CONGRESSMAN CLIFF STEARNS: Mr. Hunter, thank you. And I think we’ll go to questions and I’ll start. Mr. Stern I appreciate your comments about the penalties, we might look at those, and you also mentioned the testing. The way the bill’s setup, that it’s, at least one random testing, it could be more. So, but I appreciate you actually telling us how you think we could improve the bill. You know, I just mentioned in the other hearing, the last sentence dealing with the, when the President of the United States spoke in 2004 in his State of the Union, early on in his speech he talked about steroids and he concluded, in his conversation about steroids when he said “So tonight I call on team owners, union representatives, coaches and players to take the lead, to send the right signal, to get tough and to get rid of all steroids now.” So the president was puissant in a way because he talked about this some time ago. We’ve had players both on and off the field say that they would like to see this straightened out. So Mr. Hunter when we come to you and we look at your policy it appears that rookies are tested during training camp, but, and veterans can be tested during training camp. So the question I have for you – Why do you treat the veterans differently than the rookies regarding the frequency and timing of the tests?

BILLY HUNTER: Well, I think simply because we have concluded after negotiations with the NBA years ago that once a player becomes a veteran he’s much more tuned to what’s expected of him. So what we do is try to program the rookies when they come in so that they understand what their obligations and responsibilities are. So that when they make the transition from college to the pros, we put them through the program. Veterans then understand, you know, what they’re gonna be confronting after that first year.

CONGRESSMAN CLIFF STEARNS: So after the first year, the veterans don’t get tested?

BILLY HUNTER: No, veterans get tested, they get tested in training camp and then we have what’s called reasonable cause.

CONGRESSMAN CLIFF STEARNS: Yeah only in their training camp, though.

BILLY HUNTER: They get tested in the training camp and if it’s detected, if it’s discovered that they’re using any kind of drug then…

CONGRESSMAN CLIFF STEARNS: Most of these could, during the training camps, not take steroids, then under your policy then could take them later on and …

BILLY HUNTER: Well, I don’t know when you say under my policy, it’s a joint policy of the NBA and the NBPA.

CONGRESSMAN CLIFF STEARNS: You’re right I stand corrected. Under the joint policy, the way you have it set up, veterans could be tested during the training but it’s not random testing and it’s only a certain period that they’re tested. So my question is to you, particularly for veterans who are trying to achieve and establish a legacy, they could be taking steroids the other time part of the year and you would never test and you would never know. Isn’t that possible?

BILLY HUNTER: Well, no I, it’s always possible, but I think that it’s incumbent upon other teams, other coaches, other individuals, that they suspect that a player might be taking some steroid…

CONGRESSMAN CLIFF STEARNS: So you’re saying you’re depending upon the honor system of the NBA players to control whether players take steroids or not?

BILLY HUNTER: Well, I think that has a lot to do with it, but I would also say that, I think as Commissioner Stern indicated early on, the original policy was adopted in 1983. It was then modified sometime in the ‘90s at which time the NBA was always well ahead. We were on the cutting edge of drug policies for professional sports.

CONGRESSMAN CLIFF STEARNS: You see my point, is if you’re depending upon the honor system of the NBA players, and you’re testing them only in a discreet part of the year, during their training, then you’re leaving open all the other time. Do you think that policy would work with the Olympics; do you think it would work with the NCAA? Obviously not, because they have random testing and it’s throughout the whole year and you also see it…

BILLY HUNTER: But I think…

CONGRESSMAN CLIFF STEARNS: And baseball’s doing the same thing.

BILLY HUNTER: Yeah, but I think what has happened, we’ve gone through an evolution, you know when the policy was adopted years ago, we didn’t have the problem, we were on the fore front of the issue in that we did adopt a policy…

CONGRESSMAN CLIFF STEARNS: Mr. Hunter I suspect that you don’t know that you don’t have a problem if you don’t test.

BILLY HUNTER: Well, I think we do know that we don’t have a problem. I think the statistics indicate that we don’t have a problem.

CONGRESSMAN CLIFF STEARNS: Okay. Commissioner Stern, let me ask you this – When an NBA player goes to play in the Dream Team in the Olympics, that NBA player is willing to be subject to the World Anti Doping Agency.

DAVID STERN: That is correct.

CONGRESSMAN CLIFF STEARNS: So here we have these top flight athletes going to be under the umbrella of the Olympics, then why wouldn’t it make sense for the NBA to be under Olympic testing standards?

DAVID STERN: Well, I…

CONGRESSMAN CLIFF STEARNS: Instead of, I mean you’re willing to do it when you go play in the Olympics, but you won’t adopt their standards.

DAVID STERN: Well I didn’t say to you that we wouldn’t adopt their standards.

CONGRESSMAN CLIFF STEARNS: Oh, I understand, but you’re not now doing it?

DAVID STERN: Well, I would say to you that our, I would say that our drug program, or our anti drug program is a work in progress. In 1983 it was one thing…

CONGRESSMAN CLIFF STEARNS: No, I appreciate that.

DAVID STERN: In 1999, it was another. And I would say to you that what Mr. Hunter said was, I just want to correct one thing, it’s not about an honor system. There is testing of veterans upon a showing of reasonable cause.

CONGRESSMAN CLIFF STEARNS: But who determines a reasonable cause?

DAVID STERN: An independent expert.

CONGRESSMAN CLIFF STEARNS: Who is this expert?

DAVID STERN: It is somebody selected under the collective bargaining agreement. AN independent law enforcement person.

CONGRESSMAN CLIFF STEARNS: So the players select somebody within…

DAVID STERN: No the players and the owners select somebody who, usually it could be a retired judge, or someone in whom we have confidence. Really for the protection of the players, to issue a search warrant in effect.

CONGRESSMAN CLIFF STEARNS: And so that person walks around regularly all year round and inspects?

DAVID STERN: No, no.

CONGRESSMAN CLIFF STEARNS: How do you know he’s getting any corroborative…

DAVID STERN: That person is like a privately selected judge, who if we have reason to believe that a player…

CONGRESSMAN CLIFF STEARNS: How would you have a reason to believe if you don’t test? Intuition?

DAVID STERN: Well, no.

CONGRESSMAN CLIFF STEARNS: How would you, tell me would you have reason to believe if you don’t test?

BILLY HUNTER: By performance. Generally what happens…

SENATOR 1: You can tell by performance?

BILLY HUNTER: Yeah I think you can. I think clearly that when you deal with professional athletes, if you are a professional athlete and you are within that community, I assure you that there will be players -- rumors occur, there's gossip around the league. Someone will say invariably, my man may be on something. Check him out.

CONGRESSMAN CLIFF STEARNS: OK Mr. Hunter, I can show you the last – I could show you a year's worth of NBA games and you can tell --

BILLY HUNTER -- No I didn't say me. I said that --

CONGRESSMAN CLIFF STEARNS: this person, this select person, that commissioner Stern said that you could select, that person could look at the films and determine if they are on steroids or not?

BILLY HUNTER: No, no, I think you're misunderstanding what he's saying. What we are saying is we have an independent arbiter, mediator. Someone presents the evidence or information to this individual. He then makes a determination that probable cause exists to then test the player. The player’s then randomly tested.

CONGRESSMAN CLIFF STEARNS: OK.

BILLY HUNTER: So somebody has to collect the evidence on the player first.

CONGRESSMAN CLIFF STEARNS: Right. But Congressman, that's a sideline just to make sure that you understood our policy. The broader question, we don't have a problem with something -- the NBA does not have a problem with a program approaching the --

CONGRESSMAN CLIFF STEARNS: I heard you in the beginning.

DAVID STERN: and it's not an issue for us. I think that there may be an issue, I think there's some unnecessary drugs tested for. But we don't have any issue with that.

CONGRESSMAN CLIFF STEARNS: I appreciate that. You were saying early on parts of the Bill that you support -- and I appreciate that. Commissioner Selig has come out in support of the Bill and that might be because of frustration. Can I assume that you would support this Bill if we looked at the areas that you were concerned about, namely penalties and we had established the testing procedures? Could I assume that you would endorse this bill?

DAVID STERN: yes

CONGRESSMAN CLIFF STEARNS: not down to the I's and T's, but the concept, you're endorsing the bill today.

DAVID STERN: to support the concept subject to obviously --

CONGRESSMAN CLIFF STEARNS: a few changes.

DAVID STERN: regulations that are going to be issued under it and I would have to see them. But let me say to you, as I said in my opening statement, that we fully expect whatever negotiated policy we come up with through this collective bargaining procedure, to start our next season with a drug program that is far more comprehensive --

CONGRESSMAN CLIFF STEARNS: much more rigorous

DAVID STERN: than that's been. So we support Congress' involvement here and we support this legislation subject to the issues that I have raised.

CONGRESSMAN CLIFF STEARNS: I will take that as an endorsement.

DAVID STERN: Yes. Absolutely. Well I am an attorney, so --

CONGRESSMAN CLIFF STEARNS: Alright. I am going to conclude, as my time is over. But I just want to state for the record that 1999 is when you put in the program, there were 23 initial positive tests in the whole history of the NBA steroid policy. Only three satisfied the additional steps of a positive test. I don't know what those additional steps are, we can get into that later. But, you know, the whole idea was a reasonable medical explanation that was excusing all of these other 20 people because during that height from 1999 to 2005 to think there's only three positive tests would indicate, Mr. hunter, that this was not a comprehensive, rigorous program because I think all of us agree that there are steroids in professional sports. And the way you test, I’m not sure if you're getting to the --

BILLY HUNTER: I don't share that agreement unfortunately.

CONGRESSMAN CLIFF STEARNS: OK. We will let it go. My time is up.

DAVID STERN: I’m with -- just to let the record show, I’m with Mr. Hunter on that. The testing process, we split the sample, the rights of the players are protected. The second sample has to come up and then if the player hasn’t already been excluded by the league, our medical director does that. So I don't want to have guilt by non-associations --

CONGRESSMAN CLIFF STEARNS: No, no, but I mean -- just the statistics are a little bit -- over six years to see 23 initial positive tests and only three satisfy a real positive test, I mean it just -- considering everything, it's just a little difficult to comprehend that out of six years, out of all of these players, these rookies, these veterans, that I guess the question is, what is a positive test with the NBA even after you test? I’ve already -- Mr. Hunter said, I’m a little concerned about your testing procedures. It is not random, it varies during the training period. But I say even withstanding that, I’m questioning even the reasonableness of your positive test, what it means. And I will give you another chance --

BILLY HUNTER: but, but why is it so difficult to assume that basketball players may not need to use steroids? That it is an anathema of what they do?

CONGRESSMAN CLIFF STEARNS: I think it is reasonable to assume that if you don't test, you won't find out. And I’ll leave it at that. The gentleman from Massachusetts.

REP. EDWARD J. MARKEY: Thank you, Mr. Chairman, very much. Just so I can get an idea of the parameters of this. Under the existing policy, how many players in the course of last season, how many veterans were tested, after the season began?

BILLY HUNTER: Everybody in the league was tested.

REP. EDWARD J. MARKEY: After the season began?

BILLY HUNTER: No, in training camp

REP. EDWARD J. MARKEY: No, after the season began.

BILLY HUNTER: No, once the season began, there were no veterans tested.

REP. EDWARD J. MARKEY: Right. So the point is -- What I think I have heard, you have a standard of gossip, rumor, innuendo, that could trigger a test

DAVID STERN: or fact --

REP. EDWARD J. MARKEY: or fact, in a course of a season.

DAVID STERN: Correct.

REP. EDWARD J. MARKEY: So how many veterans in the NBA were tested in the 2003-2004 season based upon the standard that rumor, innuendo, or fact had been presented which would justify that testing?

DAVID STERN: None.

REP. EDWARD J. MARKEY: None. Um --

DAVID STERN: That is why we proposed in our collective bargaining and Mr. Hunter has indicated, I think, sort of a broad, general area that will be fruitful, that the number of tests for veterans be increased and to include the season so that we don't have a situation where the non-testing becomes an issue. We want to be able to resolve all of Congressman Stern’s doubts about our players and our testing, whether or not we agree that just because the tests have been negative, that somehow proves -- or some assume guilt we are prepared to step up because of the importance of the subject to the kids and our fans and do the testing.

REP. EDWARD J. MARKEY: OK, now, Mr. Hunter, let me ask you, Mr. Stern just indicated that you have broadly agreed.

DAVID STERN: Broadly discussed. I don't want to negotiate here.

REP. EDWARD J. MARKEY: OK, I understand … that veterans should be tested during the season.

BILLY HUNTER: Yes.

REP. EDWARD J. MARKEY: By what standard should they be tested? And what should be the increase in the numbers of tests.

BILLY HUNTER: Well I think that's what Commissioner Stern is alluding to when he says he really doesn't want to get into the negotiations, because that's one of the issues that's on the table. As to how many times a player should or should not be tested. But let me just refer to the bill that you propose, because in your bill, you're proposing a minimum of one test per year. So, I think we already meet that standard, in that we test the veterans when they come to training camp in October. And we’re now prepared to move beyond that. That’s what things have evolved to.

REP. EDWARD J. MARKEY: Would you agree to at least one test randomly conducted during the course of the regular season?

BILLY HUNTER: Yes.

REP. EDWARD J. MARKEY: You would accept that?

BILLY HUNTER: Yes.

REP. EDWARD J. MARKEY:OK. So that’s the minimum. And so at least that has been negotiatiated.

BILLY HUNTER: But that’s all your legislation …But that's all your proposed bill called for.

REP. EDWARD J. MARKEY: It’s not my bill. Just so you know. There may be those that are casting an even higher arched eyebrow towards this area. And whether or not basketball players take steroids in any lesser quantity than other sports do. And that’s an unknown area until we actually have testing.

COMMISSIONER DAVID STERN: Yes. But even in the phrasing, that's a very unusual way to put it. and I would just like to say that that's … you know. I would like to say that we don't know whether basketball players take steroids until we have the testing, not take any less than other sports.

REP. EDWARD J. MARKEY: OK, We are interrogating incognito. Because we don't have that testing during the regular season of the playoffs, we’re not in a position to be able to answer it one way or the other. We will only be able to assess the comparative use to other sports after we have a regular season in playoffs and testing regime in place.

COMMISSIONER DAVID STERN: Correct.

REP. EDWARD J. MARKEY: Mr. Hunter seems to be saying that basketball players are less likely to take steroids.

BILLY HUNTER: I think so. I really do. That’s my opinion.

REP. EDWARD J. MARKEY: And what we are saying is that, at this point we really don't have the evidence on the regular season. Because again, if you think about it, if the C.B.A. player is under a rigorous testing regime, and you're pretty confident that the younger players are not in a drug -- taking drugs, and an old veteran during the course of the season sees this kid down here, who is playing well and you know he doesn't have drugs in him. He might just be tempted, to keep a relatively high salary, to take the drugs. OK, Now, I’m saying I don't know the answer. But no one else does either. But it's important for us to remove the uncertainty.

VOICE OFF-SCREEN: Mr. Commissioner?

BILLY HUNTER: Now let me reference the Olympic team, for example. Our players were randomly tested. They had no idea when they were going to be tested. And these players were selected, they were tested, and not one of them tested positive for performance-enhancing drugs. So that’s 15, that are selected for Olympics. Not one tested positively. I think that kinda dispels the whole theory that, you know, there's got to be a group of them out there that are using, and if you test them, you gonna find it.

REP. EDWARD J. MARKEY: Well the only way to dispel it, would be to have an Olympic-type testing regime for the NBA during the regular season and the playoffs. Then you could be confident. But until you do that … knowing, and as the All-Stars that went in to play for the Olympic team knew that was the precondition to them going into an Olympic environment. Where as right now, all the players know that the precondition to the regular season and the playoffs, is that there is no testing. So that creates a completely different psychological environment for the players in terms of their relationship with these controlled substances. And until we have some kind of standard, which we put in place, then the deterrent is not there during the regular season.

COMMISSIONER DAVID STERN: I would, Congressman Markey, I’d just like to say that, we want to have testing because we ask our youngsters to admire our players and we would like to demonstrate that's not the case. Not because our incumbents, so to speak, are concerned about the newcomers. Or not to prove or disprove some negative. That’s a separate issue. I don't think guilt by association with respect to athletics, is a fair shot at our players. I think that what our players will be prepared to do, whether or not they take – you know they’re saying, they don't take drugs but because of who we are and what we want to stand for, we will submit to random testing. And I tell you, that Mr. Hunter has said that, we’re someplace between, at least on the basis of this hearing, we’re some place between 1:00 and 4:00 and I thank you for your assistance here, which Mr. Hunter told you he didn't need.

BILLY HUNTER: But I … Just so the record is clear, Commissioner Stern and I have had those discussions, and I have agreed to a test. So …

COMMISSIONER DAVID STERN: But I, No …

BILLY HUNTER: … So there's -- no big surprise.

COMMISSIONER DAVID STERN: But I just -- how can we know? How can we know if someone doesn't do something unless we test them, that's applicable to a broad range of occupations. And I just want to say that on behalf of NBA players, that that’s not why we’re having testing. We’re having testing because, we want to stand as models to kids to say that you can do this without testing.

REP. EDWARD J. MARKEY: And I very much appreciate that. And that should be the highest goal which we have. But you can also imagine some younger kid who is being tested. He’s 21, 22 years old, and he is clean. And now he gets into the NBA and he's 23, 24, and he knows he's not going to be tested all season long. Now the pressure is there. For all of those younger people, and we’re talking about hundreds of younger people. Two, and again, we don't know the answer to this question, unless and until there is a rigorous testing regime put in place, where these young people's health may be put in jeopardy.

CONGRESSMAN EDWARD J. MARKEY: And I very much appreciate that, and that should be the highest goal which we have but you can also imagine some younger kid who is being tested, he’s 21, 22 years old and he is clean and now he gets into the NBA, and he’s 23, 24 and he knows he’s not going to be tested all season long. Now the pressure is there for all of those younger people, and we’re talking about hundreds of younger people, and again we don’t know the answer to this question unless and until there is a rigorous testing regime put into place, where these young people’s health may be put into jeopardy. And we do care about the general young population in the country having examples set for them which would be deleterious to their health, but we also care about these several hundred young people, who over a couple of year period are entering the NBA, clean, but now put under tremendous pressure in order to maintain a competitive edge against older veterans to have to do the same thing that those older veterans do. Now Mr. Hunter says they don’t do it.

BILLY HUNTER: I’m convinced they don’t do it.

CONGRESSMAN EDWARD J. MARKEY: And I’m saying you may be right, but there is no empirical basis for your argument. It’s a conclusion which you’ve reached based upon your life experience, but until we do test we’re not going to know the answer and I appreciate honestly, Mr. Hunter, you and Mr. Stern coming here today, because it is helping us to formulate a correct policy. And we’re still working on it in the committee as well – What would be the right set of policies across leagues to legislate and we are not finished with the process yet. But I congratulate you Mr. Chairman for holding these hearings. And I thank you Mr. Commissioner and Mr. Hunter for coming here.

COMMISSIONER DAVID STERN: And we, as I said earlier, we applaud the committee for being engaged in this. We think it’s a terrific idea. Thank you.

CHAIRMAN CLIFF STEARNS: Thanks gentlemen, Full Committee Chairman, Mr. Barton from Texas.

CONGRESSMAN JOE BARTON: Thank you Mr. Chairman, I too want to commend both of you gentlemen for testifying voluntarily and especially you Commissioner Stern, while the playoffs are going on and I know you’ve got a busy schedule, making arrangements to come this afternoon. I’m gonna let you know that Mr. Markey is an All-Star in our congressional basketball league…

CONGRESSMAN EDWARD J. MARKEY: Mr. Stern has seen me play basketball, so I think you should have the right to revise and …

COMMISSIONER DAVID STERN: He used to be.

CONGRESSMAN JOE BARTON: I don’t think the bonus to signing would be all that large and there are some days that I would rather see him on the court than in the committee room.

CONGRESSMAN EDWARD J. MARKEY: The older I get, the better I was. That’s the rule for most people in my category.

CONGRESSMAN JOE BARTON: I have two questions for you gentlemen. I don’t want to pound a dead horse, but both Mr. Sterns and Mr. Markey have talked about the fact that on your current testing procedure, your veteran players are not tested during the season, but I also understand that you all are willing to change that policy. Can we say that y’all, that the NBA and the Players Association is supportive of a year round testing program?

COMMISSIONER DAVID STERN: On behalf of the NBA, I say to you, you can say that.

CONGRESSMAN JOE BARTON: Okay, Mr. Hunter.

BILLY HUNTER: Well we’re in the process of negotiating and unfortunately I’m not prepared to negotiate a deal here. I’m negotiating with Commissioner Stern.

CONGRESSMAN JOE BARTON: Well, we passed a federal law saying you had to do it.

BILLY HUNTER: Well, we’re gonna, my position is…

CONGRESSMAN JOE BARTON: I understand the collective bargaining…

BILLY HUNTER: No, no, no, my position is the same as Commissioner Stern’s. If you pass a law, I can assure you we’re going to abide by it.

CONGRESSMAN JOE BARTON: Well, you can be assured that the law is going to require year round testing programs. So, it would be helpful for you, especially you Mr. Hunter, your political situation, I mean we all get elected, I understand that. Your constituency probably doesn’t wanna do that. You might tell them that Chairman Barton said they were gonna have to do it. SO if that helps your position with Mr. Sterns than you can make me the black hat guy on that one. But all the other professional sports have agreed to year round testing, that’s what they do. You know, some of the international agencies and I understand where you and your group are coming from, but that’s going to be a component of the bill.

BILLY HUNTER: No, no, I understand your position and I sort of concluded coming here that that was your position.

CONGRESSMAN JOE BARTON: My second question, and it’s a little bit similar to the first one. I think we have support on the committee that the testing agency be independent and it be the same for all sports. I was listening in my office, watching on television when each of you gave your oral testimony. I understand that your current testing agency, or retired law enforcement agencies, and that they do have integrity and I ‘m not doubting that, but do you have an official position on using the independent agency that would be universally used by all the professional sports?

COMMISSIONER DAVID STERN: On behalf of the NBA, I don’t have any objection to that, subject to our having access to check their reliability, because to me the rights of the individual players tested are important, and we make sure through chain of custody that a sample taken is a sample tested, but subject to our being able to assure the fairness of such a procedure, we have no problem with that.

CONGRESSMAN JOE BARTON: Mr. Hunter?

BILLY HUNTER: I’m in agreement.

CONGRESSMAN JOE BARTON: Okay, that’s all my questions Mr. Chairman, I appreciate it. I do want to commend y’all again, each of you, and say to you as a fan who went to the Mavericks/Suns game in Dallas on Sunday evening, you’ve got a great product, and we want to help keep it great through some of these testing regimes that maintain the integrity and the confidence of the fans .

COMMISSIONER DAVID STERN: I think that you and Chairman Sterns, both of whom still have teams remaining in the playoffs…

CONGRESSMAN JOE BARTON: Unlike Mr. Markey

COMMISSIONER DAVID STERN: …are rubbing it into Congressman Markey, but it’s quite okay.

CONGRESSMAN JOE BARTON: Well, but he has the New England Patriots football team, his world champions, and that baseball team up there is world champions of the World Series, so he’s not doing bad…

COMMISSIONER DAVID STERN: But he’s really a Celtic fan at heart, I know that.

CONGRESSMAN JOE BARTON: I wouldn’t mind the Mavericks/Suns game being a little bit earlier in the evening, if you can do something about that.

COMMISSIONER DAVID STERN: You too.

CONGRESSMAN JOE BARTON: Thank you Mr. Chairman.

COMMISSIONER DAVID STERN: Thank you Mr. Chairman.

CHAIRMAN CLIFF STEARNS: Thank you and again thank you all for being here…

SUB COMMITTEE MEMBER: Mr. Chairman I’m sorry I beg your pardon, the ranking members is here, Jan Schakowsky.

CONGRESSWOMAN JAN SCHAKOWSKY: Actually I don’t have questions. I do want to just say that in Chicago we’re prouder of the Bulls than we have been for a long time and I want to thank both of you for coming I appreciate your input. I wasn’t here but I have read your testimony and will work with Mr. Stearns to consider your input as we move forward, so thank you very much.

COMMISSIONER DAVID STERN: Thank you Congresswoman.

SUB COMMITTEE MEMBER: And Mr. Terry.

REP. LEE TERRY: Just requiring in the record. Picking up on your comments and the answers to the questions, is it a fair statement to say under the current policies of the NBA, your policy is less restrictive than what is proposed in the Chairman's Bill, HR-1862?

BILLY HUNTER: Yes.

REP. LEE TERRY: You think so, Mr. Hunter? How about you, Commissioner?

COMMISSIONER DAVID STERN: It is actually, in some ways less restrictive and some ways more restrictive. Because we test rookies four times, potentially four times a year randomly. So it's actually more restrictive for them. It is less restrictive for veterans who we test randomly only in training camp.

REP. LEE TERRY: It appears from Mr. Hunter's answers that you're moving into an area where it is substantially similar to what the Chairman has drafted … at least your negotiations. I’m just curious as to where you are in the negotiations? What’s you're timetable? And do you feel that at the completion of the negotiations, that it will be substantially similar to what the Chairman has proposed or maybe even more restrictive?

BILLY HUNTER: I’m gonna let … I’m gonna defer to Commissioner Stern on that one, please.

COMMISSIONER DAVID STERN: I would say that any new collective bargaining agreement that we have, as to the testing regime, it will be more restrictive as to penalties, it depends upon the outcome of where you place the penalty for the first negative test.

REP. LEE TERRY: Appreciate that.

COMMISSIONER DAVID STERN: Oh positive test. I’m sorry, first positive test … the first positive test. And that’s why we commented upon that part of the ...

REP. LEE TERRY: Commissioner Stern, it's just piques my curiosity. I wanted to ask this to the prior panel and didn't have the time. As a Commissioner, would it be advantageous to the Players Association or to the League in itself, to remove the drug testing issue from collective bargaining, i.e., we have a law, therefore it's not an item to be on the table? It’s just seems odd to me that you negotiate back and forth on a drug policy and maybe, you know, give up. You know, as just a general sports fan. We will agree with one more test if you lift the cap or salary caps “x” amount or we allow rookies to be paid more. Whatever it would be. It just seems odd that that's something to be negotiated, as opposed to taken off the table by a national law.

COMMISSIONER DAVID STERN: If it were … If that were the dynamic, I would agree with you. But suffice it to say, in my experience -- which encompasses our initial agreement in 1983 and each subsequent collective bargaining agreement -- on the subject of drugs, the players and the owners were very much on the same side of the table. You could disagree about the scope of the program, based upon issues of privacy rights and like, but it was never a question of, if you raise our per diem, we will give you more drug tests. It was always what's fair. In 1983, our union said, we’ve got issues with drugs of abuse. And if we catch somebody using them, they should be permanently barred from our league. We should, you know … but if they come forward, we should treat them, and actually pay them their salaries. And we had the first, in effect employer assistance program, really at a time when professional sports were viewed as, being at the hub of it. It turned out in subsequent years, that drugs abuse became the center of our foreign policy, our professions and a lot of other places. So I think our players, and their union, have been exemplary particularly in dealing with this subject just on its merits. And I respect the differences that they might have about the number of intrusions or about on the subject of year-around testing because we have a very long season -- perhaps as long as October 1 through June some odd -- that players who want to go away on vacation might not have a knock on the door in the alps.

REP. LEE TERRY: Well I think the NBA’s been good about it.

COMMISSIONER DAVID STERN: I think there's an issue …

REP. LEE TERRY: And Mr. Hunter, I’ll back you up, a little bit. I’m not a huge NBA fan, but I do pay attention to what goes on in the sport, as in football and Major League Baseball. Unlike Major League Baseball, where it was obvious to even the casual fans what was going on. And it was completely ignored by the owners and the league, you don't see that in the NBA. So I will say, at least for the innuendo and the casual sports fan, you don't see basketball players all of a sudden bulking up from one season to the next, at an incredible rate. So that was Major League's obvious dirty little secret. I don't see that in the NBA. So you guys must be doing a decent job. But the chairman does raise a good point, and Mr. Markey, that empirically, you need to have that type of testing. We rely on the numbers, not innuendos. I appreciate it. One last parting shot though, as a casual fan, drafting high school students is an issue and a problem. I will yield back.

CHAIRMAN CLIFF STEARNS: I thank you, gentlemen. We’re getting ready to close. I’m just going to take the liberty as Chairman, just to ask one more question and ask Mr. Hunter to clarify something you and I talked about. The question for Commissioner Stern is, the Women's National Basketball Association, should what we have in the men's be also applicable to the women's?

COMMISSIONER DAVID STERN: I think it should be applicable -- I wouldn’t want to discriminate against the women. I think it should be applicable for all professional sports.

CHAIRMAN CLIFF STEARNS: So the same thing that's adopted in the NBA, it should be adopted in the women's NBA?

COMMISSIONER DAVID STERN: Correct, and we currently do have random testing in the WBNA.

CHAIRMAN CLIFF STEARNS: And is, for the women’s the same for the men, where it’s just in the … tested during the in training camp only? And you do veterans different than the newcomers or rookies?

COMMISSIONER DAVID STERN: I believe that there's one more test, random test, during the season for the WBNA.

CHAIRMAN CLIFF STEARNS: So you’re saying it’s …

COMMISSIONER DAVID STERN: I think it complies with this a -- because it had a different cycle of collective bargaining. Its collective bargaining agreement was entered into between the last one that we’re operating under and the one we are hopeful to be operating under.

BILLY HUNTER: Let me give you my best understanding. When we referred to the 23, we were saying at least 20 of the tests were individuals who were terminated. These were guys who, when they were in training camp, they tested positive but they did not make the team. So they were gone. They were out of the league.

CLIFF STEARNS, CHAIRMAN: Ok.

BILLY HUNTER: Three actually made the team. Or these are players who became vets. And relative to those three, you actually do what's called an A and a B sample. The first time the test comes back positive, when you do is test it again to ensure that you got the -- the lab got the correct results. It was affirmed in each of those three cases and I believe in at least two of them, the players were taking prescription medicine they received from a physician.

CLIFF STEARNS, CHAIRMAN: All three were excused because they were taking prescriptions?

BILLY HUNTER: No, they were suspended.

CLIFF STEARNS, CHAIRMAN: They were suspended?

BILLY HUNTER: That’s correct.

CLIFF STEARNS, CHAIRMAN: And they were taking prescription medicine?

BILLY HUNTER: Yes.

COMMISSIONER DAVID STERN: Seven of the tests were positive for Sudafed.

CLIFF STEARNS, CHAIRMAN: Have you ever got a test positive for steroids?

COMMISSIONER DAVID STERN: Yes, there were three.

CLIFF STEARNS, CHAIRMAN: Those three. But he was saying they were prescription drugs.

COMMISSIONER DAVID STERN: But they were suspended.

CLIFF STEARNS, CHAIRMAN: So the question is -- those three were not for steroids, they were for prescription drugs?

BILLY HUNTER: I think within the -- whatever it was they were taking; there was Ephedra or something that showed up.

CLIFF STEARNS, CHAIRMAN: But they were not steroids?

BILLY HUNTER: No, they were not steroids.

CLIFF STEARNS, CHAIRMAN: So what you're telling me is from 1999 to 2005, out of all of your tests, you never got steroids?

COMMISSIONER DAVID STERN: That’s incorrect. There were three steroid positive tests as we both testified to. They were clearly steroids. What -- and so I –

CLIFF STEARNS, CHAIRMAN: Not prescription drugs?

COMMISSIONER DAVID STERN: Not prescription drugs.

CLIFF STEARNS, CHAIRMAN: Steroids.

COMMISSIONER DAVID STERN: Steroids. And seven of the initial tests were Sudafed, they were medically excused. And in the others, the players were dismissed or left the NBA voluntarily, so there was no need -- they never played again, so there's no need to further deal with the subject.

CLIFF STEARNS, CHAIRMAN: So that answers the question, what were the reasonable medical explanations that were excused by the medical doctors?

COMMISSIONER DAVID STERN: Sudafed.

CLIFF STEARNS, CHAIRMAN: Sudafed. Ok. Let me ask the last question, you touched about in your opening statement about the unusual strict liability standard that is applicable to drug testing policies. A player can commit a violation unknowing by, for example, ingesting a tainted nutritional supplement that is legally sold over the counter. And that's pretty strict then because they have strict liability, all of the players.

COMMISSIONER DAVID STERN: Yes, they do.

CLIFF STEARNS, CHAIRMAN: Even if it's tainted they still are disciplined?

COMMISSIONER DAVID STERN: They are disciplined. If it turns up, they are disciplined. That’s the way it is in hr-1862, which does not incorporate even the exceptions under the WADA legislation for possible amelioration based on external circumstances like that. I would urge the Congress to consider stronger legislation with respect to nutritional supplements, which would help us with that problem.

CLIFF STEARNS, CHAIRMAN: I have completed my questions. I would like to thank you for your time. We got through it a lot quicker than I thought. I would now announce to the rest of the members we are going to have a hearing that will reconvene tomorrow at 10:00 a.m. with our third panel. With that, I thank the witnesses.

ESPN ANCHOR: So with that, the conclusion of day one of a two day hearing on steroids and sports by the House Energy and Commerce Subcommittee on commerce trade and consumer protections. So today we heard from the commissioners and labor chiefs from the NBA, Major League Baseball, MLS, and NHL. Also Frank Shorter, the Olympic marathoner and former chairman of the US Anti-Doping Agency. Tomorrow it is the NFL, Paul Tagliabue and NFLPA Executive Director Gene Upshaw back in front of a Congressional Committee, as they will discuss steroids and drug testing in the National Football League. That continues tomorrow, 10:00 a.m. eastern.