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Monday, May 18, 2009
On Jeremy Mayfield: You’ve Got a Fast Car, and an Unusual Drug Policy.

Let me start this post about Jeremy Mayfield’s indefinite suspension for violating NASCAR’s new drug policy with two admissions. First, for many years, my favorite stock car driver was Cole Trickle. Second, I have found myself shouting “shake and bake”(in my head) after making a good point in class. Over the past few years, however, I have gained a new appreciation for NASCAR and real stock car drivers, and Trickle has slipped out of my top spot (I’m not ready to give up on shake and bake yet).

Now, on to the Mayfield situation. Most of you have probably read the stories by now, but here’s a quick recap of some of the key facts. For nearly twenty years, NASCAR only tested drivers if there were a “reasonable suspicion” that the driver was using drugs. In 2007, a push was made—both by NASCAR drivers and NASCAR management—for a stricter drug policy after Aaron Fike admitted that he had used heroin on days when he was competing in a NASCAR Truck series race. Fike was not suspended by NASCAR until after he was arrested for possession of heroin in July 2007.
NASCAR’s new, stricter drug policy was revealed on September 20, 2008. The reason for implementing a stricter policy was clear—a driver under the influence of drugs racing at speeds well over 100 miles per hour presents a danger (Grave danger? Is there another kind?) to himself, other drivers and fans.

Under the new regime, which began on January 1, 2009, drivers and pit crew members will undergo mandatory preseason drug tests and random drug tests throughout the year, in addition to reasonable suspicion testing. Additionally, AEGIS, an independent laboratory, will conduct the drug tests for NASCAR, unlike under the previous policy, where NASCAR itself did (or, more commonly, did not do) the testing. Without question, these are all positive changes designed to make drug testing more effective and deception more difficult.

So, what’s the problem, and where’s the controversy? Well, NASCAR’s new policy has a few other interesting features. First, the policy does not identify the substances that are banned. Any drug—legal or illegal, prescription or over-the-counter—can result in a positive test. Second, the policy does not provide a clear list of penalties for failed tests. Instead, the policy indicates that a driver will be indefinitely suspended for a first violation and suspended permanently for a third violation, but NASCAR officials have noted that the policy allows for a permanent suspension for a first offense. Third, the policy provides no appeal for a suspended driver or crewmember. And, any reinstatement—if permitted at all—is conditioned on the entrance into a rehabilitation program.

So, to sum up, under NASCAR’s new drug policy, drivers can be suspended indefinitely, without appeal, for using an unspecified quantity of an unnamed drug. That is essentially what happened to Jeremy Mayfield earlier this month. The Mayfield saga (or is still the Mayfield story? When does something like this convert from a story to a saga?) allows us to focus on two questions:

First, why would NASCAR create a drug policy that does not have a list of banned substances (aka, who was the ad wizard who came up with that drug policy?)? If drug use by drivers is so dangerous, why not provide a list to the drivers of the drugs known to be dangerous? One obvious is answer is: because they can. Unlike in most of the other pro sports in the U.S., the players (here, drivers) had no input into the drug policy. In fairness, many of the drivers seem to support the new policy, though my guess is that Mayfield is not one of them.The other reason for a drug policy with no drug list comes straight from NASCAR:
The reason we don't have a list is we believe that a list is restrictive. As you've seen with a lot of other leagues, the policy is constantly changing. We know that there's new drugs out there every day. By having a broad policy that doesn't list anything, we feel like we can test for any substance that may be abused….

I want to be clear on that. We've never had a list. It states right now in our policy that cough medicine could be abused if you're taking that too much and it's going to affect the safety on the racetrack. That won't change. We'll test for anything. Our experts are very familiar with prescriptions people may be taking and legitimate medications, but we will not have a list.
Or, as Kyle Petty put it: "Look, a drug is a drug is a drug. This is not shooting hoops; this is not hitting a fastball. This is life and death. In a sport like this, everything should be off limits unless there is a medical reason."
NASCAR’s reasoning is simple—every drug is potentially harmful, so drivers should assume that every drug is off limits. If NASCAR were to come up with a list, it would look like this: Banned Substances: Everything. Of course, the same argument could be made by other sports organizations, yet the drug policies of the World Anti Doping Agency and all of the major professional sports leagues in the U.S. contain lists of banned substances.

Second, does the absence of a list increase the likelihood that Mayfield (or the next suspended driver) could successfully challenge the suspension in court? The short answer is: yes. I’m not claiming that Mayfield could successfully challenge the suspension, but I do think he has a stronger case because there is no list. NASCAR’s concern for safety is laudable, and they are no doubt right that abuse of any drug, whether it is cocaine, Sudafed, or Tylenol PM, can be dangerous when combined with cars moving at 150 miles per hour. The question is, do NASCAR’s legitimate concerns justify the creation of a drug policy with no list of banned drugs? And, if not, is there anything a potential plaintiff like Mayfield can do about it?

As a general rule, courts are reluctant to interfere with the disciplinary decisions of private, voluntary associations, such as NASCAR. Under this principle of judicial noninterference, courts will defer to private associations and only interfere in one of three circumstances: 1) when the association’s rules or conduct are contrary to public policy or violate concepts of fundamental fairness; 2) when the association violates its own rules; or 3) when the association’s decision is motivated by prejudice, bias, or bad faith.

Here, however, Mayfield has a stronger argument for judicial interference because NASCAR is not the typical voluntary, private association. In two different cases involving challenges to the results of NASCAR races, the Second Circuit held that NASCAR is entitled to less deference because it is “a for-profit company that completely dominated the field of stock car racing and…its members have no rights whatsoever with respect to the internal governance of the organization.” See Crouch v. NASCAR, 845 F.2d 397, 401 (2d Cir. 1988); Koszela v. NASCAR, 646 F.2d 749 (2d Cir.1981). The Second Circuit also noted “courts have demonstrated more of a willingness to intervene in the internal matters of private associations when they conclude that there are inadequate procedural safeguards to protect members' rights.” Crouch, 845 F.2d at 401.

Mayfield could thus argue that NASCAR’s list-less drug policy is contrary to public policy and violates concepts of fundamental fairness. Rules must be sufficiently clear to permit people to draw a clear line between permissible and impermissible conduct, so that they may avoid engaging in unlawful behavior. An argument can be made that it is fundamentally unfair to punish someone for engaging in conduct they did not know was unlawful. If NASCAR wants to protect its drivers and fans, it should provide more information, not less, about what types and quantities of drugs might pose a threat to safety. (NASCAR’s response, of course, will be that the drivers should know that use of any drug might violate their drug policy, so they should avoid all drug use—prescribed or not—before getting approval from NASCAR officials.)

Mayfield could also argue that the absence of any explicit standards for identifying a positive drug test permits the drug administrators to apply the drug policy subjectively and on an ad hoc basis. And, with no rules to follow, the drug administrators are more likely to be able to make arbitrary and discriminatory decisions. With no standards, no list, and no right of appeal, Mayfield has an argument that NASCAR does not have adequate procedural safeguards in place to protect the rights of suspended drivers.

More on this (and my discussion of the relative merits of RC Pro Am and Mario Kart) to come…


Surely the NASCAR drug policy would look different had the drivers had a union. Some drivers have been very vocal (veteran Michael Waltrip especialy) about about the lack of driver input, although their comments have targeted safety issues rather than drugtesting. NASCAR Truck Series driver Ron Hornaday admitted to the use of testosterone and HGH in 2008 (the use was limited to 2004-2006, before the more strict NASCAR drug policy was put in place.) While NASCAR had the authority to punish Hornaday, it decided not to. Because Hornaday's Testosterone and HGH were prescribed by a doctor, NASCAR decided that Hornaday did nothing wrong. The drugs were shipped to the driver from the Palm Beach Rejuvenation Center. The same center has been drug scandals in both the NFL and MLB.

Time for a more detailed policy perhaps?

Blogger Jimmy H -- 5/18/2009 8:03 AM  

I have a few problems with your arguements pro-Mayfield.

First, one of Mayfield's crew members tested positive earlier this year. Mayfield stated to the media his support of NASCAR's drug policy and promptly fired said employee. How can he now say how unfair it is when he's on record of supporting the policy when it was close and personal?

Second, what if what Mayfield tested positive for is an illegal substance? I'm sure do other driver wants him on the track if they discover he was on meth or coke. Will his defense that the policy is unfair dissolve?

Third, what if what he took is legal but it affects his faculties? Say a beer, or a double dose of his prescription? Do you still support his defense?

The FAA has some ambiguity built into their drug policy too. Part of the policy seems to be that if your illness is so serious you require medication, it's serious enough to prevent you from flying.

It has been said that to have a list is to make loopholes.

Anonymous cindy -- 5/26/2009 11:00 AM  

Sorry, but IRL has a very similar drug policy to NASCAR's, as reported by Paul Newberry, an AP writer on 5-21-09:

The IRL doesn’t list the drugs banned under its policy, saying it needs flexibility to keep up with new or unexpected substances; NASCAR also does not have a specific list for drivers, saying it reserves for the right to test for anything.

The IRL also won’t discuss its testing procedure, most notably the handling of “A” and “B” samples, a basic tenet of any doping program.

“We are confidential on how we do the sampling,” said John Griffin, vice president of public relations for the IRL. “We disclose a lot, but we can’t disclose that.”

Anonymous elena -- 6/03/2009 11:16 PM  

Let me preface my comments by saying that I spent 20 years on the road courses and dirt tracks utilized by the International Karting Federation (IKF) and World Karting Association (WKA)--the very same training grounds for nearly all professional race drivers, including many of today's NASCAR stars. Here's my take on all this:

This is a pointless policy. This moves one step further for true accountability, of either drivers or NASCAR and its officials. The whole impetus for this move is the fear that Aaron Fike posed some kind of danger by the quality of his driving on those days he admitted to have used herion. If his driving was dangerous, he should have been parked for that reason, regardless of the cause or causes for it. I grew up at trackside, and let me assure you, it is possible to gaze upon a race and actually see something. And just like I don't really care why Fike might have driven poorly, I don't care why NASCAR race officials are routinely so clueless. Drivers who are poor at their jobs eventually have to find jobs they can do, and I feel that is a viable avenue for the majority of race officials.

In NASCAR, you chance competing against 80+ year old drivers. If there is so little margain for error that NASCAR must be allowed to legislate, test, judge, and punish without any kind of check or balance, allowing James Hylton or Herschel McGriff, great drivers in their prime, no doubt, compete at their advanced ages is simply unconscionable. How about a piss test for who decides who gets a license or not.

NASCAR routinely shows it can't fathom when to throw a caution or not, when to penalize for rough driving or not, and by extention, who drives safely or does not. Tony Stewart's blatant wrecking of Matt Kenseth at Daytona a few years ago was amongst the most dangerous and punishable offenses I've seen in racing. I don't care if Tony did it because he was on crack or just an idiot, nor why NASCAR can't recognize the events that unfold in their own events for what they are.

And Tony also provides another example of how idiotic NASCAR can be in last year's summer Daytona race. That's the one where he clearly forced Regan Smith below the yellow line rather than race him clean, and NASAR refused to enforce the provision for such actions stipulated in their own yellow-line rule. That's the one that says you can't go below the line unless forced there, and Regan was surley that. But NASCAR DQ'ed Regan and gave Tony the win, setting up the recent superspeedway debacle that sent Karl Edwards into the catch fence and injured 8 spectators. What choice did Brad Keselowski have--after all the precedent had been clearly set that you can't use the apron to avoid danger. How many spectators did Aaron Fike injure, anyway?

Make the standard how drivers drive, not why. If you can't tell how they drive, put somebody in charge who knows something (anything) about racing. And when you see a truly dangerous and intentional action, punish the driver with even half the zeal with which NASCAR is pursuing the precise contents of a person's bloodstream in the name of safety.

Anonymous Steve -- 6/06/2009 4:18 PM  

I am sitting here wolfing some chow just trying to figure out what's in the minds of NASCAR with their drug policy & banned substances. I, by no means am condoning the actions of Jeremy Mayfield. I do agree with NASCAR's action in dealing with the offense. But where does NASCAR get off with having a total drug restriction. ( Oh they clarified that with 'only medication prescribed by a physician') That makes it OK. I mean, aspirin is a drug; also many other legal pain meds and symptom relievers; I guess they are all banned. Nascar racing is a dangerous sport. There is no dispute with that. Many over the counter drugs can affect ones ability to function in one way or the other. They must implement a policy similar to US Professional Sports Organizations such as NBA, MLB, NHL, NFL, & so many others, TNTC. Each one has a list of banned substances with penalties assigned to them. Is Nascar exempt?? They are more concerned about pit "SPEED"!!! ooops, did I just say SPEED??? I guess if you have a headache one day; you just suffer ! O just suffer NASCAR's wrath as they see fit.
Im not so sure about a drivers' union? Thats subject for another day.

OpenID reflecktions -- 6/14/2009 11:30 AM  

First, Cindy and Elena must be communists.

Second, like Steve, I too was a member of WKA and VDKA for a number of years and I cannot understand NASCAR's "Don't Show, Don't Tell" New Drug Policy. Rules of safety are imperative for this sport, but how can NASCAR defend this drug policy without more explanation about it? How can NASCAR suspend drivers and crew members without explaining their reasoning besides saying, "You failed our drug test"; that's like NASCAR disqualifying or suspending a driver for their car failing inspection and not telling them anything other than, "You failed". The inspections have to due with fairness and safety as well; NASCAR doesn't want to threaten the safety of ANYONE at their events for any reason, if they can help it; but NASCAR doesn't want to look disdainful either. Any number of parts, legal or illegal, could at any point endanger someone if NASCAR standards are not followed through, in regards to the inspections.

If they don't want to provide a list of illegal substances for members of their association foolishly based on the egregious point-of-view shared by Cindy and Elena here, then what expectations should the drivers, the crews and the fans have?

I'm not a "Pro-Mayfield" supporter; I'm a PRO-RACING supporter! NASCAR needs to thoroughly audit this new drug policy in regards to safety and fairness for everyone involved or associated with the sport; IFL should do the same.

It's sad to read comments with "Pro-Gestapo" ideology.

Stay Classy NASCAR!

Blogger Scott -- 6/14/2009 2:28 PM  

Correction on TYPO: "IRL should audit their drug policy as well".

Blogger Scott -- 6/14/2009 2:33 PM  

I read on that mayfield tested positive for meth! I'm sure most people know the effects meth has on folks. I agree that nascar should suspend mayfield and not allow him to return until he has completed a drug treatment program. I wouldn't care what driver it was, Johnson, Gordon, Earnhart JR, anyone, you abuse any drug, prescription or not, you should be suspended and heavily fined. All professional sports could learn alot from nascars drug policy, no list! Lists provide loopholes, when there is loopholes in any policy there will be people who will exploit them for their advantage. Look at the 48 team, they found a major loophole in the setup of their cars and exploit it every weekend. People like that are simply douchebags!

Anonymous Anonymous -- 6/14/2009 3:26 PM  

Scott apparently does not have the ability to express a cogent opinion, so he resorts to name-calling--kinda like a school-yard bully.

Scott, look up the defintion of big words before you use them-- communist

All I did was qoute what IRL's policy is. That's it. NO OPINON!!! Sorry for you if you don't want to hear the truth.

Anonymous elena -- 6/15/2009 6:40 PM  

In total, Mayfield earned a solid 33 million dollars as a driver during his whole career in Nascar. Yet, Mayfield always seem to be implicated in some controversy, one way or another, ending up in paying out huge amounts in lawyer fees. What a waste ! Mayfield was supposed to be building up a new racing team. This man is a disgrace to his team members, his sponsors, Nascar, fans and anybody involved.

Anonymous Anonymous -- 6/18/2009 2:57 AM  

I'm by no means a Jeremy Mayfield fan, and just BARELY qualify as a NASCAR fan, but simply the way the drug policy is written, you can tell plainly, that it's NASCAR's typical 800lb Gorilla tactic.

He has been torn apart in the media, lost sponsorship, noone will allow him to drive for them, and if you read the filings, which NASCAR has *NOT* disputed, the entire testing process appears to have been run by a busful of monkeys!!

I'm not saying he's clean - I'm not saying he's not. But, 1) He does NOT have the appearance of a drug-addicted person, especially to the extent that Aegis/NASCAR claim, what with the amount they claimed he had in his body!!

Solution is simple:

Take a paid volunteer as a surrogate, and confine the person. Take urine samples A, B, C, and D. Send sample A to an approved drug-testing facility. If all is fine, proceed to taking sample E and F. Now, give this person the dosage Mayfield claims he took, wait 24 hours (as he said he did) and take samples G, H, I, and J.

Take sample G, and test at the SAME lab that tested sample A.

If B was never used, take sample B and H to Aegis IN PERSON WITH A COURT-ORDER, and have an IMMEDIATE TEST done, with NO PRIOR NOTICE given to Aegis, and check the results.

Simple, really. For a positive, you have PLENTY of other sealed sample to test at other facilities, as I suspect Aegis is a bunch of twits, especially with the omnipotent Dr. Black claiming that it is IMPOSSIBLE that Claritin-D+Adderall caused the false positive.

Me thinks Black has bit off a bit more than he can chew, by stating, in no uncertain terms, that it is IMPOSSIBLE for the false positive to be the result of the mixing of those 2 medications.

FWIW - several on-air personalities have run this sample test, and ALL have come to the SAME conclusion: Adderall + Claritin-D = methamphetamine positive urine test.

You also see in the court filings that Aegis opened up sample B, instead of leaving it sealed for a second lab, per proper procedures. They also never took Mayfield up on his offer for a hair follicle/2nd utine sample (48 hours later).

I mean, seriously Aegis/NASCAR, how stupid do you think the public is? A hair sample will bring the truth! If Mayfield's utine test failure showed a level of methamphetamine that would leave a person incapacitated, surely he didn't just decide on April 30 / May 1st to take a near-lethal ose of Methamphetamine on a whim? oh, gee, I think I'll pop a BUTTLOAD of meth for no reason.

Yeah, right.

A habitual user would fail the hair test quite handily.

Anonymous Anonymous -- 7/06/2009 9:57 PM  

Let's throw in a new scenario here. Wasn't it some few years back when Mayfield was driving for Evernham, that some comments were made by Mayfield concerning Evernhams overall big picture outlook for the team, was being put on a smaller picture in the name of Erin? Then, Mayfields contract wasn't renewed? Then, Evernham went thru some kind of personal/family crisis? Hhmmm...may be some form of latter retaliation? I mean, there's a awlful lot of big money floating around NASCAR and one does have to watch where one steps.
Not pro Mayfield or pro NASCAR either. Just maybe a bigger picture needs to be investigated here. Seems that NASCAR does think it's above the law of the land when dealing with some of its issues.

Anonymous Anonymous -- 7/18/2009 5:52 PM  

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