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Saturday, July 4, 2009

The Mayfield mess: Or why Nascar needs to revise its policy

Jeremy Mayfield took Nascar to court and achieved the nearly impossible: he got a federal judge to lift Nascar's ban so he could drive. 

Nearly impossible because Nascar generally wins court actions, and it would appear that a racing organization would have a great argument on safety when someone has failed a drug test.
Why did Mayfield win?  I have a few theories. 
First, Nascar's substance abuse policy fails to put drivers on notice about what substances are forbidden.  There is no list.  Rather, there is no public list.  There actually has to be a list as the lab must know what to look for.  
Why is this  a problem?  During a typical Nascar three series weekend nearly 100 drivers, plus crew members could potentially be selected for testing.  The odds are that someone is on a prescription drug for allergies, medical problems, even pain.  The lab, therefore, must know what substances are OK.  The list is not provided to competitors, and this is a fatal flaw.  How can a competitor advise their doctor about what drugs are not permissible if the competitor does not know? 
Secondly, according to Mayfield, Nascar does not follow established protocol in taking the urine tests.  This means there is no notice and no set procedure on collecting the test samples.
Let me give you an oversight as to what typically happens when a urine sample is taken.  My experienced is based on litigating urine samples in state criminal court, but I believe the protocol for federal criminal matters is similar, if not identical (which is what the federal judge is going to be knowledgeable about).
The "examiner" should first take an unopened package to the meeting with the person giving the sample ("the "examinee").  The package will typically contain a cup or container, a mailing label and box, and paperwork.  Some kits contain two cups (an A Sample and a B Sample).  The package should remain sealed until the examiner and examinee are both present.  The package is opened and the paperwork is filled out.  The examinee should be asked about prescription drugs and illegal drugs they have taken.  This information goes on the paperwork. This way the lab is aware of what may pop up on the test.  
The examiner then gives the cup(s) to the examinee, who urinates in the cup in the examiner's presence.  This prevents the examinee from using someone else's urine or diluting the sample. (Yes, this does happen!)
The cup is then sealed, put into the mailing box, and the box is sealed.  The examinee watches this process so that the examiner cannot put something in the sample, and so the sample is not deliberately or accidently switched. (Think about how many plots would be ruined with this simple rule).
The seals on the box are eventually opened at the lab.  Depending on the size of the cup or sample, it may be completely used.  The remaining sample is kept by the lab for a few days (usually 60 or 90) before it is destroyed.  If there is a positive test, the second sample can be tested by the same lab to confirm the test, or it is preserved for the examinee to have tested at another lab.  Often, the examining agency requests that the sample be sent to another lab to confirm.
Mayfield's complaints are that (1) the cup was open when he got it (2) he didn't see the cup sealed, (3) the lab destroyed or used the sample so he couldn't have it independently tested.  I'd guess that he was probably not watched taking the sample either, but that is just a guess.
So why would a federal judge have concerns about the test?  It doesn't comply in any way with the standard procedure.  The procedure is designed to prevent both the examiner and the examinee from tampering with the test.  The way Mayfield describes it, none of the precautions were followed, and thus, the sample could very easily be contaminated.
I think the Court must have believed that the standard procedure wasn't followed, or he would have likely upheld the injunction against Mayfield's ability to drive in a Nascar event.
Obviously, the Court has not decided who will win the lawsuits, but I think this slap on Nascar's hand may be a hint of what is to come.
If I were Nascar, I'd be revising how these tests were given and I'd promulgate a list of banned substances to the competitors.  Why Nascar cannot state that it is a violation to have an illegal substance in your system is beyond me, and I'd guess there are other substances they may want to ban too.  A quick look at the NFL, MLB, NBA drug policies would go a long way.



8 comments:

photogr said...

I would not put it passed NASCAR to tamper with it.It is quite possible that Mayfield did not have illegal drugs in his system except for possibly of some of his medications (Claritin D ) which does in fact have some of the items that could give a false reading.

RA6AN . . . said...

Excellent scribble, Iowa. I'm in support of Mayfield. I'm glad someone has taken The Tweedles (Dee & Dum) down a notch and maybe soon they'll realize they're not God. I just wish Jeremy could've had his team intact, ready to jump in at Daytona.

I'm not impressed by owner Tommy Baldwin's show of non-support saying he would not have Mayfield drive his car because he's "marked", and that he's been "through his struggles" which won't help him in the business world. This comes from his former crew chief (albeit not his most recent). With friends like Tommy, who needs enemies?

Gene Haddock said...

NASCAR has lost in court since Brian took over. Remember Marcia Grant? It didn't go to court, but Brian paid her off because he knew they would lose.

Same thing will happen with Mayfield. His doctors will say he took Adderal for ADHT. The ACLU will then join in saying that NASCAR discriminates against the handicapped. This is when Brian pays Mayfield off. $100 million+.

jon_464 said...

Iowa-Girl, good post and insight. The Mayfield fiasco should be a message to NASCAR that its drug testing policies are flawed, to put it mildly. I believe a person is innocent until proven guilty. NASCAR tried to do the opposite and got slapped.

But I do have one question: should Mayfield get tested independently of NASCAR to further exonerate himself, and to prove he is of no danger to his fellow drivers?

Iowa-Girl said...

Photo - Claritin could give a positive meth test. Typically what I am told is that you'd have to be taking it in a much higher dosage than is prescribed. Whether that is true or not, who knows!

Ra6an - Baldwin wasn't very Mayfield-helpful. You wonder what is going on in the garage - is there something that hasn't come out?

Gene - True, although the Kentucky Speedway stuff is still going Nascar's way. I'm not sure settling the Grant case wasn't best for both sides.

Jon - It wouldn't hurt. Although meth is out of the body in typically 24-48 hours. A hair test may or may not show past usage. If Mayfield ran out right away and was tested, it may help. It hasn't been alleged that he did, but the lawsuit is not over either.

klvalus said...

Nice blog Iowa from your legal point of view! When I talked to some sources in the garages at Sonoma everyone said they were very ok with the drugs not being named and it resulted in most folks telling nascar's MD exactly what meds they were currently taking or prescribed as soon as they were. No one seemed the bit concerned about the drug policy not stating specific drugs.

I would also like to believe Jeremy but heard several times from sources that they werent surprised when they heard the person and the substance involved. Garage rumors, bad juju perhaps...

I was happy to see NASCAR get the smack down though!

RLGuido said...

Dont know about this one Iowa. I have taken several unrine tests while in the Navy and was never told what was banned.

Ok, this judge decided that the protocal was incorrect or that the result likelu was inaccurate. Well, if Mayfield had a script for Aderall which contains amphetamine he should have said something beforehand. I have read that he mentioned this at the time of the test.

I will be the last to accuse Mayfield of being a Stoner but if his phycisian signed for the Aderall, somebody knew something. Jeremy should have disclosed his meds immediately as this may have prevented the Ugly deal going on now.

Nascar has been taking alot of heat on all fronts but that is what happens when you become BIG TIME.

Hanny mentioned the Marcia Thomas story. She will never have to work another day in her life. Nascar is or was liable but it was the actions of individuals that brought this on.

Nascar got hammered with Texas getting a second date and so on.

What really maybe happening is that NASCAR has become a major player in the entertainment industry but they have not correctly structered the legalities of their business.

We never hear of the NFL or Major Leage Baseball getting caught up in this but we surely see what some of it's competitors do.

Barry Bonds is in hot water and has been steamed like a crab, how did the size of his head grow ?....anyone blaming MLB ? Rafael Palmiero told a Congressional committe (why are they involved) that he never took the juice then failed a test right after ???? Rafe, I used to like you.

How is it that all the other atheletes are juicing, smoking or what ever but their employers do not take the heat ?

This is not a knock on Mayfield but it is what it is. This is why when we see a TV commerical for such and such they tell you of possible side effects. Take this and you (dont sue us) may die.

Personally Nascar does not impress me with there product or their business. Big Bill France did not have the Big Time to deal with.

Little Brian France has plenty to deal with.

Tsfanpc said...

Well put. NASCAR needs to sit down and have its legal agents come up a drug policy that will be fair not only to the competitors but to NASCAR. This way, it will be in black and white and there will be no question on either side as to what is expected.

NASCAR has for too long gone by the theory, or so it seems, if it is not in black and white, no one can call us on our decisions/rules, etc. But it is time that NASCAR quits hiding behind its curtain of secrecy and let the competitors, owners, crew members, fans and anyone else who wants to know what is going on.