Full Throttle

Early this week NASCAR filed documents with U.S. District Court Judge Graham Mullen requesting that case be dismissed based on pleadings already filed with the court.

NASCAR makes the following claims in the Tuesday filing:

• The driver agreement with NASCAR waives all claims arising from the implementation of NASCAR’s substance-abuse policy.

• NASCAR’s substance-abuse policy does not include an obligation to follow guidelines that regulate federal agencies.

• NASCAR Chairman Brian France and Aegis’ Dr. David Black have no reason to believe the tests are inaccurate, so their statements about Mayfield testing positive were done without malice – and with Mayfield a public figure, their statements cannot be considered defamation.

• NASCAR did not discriminate against Mayfield because Mayfield is not a NASCAR employee and not a qualified person with a disability under North Carolina law.

More on these claims in a second but first, as normal in games of legal tit for tat, Mayfield’s lawyer Mark Geragos has weighed in.

Geragos has called the filing a delaying tactical because NASCAR is asking that the discovery phase conducted by attorneys prior to Sept. 2010 trial be halted until its latest motion can be heard.

Fine whatever, counter charges are expected, what’s not expected is the tone he took.

“They’ve thrown up this imbecilic attempt to dismiss the case,” Geragos said in a phone interview Thursday. “We’re confident once we’re in the courtroom, the truth will be told.”

Since when has calling an opposition’s court filing imbecilic been part of a Lawyer’s Code of Ethics?

What Canon does that fall under?

One it doesn’t fall under is EC 1-5, “A lawyer should maintain high standards of professional conduct and should encourage other lawyers to do likewise. A lawyer should be temperate and dignified, and should refrain from all illegal and morally reprehensible conduct.”

But that’s enough of Geragos who seems to spend more time on Larry King than in a courtroom.

But I digress, (Trademark and Patent pending by The Dude) on with NASCAR points covered by Tuesday’s court filing.

1. Sorry, no clue whether that’s true, but feel comfortable saying it is. It would be pretty stupid to make the claim and not be able to point at Mayfield’s, and probably every NASCAR driver’s contract, that contains said clause. On the other hand the vetting process, or lack thereof, failed miserably in the Lisa Mayfield nonsense.

2. I debunked this claim months ago. Not all companies conducing drug testing are required to follow Fed guidelines. Fed agencies like Amtrak, companies that operate trucking services and bus lines and those that receive federal money are required to follow them. Private companies are not.

Think not, see for your self, the Substance Abuse and Mental Health Services Administration (SAMHSA) runs the program and sets the guidelines. It’s all at the link provided.

What Mayfield’s lawyers are doing, presumably, is to set a legal precedent. If that’s the case it means nothing to Mayfield but might if an activist judge gets a hold of the case and sends all drug policies down the road of federal regulation.

3. Point three is more BS. It’s not defamation to state facts, no where has NASCAR used derogatory terms or language this charge is nothing more than justification of high priced retainer fees.

4. The same can be said here, it’s BS, granted it’s basis probably lays with Mayfield’s charge that NASCAR has singled him out to prove a point to others in the sport.

Back to Geragos for a moment, District Court Judge Graham Mullen’s ruling may be important.

Judge Mullen originally lifted Mayfield’s suspension, but it was reversed by The U.S. Court of Appeals for the Fourth Circuit in late October and sent it back to Mullen.

Judge Mullen has since said he he would rescind the injunction based on new evidence and injunction standards, that new evidence was another positive drug test taken on 6 July 2009.

The odd thing is Mayfield’s lawyer, who has since quit or was fired, said their test of the July 6th sample came up negative for anything. The sample contained no Meth, no Amphetamines, nothing, it was clean as a whistler.

Here is the pdf document filed with Judge Mullen at the time. Note his urine was clean as a whistle, nothing in it except yellow.

It’s well known Mayfield claims to be using Adderall and the drug caused positive results in all three of NASCAR’s tests. It’s true Adderall will show up in tests as Amphetamine, I think you see the problem here.

Mayfield to the best of my knowledge has never publicly stated he’s quit taking Adderall, if that’s the case why does this LabCorp test not pop for Amphetamine?

Puzzling question isn’t it? It also may be why Mayfield has requested Judge Mullen’s part in this saga be ignored. If Geragos and Mayfield are successful in getting this part of the case sidelined this LabCorp test result also gets shoved out of the picture.

If it’s not it may be evidence of NASCAR’s claim that LabCorp’s testing procedures aren’t sensitive enough to be a valid counter to NASCAR’s tests.

As a side note, as recently seen, taking Adderall itself taken under certain conditions can contribute to serious problems up to and including death.

Two exit questions: When will the judge rule on NASCAR’s request for a physical exam of Mayfield and when will Mayfield take a hair follicle test as promised?