Case raises questions about NASCAR drug policy

Saturday, Jul. 25, 2009

In a U.S. District courtroom this month, Charlotte lawyer William Diehl launched a defense of his client, Jeremy Mayfield, by targeting the NASCAR drug policy that led to the driver's suspension this year.

That policy, according to Diehl, was so open-ended NASCAR could administer any penalty for any substance it deemed dangerous, even if a driver didn't learn it was banned until after a positive test. “If they decide to ban Coca-Cola or coffee or orange juice, their argument is, we can,” Diehl said.

NASCAR's response? We can, but we wouldn't.

Drug policy experts say NASCAR's substance-abuse rules, unlike those of other sports, allow the governing body to make those same kind of on-the-fly calls regarding testing protocol and punishment. The result, experts say, is a deeply flawed program.

“I've never seen anything like it,” said Charles Yesalis, a Penn State health policy professor and an adviser to sports organizations. “For a sport that promotes itself as being red, white and blue, these rules are almost Stalinist. It's un-American.”

Last week, Mayfield and NASCAR continued their battle in two courtrooms, including the 4th U.S. Circuit Court of Appeals, which put on hold a lower court injunction that allowed Mayfield to return to competition after an alleged positive drug test for methamphetamine. Mayfield says he has never used meth, and he has accused NASCAR of misreading – or spiking – the tests that say otherwise.

The case has turned attention toward a drug policy that is emblematic of the control NASCAR has over its drivers – a relationship that's a source of occasional friction between the organization and its talent. Until now, that has mostly involved grumbling about what drivers see as arbitrary changes to racing rules and midrace interpretations of those rules.

Now, say Mayfield's attorneys, someone's career is at stake.

“If you're going to have a policy in place that you're going to utilize to suspend drivers,” said attorney John Buric, “the policy should be clear and unambiguous.”

Such imprecision was a factor in U.S. District Court Judge Graham Mullen questioning the integrity of Mayfield's positive tests and granting an injunction this month that lifted the driver's suspension. Experts say the Mayfield case, a seemingly basic positive drug test, has become legally tangled in part because of the ambiguity of the NASCAR rules.

NASCAR spokesman Ramsey Poston did not return calls regarding the testing program, but in court proceedings, NASCAR has defended the sweeping policy as necessary in a sport where drivers compete at up to 200 mph. The substance program is not collectively bargained, as in other professional sports, because NASCAR operates as a private enterprise in which drivers are independent contractors with little or no official say over policy.

After some early questions about the drug policy's lack of specifics, drivers have publicly supported the program. Three drivers – Jeff Gordon, Jimmie Johnson and Robby Gordon – signed affidavits for the Mayfield case saying the policy is “vital to the safety and integrity of the drivers, crew, owners and fans at the races.”

At Indianapolis Motor Speedway, where Sprint Cup drivers will race in Sunday's Allstate 400 at the Brickyard, Jeff Gordon reiterated his support, with perhaps a little reservation.

“I've been tested three times, and each time you can't help but have a little feeling inside you wondering, what's going to come out of this? I take an allergy pill. Is that going to do something?” he said. “I still think it's a good policy. It's new, so obviously there are going to be some things come out that we all will learn from. I think it's a positive thing for the sport.”

The road to testing

For decades, NASCAR's substance-abuse program fit the independent ruggedness of the sport and its drivers. Rules stated simply that drivers who were suspected of using illegal drugs or abusing legal substances could be tested or banned.

Mostly, problems were handled informally, said Humpy Wheeler, former president of Lowe's Motor Speedway. If a driver – often a young driver – had an alcohol issue or was suspected of cocaine use, two or three veteran drivers would invite him to a trailer for a talk.

“That would usually take care of it,” said Wheeler.

But when Truck series driver Aaron Fike was arrested in 2007 with heroin, then admitted to using the drug before a race, NASCAR began playing catch-up to other major sports. Most professional and amateur organizations developed formal programs beginning in the late 1980s, when U.S. labs were first equipped with tests that could identify performance-enhancing drugs. (A notable exception: the PGA Tour, which began formal testing this year.)

Last year, NASCAR announced a new drug policy that included preseason testing and random, in-season testing of drivers, crew members and officials. Among the first to be snagged this season was Paul Chodora, a pit crew member for Mayfield's No. 41 Sprint Cup team. Chodora was suspended indefinitely.

Mayfield, at the time, approved.

“We as an organization appreciate NASCAR's drug testing policies and policing efforts as it makes the sport stronger overall,” Mayfield said in a statement in February.

Others were critical of NASCAR's policy – both before and after Mayfield became ensnared by it.

“In this day and age, it leaves me speechless that they can put this forth as an anti-doping program,” said Gary Wadler, an associate professor at the New York University School of Medicine and chairman of the subcommittee that maintains the list of prohibited substances for the World Anti-Doping Agency. “The NASCAR program falls apart all over the place.”

Put it all in writing

Wadler and others say that unlike the substance-abuse policies of other major and amateur sports organizations, NASCAR's policy lacks exactness in several areas, including testing and lab protocol, punishments, and appeals processes. Most troubling to drug policy experts is a lack of a comprehensive list of banned substances. Instead, said Penn State's Yesalis, NASCAR takes a “guess what's on my mind” approach.

“It's beyond my comprehension that how you can have a drug program without a list of prohibited drugs,” said Wadler. “If I'm a race car driver and I have a medical condition, am I allowed to take a drug my doctor prescribes, or is there a process if there's a legitimate need for that drug, or an alternative drug that can be used?”

Wadler said 12 WADA experts meet three times a year to look at such issues involving their prohibited drug list, and athletes are given hearings if they have questions about legitimate medical uses of those substances. “But without a list of drugs, none of that can effectively happen,” he said. “The consequences are significant for somebody whose career depends on it.”

In court filings and arguments, Mayfield's attorneys have found some traction in the perceived shortcomings in NASCAR's policy.

A key argument: Although NASCAR policy says testing will be done at facilities certified by the federal Substance Abuse and Mental Health Services Administration, NASCAR doesn't require its testing facility to use SAMHSA standards in conducting its tests.

Those standards weren't followed in the handling of Mayfield's May sample, his attorneys argued this month. NASCAR attorneys say the organization is not required to adhere to those standards, but Judge Mullen disagreed, noting the failure to follow “required testing protocols” in his decision to lift Mayfield's suspension.

The case will continue to be heard in the 4th Circuit Court.

Outsourcing one solution

One improvement available to NASCAR, experts say, is to bring in outside help in administering its program. Unlike NASCAR, which contracts directly with a lab – Aegis Sciences Corp. of Nashville, Tenn. – for drug testing, most professional and amateur sports organizations use an independent third party to help administer its drug program.

“That became the norm about a decade ago,” said Frank Uryasz, president of Drug Free Sport, which consults with and conducts drug programs for several sports, including Major League Baseball, the NFL, the NBA and the NCAA. “There was a decision to add transparency and to eliminate the perception that the fox was guarding the hen house.”

That house, say drivers, is in good enough hands for them.

“I think asking questions about how the process works is good,” said Jeff Burton. “I believe we need to be looking at that. I have no concerns whatsoever going over and giving a test right now. I don't believe my test will be inaccurate.”

Said Greg Biffle at Indianapolis: “We probably all flew here this weekend. You don't want your airline pilot to be flying the plane if he comes back with something in his system and his decisions may be a little but cloudy. Or are we going to weigh on the side of safety and say, ‘You know what? I'll take the next flight?'”

Disclaimer