News: Steve Thompson Quoted on NASCAR Case

Sports and Entertainment Chair Steven J. Thompson was quoted on scenedaily.com, the Web site of NASCAR Scene magazine regarding NASCAR driver Jeremy Mayfield's fight to win an injunction that would prohibit a U.S. District court enforcing his indefinite suspension for an allegedly failed drug test until a court can rule on his case.

The article, "Analysis: Weighing merits of Jeremy Mayfield case no easy task," speaks of the difficulty of predicting the decision, due to a lack of previous court decisions on motorsports and how case law on drug testing would apply to NASCAR. 

Thompson believed that Mayfield had a strong case due to the need to apply NASCAR's drug policy fairly.  The U.S. District Court judge ultimately issued Mayfield a temporary injunction, allowing him to return to NASCAR racing.

To read the full article, please click here or see the text below.

Analysis: Weighing merits of Jeremy Mayfield case no easy task

By Bob Pockrass - Associate Editor  www.scenedaily.com

CHARLOTTE – Attorneys familiar with sports law are divided about NASCAR driver/owner Jeremy Mayfield’s prospects when he heads to U.S. District Court on Wednesday seeking to win an injunction that would prohibit the sanctioning body from enforcing his indefinite suspension for an allegedly failed drug test until a court can rule on his case.

Trying to predict whether he will succeed is difficult, considering a lack of previous court decisions on motorsports. While there is plenty of case law on drug testing, how those cases apply to NASCAR, where the athletes are independent contractors not bound by a collective bargaining agreement and whose substance-abuse policy is as much or more about safety as ensuring a level playing field, will be among the issues weighed by Judge Graham Mullen.

“Absent some clear and convincing evidence that NASCAR did something to Mayfield that they wouldn’t do to someone else and did it for a reason that had nothing to do with substance abuse, then he’s probably going to have to pull a rabbit out of a hat to convince a judge that he should be allowed back in a car,” says William Bray, a Charlotte attorney who teaches sports law in the master of business administration program at University of North Carolina-Charlotte and represents Braun Racing, Joey Logano and others in the industry.

Steve Thompson, whose career defending athletes in failed drug tests dates back more than 20 years with the Chicago Bears’ Richard Dent, sees it differently.

“Obviously NASCAR has an interest in promoting drug-free competition; Mayfield has an interest in having a drug policy that he can rely on and is consistent and is fairly applied,” Thompson said in a phone interview from the Chicago office of Ungaretti & Harris. “Both of those things are a matter of public policy and need to exist.

“If you’ve got a drug policy, it’s got to be fairly applied and it’s in the public interest that that happen, that people not be singled out for positive tests if the policy is not being fairly applied. … Based on what I’ve read so far, he has a pretty strong case.”

The hearing Wednesday is not a trial, but attorneys from each side will be given a limited amount of time to argue their side, and the judge will ask questions. The hearing will only decide Mayfield’s request for an injunction against NASCAR, and the judge could rule Wednesday or soon thereafter.

To get the injunction, Mayfield needs to prove to the judge that he likely will succeed on the merits of the case, that he will suffer irreparable harm if the injunction is denied and that the harm he suffers is equal to or greater than the harm to NASCAR if the injunction is denied. The merits of general public policy also can weigh into the decision.

Injunctive relief is considered a drastic and extraordinary remedy that is not routinely granted. Whether or not Mayfield obtains the injunction, the case will proceed, with NASCAR likely asking the judge to dismiss the case. If that request is unsuccessful, then both sides will begin an investigative phase before asking the court to make a judgment or have the case go to trial.

“Injunctions are tough to get, no matter what you’re doing,” Bray says. “The person asking for the injunction is successful less of the time than the person defending it. … Courts are hesitant to grant it.”

Mayfield has argued that his May 1 test produced a false positive reading for methamphetamines. He contends the findings resulted from a combination of prescription drug Adderall, which is used to treat attention-deficit hyperactivity disorder, and over-the-counter Claritin-D allergy medicine. NASCAR, which has not named the illegal drug it says Mayfield used, has asserted that could not be the case.

Mayfield’s lawyers claim that NASCAR, because its drug policy states that tests will be done at laboratories certified by the U.S. Health Department’s Substance Abuse and Mental Health Services Administration must follow the drug-testing guidelines required by federal agencies. They allege that NASCAR did not follow proper procedures and had no authorization to test his B sample and contend it should have been tested in a laboratory independent of the testing of the A sample.

NASCAR, in its court filings, states that it does not have to follow the federal workplace guidelines as Mayfield contends and that Mayfield agreed to follow the NASCAR policy on notifying it of any changes in his medication.

“The real crux is going to be whether they violated their own policy,” says Mark Conrad, a sports law professor in the Fordham University School of Business. “It’s not a question of fairness in the sense that is it really right that he took an allergy medication and he can’t race. If they said you can’t do that and that is something that is within their regimen, you can’t race.”

The theory that NASCAR must follow federal guidelines could sway the judge, but it’s weaker than the argument that the total policy is subjective without a full, definitive list of banned substances and the amounts that must show in a driver’s system, Thompson says. While most of Mayfield’s argument is based on the procedures, he does include the fact that NASCAR’s policy is subjective in nature.

“NASCAR has no prohibited substance list,” says Thompson, who has successfully defended Olympic athletes in drug-testing cases. “That sticks out like a sore thumb here. … NASCAR could decide to ban chocolate milk, and drivers would never know that it is on the list. Before you can charge somebody with some sort of drug offense, they’ve got to know what offending behavior is.

“If they want to have a level of caffeine be a prohibited level, then they ought to publish that. Just saying it when it’s convenient for them, I don’t think it’s going to carry the day. When I read the materials, I thought that’s almost a fatal flaw here. Without a list and without guidance what’s on the list, how will the drivers know?”

NASCAR officials have repeatedly said there is no definitive list because, as stated in its policy, any drug or medication that causes a competitive advantage or a diminished or impaired ability to perform at the track might endanger competitors, officials and fans. NASCAR did provide a list of select drugs and the thresholds for teams to conduct testing of their crews.

“The leagues, generally speaking, have wide latitude in creating disciplinary measures and enforcing those disciplinary measures,” Bray says.

“Unless a court deems those disciplinary measures as arbitrary and capricious, they’re going to be upheld. … Because of the nature of racing and the responsibility that NASCAR as the sanctioning body has to ensure safety of participants and spectators, in my opinion, a court is going to give greater deference to NASCAR if the broadness or the vagueness of [its rules are] challenged.”

One of those broad rules is that NASCAR contends it can suspend anyone at any time “in the interest of stock car racing.” If the judge rules that NASCAR’s substance-abuse policy must follow the federal agency guidelines, NASCAR won’t be able to rely on that general rule, Conrad says.

“If the drug regulations are more specific in what they can cover and not cover and that’s violated, that’s going to trump the general best-interest-of-the-sport clause,” Conrad says. “If … [the rules] are too specific, they can be burned. If they’re broad, they look unfair.”

If Mayfield can prove he would likely win the case, he then must prove the damage done by him being suspended cannot be calculated monetarily. Mayfield’s court filing states that he has had to lay off 10 employees and that a sponsor has opted not to live up to its commitments because of the suspension.

“Irreparable harm will be very clear, and it should almost be undisputed,” Thompson says. “He’s going to be able to show the suspension here deprives him of the opportunity to compete, and he can’t get that back, and he also will be able to show that a suspension disrupts his relationships with sponsors, which likely can’t be repaired.”

Mayfield’s lawyers are also relying on a recent case in the National Football League where Minnesota Viking players were successful in obtaining an injunction over a dispute about whether the NFL failed to inform the players that a weight-loss supplement had a banned substance. The NFL eventually won months later after the court ruled the players bore the responsibility for what they put in their bodies.

The impact on more than just the athlete involved was considered in that case.

“At least some of the players are central to their team’s chances of making the playoffs,” the judge wrote in granting the injunction in the NFL case.

“The failure to make the playoffs and the effect of that failure on the players, teams and fans is not compensable monetarily and is therefore an irreparable harm. Suspending a player for testing positive for a banned substance when there are such substantial questions … irreparably harms the player. Not only does the player lose playing time, but his reputation may be irretrievably tarnished.”

But Mullen might view racing as a different situation. In 2004, Jason Leffler was third in the standings for what was then called the Busch Series when he was released by Haas CNC Racing because he had signed with Joe Gibbs Racing. Leffler went to court in Kansas to get an injunction to race at Kansas Speedway, and the judge ruled that any lost earnings could be calculated by a jury. The case was eventually settled.

While Mayfield likely has a stronger case because he is also the owner of his team, he still could face a similar challenge that Leffler couldn’t overcome, Bray says.

“The argument likely will be [that] the shelf life of a driver, much like the shelf life of any athlete, is short-lived,” Bray says. “Drivers have a very narrow window of opportunity to make the money they’re going to make for [their] entire careers. … It is a very difficult argument to make because … there are certainly experts out there that can say, ‘Here is what a driver of Mayfield’s level is going to make over the next X amount of years.’ ”

If Mayfield can make that argument, he also will have to show that the harm to him and his team outweighs any limitations this injunction would place on NASCAR from enforcing its policy.

Just as it would argue that it can suspend Mayfield at any time as a reason that Mayfield would not win on the merits of the case, NASCAR has stated that it needs latitude to protect its fans and that the public interest is in it having that latitude.

“Mayfield can be tested every day, and they can determine he’s not on any of these drugs on any given day, and he can compete,” Thompson says. “I think that’s a non-issue. It’s one thing to say he may have done it in the past. It’s another thing to say you have to protect us from guys driving on drugs. You can protect yourselves [from] guys driving on drugs by testing every day.”

While he thinks Mayfield has a good case, Thompson says this case will also be good for NASCAR.

“I would expect a case like the Mayfield case to arise when you have a brand new drug policy,” Thompson says. “Every sports league I’ve been involved with has had, when they instituted a drug policy, the first few athletes suspended are going to challenge that policy and probably for good reason because the policies are sometimes written imprecisely, and they need to be challenged this way.

“Challenges that Mayfield filed don’t weaken the policy, they strengthen the policy by making sure the procedural requirements are fair and are being followed in each case.”

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