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Prepared Witness Testimony The House Committee on Energy and Commerce
Issues Relating to Ephedra-containing Dietary Supplements.
Subcommittee on Oversight and Investigations
Mr. Robert D. Manfred Jr.
My name is Robert D. Manfred, Jr. and I am Executive Vice President of Labor Relations and Human Resources for the Office of the Commissioner of Baseball. In my role with the Office of the Commissioner, I am responsible for the day-to-day enforcement of Major League Baseball's Joint Drug Prevention and Treatment Program ("the Major League Drug Program") and Major League Baseball's Minor League Drug Prevention and Treatment Program ("the Minor League Drug Program") which are attached hereto as Exhibits 1 and 2, respectively. The Major League Drug Program is the product of collective bargaining between the thirty Major League Clubs and the Major League Baseball Players Association ("MLBPA"). The Minor League Drug Program was unilaterally adopted by Allan H. Selig, the Commissioner of Baseball, before the 2001 playing season and has been periodically amended since that time. Several years ago, Commissioner Selig directed those of us on his staff to develop a policy designed to eliminate the use of often-dangerous, performance-enhancing substances in professional baseball. The Commissioner's desire to eliminate the use of such substances was based not only on his concern for the integrity of the game, but also on his concern for the health and well being of all professional baseball players, both Major League and Minor League, and young people who see professional athletes as role models. The Commissioner's directive was aimed at the anabolic androgenic steroids covered by Schedule III of the Code of Federal Regulations' Schedule of Controlled Substances ("Schedule III") as well as certain substances sold over-the-counter as nutritional supplements. In response to the Commissioner's directive, Major League Baseball developed a three-pronged strategy for dealing with the problem of performance-enhancing substances. The first prong of the strategy was to support increased federal regulation of over-the-counter nutritional supplements. On June 18, 2002, I had the privilege of testifying before the Senate Commerce Subcommittee on Consumer Affairs, Foreign Commerce and Tourism in support of the proposition that over-the-counter nutritional supplements should be more heavily regulated. A copy of my testimony is attached hereto as Exhibit 3. In addition, Commissioner Selig and I recently co-authored a law review article that will be published this fall by the Stanford Law and Policy Review advocating the need for legislative reform in the area of nutritional supplements. A copy of that law review article is attached hereto as Exhibit 4. Major League Baseball has consistently advocated additional regulation of nutritional supplements on the theory that certain supplements, including the subject of today's hearing, ephedrine, pose a health risk to professional athletes and on the theory that other supplements (including androstenedione, norandrostenedione, androstenediol and norandrostenediol) have the same anabolic androgenic effects as the substances included on Schedule III. The second prong of this strategy called for the education of professional baseball players. The Office of the Commissioner along with the 30 Major League Clubs and the MLBPA have conducted a number of important educational programs. Together with the MLBPA, the Office of the Commissioner funded the leading study by Harvard University on the effects of androstenedione. In addition, several years ago, the medical advisors to the Office of the Commissioner and the MLBPA jointly authored an education pamphlet on steroids and nutritional supplements, which is attached hereto as part of Exhibit 3. That pamphlet contained the following warning with respect to the use of ephedrine:
Steroids and Nutritional Supplements, p. 12. The third prong of the strategy involved the adoption of policies applicable to those who play professional baseball. As you are probably aware, the players in Minor League Baseball are not unionized. As a result, the Commissioner was free to unilaterally adopt a drug policy applicable to Minor League players. As originally adopted, the policy banned drugs of abuse (i.e., illegal drugs), anabolic androgenic steroids and the nutritional supplement, androstenedione. Based on subsequent developments, including the tragic death of Baltimore Orioles' pitcher Steve Bechler, the policy was amended to ban the nutritional supplements norandrostenedione, androstenediol, norandrostenediol and ephedrine. Commissioner Selig has devoted extensive financial resources to the enforcement of the Minor League Drug Program. Each year, the Office of the Commissioner conducts over 5,000 tests of Minor League players in A, AA, and AAA leagues. The testing is across the board, unannounced and all players are subject to at least two tests per year. Players who test positive initially receive education and counseling. These players are then subject to serious disciplinary action for subsequent violations. The testing regime covers drugs of abuse, anabolic androgenic steroids, as well as the banned nutritional supplements, including products that contain ephedrine. The Major League Drug Program is, of course, the product of collective bargaining with the MLBPA. The program bans drugs of abuse and all anabolic androgenic steroids covered by Schedule III. The policy also includes a significant testing component. Unlike the Minor League Drug Program, however, the Major League Program does not ban any over-the-counter supplements. In other words, under the Major League Drug Program players are allowed to use substances such as androstenedione and ephedrine. During the negotiations with the MLBPA for a new agreement last summer, the Clubs did propose a ban on one over-the-counter supplement, androstenedione. The MLBPA's reaction to that proposal was firm and forceful: the union would not agree to any ban on a substance that was available over-the-counter. The MLBPA said it would not prohibit the use of a substance that could be purchased, even by minors, at any nutrition store. While there was no specific discussion of ephedrine during the negotiations last summer, there was no mistake as to the MLBPA's position on over-the-counter supplements. From Commissioner Selig's perspective, the untimely death of Baltimore Orioles' pitcher Steve Bechler changed the world. In addition to amending the Minor League Drug Program in the manner described above, Commissioner Selig directed me to begin conversations on the topic of ephedrine with the MLBPA. In such discussions, I have made a number of suggestions as to how a ban on ephedrine could be integrated into the Major League Drug Program. To date, the MLBPA has not made a formal, substantive response to those suggestions. I have spent my entire professional career in the field of labor relations and, in my view, the system of collective bargaining created and fostered by the National Labor Relations Act is well-suited to address many problems. Unfortunately, the appropriate regulation of dangerous substances such as ephedrine is not one of those problems. My experience suggests that it is extremely difficult to convince a group of employees to agree to ban a substance that the Federal Government has, in essence, chosen not to regulate. As a result, Major League Baseball's official position is that ephedrine should be regulated by the Federal Government in the same manner as a controlled substance in order to protect the health and safety of our employees, as well as the public generally. Ephedrine, however, is only the tip of the iceberg. In the wake of Steve Bechler's death, manufacturers of nutritional supplements have responded with new "ephedrine free" products. It remains to be seen what those products contain and whether they will turn out to be hazardous as well. Even more important, the youth of America has essentially unbridled access to substances which have the same purpose and effect as the anabolic androgenic steroids that are included on Schedule III. The substances include androstenedione, androstenediol, norandrostenedione, and norandrostenediol, collectively referred to as "precursors". Because of the problems associated with nutritional supplements generally, I, on behalf of Major League Baseball, urge you to undertake a broader reexamination of the insufficient regulatory framework created by the Dietary Supplement Health and Education Act.
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