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.
