The Guiding Light Of Sports Business

NASCAR Drug Testing Unconstitutional

2009-06-01T06:43:00.000-07:00

NASCAR’s drug testing policy was called into question when driver Jeremy Mayfield was suspended indefinitely on May 9 after testing positive for a banned substance.

On paper, a drug policy in NASCAR makes sense, more so than in stick and ball sports where the risks of using banned substances apply primarily to the record books. You would be hard pressed to argue that Manny Ramirez under the influence of a female fertility drug compromises the safety of his teammates or opposing players. But when racecars are traveling bumper to bumper and three wide at 200 miles per hour, a driver under the influence of any substance that affects performance can endanger the lives of fellow drivers, pit crew members, officials and fans.

Formerly, NASCAR would only conduct tests based upon “reasonable suspicion.” Beginning this year, all drivers and crew members are subject to testing prior to the season and randomly during the season. But NASCAR’s drug policy is one-sided, heavy-handed, lacking in transparency and void of the basic procedural safeguards we have to come to associate with freedom and constitutional protections.

First, there is no published list of banned substances that drivers should avoid. NASCAR is free to determine which substances it believes may affect safety on the racetrack. The Association defends its secretive policy, maintaining that a list of banned substances is “restrictive,” which is another way of saying it doesn’t like to be told what to do. And in fact, it seldom has been. NASCAR is a privately held company – owned and operated by the France family – and has been the oversight body for stock car racing for more than 60 years.

But with no list to go by, drivers are left to guess which substances are safe to ingest and which ones they should avoid. Is aspirin on the list? Poppy seed bagels? How about coffee and Diet Dew? Surely a jittery driver hyped up on caffeine is a danger at Talladega. And say goodbye to a pre-race ritual of twinkies. Ever see what an excess of sugar can do to the senses?

Second, the policy doesn’t provide for an appeal. All decisions by NASCAR are final.

Third, the policy doesn’t contain a prescribed list of penalties. NASCAR suspended Mayfield indefinitely for a first offense, but admits that it could have suspended him permanently. Although NASCAR may consider reinstatement, such action is conditioned on the driver completing a rehabilitation program prescribed by the governing body.

Mayfield insists that he wasn’t given a copy of the failed test prior to his suspension and he has no idea what substance he tested positive for. The driver does admit to taking a combination of a legal prescription drug, which he refused to identify, and Claritin-D for allergies. If his story sounds familiar, it should. Few athletes who have tested positive for banned substances admit to it, even when confronted with irrefutable evidence.

NASCAR is notorious for handing down inconsistent penalties, leaving itself open to allegations of favoritism. If a star driver, say, four-time Sprint Cup Champion Jeff Gordon, had tested positive instead of a bit player like Mayfield, would NASCAR have taken similar action?

The question isn’t merely academic. Gordon recently admitted to taking lidocaine for recurring back pain. According to the FDA, possible side effects of lidocaine include nausea, drowsiness, mental/mood changes, ringing in the ears, dizziness, vision changes, tremors, numbness, slow pulse, trouble breathing, seizures and chest pain. Sounds like a substance that can create a safety issue on the racetrack to me.

Mayfield claims he did nothing wrong and will refuse to enroll in a rehab program. His attorney has been making noises about suing NASCAR and he may have a case. Courts are loath to interfere with the operations of a private organization, but some courts have made exceptions, especially when an organization violates concepts of fairness. One obvious issue in this case is the fairness of punishing Mayfield for conduct he didn’t know in advance was prohibited.

Players’ unions in sports are oftentimes viewed as obstructionist and overly protective of athletes’ rights in the face of overwhelming evidence of wrongdoing. But as the situation with Mayfield suggests, without a union, athletes are subject to the whims of management. If only we had a happy medium.

Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is an Assistant Professor of Sport Management at Eastern New Mexico University, teaches the Business of Sports at the University of Wyoming, and is a contributing author to the Business of Sports Network. Jordan can be reached at jkobritz@mindspring.com.

RETURN TO THE GUIDING LIGHT OF SPORTS BUSINESS
RETURN TO CENTRAL MAINE SPORTS BLOG

PED's in MLB no longer Selig's Fault

2009-05-13T03:27:00.001-07:00

For years, Bud Selig has been taking heat from the media and the public on the issue of PED’s in baseball. And for years, the commissioner has fended off his critics with a combination of fact, fiction and bluster, maintaining that he did everything he could to rid the sport of chemical enhancers. Selig has never passed up an opportunity to detail the efforts he and the owners have made to eliminate PED’s, only to be thwarted at every turn by the players and their union.

Despite Selig’s protestations to the contrary, the owners dragged their feet in trying to eliminate steroids from baseball. When the bosses look the other way, and in some instances overtly encourage the use of performance enhancers, it’s difficult for the worker bees to keep their hands out of the substance jar. But we can finally say that it’s not the commissioner’s fault that there are still players in baseball using banned substances.

This isn’t 2002, before there was a drug testing program in baseball and the likes of Jose Canseco, Mark Maguire, Sammy Sosa, Barry Bonds and who knows how many hundreds of others were juicing. This isn’t 2003, when the results of a test survey to determine the extent of drug use in baseball were supposed to be anonymous, and Alex Rodriguez’ name was leaked from a list of 104 players who tested positive.

This is 2009, when MLB, as Selig is only too proud to proclaim, has the strictest drug testing program in all of team sports, and imposes the stiffest penalties for testing positive of any sport this side of the Olympics; when notice of that drug policy and those penalties is posted in every Major League clubhouse. And yet players are still ingesting banned substances, as evidenced by the fact that Manny Ramirez tested positive for a prohibited substance during spring training this year.

Ramirez is just the latest MLB player to take a seat in drug-suspension purgatory. If you think he’ll be the last, you also think the federal government will soon embrace fiscal responsibility. Won’t happen. Many people, including this correspondent, have called for stricter penalties for those caught using, including a one-and-done policy. But even the ultimate penalty won’t eliminate PED’s in baseball. Want proof? How long have we had the death penalty? And that has eliminated murders, right?

Illegal drug use in baseball is a matter of individual choice, and as long as the cheaters are ahead of the testers - and it will always be thus - some players will be willing to take their chances. There’s too much money to be made and too little time to make it.

The responsibility to stamp out drugs in baseball rests not with the owners or the commissioner, but with the players and their twin enablers, the MLBPA and the agents, neither of whom appears willing to fulfill their fiduciary responsibilities to their clients on the issue of PED’s. From fighting the commissioner and owners in negotiations, arbitration and court, to spinning fairy tales for the players when they’re caught red-handed, the union and the agents have been the ultimate co-conspirators.

For all the money the players make, not to mention all the money members of the Scott Boras Fraternity make, you’d think they could afford to employ someone who would guard against players ingesting anything that wasn’t “certified kosher.” It may not be fair to single out one agent, but Boras has had his share of clients snared by the drug police. Boras’ list of scofflaws includes Ramirez, Barry Bonds, Alex Rodriguez, Kevin Brown, Garry Sheffield, Eric Gagne, Ivan Rodriguez and Rick Ankiel, among others.

Ramirez will lose approximately $7 million during his suspension – deducted over the four years his 2009 salary will be paid - but will still earn almost $38 million under the terms of his two-year contract with the Dodgers. So, what exactly is the penalty for getting caught using - shame and embarrassment? No bust in the Hall of Fame? Some players obviously prefer the money to their reputations and eternal enshrinement.

And as long as that remains true, PED’s in baseball will be a reality. But the pendulum has swung. It’s no longer Bud Selig’s fault.

Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is an Assistant Professor of Sport Management at Eastern New Mexico University, teaches the Business of Sports at the University of Wyoming, and is a contributing author to the Business of Sports Network. Jordan can be reached at jkobritz@mindspring.com.

The Guiding Light Of Sports Business

NASCAR Drug Testing Unconstitutional

PED's in MLB no longer Selig's Fault

Do Golfers Need Glasses

The "Real" March Madness

World Baseball Classic is what it is...

Oliver Decision One for Common Sense

Barry Bonds Trial Gets Under Way

Super Bowl Advertising

Capitalism, Yes; Salary Cap, No!

Boston College AD Gene DeFilippo Drops Ball

Piling on Clemens

Yankees Do What Yankees Do

BCS Should Listen To Critics

Name of New Mets Ballpark

Athlete Clustering at NCAA Institutions

The Economy Hits NASCAR Hard

MLB Free Agency

Pity Bud Selig

Boras - At It Again (Pedro Alvarez)

Impact of the Economy on Sports

Economic Bailout Benefits NASCAR

Rays Fan's Support Doesn't Pass School Dress Code

Yankees and Cowboys Form Concessions Company