Monday, June 1, 2009

NASCAR Drug Testing Unconstitutional

NASCAR’s drug testing policy was called into question when driver Jeremy Mayfield was suspended indefinitely on May 9 after testing positive for a banned substance.

On paper, a drug policy in NASCAR makes sense, more so than in stick and ball sports where the risks of using banned substances apply primarily to the record books. You would be hard pressed to argue that Manny Ramirez under the influence of a female fertility drug compromises the safety of his teammates or opposing players. But when racecars are traveling bumper to bumper and three wide at 200 miles per hour, a driver under the influence of any substance that affects performance can endanger the lives of fellow drivers, pit crew members, officials and fans.

Formerly, NASCAR would only conduct tests based upon “reasonable suspicion.” Beginning this year, all drivers and crew members are subject to testing prior to the season and randomly during the season. But NASCAR’s drug policy is one-sided, heavy-handed, lacking in transparency and void of the basic procedural safeguards we have to come to associate with freedom and constitutional protections.

First, there is no published list of banned substances that drivers should avoid. NASCAR is free to determine which substances it believes may affect safety on the racetrack. The Association defends its secretive policy, maintaining that a list of banned substances is “restrictive,” which is another way of saying it doesn’t like to be told what to do. And in fact, it seldom has been. NASCAR is a privately held company – owned and operated by the France family – and has been the oversight body for stock car racing for more than 60 years.

But with no list to go by, drivers are left to guess which substances are safe to ingest and which ones they should avoid. Is aspirin on the list? Poppy seed bagels? How about coffee and Diet Dew? Surely a jittery driver hyped up on caffeine is a danger at Talladega. And say goodbye to a pre-race ritual of twinkies. Ever see what an excess of sugar can do to the senses?

Second, the policy doesn’t provide for an appeal. All decisions by NASCAR are final.

Third, the policy doesn’t contain a prescribed list of penalties. NASCAR suspended Mayfield indefinitely for a first offense, but admits that it could have suspended him permanently. Although NASCAR may consider reinstatement, such action is conditioned on the driver completing a rehabilitation program prescribed by the governing body.

Mayfield insists that he wasn’t given a copy of the failed test prior to his suspension and he has no idea what substance he tested positive for. The driver does admit to taking a combination of a legal prescription drug, which he refused to identify, and Claritin-D for allergies. If his story sounds familiar, it should. Few athletes who have tested positive for banned substances admit to it, even when confronted with irrefutable evidence.

NASCAR is notorious for handing down inconsistent penalties, leaving itself open to allegations of favoritism. If a star driver, say, four-time Sprint Cup Champion Jeff Gordon, had tested positive instead of a bit player like Mayfield, would NASCAR have taken similar action?

The question isn’t merely academic. Gordon recently admitted to taking lidocaine for recurring back pain. According to the FDA, possible side effects of lidocaine include nausea, drowsiness, mental/mood changes, ringing in the ears, dizziness, vision changes, tremors, numbness, slow pulse, trouble breathing, seizures and chest pain. Sounds like a substance that can create a safety issue on the racetrack to me.

Mayfield claims he did nothing wrong and will refuse to enroll in a rehab program. His attorney has been making noises about suing NASCAR and he may have a case. Courts are loath to interfere with the operations of a private organization, but some courts have made exceptions, especially when an organization violates concepts of fairness. One obvious issue in this case is the fairness of punishing Mayfield for conduct he didn’t know in advance was prohibited.

Players’ unions in sports are oftentimes viewed as obstructionist and overly protective of athletes’ rights in the face of overwhelming evidence of wrongdoing. But as the situation with Mayfield suggests, without a union, athletes are subject to the whims of management. If only we had a happy medium.

Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is an Assistant Professor of Sport Management at Eastern New Mexico University, teaches the Business of Sports at the University of Wyoming, and is a contributing author to the Business of Sports Network. Jordan can be reached at

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