Commentary

Attorney general nominee's NFL past could interest Senate

Originally Published: December 24, 2008
By Lester Munson | ESPN.com

When the NFL grew tired of embarrassing disclosures and congressional hearings about performance-enhancing drugs and wanted to establish a voice in the federal government's investigations, league officials turned to Eric Holder, the man who is now President-elect Barack Obama's nominee for attorney general.

Holder quickly gathered senior executives from the other three leagues and their player unions and led them into a series of meetings in 2007 with top officials of, among others, the Drug Enforcement Administration (DEA), the FBI, the U.S. Anti-Doping Agency (USADA), and the Office of National Drug Control Policy (ONDCP), the agency that presides over the nation's "war on drugs." The sessions began with a measure of fanfare.

Eric Holder and Barack Obama
AP Photo/Charles DharapakEric Holder has the confidence of President-elect Barack Obama, but he didn't wow law enforcement with his stance on NFL drug testing.
Holder was a natural choice to lead the effort. He served as deputy attorney general in the Clinton administration and then became a partner in Covington & Burling, a powerful Washington law firm that has long represented the NFL. For seven years, Holder helped the NFL through a number of difficulties, including an investigation of the dog-fighting charges against Michael Vick, the implementation of the Rooney Rule that requires owners to interview minority candidates for head coach vacancies, and the league's personal conduct crackdown.

At the outset, hopes were high. After the first meeting in March of 2007, Scott Burns, the deputy director of the ONDCP and a participant in the sessions, said, "This is the first step in changing the way we look at the problem in the U.S. I hear more about human growth hormone and steroids and athletes than I do about crack cocaine. This is important to America."

Darryl Seibel, an official of the U.S. Olympic Committee, which also participated in the meetings, was equally hopeful.

"You have, for the first time, a collaboration on an entirely new level on a national issue that requires a response such as this," he said.

But the efforts at cooperation ended badly when, led by Holder, the leagues and the unions refused to consider serious reforms in the way in which users of steroids were investigated and prosecuted and insisted on maintaining their own drug enforcement procedures under their respective collective bargaining agreements. The collaboration between law enforcement and sports organizations quietly fell apart.

"There was no substance to it," said one law enforcement official who participated in the meetings. "It was all for show."

The optimistic atmosphere of the sessions apparently deteriorated quickly. According to two participants in the meetings, Holder's group of league officials and union leaders was focused on eliminating public controversy and media scrutiny and wanted to conduct their own drug testing quietly and confidentially.

[+] EnlargeEric Holder
Alex Wong/Getty ImagesAt next month's confirmation hearings, the Senate Judiciary Committee might have questions about Holder's work for the NFL.
"Holder and the professional leagues wanted us to share information with them," a top official of a law enforcement agency who participated in Holder's meetings told ESPN.com. "They wanted to know what players were involved. They wanted an end to leaks from our investigations. But when we asked for their information about players who used or where players bought their drugs, they didn't want to give us anything."

The official asked for anonymity because of the sensitivity of the issues.

Now, Holder's role in the meetings and their outcome could become an issue in his confirmation hearing, which is scheduled to begin before the Senate Judiciary Committee on Jan. 15. Congressional interest in steroids issues has been intense in recent years, including the infamous hearing featuring Mark McGwire, Rafael Palmeiro and Sammy Sosa in March 2005, and last February's contentious session starring Roger Clemens and Brian McNamee.

If the Senate confirms Holder as the nation's chief law enforcement officer, he will be responsible for federal prosecutions throughout the U.S. and will quickly face decisions concerning the government's investigation of possible perjury by Clemens during his appearance on Capitol Hill and the disposition of pending perjury charges against Barry Bonds.

It is possible committee members will ask Holder about his stand on enforcing drug laws against players in light of his past representation of a professional league and its athletes. Holder is still being paid for his NFL work, with $2.5 million in deferred compensation and separation payments coming to him in 2009, according to a financial disclosure statement he filed with the Judiciary Committee in mid-December.

Neither Holder nor the Obama transition team responded to numerous calls and e-mails from ESPN.com.

The 2007 meetings, which began in Holder's law firm office and continued at the DEA and the ONDCP, included discussions about possible major changes in the way performance-enhancing drugs are investigated and prosecuted.

The ONDCP's Burns said recently the "solution to the problem is to do what the Olympics do with USADA and the World Anti-Doping Agency (WADA). If I were the sports minister of the U.S. with the powers that sports ministers have in many countries, that's what we would do."

USADA operates as an independent agency and is responsible for all investigations of performance-enhancing drugs in Olympic sports. A USADA-like agency for professional sports would take investigation and punishment away from the leagues, the unions and their collective bargaining agreements. It would eliminate the roles of commissioners and unions in most performance-enhancing drug issues.

[+] EnlargeEric Holder
AP Photo/Susan WalshHolder's meetings about drug testing in sports were 'all for show,' according to one law enforcement official.
U.S. Rep Bobby Rush (D., Ill.) suggested the need for such an independent agency for professional sports after he listened to the four league commissioners and the chiefs of the four player unions at a hearing of his subcommittee earlier this year.

But, Burns said, "The leagues and the unions have absolutely no interest in that kind of reform. Until they are interested in change, there was nowhere to go in the [2007] meetings."

Burns and other participants in those meetings said the leagues and unions refused to consider exchanging drug use information with the federal law enforcement agencies.

"We would have been happy to work with them if they had been willing to tell us what they knew about player use and about people who sell these drugs," a representative of a law enforcement agency told ESPN.com. "But they said they were obligated to protect the privacy of the players. We did not understand how privacy was a factor when professional athletes are charged with cheating, but they insisted on player privacy."

The law enforcement representatives in the meetings were willing to consider another major change in their approach to investigation and prosecution, but met with resistance from Holder's group of league executives and union leaders on that initiative, as well.

"In most drug cases, we rely on the drug user to lead us to the seller," said one leader of an investigative agency. "In the steroid cases, we have been using the sellers to get to the big-name athletes. We were willing to discuss a change, but the leagues were interested only in obtaining information on our work. We never reached the point where we could have made a change."

Without agreement on any major issue, the meetings came to an end. The rationale for ending the meetings, according to several participants, was the Federal Advisory Committee Act, enacted into law under President Richard Nixon. The law imposes rigorous requirements on any group that advises any federal agency, including a mandate that the president establish the committee and that the committee write a detailed charter that would be made public.

With no apparent possibility of agreement on basic issues, there was no interest in attempting to go through the complex series of steps necessary for Holder's group to become a legal advisory committee.

"We said that the law made the meetings difficult, but it was disagreement on the issues that ended the meetings," said one participant.

Now that Holder has left Covington & Burling, the failed meetings raise another issue. As an attorney for the NFL and the leader of these sessions, Holder's duty on performance-enhancing drug issues was to work privately to protect the leagues, the unions and their interests. As attorney general of the U.S., his duty will be to work publicly to prosecute the players he once protected.

The role reversal could be interesting.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.