Attorney

American Law Division

Summary

Following a wave of allegations that the use of performance enhancing drugs by

American athletes is growing, various congressional committees have held hearings on

the effectiveness of the drug testing policies and procedures of professional sports

leagues. Currently, there are four bills before Congress that would create mandatory

minimum drug testing procedures for pro sports leagues: S. 1114; H.R. 2565; H.R.

1862; and H.R. 2516. This report provides a summary of these four bills.

Introduction. Following a wave of allegations that the use of performance

enhancing drugs by American athletes is growing, various congressional committees have

held hearings on the effectiveness of the drug testing policies and procedures of

professional sports leagues.1 Currently, there are four bills before Congress: S. 1114

(Senator McCain); H.R. 2565 (Representative Davis); H.R. 1862 (Representative

Stearns); and H.R. 2516 (Representative Sweeney). The McCain and Davis bills are

virtually identical, and all four bills would establish minimum drug testing standards for

some professional sports leagues. This report provides a summary of the four bills

currently before Congress and a side-by-side comparison of their major provisions. It is

noted at the outset that government-mandated random drug testing of pro athletes may

raise some constitutional concerns.2

H.R. 2565. By statute, the authorization for the Office of National Drug Control

Policy (ONDCP) expired in 2003,3 although ONDCP has continued to operate through

1

For a comparison of some of the testing regimes used in professional and Olympic sports, see

CRS Report RL32894, Anti-Doping Policies: The Olympics and Selected Professional Sports,

by L. Elaine Halchin.

2

See CRS Report RL32911, Federally Mandated Random Drug Testing in Professional

Athletics: Constitutional Issues, by Charles V. Dale.

3

21 U.S.C. § 1712. See CRS Report RL32352, War on Drugs: Reauthorization of the Office of

National Drug Control Policy, by Mark Eddy.

Congressional Research Service ˜ The Library of Congress

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appropriation acts. The Davis bill would repeal the statutory sunset provision, so that

ONDCP’s authorization would be permanent.4

H.R. 2565 would require the “major professional sports leagues” – defined to include

Major League Baseball, the National Football League, the National Basketball

Association, and the National Hockey League, and any “successor leagues” – to

implement independently administered drug testing programs mirroring the standard of

the United States Anti-Doping Agency (USADA). Under the bill, the USADA standard

would (at a minimum) have to provide for the testing of each professional athlete at least

five times each calendar year. At least three of these tests would have to be administered

in-season without advance notice, and at least two off-season without advance notice.5

Each test would have to cover all substances prohibited in USADA’s anti-doping code,6

and each sample would have to be analyzed at a USADA-approved lab.7

A positive test would be any test in which a prohibited substance (or a metabolite or

marker of a prohibited substance) is detected. In addition, if an athlete refuses to take a

test or uses a method to obscure the testing results, then that would be considered a

“positive test.”8 An athlete’s first positive test would carry a two-year suspension with

loss of pay, while a second positive test would result in a lifetime ban from all of the

covered leagues.9 The leagues would be required to disclose positive tests and resulting

penalties to the public.10

Each covered league would be required to annually certify to the ONDCP Director

that the league has consulted USADA in developing its adjudication process, which

would have to provide the athlete who tests positive a hearing (after notice),

representation of counsel, and the right to appeal. While such proceedings are pending,

the athlete in question would be suspended.11

Each covered league would be required to annually certify to the ONDCP Director

that the league has consulted with USADA in developing its testing distribution plan and

drug testing protocols.12

4

H.R. 2565, § 102.

5

H.R. 2565, § 201(a) (creating new § 724(b)(1) of P.L. 105-277). From the wording of the bill,

it appears that tests beyond the minimum number could be administered with advance notice.

6

Leagues would be allowed to make exceptions for properly prescribed substances. Id.

7

H.R. 2565, § 201(a) (creating new § 724(b)(5) of P.L. 105-277).

8

H.R. 2565, § 201(a) (creating new § 724(b)(6)(B) of P.L. 105-277).

9

Id. The bill would allow for lesser penalties where an athlete unwittingly takes a prohibited

substance, or where an athlete who tests positive helps the league track down those who are

violating the drug policy or helping others to do so. Id.

10

H.R. 2565, § 201(a) (creating new § 724(b)(9) of P.L. 105-277).

11

H.R. 2565, § 201(a) (creating new § 724(b)(8) of P.L. 105-277).

12

H.R. 2565, § 201(a) (creating new § 724(b)(2), (3) of P.L. 105-277).

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The ONDCP Director would have the authority to modify the aforementioned

standards, so long as the modifications would not reduce the effectiveness of the standards

in curbing the abuse of performance-enhancing substances, or “diminish the leadership

role of the United States” in eliminating such substances from sports.13 Further, the

Director could expand the number of leagues covered under the bill to include other pro

sports leagues and NCAA Division I and II colleges and athletes.14

Under the Federal Trade Commission (FTC) Act,15 the FTC has the authority to issue

regulations proscribing certain activities as “unfair or deceptive acts or practices”

affecting commerce.16 The Davis bill would make a violation of the aforementioned

testing standards an unfair or deceptive act under the FTC Act, and require the FTC to

promulgate regulations to enforce the Clean Sports Act as if the FTC Act were

incorporated into the Clean Sports Act.17 The FTC would be empowered to levy fines of

up to $1 million for failure to implement the required testing procedures.18

The Davis bill would require each covered league to report to Congress every two

years on how the league’s drug policy compares with that of USADA, number of players

tested, etc. The ONDCP Director would be required to report to Congress from time to

time on potential improvements to federal drug laws with respect to curbing the use of

performance enhancing substances by athletes.19 Further, both the Government

Accountability Office (GAO) and the Commission on High School and College Athletics

(which would be established by the ONDCP Director) would have to report to Congress

on issues related to the use of performance enhancing substances by amateur athletes.20

S. 1114. S. 1114 is virtually identical to the Davis bill, except that it would not take

the form of an amendment to the Office of National Drug Control Policy Act, nor would

S. 1114 reauthorize the ONDCP.

H.R. 1862. The Stearns bill would include not only the four leagues covered in the

McCain and Davis bills, but also Major League Soccer (MLS), the Arena Football

League, “and any other league or association that organizes professional athletic

competitions as the Secretary [of Commerce] may determine.”21

13

H.R. 2565, § 201(a) (creating new § 725 of P.L. 105-277).

14

Id. The Director could delegate the Director’s duties under § 725 to another federal agency.

15

15 U.S.C. § 41 et seq.

16

Id. at § 57a.

17

H.R. 2656, § 201(a) (creating new § 726 of P.L. 105-277). The bill would also require the FTC

to promulgate parallel regulations regarding professional boxing.

18

Id.

19

H.R. 2565, § 201(a) (creating new § 727 of P.L. 105-277).

20

H.R. 2565, § 201(a) (creating new §§ 729, 730 of P.L. 105-277).

21

H.R. 1862, § 2(2).

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H.R. 1862 would require the Secretary of Commerce to promulgate regulations

governing testing for prohibited substances by covered leagues.22 Under the bill, the

regulations would have to require that every athlete be independently tested at least once

a year – without notice – for substances prohibited by the World Anti-Doping Agency

(WADA) and other substances determined by the Commerce Secretary to be performanceenhancing “for which testing is reasonable and practicable.”23

The Stearns bill would require a two-year suspension without pay for the first

positive test, and a lifetime ban from the individual league for the second positive test.24

An athlete testing positive would have the right to appeal the result so long as he or she

files such an appeal within five days of learning of the result. The league would then have

30 days in which to issue a decision. The aforementioned penalties would be stayed

pending the appeals process.25

Covered leagues would have one year to adopt and enforce testing procedures that

comply with the regulations issued by the Commerce Secretary. After this grace period

ends, the Secretary could levy fines of up to $5 million for noncompliance, and add

another $1 million for each additional day of noncompliance.26

The Commerce Secretary would be required to submit to Congress every two years

a report on the effectiveness of the drug testing regulations. In addition, the Comptroller

General would be required to conduct a study of the use of performance-enhancing

substances by amateur athletes and submit to Congress a report on the study’s findings

and with recommendations as to extending the coverage of the Commerce Secretary’s

testing regulations to include amateur athletes.27

H.R. 2516. H.R. 2516 would make it illegal to organize or participate in a NBA,

NFL, NHL, or MLB game without meeting the bill’s testing requirements.28 A violation

would be treated as a violation of “a rule defining an unfair or deceptive trade act or

practice” under the FTC Act, and the FTC would, accordingly, have the authority to

enforce the bill’s requirements. In addition, the FTC would have the authority to extend

the bill’s coverage to other pro sports leagues and the NCAA.29

The bill would require random testing of WADA-prohibited substances (including

related metabolites and markers) and methods at least four times a year (twice in-season

and twice out of season) and when the covered league has reason to suspect that an athlete

22

The Secretary would be empowered to exempt leagues that had previously implemented testing

procedures that meet or exceed those listed in the Secretary’s regulations. Id. at § 4.

23

Id. at §§ 3(1), (2).

24

Id. at § 3(4).

25

Id. at § 3(5).

26

Id. at § 5.

27

Id. at § 6.

28

H.R. 2516, § 4(a).

29

Id. at § 5.

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or team is in violation of that league’s drug policies. A refusal to submit to a drug test

would be considered a positive test.30

Under the Sweeney bill, drug tests would have to include testing of blood or urine

samples (the provision of which would have to be observed by the party administering the

tests) and analysis of such samples by WADA-accredited labs. In developing its testing

methodology, each covered league would be required to consult with USADA.31

H.R. 2516 would require a two-year suspension without pay for the first positive test

and a lifetime ban from the relevant covered league for any future positive tests. Any

positive test would have to be disclosed to the public, and each covered league would be

required to develop an appeals process in consultation with USADA.32 Every two years,

each covered league would be required to submit to the FTC and to Congress a report on

that league’s testing policies and procedures.33

A Side-by-Side Comparison of the Major Provisions of H.R. 2565, S.

1114, H.R. 1862, and H.R. 2516

H.R. 2565

S. 1114

H.R. 1862

H.R. 2516

ONDCP

Reauthorization?

Yes

No

No

No

Leagues

Covered

MLB, NFL,

NBA, NHL,

and

professional

boxing

MLB, NFL,

NBA, NHL,

and

professional

boxing

MLB, NFL,

NBA, NHL,

MLS, Arena

Football, and

other leagues as

determined by

Secretary of

Commerce

MLB, NFL,

NBA, NHL

Benchmark

Standard

USADA

USADA

WADA

WADA for

banned

substances;

USADA for

testing and

appeals

procedures

Minimum

Number of

Tests Per Year

5

5

1

4

30

Id. at § 4(b).

31

Id.

32

Id.

33

Id. at § 6.

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Maximum

Fines for

Failing to

Implement

Required

Testing

$1 million

$1 million

$5 million, and

another $1

million for each

additional day

not in

compliance

No provision

Regulatory

Oversight

ONDCP would

be empowered

to modify the

bill’s

requirements,

while FTC

would have

enforcement

authority

ONDCP would

be empowered

to modify the

bill’s

requirements,

while FTC

would have

enforcement

authority

Secretary of

Commerce

FTC

Lab Analysis

of Tests

USADAapproved lab

USADAapproved lab

No provision

WADAapproved lab

Penalty for

First Positive

Test

Two year

suspension

without pay

Two year

suspension

without pay

Two year

suspension

without pay

Two year

suspension

without pay

Penalty for

Second

Positive Test

Lifetime ban

from all

covered leagues

Lifetime ban

from all

covered leagues

Lifetime ban

from the

particular

league in

question

Lifetime ban

from the

particular

league in

question

Suspensions

Stayed

Pending

Appeals?

No

No

Yes

No provision

Public

Disclosure of

Positive Tests?

Yes

Yes

No provision

Yes