DAYTONA BEACH, Fla. -- Kurt Busch lost his final NASCAR appeal Saturday night to get his indefinite suspension rescinded prior to the Daytona 500, the sport's biggest race that is set to go green Sunday afternoon.
NASCAR suspended the Stewart-Haas Racing driver Friday after the release of a Kent County (Delaware) Family Court commissioner opinion that detailed why he believed Busch had committed an act of domestic violence against ex-girlfriend Patricia Driscoll.
Busch lost his initial appeal to a three-member NASCAR-appointed panel Saturday afternoon and then made an appeal Saturday night to NASCAR Final Appeals Officer Bryan Moss. A former president of Gulfstream who was named as NASCAR's top appeals boss in 2014, Moss had not ruled on any final appeal until Saturday night.
"We are unhappy with the latest decision to deny our re-appeal, but we will continue to exhaust every procedural and legal remedy we have available to us until Kurt Busch is vindicated."
Rusty Hardin, attorney for Kurt Busch
"We are unhappy with the latest decision to deny our re-appeal, but we will continue to exhaust every procedural and legal remedy we have available to us until Kurt Busch is vindicated," Busch's attorney, Rusty Hardin, said. "Along the way we intend to continue to call attention to the facts and witnesses that will shed light on Ms. Driscoll's true character, motivations and history."
Busch remains suspended indefinitely.
"Kurt Busch now has exhausted his appeal options under the NASCAR rulebook, and the indefinite suspension remains in effect," NASCAR said in a statement Saturday night. "He will not be allowed to race nor participate in any NASCAR activities until further notice.''
SHR co-owner Gene Haas, who funds the car specifically for Busch on his own and has his company Haas Automation logos on Busch's uniform and car, said Sunday morning he had nothing to say about Busch's suspension and he would not say whether he will continue to field the No. 41 car for another driver.
Spokesman David Higdon said Saturday night that NASCAR will create guidelines that Busch must meet in order to return, guidelines that Busch will receive "very soon." Higdon would not discuss the guidelines and did not say whether counseling will be included.
Higdon said that the decision is final as it relates to the case right now, but he would not speculate what would happen if criminal charges are filed over the Sept. 26 altercation between Busch and Driscoll at Dover International Speedway. If charges are not filed, it would not impact the guidelines that Busch must complete for NASCAR, Higdon said.
The decision means both Busch brothers are out of the "Great American Race" for the first time since 2000. Younger brother Kyle was ruled out with right leg breaks suffered in a frightening crash Saturday in the Xfinity Series season opener at Daytona International Speedway.
A three-member panel of former NASCAR executive Paul Brooks, former race-car driver Lyn St. James and Greenville Pickens (South Carolina) Speedway track owner Kevin Whitaker voted Saturday afternoon to deny Busch's initial appeal as the 2004 Sprint Cup champion attempted to become eligible for the sport's biggest race.
"Kurt Busch now has exhausted his appeal options under the NASCAR rulebook, and the indefinite suspension remains in effect. He will not be allowed to race nor participate in any NASCAR activities until further notice."NASCAR statement
Even if Busch had won the appeal, it was far from a guarantee he would race Sunday in the Daytona 500. Chevrolet, a major SHR sponsor, has suspended its personal services relationship with Busch.
Regan Smith will replace Busch as the driver of the No. 41 car for the Daytona 500. Smith, who practiced the car Saturday, will give up the 24th starting spot and start at the rear of the field as Busch's replacement.
SHR was not involved in Busch's first appeal because the discipline was issued specifically to Busch for a non-racing violation of NASCAR rules. No attorneys were allowed in the closed-door hearing room in NASCAR's headquarters at its International Motorsports Center, where both NASCAR and Busch delivered their points of view, could call witnesses and had the opportunity for rebuttal.
Busch left the headquarters before the decision was announced and quickly walked to a car waiting for him. NASCAR rules prohibited him from commenting before NASCAR made the decision public.
NASCAR suspended Busch after a Kent County Family Court commissioner issued findings and opinions Friday for a protective order he granted Monday to Busch's ex-girlfriend Patricia Driscoll. In the opinion, Commissioner David Jones found that the preponderance of the evidence from testimony in December and January showed that Busch strangled Driscoll with his left hand and with his right hand on her chin and face, caused her head to forcefully hit his motorhome wall Sept. 26 at Dover.
The NASCAR appeals panel rarely overturns behavioral penalties because of NASCAR's broad behavior rule: "NASCAR membership is a privilege. With that privilege comes certain benefits, responsibilities and obligations. Correct and proper conduct, both on and off the race track, is part of a Member's responsibilities."
NASCAR has no specific penalty for behavioral infractions, which is different than its six-level scale it uses to determine penalties for technical violations.
"Behavioral infractions differ from technical infractions in that each is handled on a case-by-case basis, viewed in context, with an understanding of the prominence of the sport, the large fan following that the sport has garnered, the large corporate and sponsor support that the sport attracts, and also with an understanding of the passions that the sport can evoke, as well as, the competitive nature of most NASCAR members," the rule book states.
The final appeal was different than the initial one because Busch has the burden proof rather than NASCAR.
Busch needed to show that he did not violate a rule, that the penalty was not within the scope of NASCAR guidelines and/or he was denied his rights during the initial appeal. Moss could ask questions and call any witnesses he wanted.
NASCAR Chairman Brian France also can step in at any time and lift the suspension.
Missing the Daytona 500 also could keep Busch from the Chase for the Sprint Cup no matter what happens after this weekend because of a rule that requires drivers to race every event. NASCAR has not decided yet whether to grant him an exemption from starting the race even though he has qualified the car.
France vowed in November that NASCAR would join other sports leagues in how it deals with allegations of domestic abuse and would be more aggressive than it had in the past. In January 2014, Travis Kvapil pleaded guilty as part of an agreement that would wipe his record clean after the successful completion of two years probations. NASCAR did not discipline Kvapil.
NASCAR opted to discipline Busch after the detailed opinion was released Friday and not wait to see if the Delaware attorney general will charge Busch with a crime. Prosecutors would face a higher burden of proof -- beyond a reasonable doubt -- than what was needed for the protective order, which is a preponderance of the evidence.