- David Newton, ESPN Staff Writer
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CHARLOTTE, N.C. -- One of the primary issues Jeremy Mayfield's attorneys are using to get their suspended client back on the track would not hold up in the National Football League or the Olympics.
Attorney John Buric argued in a Mecklenburg [N.C.] County Court on Friday that Mayfield's positive test for amphetamines should be thrown out because the second test, a "B" sample, was done at the same laboratory as the "A" sample.
He will argue that again on Wednesday when Mayfield makes his second court appearance asking for a temporary restraining order that would lift the indefinite suspension for violating the substance abuse policy and allow him to drive this weekend at Pocono.
Buric, citing federal employee drug testing guidelines, noted last week that the "B" sample should have been tested at another laboratory of the choosing of his client. He said failure to do so makes it impossible for his client to challenge the results, noting the "B" sample was compromised because the seal was broken.
"There is nothing he can do to fix this but throw out the results and let him go out and race," Buric said.
NASCAR attorney Paul Hendrick argued that NASCAR is not governed by federal law and does not have to abide by those guidelines. The NFL also does not follow those guidelines.
Its policy states: "The 'B' bottle test will be performed at the same laboratory that did the original test. The 'B' bottle test need only show that the substance revealed in the 'A' bottle test is evident to the limits of detection to confirm the results of the 'A' bottle test."
There is a stipulation in the NFL bylaws that says the player may be represented at the "B" sample test by a toxicologist not affiliated with a commercial laboratory.
There are no such guidelines in the NASCAR policy attached to Mayfield's complaint.
Greg Aiello, the NFL's senior vice president of public relations, did not recall any challenges of the retest portion of the league's policy.
Dr. Don Catlin, the vice president of the World Anti-Doping Agency [WADA] that governs Olympic athletes, said WADA also does "B" sample retests at the same laboratory.
"Sports can make up their mind," he said about how tests are conducted. "They can make up their own decision whether it's a separate lab or the same lab. The NFL is part of the WADA system. They can choose to have the same lab test it."
Catlin said there have been talks about mandating a separate lab do the "B" test to avoid these controversies. But as long as NASCAR has no provision stating otherwise he doesn't believe Mayfield has a case for throwing out the sample.
"They may not like that," he said. "As long as they're allowed they can't do much about it. It's finished."
Jon Speckman, a North Carolina licensed clinical addiction specialist who heads up Alcohol & Drug Abuse Testing Centers Inc. in Charlotte, said it is not "that unusual" for the same laboratory to test the "B" sample after a positive test even if it is a federal employee.
"Normally I recommend to everybody that if you're going to do retesting then you make that retest something that the individual involved is a part of the selection of where it's going to be because this is usually what happens," he said, referring to Mayfield's allegations. "Everybody questions if it's redone at the same place."
He added that because the level of drugs tested for in athletics is so much higher than for normal employees that the numbers of agencies that can retest are limited.
He also said that many department of transportation retests are done at the same lab.
And he disagreed that the integrity of the "B" sample was compromised because the seal was broken.
"That's not the case at all," he said. "Even though a seal has been broken, that has happened for years, long before we did any split samples. All of that sample is still frozen and stored."
Speckman said AEGIS Labs, the Tennessee-based company NASCAR employees to run its testing program, eventually will have to show all documentation for how a positive test for amphetamines was determined.
He said there should be a clear path showing how it reached that conclusion.
Mayfield and his attorneys are arguing that the positive test was the result of combining Adderall -- a name brand amphetamine -- to deal with Attention Deficit Disorder and Claritin-D to combat allergies.
Dr. David Black, who heads up AEGIS, said that was impossible. Catlin, without knowing specifics of the test, said only that "there are some ingredients in the drug Adderall that can be considered amphetamines."
Speckman doesn't believe the lab would make that mistake.
"All of these chemical compounds have a fingerprint, a chemical composition," he said. "Whatever they discovered it was not as simple as everyone says it was. There was obviously stuff in there that didn't fit what the explanation was."
Mayfield's attorney also argued that proper procedure wasn't followed because Mayfield was allowed to provide his urine specimen out of the eyesight of the collector.
Speckman said that also is not uncommon.
"In federal testing the person usually goes into the bathroom by themselves," he said. "You only do [direct observe] when there's reason to believe somebody has tampered with or altered a sample.
"In reality, the only persons who could tamper with [a] sample when you allow them to go into the bathroom and pee in a cup is the donors themselves. When they come back in they package it up [with the collector]. That's the normal routine."
The NFL and all those under WADA insist that the collector observe the donor providing the sample. Catlin said Dr. Black is not a member of WADA and does not have to abide by that rule unless NASCAR specifies it.
What concerns Catlin is that Black has been allowed to speak to the media about certain aspects of the case. For example, ruling out that the positive test was the combination of taking a prescribed drug with an over-the-counter drug.
Judge Forrest Bridges issued a gag order on Friday against parties from either side discussing specifics about Mayfield's test.
"There should be a separation of functions," Catlin said. "WADA would not allow that. In no way can a laboratory be involved in management or comment about their work. They would lose their accreditation if they speak to the media or anybody."
David Newton covers NASCAR for ESPN.com. He can be reached at email@example.com.