Analysis: Weighing merits of Jeremy Mayfield case no easy task

By Bob Pockrass - Associate Editor
Tuesday, June 30, 2009
NASCAR Sprint Cup Series owner/driver Jeremy Mayfield has been suspended indefinitely by NASCAR for violating its substance abuse policy. (Jim Fluharty / NASCAR Scene)

NASCAR Sprint Cup Series owner/driver Jeremy Mayfield has been suspended indefinitely by NASCAR for violating its substance abuse policy.

Jim Fluharty
NASCAR Scene

CHARLOTTE – Attorneys familiar with sports law are divided about NASCAR driver/owner Jeremy Mayfield’s prospects when he heads to U.S. District Court on Wednesday seeking to win an injunction that would prohibit the sanctioning body from enforcing his indefinite suspension for an allegedly failed drug test until a court can rule on his case.

Trying to predict whether he will succeed is difficult, considering a lack of previous court decisions on motorsports. While there is plenty of case law on drug testing, how those cases apply to NASCAR, where the athletes are independent contractors not bound by a collective bargaining agreement and whose substance-abuse policy is as much or more about safety as ensuring a level playing field, will be among the issues weighed by Judge Graham Mullen.

“Absent some clear and convincing evidence that NASCAR did something to Mayfield that they wouldn’t do to someone else and did it for a reason that had nothing to do with substance abuse, then he’s probably going to have to pull a rabbit out of a hat to convince a judge that he should be allowed back in a car,” says William Bray, a Charlotte attorney who teaches sports law in the master of business administration program at University of North Carolina-Charlotte and represents Braun Racing, Joey Logano and others in the industry.

Steve Thompson, whose career defending athletes in failed drug tests dates back more than 20 years with the Chicago Bears’ Richard Dent, sees it differently.

“Obviously NASCAR has an interest in promoting drug-free competition; Mayfield has an interest in having a drug policy that he can rely on and is consistent and is fairly applied,” Thompson said in a phone interview from the Chicago office of Ungaretti & Harris. “Both of those things are a matter of public policy and need to exist.

“If you’ve got a drug policy, it’s got to be fairly applied and it’s in the public interest that that happen, that people not be singled out for positive tests if the policy is not being fairly applied. … Based on what I’ve read so far, he has a pretty strong case.”

The hearing Wednesday is not a trial, but attorneys from each side will be given a limited amount of time to argue their side, and the judge will ask questions. The hearing will only decide Mayfield’s request for an injunction against NASCAR, and the judge could rule Wednesday or soon thereafter.

To get the injunction, Mayfield needs to prove to the judge that he likely will succeed on the merits of the case, that he will suffer irreparable harm if the injunction is denied and that the harm he suffers is equal to or greater than the harm to NASCAR if the injunction is denied. The merits of general public policy also can weigh into the decision.

Injunctive relief is considered a drastic and extraordinary remedy that is not routinely granted. Whether or not Mayfield obtains the injunction, the case will proceed, with NASCAR likely asking the judge to dismiss the case. If that request is unsuccessful, then both sides will begin an investigative phase before asking the court to make a judgment or have the case go to trial.

“Injunctions are tough to get, no matter what you’re doing,” Bray says. “The person asking for the injunction is successful less of the time than the person defending it. … Courts are hesitant to grant it.”

Mayfield has argued that his May 1 test produced a false positive reading for methamphetamines. He contends the findings resulted from a combination of prescription drug Adderall, which is used to treat attention-deficit hyperactivity disorder, and over-the-counter Claritin-D allergy medicine. NASCAR, which has not named the illegal drug it says Mayfield used, has asserted that could not be the case.

Mayfield’s lawyers claim that NASCAR, because its drug policy states that tests will be done at laboratories certified by the U.S. Health Department’s Substance Abuse and Mental Health Services Administration must follow the drug-testing guidelines required by federal agencies. They allege that NASCAR did not follow proper procedures and had no authorization to test his B sample and contend it should have been tested in a laboratory independent of the testing of the A sample.

NASCAR, in its court filings, states that it does not have to follow the federal workplace guidelines as Mayfield contends and that Mayfield agreed to follow the NASCAR policy on notifying it of any changes in his medication.

“The real crux is going to be whether they violated their own policy,” says Mark Conrad, a sports law professor in the Fordham University School of Business. “It’s not a question of fairness in the sense that is it really right that he took an allergy medication and he can’t race. If they said you can’t do that and that is something that is within their regimen, you can’t race.”

The theory that NASCAR must follow federal guidelines could sway the judge, but it’s weaker than the argument that the total policy is subjective without a full, definitive list of banned substances and the amounts that must show in a driver’s system, Thompson says. While most of Mayfield’s argument is based on the procedures, he does include the fact that NASCAR’s policy is subjective in nature.

“NASCAR has no prohibited substance list,” says Thompson, who has successfully defended Olympic athletes in drug-testing cases. “That sticks out like a sore thumb here. … NASCAR could decide to ban chocolate milk, and drivers would never know that it is on the list. Before you can charge somebody with some sort of drug offense, they’ve got to know what offending behavior is.

“If they want to have a level of caffeine be a prohibited level, then they ought to publish that. Just saying it when it’s convenient for them, I don’t think it’s going to carry the day. When I read the materials, I thought that’s almost a fatal flaw here. Without a list and without guidance what’s on the list, how will the drivers know?”

NASCAR officials have repeatedly said there is no definitive list because, as stated in its policy, any drug or medication that causes a competitive advantage or a diminished or impaired ability to perform at the track might endanger competitors, officials and fans. NASCAR did provide a list of select drugs and the thresholds for teams to conduct testing of their crews.

“The leagues, generally speaking, have wide latitude in creating disciplinary measures and enforcing those disciplinary measures,” Bray says.

“Unless a court deems those disciplinary measures as arbitrary and capricious, they’re going to be upheld. … Because of the nature of racing and the responsibility that NASCAR as the sanctioning body has to ensure safety of participants and spectators, in my opinion, a court is going to give greater deference to NASCAR if the broadness or the vagueness of [its rules are] challenged.”

One of those broad rules is that NASCAR contends it can suspend anyone at any time “in the interest of stock car racing.” If the judge rules that NASCAR’s substance-abuse policy must follow the federal agency guidelines, NASCAR won’t be able to rely on that general rule, Conrad says.

“If the drug regulations are more specific in what they can cover and not cover and that’s violated, that’s going to trump the general best-interest-of-the-sport clause,” Conrad says. “If … [the rules] are too specific, they can be burned. If they’re broad, they look unfair.”

If Mayfield can prove he would likely win the case, he then must prove the damage done by him being suspended cannot be calculated monetarily. Mayfield’s court filing states that he has had to lay off 10 employees and that a sponsor has opted not to live up to its commitments because of the suspension.

“Irreparable harm will be very clear, and it should almost be undisputed,” Thompson says. “He’s going to be able to show the suspension here deprives him of the opportunity to compete, and he can’t get that back, and he also will be able to show that a suspension disrupts his relationships with sponsors, which likely can’t be repaired.”

Mayfield’s lawyers are also relying on a recent case in the National Football League where Minnesota Viking players were successful in obtaining an injunction over a dispute about whether the NFL failed to inform the players that a weight-loss supplement had a banned substance. The NFL eventually won months later after the court ruled the players bore the responsibility for what they put in their bodies.

The impact on more than just the athlete involved was considered in that case.

“At least some of the players are central to their team’s chances of making the playoffs,” the judge wrote in granting the injunction in the NFL case.

“The failure to make the playoffs and the effect of that failure on the players, teams and fans is not compensable monetarily and is therefore an irreparable harm. Suspending a player for testing positive for a banned substance when there are such substantial questions … irreparably harms the player. Not only does the player lose playing time, but his reputation may be irretrievably tarnished.”

But Mullen might view racing as a different situation. In 2004, Jason Leffler was third in the standings for what was then called the Busch Series when he was released by Haas CNC Racing because he had signed with Joe Gibbs Racing. Leffler went to court in Kansas to get an injunction to race at Kansas Speedway, and the judge ruled that any lost earnings could be calculated by a jury. The case was eventually settled.

While Mayfield likely has a stronger case because he is also the owner of his team, he still could face a similar challenge that Leffler couldn’t overcome, Bray says.

“The argument likely will be [that] the shelf life of a driver, much like the shelf life of any athlete, is short-lived,” Bray says. “Drivers have a very narrow window of opportunity to make the money they’re going to make for [their] entire careers. … It is a very difficult argument to make because … there are certainly experts out there that can say, ‘Here is what a driver of Mayfield’s level is going to make over the next X amount of years.’ ”

If Mayfield can make that argument, he also will have to show that the harm to him and his team outweighs any limitations this injunction would place on NASCAR from enforcing its policy.

Just as it would argue that it can suspend Mayfield at any time as a reason that Mayfield would not win on the merits of the case, NASCAR has stated that it needs latitude to protect its fans and that the public interest is in it having that latitude.

“Mayfield can be tested every day, and they can determine he’s not on any of these drugs on any given day, and he can compete,” Thompson says. “I think that’s a non-issue. It’s one thing to say he may have done it in the past. It’s another thing to say you have to protect us from guys driving on drugs. You can protect yourselves [from] guys driving on drugs by testing every day.”

While he thinks Mayfield has a good case, Thompson says this case will also be good for NASCAR.

“I would expect a case like the Mayfield case to arise when you have a brand new drug policy,” Thompson says. “Every sports league I’ve been involved with has had, when they instituted a drug policy, the first few athletes suspended are going to challenge that policy and probably for good reason because the policies are sometimes written imprecisely, and they need to be challenged this way.

“Challenges that Mayfield filed don’t weaken the policy, they strengthen the policy by making sure the procedural requirements are fair and are being followed in each case.”
 

Comments

19 responses to "Analysis: Weighing merits of Jeremy Mayfield case no easy task". Post a Comment.
  1. 1
    Anonymous said:
    Jun 30, 2009 at 11:48 AM

    I find it very hard to believe that Mayfield will win this one!
    Don’t you think that if his two tests were flukes, they would have found out by now?
    If the man took forty-eight hours worth of Claritin D at once, wouldn’t you be curious?
    I feel bad that all of these people are wasting their time with a drug addict.
    Living near Detroit, I regularly see people locked up for drugs. Jeremy is still free!
    He needs to get out of the sport pronto!
    Mr. BHSTONEMAN, how do you like my spelling here?

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  2. 2
    CrazyClyde said:
    Jun 30, 2009 at 12:13 PM

    NASCAR's Dr said the two drugs could not give the bad results together. So why doesn't Mayfield have a list of Drs who say it can? Seems he's avoiding something.

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  3. 3
    goober22 said:
    Jun 30, 2009 at 3:18 PM

    To play devil's advocate... there was no sterile conditions according to reports. Mayfield picked a cup up off a table that had many other cups on it. Who may have handled, cross contaminated those? Then he is told to leave it, unsealed, on a counter and leave. What happened to it? Who sealed it? No sealing of the sample while he was present? No initialing by Mayfield that it was sealed in his presence? And then there's the super secret list that Nascrap tests for but won't tell ANYONE what is on that list?! Sorry Stewart, your suspended for too much caffeine! Also, Nascraps policy has NO provisions for an appeal? They are judge, jury and executioner after using the flawed collection processes listed. Mayfield's only recourse is to accept rehab to meet Nascraps requirements (which admits guilt) or file a lawsuit. Listen, if he's a user, then he needs to go, but if not, then Nascrap needs to be put in their place and understand other people do have rights, there are laws to follow and they are not the almighty power they think they are.

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  4. 4
    Anonymous said:
    Jun 30, 2009 at 3:44 PM

    I think we should all reserve judgment. There appear to be a lot of funny things going on,and the tests were not done under very sterile conditions, I will take a wait and see attitude until all the evidence has been presented. After all a person is presumed to be innocent until proven guilty. I have not seen any evidence that proves him GUILTY yet.

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  5. 5
    bm0239 said:
    Jun 30, 2009 at 3:52 PM

    HERE'S THE DEAL......... IF JEREMY MAYFIELD WINS IN COURT....IF HE SUES NASCAR AND PROVES THE DRUG TEST WAS WRONG....IF HE WINS A SETTLEMENT THAT HE LOST MONEY AND HIS REPUTATION BECAUSE HE WAS ACCUSED FALSLEY....HE WILL NEVER...AND I MEAN NEVER....GET HIS RACE CAR BACK ON THE TRACK.
    HE WILL NEVER PASS INSPECTION...HE WILL NEVER MAKE IT THROUGH TECH...AND DO YOU WANT TO KNOW WHY?
    HE QUESTIONED GOD'S (NASCAR'S) AUTHORITY!!!!!!!!!

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  6. 6
    spdbmp said:
    Jun 30, 2009 at 4:01 PM

    I don't like Dr. Black, AEGIS labs or the amount of control granted the two by NASCAR... sounds fishy to me so far. That being said, "Actions detrimental to stock car auto racing" does not seem to be a catch all phrase that should enable the powers that be to make seemingly arbitrary decisions. The rule book is not published for the general public, the amount of leeway seems incredible in my opinion... but a drug abuse policy should be pretty ironclad. There are obvious things that are a clear and present danger in NASCAR as a sport/spectator event - drivers under the influence is certainly one of them. NASCAR's hardball stance in light of the Aaron Fike fiasco makes some sense - in a knee jerk reaction kind of way. But the "new" drug abuse policy seems to be very subjective, couple that with Dr. Black's complete discretion as to what needs to happen for reinstatement (for a hefty fee too I would imagine) - the judge, jury, executioner and whomever holds the clemency in their hands are all rolled up into NASCAR/AEGIS hand's. That's a bit too much control in my opinion. Test EVERYBODY with a NASCAR credential before each race weekend (drivers,crew,owners,reporters,officials,parking attendants - EVERYBODY). Hand out harsh penalties from top to bottom - then wait and see how that works. Personally, I think NASCAR wanted to throw the book at Mayfield to make an example of him and save face in light of Fike's own admission of heroin use on raceday. Mayfield has an uphill battle on his hands, a slippery slope when you consider the amount of cash NASCAR has available in comparison.

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  7. 7
    libra26 said:
    Jun 30, 2009 at 4:45 PM

    I don't care what anyone says "drug are drugs" of any kind when your behind the wheel of a car. He should not be behind the wheel of a race car or any car.... Don't let him back in Nascar.

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  8. 8
    Tuxcatmama said:
    Jun 30, 2009 at 5:16 PM

    I for one cannot believe that the tests were conducted the way #3 described. NASCAR is way too smart to allow something so sloppy. I do agree with #6 regarding the too much power as it pertains to AEGIS/Dr Black...easy for them to make the decision that NASCAR wants them to make. Having said that, I think Mayfield's claims are wrong, that he knows he can't make it as a driver/owner/provider, so he makes his living the only way of late he knows how: he sues.

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  9. 9
    bthompson133 said:
    Jun 30, 2009 at 5:30 PM

    come on judge ,slap nascar hard to make them be more public about ALL the policies and rules. any company that takes money from people should have to be "above board" on all subjects and policies!!!!!!! i'll keep my money till they are.

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  10. 10
    jbbigrod said:
    Jun 30, 2009 at 7:00 PM

    Number 7, it appears you are the vigilante type, eh? Personally, I will take the attitude of #4 on this. I am having a battle now with PayPal, and I am 100% in the right, but THEY took the side of an apparant scammer I sold a lens to. I sent it USPS, insured it, USPS says they scanned and delivered it. The buyer says he never got it. WHO is lying? I did everything right that I knew how to do, but now I not only lost the nice lens, but PayPal took all the money I was paid back and USPS won't pay because they say they delivered it? WHERE is the American Justice in THAT.
    Can I afford to fight these big companies in court, not hardly, I am retired and living on SS. Or trying to. - - - Jeremy is in the same boat, NASCAR can probably wait him out, they certainly have enough money to. - - - The BIG BOYS have you coming and going, you hardly stand a chance. AND all they are REALLY interested in is BOTTOM LINE. NASCAR could care less about the fans, only their money. Same with USPS, PayPal, eBay, Oil Companies, Drug Companies, etc., etc.. - - - Having trouble with Mayfield racing because of "possible" drug abuse? Like one of the contributors said above: Simple, test him EVERY week. No problem.

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  11. 11
    Phoenix987 said:
    Jun 30, 2009 at 7:36 PM

    I'm holding judgment until I see reason to believe NASCAR's test policy is fair. Plus, since the conditions outlined in a post above are about what's been said since the start, it's really easy to see how Mayfield- methamphetamine user or not- has a strong case. If the tests are done in conditions that can invalidate the results, any competent judge will take that into consideration.

    Whether you think Mayfield is a druggie or not, you have to at least see that he has a case here. The conditions surround everything are extremely suspicious. Plus, Mayfield's been vocal before against both Penske and Evernham, and you can bet that NASCAR could have used that to their advantage to prove that their drug policy- secretive or not- 'works' and works well. They're trying to validate themselves as a major sports league, and a good drug policy that catches those doing drugs (even if it's a pretty bad job of doing so) is a way to show that.

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  12. 12
    Anonymous said:
    Jun 30, 2009 at 7:55 PM

    Bravo #7, libra26.. Very good and spot on! I agree 100% .. I also believe that NASCAR did the testing properly and it's the only bit if foul that Mayfield can yell out that it was not in a sterilized environment.

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  13. 13
    bhstoneman said:
    Jun 30, 2009 at 8:23 PM

    No. 1 -- I am so glad to learn that you DO have a dictionary at home and that you know how to use it! You aren't alone in this group, you know. BTW, that's Mrs. BHSTONEMAN.

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  14. 14
    amyintn said:
    Jun 30, 2009 at 8:42 PM

    "I for one cannot believe that the tests were conducted the way #3 described. NASCAR is way too smart to allow something so sloppy."

    Those who think they can never be held accountable for their actions eventually get caught. NASCAR is not immune from this fate. This may be their waterloo.

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  15. 15
    jbbigrod said:
    Jul 1, 2009 at 1:09 AM

    They say there is no such thing as bad publicity. And there is plenty of publicity on this one. So maybe NASCAR is looking at it at that angle too. Hmmmmmmm. . . . . . . . . . . . Keeps 'em in the news.

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  16. 16
    mayhemracing said:
    Jul 1, 2009 at 7:54 AM

    Any certified lab would collect the sample properly (ie they wouldn't throw a bunch of cups on a table....give me a break) AND collections are NOT done under sterile conditions EVER! Once urine hits the cup, it is no longer sterile. People who do not work in the field of toxicology shouldn't make comments on collection procedures.

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  17. 17
    merri-scott said:
    Jul 1, 2009 at 8:32 AM

    The only person claiming that the conditions under collection were sloppy is Mayfield, or should I say, Mayfield's attorney.

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  18. 18
    AllisonFan128 said:
    Jul 1, 2009 at 10:31 AM

    BM0239, you are right about Mayfield, guilty or not, being allowed back on the track. I've never been a fan of Mayfield. I have always thought that he is pompous and arrogant, however, I do have a hard time believing that he took meth knowingly. However, even if he wins the injunction and goes on to win the case, his career is unfortunately over. People will always be wondering if he was really innocent or if he just made the system work for him. That will cause sponsors to be leery of working with him. You can bet the NASCAR will put his entry (if he gets that far) through every inspection in the book so that IF the team gets the car put back together, he won't have any practice time. And since he'll have to qualify to make the race, that puts making the race in jeopardy.

    Either way, guilty or innocent, his career in racing is over.

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  19. 19
    CrazyClyde said:
    Jul 1, 2009 at 9:13 PM

    sterile testing or not ILLEGAL drugs do not just crop up out of thin air.

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