The Frontstretch: Mayfield Injunction A No-Win Situation for NASCAR Racing, Drug Testing by Bryan Davis Keith -- Thursday July 2, 2009

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Guess who’s coming to Daytona?

That’d be none other than formerly-suspended Jeremy Mayfield. With high-powered attorney Bill Diehl backing him up, Mayfield was granted a temporary injunction that will allow him to return to competition as early as this weekend’s races in Daytona Beach. And while Diehl was quick to label the court’s finding in Mayfield’s favor as an “independence day” for his client, it is really really hard to take anything positive from this latest twist in what has become a black-eye saga for the racing community.

Sure, Mayfield fans will rejoice in getting to see their favorite driver take to the track in the near future and just about everyone (including this writer) will take some satisfaction in seeing NASCAR being taken down a peg or three. But the smiles stop there…because this case has established precedent that no one in their right mind should consider progress.

Consider the cornerstone argument used by Diehl to garner Mayfield his injunction: that because NASCAR’s drug policy requires all testing to be done by laboratories that the Substance Abuse and Mental Health Services Administration of the US Department of Health has certified, NASCAR must inherently abide by the same guidelines used to govern drug testing in the federal workplace.

In short, simply because NASCAR has chosen in their drug policy to use laboratories that are held to be of the highest caliber by the US Department of Health, they must act as a federal agency would themselves in conducting drug testing, according to this latest decision.

To call that dangerous precedent is putting it lightly. For all the debate and scorn directed (and rightfully so) at NASCAR for their bumbling incompetence in managing a tremendous sport, there shouldn’t be a single fan out there embracing the fact that federal agency guidelines for drug testing are now being forced upon NASCAR. Think of the groundwork that could be laid here considering the recent power grabs of the federal government (and the fact that they own substantial interest in two automakers that play a huge role in this sport).

Who is going to determine if NASCAR is meeting federal agency guidelines? And how? Call me a conspiracy theorist, but the mere possibilities that these questions evoke scare me. And all of this because NASCAR did the right thing in crafting their drug policy by mandating that the labs doing the testing be certified.

Not convinced? Let’s try a simpler argument. The precedent to follow now is if suspended, simply sue. The precedent is now, thanks to the workings of a courtroom, competitive control has been taken from the very sanctioning body itself, and a driver with a possible outstanding positive drug test has been cleared to compete in one of the world’s most dangerous sports. NASCAR’s new drug policy, which for all of its flaws was truly a step forward, has now been ripped to shreds and will serve as no deterrent to substance abuse in the foreseeable future.

Now before jumping down my throat, let’s be clear: I am not in any way shape or form blanket-defending NASCAR’s drug testing policy. Not having an available, published list of substances being tested for is unacceptable. Not having a plan in place to have second samples tested by an independent lab following a positive drug test is unacceptable. And frankly, the way NASCAR has handled the entire Mayfield fiasco is unacceptable.

But the Pandorra’s Box that has been opened as a result of this legal injunction is going to have repercussions far beyond Jeremy Mayfield, and far beyond the short-lived joy of seeing Brian France and Co. lose a battle to the little guy. The courts are now involved, federal agency standards (and likely the oversight mechanisms that come with them) are now involved, and NASCAR’s admirable hard-line stance on strict suspensions for positive drug tests has been compromised. This is not good news for the racing community.

Jeremy Mayfield was granted a temporary injunction that will allow him to return to competition as early as this weekend’s races in Daytona Beach.

And, as always, NASCAR has no one but themselves to thank for this utter disaster. Though on the drug-testing front NASCAR has done so many things right, be it being a professional sporting entity willing to suspend a competitor for life or taking immediate action to address shortcomings in its testing policy when confronted with proof of failure (Aaron Fike’s admission to heroin use during races), its utter refusal to be transparent and black and white with the governing of its sport has now truly taken drug testing out of their hands.

Jeremy Mayfield didn’t need a Bill Diehl for his counsel to punch a hole of reasonable doubt in NASCAR’s defense of its actions. Being a driver/owner in the Sprint Cup Series and not being presented with a list of substances that such competitors would be tested for will raise anyone’s eyebrows. Refusing to submit a second sample of a positive test to an independent laboratory for confirmation defies common sense, legal soundness, any measure of accountability. And handling a situation as sensitive as a driver suspension with smoke and mirrors (taking weeks to even identify the substance tested positive for) isn’t going to convince anyone that the right thing is inherently being done.

Had this been a jury trial, the deliberation would have been short. There is no way to get around the haziness surrounding the entire Mayfield episode and how NASCAR has handled it.

You’d really think after all these years that NASCAR would catch on and realize that for all its efforts to create non-committal rules and regulations that allow them to make it up as they go, such a strategy is going to come back and bite them time and time again. Just look at Talladega this past April: Thanks to an utter refusal last October to acknowledge that Regan Smith had in fact bested Tony Stewart safely, and thus fully in the spirit of the yellow-line rule, NASCAR made a knee-jerk move to ensure that well-known Smoke, and not rookie Smith, went to Victory Lane, directly contradicting past rulings made regarding the yellow-line that allowed Dale Earnhardt, Jr. to score a win at Talladega in 2003, or Johnny Benson to make a daring pass in a Truck race at Daytona.

The result? When push came to shove again at the Cup race this spring, Brad Keselowski was left no competitive choice but to send Carl Edwards spinning…an episode that sent a 3400 pound projectile hurtling towards thousands of spectators.

Unfortunately, though, NASCAR’s constant refusal to set rules and follow them has robbed them of the very control they so desperately seek over their sport. They’ve made a bed for themselves, and now they must sleep in it.

It’s a bed that has the involvement of courts and federal regulations looming. It’s a bed that has rendered an attempt by the sanctioning body to be at the forefront of professional drug regulation worth less than the paper the regulations are printed on. And it’s a bed that will now force NASCAR and its competitors to sit back and watch as a driver who is well-known throughout the garage to have possibly failed a drug test allowed back on the track, well-earned suspension be damned, to race once again.

Any celebrations in any camp regarding this injunction will soon be extinguished. Mayfield may well get the chance to race in the near future, but it won’t be this weekend. Sources tell Frontstretch that Mayfield Motorsports does not have the wherewithal to get their No. 41 team trackside in time for the upcoming Daytona race weekend, and the Gunselman Motorsports ride that ESPN reported as a possibility for Mayfield is not going to be available (plate ace Mike Wallace is scheduled to drive the car and has already attempted races for the No. 64 team this year). There’s also the problem of an already small team having laid off 10 of its employees over the team’s competitive hiatus.

And even if the No. 41 team gets to the track at Chicago, it’s not like there’s any performance to look forward to. Back at Atlanta in March, I wrote about how intriguing the team’s mentality was regarding their approach to Cup racing on a tight budget—essentially shop for ready-built race cars from Triad Racing Technologies and show up on Sundays. Unfortunately, as great a strategy as that may be for Mayfield, who in that interview noted that despite being the “owner” of the team that his involvement at the track did not go beyond his role as the driver, it’s clearly not proving to be a competitive model; the team has only qualified for five races in 2009, with a best finish of 32nd. Numerous Frontstretch writers, myself included, have also noticed Mayfield to be absent from the team hauler and garage stall for extended periods of time during race weekends; If you’re going to race Cup small-time, hands-on involvement is a necessity, not an option.

As for sponsorship, forget about it. Injunction or not, I don’t buy this notion that there will be companies out there lining up to back the driver who took on NASCAR and won. Spending money to sponsor a driver who, despite today’s victory, has a positive methamphetamine test and inevitable further lawsuits pending doesn’t ring up as a solid sale, especially with dollars to go racing so hard to come by.

A driver with a hazy past and uncertain legal future returns to a back-marker ride with no certain team composition or financial future. The sanctioning of big-time stock car racing is now being held to the standards of a federal agency, and stands poised to lose control over a vital element of its competitive policing as well as an issue that it stood to make up valuable ground as a professional sports entity. Stock car racing’s headline as it heads to hallowed Daytona and the vital summer stretch will be far removed from the actual race track. And what was supposed to be one of the toughest drug testing policies in professional sports has now been reduced to scrap.

There’s no silver lining to this one. A black-eye for NASCAR, and stock car racing, just got blacker.

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Joe
07/02/2009 04:13 AM
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Yaknow, i dont like Jeremy Mayfield. Not even a little bit. When i heard he got popped for drugs i admittly laughed but now some time later after a good bit of the facts have come out i still dont like him but i cant help but feel bad for the guy. i mean people now think hes some drug abuser when this has NOT been proven, just sort of half assed

While i wont be rooting for him anytime soon on track i do hope he beats this silly drug rap and NASCAR gets its policy straightened out

wcfan
07/02/2009 05:06 AM
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Joe, I have to agree with you 100%.

Ltaylor
07/02/2009 08:35 AM
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Think he’ll have fun in the tech line?

Overra88ted
07/02/2009 08:36 AM
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If it takes Federal laws to get Na$crap in A**‘s in gear, so be it. There are REASONS we have Federal laws in the first place! In today’s world, Na$crap’s double talking, playing both sides against the middle, double standards, monpoly has been totally exposed by the media coverage they so long greedily craved. Always have been neutral on Mayfield, but this one smelled funny from day one. In the end Na$crap will be writing Mayfield a VERY FAT CHECK>

Mike
07/02/2009 08:55 AM
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Well written article..especially about the shortcomings of Nascar and it’s method of running itself.

A post from myself on another board about this…echoing the same sentiment but a little more colorfully written:

“I personally think Nascar is a bunch of stupid @#$%ing screwups. For the most part the system runs itself and it works, but when you get into the occasional gray area in any facet of the sport (drug testing, contracts, rules interpetations), they are always caught off guard and sound like a bunch of buffoons.

I think we are seeing one of those gray areas right here…and believe me I think I dislike Mayfield more than Nascar beaurocracy…lol”

Nascar’s ineptness and “our way or the highway” mentality has ALWAYS bothered me…and it appears to have snuck up from behind and bitten them there…

Bob
07/02/2009 09:14 AM
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I cannot figure out how when the “sport we all love” gets forced by the sensationalist media to create the very drug policy that they then rip to pieces because it doesn’t set limits on what it can test for, be so milktoasty when one of the drivers it is meant to protect ends up on the wrong side of it. You all wanted a policy to keep the “meth headed” drivers off the track, now you are happy that Mayfield can race? What a bunch of idiots. I hope he doesn’t pass tech or gets collected in a practice incident and gives you something else to complain about. IDIOTS!!

Joe
07/02/2009 09:33 AM
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I think the only way Mayfield stays off the track is if those drivers who said they’d refuse to race if a drug addict is among them actually do as they say and refuse to run Daytona this week. No way Mayfield fails inspection, no way at all, even in Gunselman’s car. He’ll qualify, and he’ll start and park like the others. I doubt if Bill France or France Jr. was around this would have gotten to this point. Brian France strikes me as the type that thinks everyone else around him is just a hick from the sticks. With the amount of money NASCAR has given away the past 5 years, I think ISC may need to go the route of the Hulman family and cut their losses and maybe bump up Lesa or someone else to the top. I mean this guy has just made some absolutely egregious decisions since he took over the helm and it’s not getting any better. The drug policy is ridiculous. We don’t want to publicize it because we don’t want to be boxed in. For 1, they have no problem boxing in the drivers with this sh!tbox CoT. 2, a trip to the local bakery and a poppy seed muffin can get you banned for life. There needs to be transparency in circumstances like this. The beauty of a banned list is you can always add to it or detract from it. Look at the engine rules that got Carl Long. Why do you think he has not attempted to sue, only appeal the severity of the penalty? Because there are cut and dried parameters and he was outside of those, albeit barely. To me, it’s looking like NASCAR simply got caught up in its own hubris and did not think a driver would challenge almighty NASCAR in court. Maybe they had it out for him, doubtful, but it sure looks like it. I do agree that most sponsors would not touch him, aside from maybe Wizzinator or that stuff what was it called, Golden Seal?
I disagree that every driver will sue. So far, Mayfield has been the only one, which tells me a) he is used to legal wranglings and b) perhaps he did not take what he was accused of. In the other cases, it was pretty clear (coke, heroin). From the outset it seemed that NASCAR was trying to protect a sponsor to many in the general public. I know that Mayfield does not cut the most sympathetic figure based on his past and messy divorces from previous teams, but NASCAR in their infinite arrogance left an opening and Mayfield found it. Good for him, but we’ll see. At the least Mayfield has a hell of a good shot at winning a defamation suit

If this were 1988 and Brain was the one calling the shots versus Bill Junior, Tim Richmond may well have gotten to drive in the Busch Clash and had a damn nice payday by way of the defamation suit.

Ryan
07/02/2009 09:33 AM
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Does anyone think its wise to trust Nascar to set up and monitor its own version of drug test policy ? Does anyone feel confident about Nascars integrity in testing and reporting ( leaking ) drug use . Does anyone think that Nascar will put any more than the bare minumum effort into a policy , oh.. like the Diversity program for instance . Without having a nationally known and understood drug testing policy forced on them , Nascar would likely continue with the secretive , poorly thought out , poorly implemented one they came up with on their own . The one responsible for the Tim Richmond fiasco , as well as the Mayfield mess .

Nascar can’t be trusted to put on stock car races effectively , how on Earth could we allow them to ruin competitors lives with their usual lack of common sense and integrity where rules enforcement is concerned . I think its become all too clear that Nascar needs supervision at all times .
don mei
07/02/2009 09:47 AM
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Good article; you hit the nail right on the head. One thing you didnt address, its “Nascar this” and “Nascar that”. Nascar, like any organization is made up of people. Its easy to hide behind a corporate logo. Whomever made the decisions regarding the drug policy should be taken to task for doing so. Its time the racing press focuses on the responsible individuals.

Joe
07/02/2009 09:54 AM
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Bottom line, NASCAR wants to be considered big time like the stick and ball sports, but they don’t want the responsibilities that come with it.

Bob, do you really think any drivers at the Sprint Cup level are stupid enough to be doing meth especially someone like Mayfield? I would think cocaine or prescription painkillers way before meth. NASCAR has shown time and time again that they feel they are above reproach and not subject to the accountability that the NFL, NBA, MLB and other big time sports are subject to. They dodged a huge bullet when the catch fence worked at Talladega this year.

Mayfield stayed the course throughout this entire deal, it was NASCAR who seemed to change stories and alter history. Think about it, NASCAR did jump the gun with Ron Hornaday last year. They got very lucky that it was swept under the rug by the mainstream media and that Hornaday did not sue.

They did not learn from the race discrimination suit and finally someone got them.

All NASCAR has to do is follow the same guidelines as other sports and organizations such as the Olympics or the international cycling federation. The stakes and dollars are way too high in NASCAR which is the most sponsor driven “sport” out there. I use quotes because the way Brian is running things, NASCAR is quickly turning into the WWE in terms of legitimacy.

It may cost some money, but I think the France family can afford it. Did Floyd Landis win his appeal, better yet tell me a time where an Olympian or cyclist won their appeal in court or at the least got an injunction.

chris
07/02/2009 10:51 AM
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It was ridiculously stupid on Nascar’s part to have the same facility test the B sample. This is just a simple case of Nascar shooting itself in the foot. I don’t know whether Mayfield was hopped up on Meth (but I doubt it)…but if Nascar had not deprived him of his 72 hour window to have the B sample tested by a separate lab, they probably wouldn’t have put themselves in this position. I don’t think this sets any kind of bad example or precedent other than “when you do things wrong, there may be a penalty”.

I don’t know that a guy should be driving a race car on Alderall and Claritin-D cocktail, but that wasn’t the argument that Nascar chose to make. They chose to do something belligerent and stupid. It usually does sort of work for them, but not in this case.

Razz
07/02/2009 11:15 AM
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I haven’t seen any court documents, but prior to the suit i researched the issue a bit, and Federal law requires that any company receiving Federal funds (in excess of a certain, small amount) must abide by the Federal drug testing guidelines.

The last record I can find of NASCAR itself receiving Federal money was in 2004, but there are a lot of ways a lawyer can run with that.

They could argue that once NASCAR fell under the law, they’re always there. They could argue that sponsorship from government entities qualifies (think National Guard).

There was a little reported experiment by some DJ recently where he took Adderall and Claratin D and did a urine test that popped positive for Meth as well. Twice.

NASCAR sending the already tested/arguably contaminated samples to a second lab this week looks like a lame CYA tactic as well.

Combined with the vagueness of the policy and a lack of a list – which was bound to be challenged in court sooner or later, and the whole thing is turning into a huge fiasco for NASCAR.

If they lose it’s a crippling blow to NASCAR and NASCARs bank acount – but I predict it gets settled out of court with a ‘no talkie’ clause.

Joe W.
07/02/2009 11:44 AM
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If there is damage to Nascar they indeed did bring it on themselves. I also would think you commentors who classify Mayfield as a “meth head” might think twice about that accusation. It is not proven that he ever did this drug. I really doubt that he did. Is he a saint? No but I really do not see him as a meth adict. There are many signs of it and there has never been any proof other than a test that can be false positive. I am no big Mayfield fan but I do not like to see people falsly accused of anything and then convicted in the “court of public opinion”. Nascar messed this whole thing up from the start. I only hope this is not just another example of the sport basicly imploding, but that seems to be happening. The whole thing is just very sad.

Keith McCartney
07/02/2009 11:53 AM
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As I understand it, Nascar has not published its testing policy or a list of banned drugs. But we are supposed to trust its fairness and accuracy.

Is Mayfield’s use of meth confirmed by Nascar, or is it just another pit road rumor?

I suspect that anyone under the influence of that drug probably couldn’t climb into the racecar, let alone complete the pace laps without wrecking.

Dodge boy from Canada

Bob
07/02/2009 12:30 PM
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I am not surprised that Mayfield tested positive for meth. Why is everyone making NASCAR the bad guy for having a drug test and following the guidelines it has in it. This could have been any driver and NASCAR would have been wrong. This is not T Ball, somebody gets to win and loose.

Carl D.
07/02/2009 01:11 PM
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Bob…

The whole point is that Mayfield’s test may have been botched or misread. False-positive drug tests happen. If Nascar had done the prudent thing and had a second sample teted by an independent lab, Mayfield might have been exonerated. Or, the case against him would have been a lot stronger. As it stands, you can’t call Mayfield a meth-head based on a drug testing procedure that is questionable at best. I’m not making Nascar the bad guy, but I’m not making Mayfield the bad guy either based on a testing policy that is flawed.

marshall
07/02/2009 01:39 PM
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Bob , you forgot to mention which NASCAR department you work for .

Douglas
07/02/2009 05:02 PM
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First, as mentioned time and time again, NA$CRAP has no credibility, NONE!

And with that in mind, and the overall way they, NA$CRAP handles their “supposed” drug testing policy!

ANY DRIVER or CREWMEMBER who feels wronged has only one (1) recourse!!

SUE!

Without that option, NA$CRAP then becomes another branch of the beloved IRS! “We are above any laws of the land”!

How sick is that scenario!

And did you see those Lilly white JERKS Jeff Gordon & Jimmie Johnson supplied testimony (against) Jeremy in this matter!

Pure out and out NA$CRAP shills they are! TRASH is what they are!

And your, to quote: “and NASCAR’s admirable hard-line stance on strict suspensions for positive drug tests has been compromised.”

ADMIRABLE”?

Where did that come from? NA$CRAPS history on ANY type of rules violations, (rules? what rules and for whom?), defies the word “ADMIRABLE”!

NA$CRAP has NEVER done ANYTHINGADMIRABLE” since King Brian took command!

mkrcr
07/02/2009 05:28 PM
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Bryan, If you’re going to play with the little black helicopters flying around your head, in regards to Federal regulations, I’m more inclined to look at those helicopters with NA$CAR emblems on them. I work several jobs where my UA falls under Federal guidelines and I’d rather have it that way than wonder if my employer could manipulate the results because he wants me gone. Conspiracy theory’s abound in NA$CAR mainly because they’ve earned them. I thought it’d be a cold day in hell before I’d trust the government, but in this case, I’ll take them over NA$CAR any day and twice on Sunday.
This whole situation screamed questions, given NA$CAR’S treatment of Carl Long and other small teams being pushed out in an attempt to pave the road for “Franceizing”. When “independent” labs chosen by NA$CAR are in the picture, it just screams distrust. I mean, c’mon, how many fans here have ever been around a “tweaker”? If Mayfield was doing what he is accused of, there is no way he could be around a garage area and not have people wonder what is going on.
Let us pray… Dear Lord, PLEASE allow Brian France follow Tony George with the screen door slapping him in the A$$! AMEN.

Mike
07/02/2009 05:54 PM
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NASCAR could have handled this much better just by allowing Jeremy the chance to prove his innocence. After the positive “B” test he should have been suspended, but he should also have been allowed to try and prove his allegation that a combination of a prescribed drug and and OTC medication caused the false positive. NASCAR was unwilling to admit the possibly their drug test might not be 100% accurate. Nothing is ever as absolute as NASCAR tries to make it out to be.

If the choice is between NASCAR’s “because we say so” drug policy and having the Feds be in charge, I’ll take the Feds every time. NASCAR has nobody but themselves and their arrogance to blame for letting this situation get so out of control.

You're all idiots
07/02/2009 07:21 PM
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Why does everyone think that because he doesn’t appear to be a “meth head” addict that he’s innocent? It’s possible to be a casual user and not an addict, you know.

Lab Guy
07/02/2009 07:27 PM
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Let’s talk about FACTS:

#1) Lab tests are extremely accurate. False-positives are, for all intents and purposes, statistially ZERO.

#2) The samples provided by Mayfield were tested and confirmed by 2 different, independent labs.

#3) “Innocent until proven guilty” applies only to a criminal trial. If you test positive in your workplace, you’d be fired also because the TESTS ARE ACCURATE. You get no trial or due process.

#4) There are NO over-the-counter medications or foods that will cause a false-positive, despite those who think a poppyseed muffin will cause you to test positive for heroin (that one always makes me laugh).

These are FACTS, not OPINIONS. People need to evaluate their OPINIONS based on FACTS.

I'm an American
07/02/2009 07:30 PM
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You guys want the FEDERAL GOVERNMENT to become involved in NASCAR?????

SERIOUSLY? That just shows how far out in left field you are and that alone makes your points completely invalid.

Lone Gunman
07/02/2009 08:26 PM
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I’ve heard in the past that when you use drugs, those drugs eventually show up in your HAIR! So if Mayfield really wants to clear himself he could have that test done to see if it shows the same things that the urine did.

Bob
07/02/2009 10:21 PM
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I don’t work for NASCAR, but it is THEIR game and they get to set the rules. If they don’t have the right to set policy then who does? This is not China where the Govt. runs all and knows all. You don’t question baseball or football suspensions do you? So what gives you, this judge, or anyone else but the people sanctioning the race the right to set policy? Nothing! It is not your game.

mkrcr
07/03/2009 12:08 AM
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A casual user is even less likely to be able to hide the effects of a powerful drug such as meth and therefore even more obvious.
And it’s not the FEDERAL GOVERNMENT (WOO) involved, it’s a standardized set of guidelines that mandates how the tests are administered across the board. Therefore, more black and white and a lot less NA$CAR grey.

Razz
07/03/2009 12:05 PM
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Lab Guy, you need to get your FACTS straight.

#1. Lab tests are NOT as accurate as you make them out to be. That’s why labs have a list of potential false positives that they check against. The last study done that i could find on labs using federal guidelines had a 4% false positive rate. That may be low, but it’s a hell of a lot different than “statistically zero.”

2) No, they weren’t. Both samples were tested by the same lab. They didn’t send them to a second lab until this monday. No results of those second tests on potentially contaminated samples has been made public yet.

3) Sure, NASCAR can say guilty until proven innocent. But that’s why they’re embroiled in controversy and a major lawsuit now. They have to back it up in court, and so far, it doesn’t look like they can.

4)Wrong again. Reference the lists labs have for false positives. Reference the DJ who took the same two medications Mayfield says he took and the fact that the DJ popped positive for meth TWICE from taking those two meds.