Jeremy Mayfield filing alleges NASCAR’s conduct was intentional and reckless

By Bob Pockrass - Associate Editor

Tuesday, December 08, 2009

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CHARLOTTE – Attorneys for suspended driver Jeremy Mayfield say NASCAR is trying to ignore issues raised by him and is attempting to distort Mayfield’s claims in an effort to avoid responsibility for its actions.

Mayfield’s legal team filed the response late Monday to NASCAR’s request that U.S. District Court Judge Graham Mullen rule in favor of the sanctioning body based on the pleadings already held and without the continuation of an investigation by the attorneys and possibly a trial.

“Defendants continue to seek to avoid being held accountable for their intentional, malicious, reckless and grossly negligent conduct with half-truths, willful distortions, and imperial gusto,” Mayfield attorney Daniel Marino wrote in the response.

Mayfield filed the lawsuit following his suspension for a May 1 drug test that NASCAR says produced a positive result for methamphetamines. Mayfield denies using methamphetamines, claiming the test results were produced by a combination of prescription medicine Adderall for attention-deficit hyperactivity disorder and over-the-counter allergy medication Claritin-D.

He is suing NASCAR and drug-testing laboratory Aegis Sciences Corp. for breach of contract, negligence, defamation, discrimination and unfair and deceptive trade practices.

Mayfield’s filing argues that he has shown enough evidence to bring these claims:

• In response to NASCAR’s assertion that he has waived his right to sue because of waivers that are part of the NASCAR-driver agreement, Mayfield stated that those releases don’t hold up because this is a case where NASCAR was grossly negligent in conducting its drug-testing policy. While courts have held that the waivers can be applicable when someone is injured while working at the race track, it doesn’t hold up in a situation as this, Mayfield argues.

“If such a broad release were enforceable, NASCAR … could have intentionally spiked Mr. Mayfield’s urine sample, reported a positive test when in fact the test was negative, or announced a positive result without ever even performing a test at all – all without any risk of liability to [Mayfield],” Marino wrote.

“Indeed, because the release extends beyond NASCAR and its testing facilities to include ‘any other persons or entities against whom I might have a claim,’ a third party could break into [Aegis’ Dr. David] Black’s lab and replace Mr. Mayfield’s sample with one known to be positive yet [Mayfield] would have no claim. The law simply does not permit the enforcement of such [releases].”

The filing also reiterated the Mayfield contention – denied by NASCAR – that the sanctioning body must follow federal workplace guidelines because Aegis is certified by the Substance Abuse Mental Health Services Administration of the U.S. Department of Health and Human Services.

• In its defamation claim, Mayfield disputed the NASCAR assertion that sanctioning body Chairman Brian France had no reason to doubt the test results so his comments when suspending Mayfield cannot be considered defamation.

Mayfield alleges that France and Black should have known that the combination of Adderall and Claritin-D could result in a false positive for methamphetamine use. There are “obvious reasons to doubt the accuracy of Mr. Mayfield’s test results,” Marino wrote, and that “Mr. France’s statements were intentional, malicious, reckless and false” and he and Dr. Black “knew or should have known their statements were false.”

• NASCAR stated in its request that Mayfield is not an employee but an independent contractor and therefore cannot be considered to having been discriminated against for having ADHD.

Mayfield stated in the filing Monday that he can be considered an employee in this situation because NASCAR retained the right to control and detail his activities on the race track, had promotional rights to his name, owned the broadcast rights, required where logos were placed and specified media obligations.

• Addressing the charge of unfair and deceptive trade practices, Mayfield argued the fact that there is no definitive list of drugs banned by NASCAR as among the reasons its policies are unfair.

“Defendants’ practices pursuant to their substance abuse policy are one-sided and patently unfair,” Marino wrote. “For instance, plaintiffs allege that NASCAR requires drivers to sign an annual license application and driver/owner agreement, both of which contain an agreement to abide by NASCAR’s substance abuse policy, in order for an individual to participate and compete in NASCAR-sanctioned races.

“But NASCAR’s substance-abuse policy fails to specify which drugs are prohibited under the policy, instead simply stating that the substances prohibited are ‘those substances that, in NASCAR’s determination, may affect adversely the safety and well-being’ of all those involved. In fact, NASCAR may determine that a particular substance is prohibited after discovery of the substance following a drug test.”

Both sides get to file responses one more time before the judge considers the motion to dismiss Mayfield’s case.

NASCAR spokesman Ramsey Poston declined to comment on the specifics of the Mayfield filing but indicated that NASCAR believes it will prove its arguments whether or not its current request is granted. Mullen ruled Monday that the discovery phase of the case, where attorneys request documents and conduct depositions, would continue while the motion is under consideration.

“We are happy to proceed with the discovery process, which in addition to the overwhelming scientific evidence, will make our case even stronger," Poston said.