Spot News/Daily & Internet
Dustin Long, Greensboro News-Record
A RETURN FROM NASCAR EXILE
Charles Yesalis foreshadowed months ago what happened Wednesday, when a federal judge lifted NASCAR's suspension of Jeremy Mayfield for a positive drug test.
Yesalis, an expert who has testified before Congressional hearings on performance-enhancing drugs,, blasted NASCAR in September when series officials revealed their updated policy.
The policy doesn't include a list of banned substances, something Yesalis said is unlike any other pro sports league he was aware of.
"This is really bad," Yesalis told The Virginian-Pilot last fall. "If I were a driver and got caught, I'd hire me a real big-time lawyer and say, 'Make mince-meat of it.' "
Jeremy Mayfield, who claims his positive test for methamphetamine is a result of two medicines he took before a random drug test, did just that. Judge Graham Mullen's injunction Wednesday gives Mayfield a chance to drive in Saturday's Sprint Cup race at DaytonaInternational Speedway. It would be Mayfield's first event since being indefinitely suspended May 9.
NASCAR had not determined Wednesday night if it would appeal the decision, but it continued to vigorously defend its Substance Abuse Policy.
Still, it was clear Mullen had doubts about the policy, based on the way he challenged NASCAR's lawyers during the proceedings.
Mullen questioned how NASCAR determines what violates the policy without a list of banned substances and what kind of an appeal process is in place.
Series officials fended off questions last fall about not having a list of banned substances. They stated that the series had the toughest drug policy in all sports, noting that anyone could be penalized for the "misuse or abuse of any drug."
That approach didn't work Wednesday.
Mullen asked Helen Maher, an attorney for NASCAR, if there was a limit to NASCAR's discretion on what violates the policy. Maher's indirect answer caused Muller to interrupt her.
"That's not a response," Mullen said. "If you're answer is none, step up and own it."
Maher said: "It's always up to NASCAR's sole discretion."
Yesalis said Wednesday that the solution to this issue is simple.
"For crying out loud, you can still do a list," he said, referring to a list of banned substances. "They could put together a group of experts... (and) do a Thou Shall Not list."
Yesalis said other leagues that list banned substances include a clause "and related substances" to keep up with the growing types of drugs used.
Mullen's questions Wednesday didn't end with Maher. The judge asked Paul Hendrick, another attorney for NASCAR, about an appeal process with the policy.
"How does Mr. Mayfield contest a false positive? What is the remedy?"
Hendrick said: "There is no remedy to contest a false positive until he sees the testing results."
When NASCAR suspended Mayfield, an official said the penalty could not be appealed. Essentially, the only appeal was testing a second sample of Mayfield's specimen.
When a driver provides a urine sample, it is divided into two. One sample is tested and the other is stored in case there's a dispute.
Mayfield's lawyers challenged the testing procedure and said the lab tested the second sample without Mayfield's consent, which had an impact on the appeal process. Such questions with NASCAR's procedures benefited Mayfield.
Mullen didn't rule on whether mistakes had been made with Mayfield's drug test - something that will be contested later. Mayfield has filed a civil suit against NASCAR, and NASCAR filed a countersuit. His attorney Bill Diehl implored Mullen that he had to issue an injunction.
"It's July 4th weekend," Diehl said in court. "Somehow that rings true as I talk to you and ask you to correct a wrong.
"Independence Day for Jeremy ought to be today."
It was, but this case is far from complete.
"This is only a temporary injunction, the legal case continues beyond this point," NASCAR spokesman Ramsey Poston said. "We will continue to make our case."
As long as questions remain, NASCAR's task becomes more difficult.