"Winning by conquest what the first man lost, By fallacy surprised."—Milton.
On Tuesday, June 2, NASCAR took action to move Jeremy Mayfield’s challenge of his indefinite suspension from a North Carolina Superior Court to federal court.
The change of venue came just one day before arguments pertaining to Mayfield's suspension for failing a random drug test were scheduled to be heard in the Mecklenburg County Court.
Mayfield will now have to wait at least two additional weeks for his day in court because the federal judge assigned to the case, Graham Mullen, is on vacation.
Talk about kicking a man when he’s down.
Since Mayfield is unable to race, he isn’t getting paid.
Mayfield’s lawyer, Bill Diehl, said money lost by Mayfield during his suspension from the track will be included in the suit. He said the new delay will figure into the settlement, stating, "That'll be in the equation. We have a claim to get him back on the track. We have a claim to pay damages.”
Mayfield initially filed for the restraining order on Friday, May 29. Because it already was too late for Mayfield to compete at Dover, North Carolina Superior Court Judge Forrest Bridges scheduled a hearing for Wednesday to give NASCAR attorneys more time to prepare.
NASCAR representative Paul Hendrick said his firm was not notified of Friday's hearing until about 5:00 p.m. Thursday.
Diehl saw the change of venue as another delay tactic.
"Maybe they felt like they were going to lose," he said. "I don't see an advantage to them being in federal court. The whole removal thing is in place because if you're a citizen of some place other than the state where your lawsuit is brought, there is the notion maybe you'll be treated better if you go to federal court.
"I just don't think that really exists anymore. There are good judges in state court, good judges in federal court. The rules are essentially the same unless they felt they were not going to be treated fairly."
Ramsey Poston, a spokesman for NASCAR, said the change was requested because "administration of NASCAR's substance-abuse policy extends to every state in which it races, which is why the logical forum is federal court."
Diehl said there is nothing further NASCAR can dig up that will help its case.
"If they are right, then people that get [positive] drug test results can't do anything about them," he said. "It doesn't matter if they are tested properly or not. They take the position it's NASCAR, we can do anything we want.
"We don't think that is the law. And if it is, it should change."
It was revealed last week that Mayfield had tested positive for amphetamines. He and his attorneys maintain that the positive test was the result of combining allergy medication Claritin-D with Adderall, an amphetamine-like drug Mayfield takes to treat attention deficit hyperactivity disorder (ADHD).
Mayfield’s revelation of living with ADHD is complicated. I don’t know how things work in NASCAR, but I do know that “in the real world,” potential employers have no right to know that a prospective employee has ADHD.
By definition this is a condition that has its onset during childhood, but it is not uncommon from an adult to suffer from similar symptoms.
Adults are often treated with the same medications used to treat children with the disorder.
Common medications are often classified as “stimulants.” These medications increase the release or block the reabsorption of dopamine and norepinephrine, two brain neurotransmitters. This increases the transmission between certain neurons.
Generally, stimulants effectively decrease inattention, distractibility, overactivity, and impulsivity in three-quarters of individuals with ADHD.
Some worry about the potential to become addicted to stimulants. If individuals take their medication as prescribed, the potential for addiction to amphetamines is fairly low.
A study published in Pediatrics in 1999 showed that individuals with ADHD who were treated with stimulant medication had a lower risk of drug abuse than ADHD individuals who had not taken medication.
Medication for ADHD is not dispensed cavalierly. A careful history and mental status examination before starting an adult or child on stimulant medication is imperative for proper diagnosis and treatment options.
The Claritin-D in his system could have also produced a “false positive” result. The “D,” of course, stands for the decongestant pseudoephedrine.
Products containing pseudoephedrine were taken off the shelves in mid-2006 and placed behind the counter. A consumer must now present identification in order to purchase any product with this ingredient in it and can only buy a limited quantity at a time.
Why the inconvenience? Because pseudoephedrine was relatively inexpensive and easy to acquire as a base ingredient for making methamphetamine. Meth, as this drug is more commonly known, is a very dangerous and highly addictive drug, both in its production and use.
When a product containing pseudoephedrine is taken, the drug causes an increase in heart rate, blood pressure, and causes bronchodilation and restriction of the mucous membranes of the nasal passages. When used to treat cold and cough or congestion and taken per the packaged instructions, it is a safe and effective medication.
It is now being reported that Mayfield tested positive for three drugs, with Adderall and Claritin-D satisfactorily explained.
Paul Hendrick described the third drug as a "dangerous, illegal, banned substance,'' adding that allowing Mayfield back in a car would be dangerous for the driver, fellow competitors, and fans. He also said a restraining order would hurt the control NASCAR has over the entire testing procedure.
So what about this third drug? What could it possibly be?
According to the lawsuit, Mayfield was asked whether he had used any inhalants.
He responded that he had inhaled a significant amount of fumes after being involved in a fiery wreck at Talladega in late April.
Dr. David Black, the administrator of NASCAR's drug-testing program, has repeatedly rejected Mayfield's explanation.
On the street, inhalants are often called whippets, poppers, or snappers. They are breathable chemical vapors that users intentionally inhale because of the chemicals' mind-altering effects. The substances inhaled are often common household products that contain volatile solvents or aerosols.
Most inhalants produce a rapid high that resembles alcohol intoxication. If sufficient amounts are inhaled, nearly all solvents and gases produce a loss of sensation, and even unconsciousness.
No toxicology reports were submitted by either Mayfield or NASCAR, and the gag order has prevented further elaboration on Hendrick's claim.
Mayfield is seeking damages against NASCAR for defamation, discrimination against someone with a disability, and for negligence in not handling the drug test properly. He specifically named in his suit NASCAR chairman Brian France and Dr. David Black for comments they have made about the case.
"France and Black made such statements out of spite, personal ill will, and personal malice toward Mayfield with the express intention of damaging his personal and business reputation and making him an example of NASCAR's power to suspend a driver/team owner, based upon numerous violations of its flawed drug policy," he claimed.
Also listed as defendants are: NASCAR; Aegis Sciences Corp., which conducts the sport's drug testing; and Douglas F. Aukerman, the program's medical review officer.
It has been over a month now since Mayfield failed his random drug test, and by the looks of things, there will not be a prompt ruling on this case.
NASCAR fans, dig your heels in and hold on—it's getting ugly out there!
UPDATE: June 5, 7:21 pm. "NASCAR filed a countersuit against Jeremy Mayfield on Friday, accusing the suspended Sprint Cup driver of willfully violating the substance abuse policy, breach of contract and defrauding competitors of earnings."
"The suit stated that Mayfield knowingly participated in sanctioned competition using a combination of drugs in violation of the substance abuse policy that he agreed to follow."
"And in doing so violated his contract with NASCAR and the standards of care for other drivers," NASCAR spokesman Ramsey Poston said from Pocono Raceway.
Poston would not comment about Adderall or amphetamines. North Carolina Superior Judge Forrest Bridges placed a gag order on both sides from discussing details of the substances last Friday.
Poston also would not say whether Adderall is considered a banned substance on NASCAR's list. But in the countersuit there are two paragraphs, one referring to an illegal drug that is blacked out and another to a drug that also is on the banned list.
"NASCAR's Substance Abuse Policy prohibits excessive levels of [blacked out]," the suit said. "[Blacked out] use suppresses fatigue, increases alertness, enhances psychomotor performance, and produces euphoria.
"Mild [blacked out] produces insomnia, increased blood pressure and pulse rate, excitation, hyperactive reflexes, and palpitations. More serious side effects include paranoia, aggressive behavior and psychosis.''
The policy also states that "to the extent that the use of any substance, including properly prescribed prescription drugs and properly over-the-counter medicines, causes a competitor or official to have a competitive advantage or diminished or impaired ability to perform his or her duties on the day of an event, those substances shall be deemed to be prohibited substances for the purposes of this policy."
The suit states that Mayfield signed an agreement to abide by the sanctioning body's policy on February 5.
"Mayfield's willful misconduct at the track in which he competed while an illegal substance was still in his system is evidence he presented a danger to himself and others," Poston said.
Sources for the updated information can be found on ESPN.com and NASCAR.com
Mayfield's lawsuit can be viewed at here
NASCAR's counterclaim can be viewed here