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Wednesday, June 3, 2009
Mayfield forced to wait because of move

By David Newton

CHARLOTTE, N.C. -- Jeremy Mayfield will have to wait at least two more weeks before his challenge of an indefinite suspension for violating NASCAR's drug policy can be heard in court.

The governing body on Tuesday had the hearing moved from Mecklenburg County Court to federal court. Because the federal judge assigned to the case, Graham Mullen, is on vacation, the issue will not be heard until late this month.

Mayfield's attorneys had hoped to have a temporary restraining order granted on Wednesday that would lift the suspension and allow the driver to compete in this weekend's Sprint Cup race at Pocono.

"It's sort of like when somebody files bankruptcy,'' said Bill Diehl, the Charlotte-based attorney representing Mayfield. "It doesn't matter if I am OK with it or not, they did it.''

Mayfield initially filed for the restraining order on Friday. Because it already was too late for Mayfield to compete at Dover, North Carolina Superior Court Judge Forrest Bridges scheduled a hearing for Wednesday to give NASCAR attorneys more time to prepare.

Paul Hendrick, who represents NASCAR, said his firm was not notified of Friday's hearing until about 5 p.m. Thursday.


Diehl sees the change of venue as another delay tactic.

"Maybe they felt like they were going to lose today," he said. "I don't see an advantage to them being in federal court. The whole removal thing is in place because if you're a citizen of some place other than the state where your lawsuit is brought there is the notion maybe you'll be treated better if you go to federal court.

"I just don't think that really exists anymore. There are good judges in state court, good judges in federal court. The rules are essentially the same unless they felt they were not going to be treated fairly."

NASCAR spokesman Ramsey Poston said the change was requested because "administration of NASCAR's substance-abuse policy extends to every state in which it races, which is why the logical forum is federal court."

Diehl said there is nothing further NASCAR can dig up that will help its case.

"If they are right, then people that get [positive] drug test results can't do anything about them," he said. "It doesn't matter if they are tested properly or not. They take the position it's NASCAR, we can do anything we want.

"We don't think that is the law. And if it is, it should change."

Mayfield was suspended on May 9 for failing a random drug test conducted the previous weekend at Richmond International Raceway. It was revealed by attorneys in Friday's hearing that Mayfield tested positive for amphetamines.

Mayfield and his attorneys contend that the positive test was the result of combining allergy medication Claritin-D with Adderall, an amphetamine-like drug Mayfield takes to treat attention deficit hyperactivity disorder.

Dr. David Black, who administers NASCAR's drug-testing program out of AEGIS Lab in Tennessee, said that was not possible.

Hendrick said Mayfield tested positive for three drugs, with Adderall and Claritin-D satisfactorily explained. He described the third drug as a "dangerous, illegal, banned substance.''

He added that allowing Mayfield back in a car would be dangerous for the driver, fellow competitors and fans. He also said a restraining order would hurt the control NASCAR has over the entire testing procedure.

Diehl argued that the results of Mayfield's test should be thrown out because the second sample -- known as a "B" test -- which ultimately resulted in the suspension, also was conducted by AEGIS. He said federal employee guidelines mandate that the second sample be tested by another laboratory chosen by the person being tested.

NASCAR argued that it is a private entity and does not fall under federal guidelines. The NFL and Olympics also do not require that a second laboratory be used for the "B" sample. Mayfield is seeking damages against NASCAR for defamation, discrimination against someone with a disability (ADHD) and for not handling the drug test properly.

Diehl said money lost by Mayfield during his suspension from the track will be included in the suit. He said the new delay will figure into that.

"It's obvious that if he's not racing, he's not getting paid money to race," Diehl said. "That'll be in the equation. We have a claim to get him back on the track. We have a claim to pay damages.

"This case is going to be heard based on what happened. We could try it in Alaska."

David Newton covers NASCAR for He can be reached at