This morning on ESPN’s show “Cold Pizza”, Representative Cliff Stearns (R-FL) was interviewed about a upcoming hearing with four commissioners from the NFL, NBA, NHL, Major League Baseball, and Major League Soccer. They are to come and voice their opinion on Stearns’ newly drafted legislation, H.R. 1862, the Drug Free Sports Act.

On the show, the Representative remarked that David Stern was especially interested in legislation because the drug screening issue was one on which the NBA and its players union, the NBA Players Association, clashed consistently. This is a classic economic scenario where you have one organization, the NBAPA, that supplies all the players. They have a monopoly. Yet instead of breaking this monopoly, we have to write more rules.

In the old days, Republicans avoided big government solutions, but I suppose the New Tone is in play so the Democrats-lite can regulate. Keep in mind that this is happening because players were using illegal (by law, not by league rule) substances for performance enhancement. It seems we are forced to conclude that whenever legislation is not enforced, we are to write more legislation.

Looking at the bill, which is available at Thomas if you search for “Drug Free Sports Act”, there is some fun stuff. The scope of the bill, according to Section 2, is:

Major League Baseball, the National Basketball Association, the National Football League, the National Hockey League, Major League Soccer, the Arena Football League, and any other league or association that organizes professional athletic competitions as the Secretary (of Commerce) may determine.

Take money for an athletic competition, and you’re in the cross hairs, it seems.

Section 3 requires:

  1. Random testing performed at least once a year.
  2. Test for substances prohibited by the World Anti-Doping Agency or determined by the Secretary of Commerce to be performance enhancing substances.
  3. Testing shall be done by agencies external to the leagues.
  4. Test positive once, suspended from the sports association for 2 years. Test positive twice, permanent suspension. All suspensions result in loss of pay and name disclosure to the public.
  5. Players can appeal within 5 days of a positive test.

Two years suspension, while it’s the same to you or me, can be quite different among athletes. Maurice Clarett was out of the game for two years and got lucky to be drafted by the Broncos in the third round. For an older football player, 2 years is a prescription for retirement. What if a golfer gets a two-year suspension? Golf is a single-person sport, and it wouldn’t be as difficult to keep one’s skills up. Youth doesn’t matter nearly so much in golf, as people like Tiger Woods and Se Ri Pak (LPGA) achieving championships early are seriously out of the norm. Vijay Singh is 42 (22-Feb-1963), got elected into Golf’s Hall of Fame, and still active as a Top 3 world contender.

Section 4 establishes that if a league has stronger rules, this legislation does not supersede those rules.

A year after rule finalization, Section 5 fines an organization 5 (say it with Dr. Evil) MILLION dollars, and the Secretary of Commerce may increase the fine an additional million each day out of compliance. Millions of dollars for not establishing rules. Is that money going to come out of the NBAPA?

Section 6 demands a report of the effectiveness of this legislation to the appropriate committees in the House and the Senate. It also commissions a study to look at drug screening procedures in college and high school athletic associations.

I’m scratching my head as to the constitutionality of this legislation. In Article I, Section 8, Clause 3, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”, we’re not talking about the Cleveland Indians, the Kansas City Chiefs, the Washington Redskins, or the Chicago Blackhawks.

This seems to me just the culmination of market ignorance on the part of government and labor unions, from baseball’s exemption to the Sherman Anti-Trust Act in the 20s (who said judicial activism is a new thing?), to the player unions who have bottled up player supply and don’t even negotiate for the betterment of the industry, and finally to Rep. Stearns, Bass (R-NH), Upton (R-MI), Blackburn (R-TN), and Gene Green (D-TX), for this proposal to expand government power further. I suppose we should be thankful that the U.S. government didn’t offer to do the testing itself. If government wants to get further into sports, let’s see a legislator or two get in the batter’s box against Roger Clemens.