Drug Testing in Sports: Proposed Legislation
CRS Report for Congress
Drug Testing In Sports:
Proposed Legislation
July 8, 2005
Nathan Brooks
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
Drug Testing In Sports: Proposed Legislation
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 six bills before Congress that would
create mandatory minimum drug testing procedures for pro sports leagues: S. 1114;
S. 1334; H.R. 2565; H.R. 1862; H.R. 2516; and H.R. 3084. This report provides a
summary of these six bills.
Contents
In troduction ..............................................1
H.R. 2565................................................1
S. 1114..................................................3
H.R. 1862................................................3
H.R. 3084................................................4
H.R. 2516................................................5
S. 1334..................................................6
List of Tables
A Side-by-Side Comparison of the Major Provisions of H.R. 2565, S. 1114,
H.R. 1862, H.R. 3084, H.R. 2516, and S. 1334......................8
Drug Testing In Sports: Proposed
Legislation
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 six bills before Congress: S.
1862 (Representative Stearns); H.R. 2516 (Representative Sweeney); and H.R. 3084
(Stearns). The McCain and Davis bills are virtually identical, and all six bills would
establish minimum drug testing standards for some professional sports leagues. This
report provides a summary of the six 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 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).5 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-
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.
4 H.R. 2565, § 102.
5 USADA is non-governmental and independent of Olympic athletes and the United States
Olympic Committee.
season without advance notice.6 Each test would have to cover all substances
prohibited in USADA’s anti-doping code,7 and each sample would have to be
analyzed at a USADA-approved lab.8
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.”9 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.10 The leagues would be required to
disclose positive tests and resulting penalties to the public.11
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.12
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.13
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.14
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.15
6 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.
7 Leagues would be allowed to make exceptions for properly prescribed substances. Id.
8 H.R. 2565, § 201(a) (creating new § 724(b)(5) of P.L. 105-277).
9 H.R. 2565, § 201(a) (creating new § 724(b)(6)(B) of P.L. 105-277).
10 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.
11 H.R. 2565, § 201(a) (creating new § 724(b)(9) of P.L. 105-277).
12 H.R. 2565, § 201(a) (creating new § 724(b)(8) of P.L. 105-277).
13 H.R. 2565, § 201(a) (creating new § 724(b)(2), (3) of P.L. 105-277).
14 H.R. 2565, § 201(a) (creating new § 725 of P.L. 105-277).
15 Id. The Director could delegate the Director’s duties under § 725 to another federal
agency.
Under the Federal Trade Commission (FTC) Act,16 the FTC has the authority
to issue regulations proscribing certain activities as “unfair or deceptive acts or
practices” affecting commerce.17 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.18 The FTC would be
empowered to levy fines of up to $1 million for failure to implement the required
testing procedures.19
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.20 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.21
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. H.R. 1862 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.”22
H.R. 1862 would require the Secretary of Commerce to promulgate regulations
governing testing for prohibited substances by covered leagues.23 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
16 15 U.S.C. § 41 et seq.
17 Id. at § 57a.
18 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.
19 Id.
20 H.R. 2565, § 201(a) (creating new § 727 of P.L. 105-277).
21 H.R. 2565, § 201(a) (creating new §§ 729, 730 of P.L. 105-277).
22 H.R. 1862, § 2(2).
23 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 §
Agency (WADA) and other substances determined by the Commerce Secretary to be
performance-enhancing “for which testing is reasonable and practicable.”24
H.R. 1862 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.25 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.26
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.27
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.28
H.R. 3084. On June 28, Representative Stearns introduced another bill,
modeled after H.R. 1862, but also containing significant differences. Like H.R.
1862, H.R. 3084 would include not only the NFL, NBA, MLB, and NHL, but also
MLS, the Arena Football League, “and any other league or association that organizes29
professional athletic competitions as the Secretary [of Commerce] may determine.”
H.R. 1862 would require the Secretary of Commerce to promulgate regulations
governing testing for prohibited substances by covered leagues.30 Under the bill, the
regulations would have to require that every athlete be independently tested at least
five times a year – without notice – for substances prohibited by the World Anti-
Doping Agency (WADA) and other substances determined by the Commerce
Secretary to be performance-enhancing or intended to hide performance-enhancing
24 Id. at §§ 3(1), (2).
25 Id. at § 3(4).
26 Id. at § 3(5).
27 Id. at § 5.
28 Id. at § 6.
29 H.R. 3084, § 2(2).
30 Id. at § 3(a).
substances and “for which testing is reasonable and practicable.”31 The Secretary
could grant exemptions for legitimate therapeutic and medical uses.32
The bill would require a half-season suspension without pay for the first positive
test, a full season ban from the individual league for the second positive test, and a
lifetime ban for the third positive test.33 Significantly, under H.R. 3084, the Secretary
would be required to establish criteria - in consultation with WADA – for reducing
penalties in “exceptional circumstances” in which athletes can demonstrate that they
bore no significant fault or negligence.34
An athlete testing positive would have the right to appeal the result so long as
he or she files such an appeal within five business days of learning the result. The
league would then have 45 days in which to issue a decision. The arbiter of the
appeals process would be a person mutually agreed upon by the league, the athlete,
and the Secretary. The aforementioned penalties would be stayed pending the
appeals process.35
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.36
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.37
H.R. 2516. H.R. 2516 would make it illegal to organize or participate in a38
NBA, NFL, NHL, or MLB game without meeting the bill’s testing requirements.
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
31 Id. at §§ 3(a)(1), (2). The Secretary would also have the discretion to add more substances
to the list. Id.
32 Id. at § 3(a)(3).
33 Id. at § 3(a)(5)(A).
34 Id. at § 3(a)(5)(C).
35 Id. at § 3(a)(6).
36 Id. at § 4.
37 Id. at § 5.
38 H.R. 2516, § 4(a).
authority to extend the bill’s coverage to other pro sports leagues and the NCAA.39
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 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.40
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.41
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.42
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.43
S. 1334. The Bunning bill would cover the NFL, NBA, NHL, MLS, MLB,
Arena Football League, Women’s National Basketball Association (WNBA), and
Minor League Baseball. Each of these leagues would be required to adopt drug
testing procedures. At a minimum, the substances banned in-season and out-of-
season would have to correspond to those banned by USADA in-competition and
out-of-competition, respectively. In addition, the FTC could add other performance-
enhancing substances “for which testing is reasonable and practicable.”44
Athletes would have to be independently tested at random at least three times
per year, and specimens would be analyzed by a U.S. lab “that meets the
requirements for approval” by USADA.45 The presence of any banned substance (or
its metabolite or marker), evidence of a prohibited method, or assistance in
administering a banned substance or covering it up, would constitute a violation of46
the testing policy.
39 Id. at § 5.
40 Id. at § 4(b).
41 Id.
42 Id.
43 Id. at § 6.
44 S. 1334, § 5.
45 Id. at § 5(d)(2).
46 Id. at § 5(c)
S. 1334 would require a two-year suspension without pay for the first violation
of the bill’s provisions and a lifetime ban from any covered league for any future
violations. Any positive test would have to be disclosed to the public, and each
covered league would be required to develop an appeals process. A suspension
would not be stayed pending appeal.47
The Bunning bill would empower the FTC to enforce the bill as if a violation
of its provisions were a “violation of section 18 of the Federal Trade Commission
Act regarding unfair or deceptive acts or practices.” In addition, the FTC could
impose penalties on covered leagues of up to $1 million for each day of non-
compliance.48
47 Id. at § 5(e).
48 Id. at § 6.
CRS-8
A Side-by-Side Comparison of the Major Provisions of H.R. 2565, S. 1114, H.R. 1862,
H.R. 3084, H.R. 2516, and S. 1334
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