Wednesday, July 8, 2009
NASCAR wants injunction overturned
CHARLOTTE, N.C. -- NASCAR on Wednesday asked an appeals court to ban Jeremy Mayfield from racing, alleging the participation of "a proven methamphetamine user" could lead to fatal consequences for other competitors and fans.
NASCAR wants the 4th U.S. Circuit Court of Appeals to overturn U.S. District Court Judge Graham Mullen's decision last week to lift Mayfield's indefinite suspension following a positive drug test.
Mayfield attorney John Buric scoffed at the idea Mayfield is a potential danger and revealed the driver was tested twice Monday -- once at an independent laboratory and once at his home by NASCAR.
"He's not a danger, and they have the right to test him anytime to find that out," Buric said. "In fact, they did test him on Monday night at his home. A group of people went to his home and watched him pee in a cup. It was humiliating."
Mayfield was suspended May 9 for failing a random drug test eight days earlier. NASCAR has said he tested positive for methamphetamine, but Mayfield has denied using the illegal drug.
NASCAR's appeal did not mention the most recent random test, but NASCAR spokesman Ramsey Poston confirmed Mayfield was tested Monday evening.
Buric and NASCAR differed on what exactly happened during the seven-plus hours between the time Mayfield was asked to report for testing and when NASCAR collected a sample -- a lag time the program administrator called "a classic case of delay tactics used by someone who doesn't want to be tested."
"The standard procedure for this type of testing is notification to an individual and no more than a 2-hour time lapse before the sample is collected," said Dr. David Black, CEO of Aegis Sciences Corp., which runs NASCAR's program.
"When an individual has more than two hours, they have an opportunity to engage in behavior that can mask a sample. When you are dealing with a seven-hour lag, there is a great opportunity for mischief."
NASCAR said Mayfield was notified by an Aegis representative at 1:18 p.m. Monday to report to a nearby testing center within two hours, but the driver said he had to first speak to his attorney. After a delay, Buric told NASCAR that Mayfield couldn't get to the center by 3:18 p.m., so NASCAR said it found a lab closer to his location.
At 3:45 p.m., Mayfield called the lab to say he was close but lost, and a receptionist offered to talk him the rest of the way, Poston said.
NASCAR said Mayfield told the lab he would call right back but no one was contacted until 5:30 p.m., when Buric called NASCAR to inform them Mayfield could not find the location so the lawyer had sent him to an independent laboratory. Buric said he did that so Mayfield would avoid accusations of refusing to be tested.
Buric confirmed Mayfield received a call at 1:18 p.m. But he said Mayfield told him it went to voice mail, and he did not get the message until 2 p.m. By the time Mayfield sorted it out with Buric, he had just 36 minutes to report and told his lawyer he couldn't make the deadline. Buric confirmed a second location was found but said Mayfield was "given bad directions" and could not find it.
"I told him go to our lab, go to our doctors, and he did. He provided a sample to our own doctors," Buric said.
He told NASCAR of the independent test at 5:30 p.m., and NASCAR told him to send Mayfield home, where testers would meet him to collect a sample.
Buric would not reveal what laboratory tested Mayfield and said he wasn't sure if it was certified by the Substance Abuse and Mental Health Services Administration. He said the results have not come back yet.
Black said those results would be irrelevant because "a testing program never accepts a sample from a donor who selects the time and circumstance."
Poston said two testers and a NASCAR security officer arrived at Mayfield's home in Catawba County, N.C., at 7:20 p.m., could not gain access for 10 minutes, and then weren't able to persuade Mayfield to give a sample until 8:20 p.m.
Poston said one tester watched Mayfield give the sample, and Mayfield vehemently protested being monitored.
"The litany of excuses and delay tactics he used to keep away from our testers was ridiculous," Poston said.
Buric disagreed, saying NASCAR's confusing instructions led to the delays and that if Mayfield were "stalling" he would not have given the sample.
Black said the test processed by Nashville, Tenn.-based Aegis would be completed by Friday at the latest. His lab typically needs four days to analyze a sample. If the "A" sample were to come back positive, Black said NASCAR likely would look to the court for guidance on how to proceed with the "B" sample.
Mayfield has argued that NASCAR's drug policy is flawed and that he should have been allowed to have the backup "B" sample collected May 1 tested by an independent lab of his choosing.
Even though Mayfield has been cleared to race, Buric said he doubted the driver will be in Chicago for this weekend's event. Mayfield has until Thursday afternoon to enter his Mayfield Motorsports' car or find another team owner willing to hire him for the event.
"As of right now, he does not have any sponsors, he does not have anyone asking him to drive," Buric said. "His career is all but ruined unless someone gives him a chance. But people are treating him like a pariah. We thought the injunction was an important factor in getting him back on track.
"As it appears to be turning out, having accomplished that doesn't at all get him what he really wants: getting back in a car going around the track."
That's exactly what NASCAR's fighting.
NASCAR wants the injunction lifted, arguing Wednesday to the appeals court that Mullen relied on incorrect information when he lifted the drug suspension. If allowed on the track, NASCAR believes Mayfield poses a dangerous threat.
"The District Court failed to give proper weight to the safety interests of the NASCAR drivers, teams, and fans who will be subject to increased risk of injuries or fatalities if NASCAR is forced to allow a drug-impaired driver to participate in NASCAR events," NASCAR wrote.
NASCAR also argued Mullen was incorrect in ruling that the harm to Mayfield outweighed the harm to NASCAR if he were not allowed to race.
"[The court] must focus on the substantial injury the injunction will cause the drivers who risk serious injury or death by racing next to Mayfield at speeds of more than 180 miles per hour, and the potential injury to teams and fans located just a few feet away from the track," NASCAR argued in the motion.
"A stay will not 'substantially injure' the interested parties -- rather a stay will prevent substantial injury or even death to other drivers, teams, and any one of the millions of fans who attend NASCAR events each year."