On Jeremy Mayfield: You’ve Got a Fast Car, and an Unusual Drug Policy.

Let me start this post about Jeremy Mayfield’s indefinite suspension for violating NASCAR’s new drug policy with two admissions. First, for many years, my favorite stock car driver was Cole Trickle. Second, I have found myself shouting “shake and bake”(in my head) after making a good point in class. Over the past few years, however, I have gained a new appreciation for NASCAR and real stock car drivers, and Trickle has slipped out of my top spot (I’m not ready to give up on shake and bake yet).

Now, on to the Mayfield situation. Most of you have probably read the stories by now, but here’s a quick recap of some of the key facts. For nearly twenty years, NASCAR only tested drivers if there were a “reasonable suspicion” that the driver was using drugs. In 2007, a push was made—both by NASCAR drivers and NASCAR management—for a stricter drug policy after Aaron Fike admitted that he had used heroin on days when he was competing in a NASCAR Truck series race. Fike was not suspended by NASCAR until after he was arrested for possession of heroin in July 2007.
NASCAR’s new, stricter drug policy was revealed on September 20, 2008. The reason for implementing a stricter policy was clear—a driver under the influence of drugs racing at speeds well over 100 miles per hour presents a danger (Grave danger? Is there another kind?) to himself, other drivers and fans.

Under the new regime, which began on January 1, 2009, drivers and pit crew members will undergo mandatory preseason drug tests and random drug tests throughout the year, in addition to reasonable suspicion testing. Additionally, AEGIS, an independent laboratory, will conduct the drug tests for NASCAR, unlike under the previous policy, where NASCAR itself did (or, more commonly, did not do) the testing. Without question, these are all positive changes designed to make drug testing more effective and deception more difficult.

So, what’s the problem, and where’s the controversy? Well, NASCAR’s new policy has a few other interesting features. First, the policy does not identify the substances that are banned. Any drug—legal or illegal, prescription or over-the-counter—can result in a positive test. Second, the policy does not provide a clear list of penalties for failed tests. Instead, the policy indicates that a driver will be indefinitely suspended for a first violation and suspended permanently for a third violation, but NASCAR officials have noted that the policy allows for a permanent suspension for a first offense. Third, the policy provides no appeal for a suspended driver or crewmember. And, any reinstatement—if permitted at all—is conditioned on the entrance into a rehabilitation program.

So, to sum up, under NASCAR’s new drug policy, drivers can be suspended indefinitely, without appeal, for using an unspecified quantity of an unnamed drug. That is essentially what happened to Jeremy Mayfield earlier this month. The Mayfield saga (or is still the Mayfield story? When does something like this convert from a story to a saga?) allows us to focus on two questions:

First, why would NASCAR create a drug policy that does not have a list of banned substances (aka, who was the ad wizard who came up with that drug policy?)? If drug use by drivers is so dangerous, why not provide a list to the drivers of the drugs known to be dangerous? One obvious is answer is: because they can. Unlike in most of the other pro sports in the U.S., the players (here, drivers) had no input into the drug policy. In fairness, many of the drivers seem to support the new policy, though my guess is that Mayfield is not one of them.The other reason for a drug policy with no drug list comes straight from NASCAR:

The reason we don't have a list is we believe that a list is restrictive. As you've seen with a lot of other leagues, the policy is constantly changing. We know that there's new drugs out there every day. By having a broad policy that doesn't list anything, we feel like we can test for any substance that may be abused….

I want to be clear on that. We've never had a list. It states right now in our policy that cough medicine could be abused if you're taking that too much and it's going to affect the safety on the racetrack. That won't change. We'll test for anything. Our experts are very familiar with prescriptions people may be taking and legitimate medications, but we will not have a list.

Or, as Kyle Petty put it: "Look, a drug is a drug is a drug. This is not shooting hoops; this is not hitting a fastball. This is life and death. In a sport like this, everything should be off limits unless there is a medical reason."
NASCAR’s reasoning is simple—every drug is potentially harmful, so drivers should assume that every drug is off limits. If NASCAR were to come up with a list, it would look like this: Banned Substances: Everything. Of course, the same argument could be made by other sports organizations, yet the drug policies of the World Anti Doping Agency and all of the major professional sports leagues in the U.S. contain lists of banned substances.

Second, does the absence of a list increase the likelihood that Mayfield (or the next suspended driver) could successfully challenge the suspension in court? The short answer is: yes. I’m not claiming that Mayfield could successfully challenge the suspension, but I do think he has a stronger case because there is no list. NASCAR’s concern for safety is laudable, and they are no doubt right that abuse of any drug, whether it is cocaine, Sudafed, or Tylenol PM, can be dangerous when combined with cars moving at 150 miles per hour. The question is, do NASCAR’s legitimate concerns justify the creation of a drug policy with no list of banned drugs? And, if not, is there anything a potential plaintiff like Mayfield can do about it?

As a general rule, courts are reluctant to interfere with the disciplinary decisions of private, voluntary associations, such as NASCAR. Under this principle of judicial noninterference, courts will defer to private associations and only interfere in one of three circumstances: 1) when the association’s rules or conduct are contrary to public policy or violate concepts of fundamental fairness; 2) when the association violates its own rules; or 3) when the association’s decision is motivated by prejudice, bias, or bad faith.

Here, however, Mayfield has a stronger argument for judicial interference because NASCAR is not the typical voluntary, private association. In two different cases involving challenges to the results of NASCAR races, the Second Circuit held that NASCAR is entitled to less deference because it is “a for-profit company that completely dominated the field of stock car racing and…its members have no rights whatsoever with respect to the internal governance of the organization.” See Crouch v. NASCAR, 845 F.2d 397, 401 (2d Cir. 1988); Koszela v. NASCAR, 646 F.2d 749 (2d Cir.1981). The Second Circuit also noted “courts have demonstrated more of a willingness to intervene in the internal matters of private associations when they conclude that there are inadequate procedural safeguards to protect members' rights.” Crouch, 845 F.2d at 401.

Mayfield could thus argue that NASCAR’s list-less drug policy is contrary to public policy and violates concepts of fundamental fairness. Rules must be sufficiently clear to permit people to draw a clear line between permissible and impermissible conduct, so that they may avoid engaging in unlawful behavior. An argument can be made that it is fundamentally unfair to punish someone for engaging in conduct they did not know was unlawful. If NASCAR wants to protect its drivers and fans, it should provide more information, not less, about what types and quantities of drugs might pose a threat to safety. (NASCAR’s response, of course, will be that the drivers should know that use of any drug might violate their drug policy, so they should avoid all drug use—prescribed or not—before getting approval from NASCAR officials.)

Mayfield could also argue that the absence of any explicit standards for identifying a positive drug test permits the drug administrators to apply the drug policy subjectively and on an ad hoc basis. And, with no rules to follow, the drug administrators are more likely to be able to make arbitrary and discriminatory decisions. With no standards, no list, and no right of appeal, Mayfield has an argument that NASCAR does not have adequate procedural safeguards in place to protect the rights of suspended drivers.

More on this (and my discussion of the relative merits of RC Pro Am and Mario Kart) to come…