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 jkobritz@mindspring.com.

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Name of New Mets Ballpark

Bailout Ballpark. Taxpayer Field. Subsidized Park.

All the names are catchy, and perhaps appropriate. Nevertheless, the new ballpark under construction for the New York Mets will continue to be called Citi Field. But that name may be subject to change, based on the shifting tide of the financial landscape and the equally uncertain future of Citigroup.

At a time when Citigroup could still pretend that all was right with its balance sheet, the financial giant entered into the largest sports facility naming rights deal in history, a 20-year, $400 million contract with the Mets.

Now that the toxicity of Citigroup’s assets has been confirmed, and the government has agreed to a $345 billion bailout - $45 billion in direct investments and another $300 billion in guarantees – critics of the naming rights deal are having a field day, no pun intended. But their criticism is misplaced. Neither the naming rights deal nor its amount should be the issue.

When times are tough, marketing budgets should be among the last areas businesses seek to cut. Companies need to market their products, and to do that they need name recognition and exposure. The question that should be asked is whether a company receives value for its investment in marketing.

The visibility of the naming rights deal with the Mets makes it an easy target for those who are rightfully upset with the callous and reckless way Citigroup operated, which resulted in the need for a government handout. But that visibility merely suggests that the naming rights deal may in fact be an appropriate and effective use of marketing dollars.

If critics of Citigroup’s government subsidy want to get worked up over the company’s actions, a more appropriate target would be the compensation package afforded the bank’s executives. Those responsible for leading the financial giant down the road to ruin earned as much as $30 million per year. When he was finally asked to leave last year, Citigroup’s chief executive, Charles O. Prince III, was “rewarded” with an additional cash bonus of $12.5 million and stock valued at $68 million according to The New York Times.

Citigroup isn’t the only recipient of taxpayer funds to have naming rights sponsorships with sports entities. The list is long and includes a number of other financial institutions. Among the largest: PNC Bank ($7.7 billion) holds naming rights to the Pittsburgh Pirates’ ballpark, “PNC Park;” J.P. Morgan Chase ($25 billion) calls the Arizona Diamondbacks stadium “Chase Field;” Comerica ($2.3 billion) has its name on the Detroit Tigers’ stadium, “Comerica Park;” and Capital One ($2.3 billion) is the title sponsor of the “Capital One Bowl”.

AIG, the insurance giant that is being propped up by a $150 billion subsidy from Uncle Sam, has a $125 million sponsorship agreement with Manchester United, the British soccer club. At least with the Citi Field sponsorship, the argument can be made that bailout funds are being spent on American soil.

Not every company seeking a handout from the American taxpayers is continuing or expanding its sports sponsorships. General Motors, which along with the other Detroit automakers is on life support and seeking $25 billion in aid from Congress, has announced cutbacks on advertising in NASCAR and will eliminate all Super Bowl ads next year. The company has also cancelled a sponsorship agreement with Tiger Woods to endorse its Buick line. The original 10-year deal would have expired next year, but the parties mutually agreed to an early termination, saving the beleaguered company $7 million.

The sponsorship deal between GM and Woods was a one-way street - beneficial to Woods, but unproductive to the company and its shareholders. GM hoped to reduce the age of Buick buyers by aligning the brand with the youthful golfer. But the average age of Buick purchasers in 2008 was 68, the same as in 1997, according to a study by the auto research division of Strategic Vision, Inc. Sales of Buicks plunged 58% from 1999 to 2007, and fell an additional 24% this year.

Which brings us back to Citi Field. The issue shouldn’t be the amount of the sponsorship, but whether the deal will benefit Citigroup and its stockholders, a group which now includes the U.S. taxpayers. Based on early returns, the answer to that question is still unknown.

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 jkobritz@mindspring.com.

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Athlete Clustering at NCAA Institutions

If you think student-athletes are more the former and less the latter, you also believe the Bowl Championship Series (BCS) crowns a true football champion. A recent USA Today report suggests that NCAA schools are more concerned with eligibility than education.

The paper compiled data on juniors and seniors in five sports – football, men’s and women’s basketball, baseball and softball – at 142 colleges across the country and found that athletes “cluster” in certain majors at many of those institutions. Which begs the question: Are athletes encouraged to enroll in easy majors and easy courses in order to maintain eligibility?

Coaches and administrators who defend the practice of clustering say no, and suggest that athletes are merely enrolling in popular majors. That position would be more defensible if the percentage of athletes mirrored the percentage of the student population enrolled in such majors. But that isn’t the case at most institutions.

Critics suggest that clustering is one method of complying with the NCAA’s Academic Progress Rate (APR) system. The APR, instituted in 2003, was designed to encourage higher graduation rates for athletes by imposing penalties such as forfeiture of TV revenue, exclusion from bowl and tournament appearances, and loss of scholarships for universities that did not meet the NCAA’s retention and eligibility guidelines.

When the NCAA instituted the APR, it also adopted more stringent rules regarding the progress athletes make towards their degree. But the governing body simultaneously lowered admission standards, allowing schools to accept less academically qualified students.

Talk about your perfect storm. Universities across the land were faced with pushing “academically challenged” students through school more quickly. All while making sure said athlete fulfilled the primary purpose for which he/she was enrolled: To bring glory to State U. on game day. And the latter activity was always more important than the former, at least in the eyes of coaches and many members of the administration.

The existence of athlete clustering is undeniable. At the University of Michigan, for example, 31 of 41 junior and senior football players majored in “general studies” in 2007. General studies, referred to as “university studies” at schools such as the University of Nevada at Las Vegas and the University of New Mexico, is best described as a major that really isn’t a major.

At many institutions, students enrolled in general studies are allowed to cherry pick the easiest courses from all the majors offered on campus. The result might be a degree plan that includes, say, an activities class such as basketball or golf from Health and Physical Education, basket weaving from Early American Studies, and sports public speaking from Communications.

None of those courses in and of themselves are irrelevant. But cobbled together in a degree plan, they prepare a graduate for exactly what kind of career? But I digress. A scholarship athlete’s career goal at many institutions is to remain eligible. Which, given the time commitments required of athletes at Division 1 institutions, is difficult to do by taking chemistry, engineering and physics.

Athletes face enormous pressure - from coaches, administrators, parents, peers - to maintain eligibility. An additional source of pressure exists in the form of academic advisors who are employed and paid by the institution. C. Keith Harrison, an associate professor at the University of Central Florida, told USA Today academic advisors help student-athletes “major in eligibility with a minor in beating the system.”

There are athletes who compete at the highest level and still obtain a quality education. One example is Florida State safety Myron Rolle, who missed part of the November 22 game against Maryland while interviewing, successfully, for one of the 32 Rhodes Scholarships awarded annually. But he’s the exception, not the rule. And even Rolle experienced pressure from a coach, Seminoles’ defensive coordinator, Mickey Andrews, who publicly criticized him for studying too much last year, saying it affected Rolle’s preparation to play football.

The NCAA’s position is that if clustering exists, it’s a problem individual institutions should address, since curriculum and course quality issues aren’t the concern of the national governing body. But if the NCAA created the problem initially - which can’t be definitively determined without further research – shouldn’t they be the ones to initiate changes to benefit student-athletes?

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 jkobritz@mindspring.com.

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The Economy Hits NASCAR Hard

How quickly the mighty have fallen. After a meteoric rise over the past 10-15 years, NASCAR was on the verge of challenging the NFL, America’s number one sport, for the top spot in television ratings. No more. NASCAR has taken a hit. Make that multiple hits.

Where to begin? Hopefully, it can’t be as bad as the recent headline in The Boston Herald which screamed, “Will NASCAR Survive?” But the reality is many of the teams that form the backbone of the sport are hurting. And the worst is apparently yet to come.

Attendance at Sprint Cup races around the country took a nosedive this year. The drop in attendance was evident prior to the meltdown in the economy, but coincided with the run-up in the price of a barrel of oil and a gallon of gas. Fans, apparently concerned with paying their mortgages and fearful of the floundering stock market, were staying close to home.

Merger talks aimed at strengthening teams struggling for sponsorship dominated the garage throughout the season. Some of those talks have been successful, including the recent announcement that Dale Earnhardt, Inc. and Ganassi Racing will merge, with the latter assuming control. In effect, DEI ceases to exist, barely one year after CEO Theresa Earnhardt rejected a bid from Dale Earnhardt, Jr. to purchase controlling interest in the company founded by his father. Theresa’s stubbornness personifies the old adage that a smaller percentage of something is better than 100% of nothing.

With the Cup season ending last Sunday, expect a blizzard of pink slips in the garage, reflecting a number of teams’ uncertain future in an unstable economy. Some teams are fortunate to have long-term sponsorship agreements with stable companies. But teams with expiring sponsorship deals are justifiably concerned about qualifying a car in next year’s Daytona 500.

The Big Three American automakers, bleeding cash and lobbying Congress for a bailout, are reassessing all marketing expenses and sponsorship relationships. It’s hard to imagine what NASCAR would look like without direct subsidies from Detroit. But for now, none of the three auto manufacturers, Ford, Chevy or Chrysler (Dodge), have announced plans to pull out of NASCAR entirely. Their position acknowledges the obvious: They need to move inventory, and one of the best ways to draw buyers into the showroom on Monday is to have a presence at the track on Sunday.

In an effort to reduce team costs, NASCAR last week announced a ban on all testing at tracks that host NASCAR events. The move was controversial, with some arguing it will give multi-car teams who share information an advantage over smaller, less successful teams. Although NASCAR admitted it didn’t know how much the move would save teams, some estimates put the cost of testing at $100,000 per day, meaning industry-wide savings could total as much as $30 million per year.

The falling popularity of NASCAR was made painfully obvious during the penultimate Sprint Cup event of the season, the November 9 race at Phoenix International Raceway. With 34 laps remaining, and Jimmie Johnson, who was leading the race, on the verge of becoming only the second driver in NASCAR history to win three Championships in a row, ABC switched the telecast to another Disney network, ESPN2, in the Eastern and Central time zones. Seems ABC was committed to showing America’s Funniest Home Videos in its entirety.

The move was reminiscent of the infamous “Heidi Game” of 40 years ago. With the New York Jets leading the Oakland Raiders 32-29 and 1:05 left in an American Football League game, NBC elected to begin showing the movie “Heidi.” The Raiders proceeded to score two touchdowns in those final 65 seconds and won the game, 43-32, creating a firestorm of complaints from viewers and provoking criticism from the media. ABC was spared similar scorn, as Johnson won the race and increased his points lead over runner-up Carl Edwards.

But the message to NASCAR was clear: You aren’t relevant, at least, not as relevant as America’s Funniest Home Videos. Who would have thunk it just two short years ago?

The economic times are tough for many Americans, and destined to get tougher. And the sports world won’t be spared. NASCAR is just the first of the big-five sports to feel the pinch.

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 jkobritz@mindspring.com.

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Economic Bailout Benefits NASCAR

What a great country.

In the midst of the worst economic meltdown since the Great Depression, Congress crafted a $700 billion bailout bill that, we were told, was designed to stem the bleeding in the financial markets and keep our 401K’s from morphing into 201K‘s.

But in keeping with political tradition, the bill that finally garnered enough support to become law included a number of provisions unrelated to Wall Street and our home mortgages. Buried deep in the fine print of the landmark legislation were provisions that benefited, among other special interest groups, the movie industry, toy-arrow manufacturers, and NASCAR. That’s right. Sports were front and center during deliberations that many lawmakers claimed were the most significant and difficult of their careers.

It would be nice to think the pork barrel provisions were what caused the House to reject the bill on its initial vote. But that would be too idealistic. In fact, the reverse is probably true: Lawmakers only came around to support the bill after it had been sufficiently larded up.

The tax break to NASCAR is estimated to be $140 million, which won’t make much of a dent in the $700 billion taxpayers are on the hook for. Technically, the legislation provides a two-year extension of a statute that allows motorsports racetracks to depreciate their investment at a faster rate, over seven years instead of 15. Track owners will have less taxable income in the early years, which will result in paying lower taxes. In theory, postponing taxes means more money is currently available for investment, which is how the provision was sold to lawmakers.

The biggest potential beneficiary of the bill appears to be International Speedway Corporation (ISC), owner of 12 tracks - including the Daytona International Speedway - that host 19 Sprint Cup races. An ISC spokesperson told USA TODAY the company has plans to spend $80-100 million on various tracks in each of the next two years on such things as lights, which would allow tracks to hold night races.

ISC, although a publicly traded corporation, is controlled by the France family which is also the company’s major shareholder. The Frances – both branches of the family – are billionaires. But, hey, even rich people need tax breaks. And politicians like nothing better than to sidle up to sports owners.

And who could blame NASCAR for bellying up to the trough? Times are tough throughout the sports world, and motorsports is no exception. NASCAR has had a rough year, and the signs don’t bode well for a quick turnaround. The high cost of gas – not to mention tickets – has resulted in thousands of empty seats at previously sold-out tracks. By some estimates, attendance at the October 5 Talladega race was 50,000 less than previous races at the famed track.

Sponsorships for car owners are becoming more difficult to obtain. At $20-30 million annually for a primary sponsorship, corporations are thinking twice about the benefits of motorsports as traveling billboards.

NASCAR’s biggest supporter, the automobile industry, has been one of the hardest hit segments of the economy. In an effort to stave off bankruptcy, General Motors is reputed to be engaged in merger discussions with Chrysler after being rebuffed by Ford last summer, according to The New York Times. Any consolidation of Detroit automakers will have negative implications for NASCAR.

Even Toyota, which entered Cup racing just last year, sent an ominous message to the motorsports industry. Toyota Racing Development President & GM Lee White recently told ESPN.com, “Our racing budgets are being reviewed and certainly are not being increased. A lot of our special racing projects are year to year, and those are under review.”

Given the bleak economic picture prevailing in motorsports, any help – even a handout from taxpayers – was welcome news at ISC corporate headquarters. Whether the accelerated depreciation rules will aid the failing economy is another matter.

They say you should never watch laws or sausages being made. Having been present for the birth of both, I’ll take the sausages. The initial view in both instances can lead to heartburn, but there’s less indigestion from eating a sausage than there is in the aftereffects of laws. And sausages definitely taste better at a sporting event.

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 jkobritz@mindspring.com.

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