- David Newton, ESPN Carolina Panthers reporter
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Kyle Busch seemed surprised to learn that his former agent talked to other teams about his future and used that as leverage in negotiations to sign an extension with Hendrick Motorsports.
He shouldn't have been.
That's the way business has been done in NASCAR for as long as there have been driver changes.
This isn't the NFL or NBA, where players must wait for the free agency period before talking to other teams. There are no unions or collectively bargained agreements that govern driver movement. There are no anti-tampering laws.
"It's a free-market system," said Cary Agajanian, who represents many of NASCAR's top drivers at Motorsports Management International. "It always has been. It has wrongly been labeled free agency forever.
"That's what's so good about this sport. It's not controlled by the unions or anything else."
If I have a contract with you and you've got two or three more years on a contract and you tell me you've signed with somebody else when your contract is done, you basically have killed my program.
Not everybody agrees.
Team owner Ray Evernham is concerned about all the behind-the-scenes activity, particularly when drivers are signing contracts with other teams a year and a half before their existing contracts end, such as Kurt Busch and Jamie McMurray did in 2005.
Busch, then with Roush Racing, signed to drive for Penske Racing in 2007. McMurray, then with Chip Ganassi Racing, signed to drive for Roush.
The situation became so combative because of relationships with the team and sponsors that both drivers eventually were released in time to move for the 2006 season.
"The sport has gotten so big that we're not going to be able to continue to operate it the way we're operating it," Evernham said. "I believe that some day there'll have to be more control over who and when you can talk to crew members and the drivers."
Explained Evernham: "If I have a contract with you and you've got two or three more years on a contract and you tell me you've signed with somebody else when your contract is done, you basically have killed my program."
Sooner or later there'll be a lawsuit over such a situation that will force NASCAR to take a stand, Evernham said.
The difference between NASCAR and most other sports is this: Drivers have independent contracts with car owners instead of teams that are franchised by a league.
Owners can talk to drivers, and drivers to owners without worrying about the sanctioning body stepping in with a tampering fine.
"The whole NASCAR business environment is characterized by unrestricted free agency and free enterprise and rampant capitalism in every aspect of this sport," said Geoff Smith, the president of Roush Racing.
"It's awkward. What ends up happening is it takes focus away from the guys that you need to perform. Somebody bends their ear and off they go and you're thinking about something else."
And Smith isn't just talking about drivers and crew chiefs.
"It's a spotter or over-the-wall mechanic," he said. "I don't see a fix for that other than that's the way it is."
NASCAR doesn't want it to change. Officials like the interest the so-called "silly season" creates for the sport.
They don't seem to mind that the silliness is beginning months earlier than it did a few years ago when late August and September was the typical time frame.
"It creates so much speculation that I think it's good for the sport," said Jim Hunter, NASCAR's vice president for corporate communications. "That's free enterprise at its best."
NASCAR's free agency also is different from other sports in that when a driver becomes unhappy, seldom is he traded to another team.
"There was Jeremy Mayfield and John Andretti a few years ago, but rarely do you find the ability to trade a driver for a driver, where as a baseball player you can trade three players and a driver to be named later," Agajanian said.
"Secondly, you have very binding contracts. There are methods of buying out and other things behind the scenes of sponsorships and all kinds of things."
Smith said the behind-the-scenes deals made in NASCAR would drive management in other sports crazy.
"I would say there is tampering of the sort that is completely prohibited from all the other leagues," he said. "They're tight not only on the players but they get into the front office and the marketing positions as well.
"Here the tampering, it might not even come from the owner. The owners, by and large, are pretty careful, but there are some people that are very much over the line."
Agajainian said tampering is a term that was born out of unions and doesn't belong in NASCAR.
"How could there be a tampering rule," he said. "This is an entrepreneurial, free system as the rest of America is and there are no tampering rules in open and free business.
"You could put in a contract that you're not allowed to talk to somebody else. But first of all, it's almost impossible to enforce something like that. Say Chip Ganassi is walking through the garage and talks to Tony Stewart. Is that against the law?"
The whole NASCAR business environment is characterized by unrestricted free agency and free enterprise and rampant capitalism in every aspect of this sport.
Smith recalled being with Jack Roush one day when he leaned into the car of the late Dale Earnhardt and said, "Hey, you want to drive for us?' ''
"If they did that in the NFL it would be chaos," he said.
Hunter said there's nothing NASCAR can do to control the situation short of franchising, which would give the sanctioning body ultimate control as the league office does in the NFL and other sports.
But NASCAR wants no part of handling driver contracts. Agajainian hopes it never does.
"Because that's what makes this sport so great is these independent drivers can do what they want to do," he said. "In Europe, they have some type of contract control board because the money has gotten so big and there was so much fighting.
"Although Mr. France [NASCAR chairman Brian France] is extremely powerful and we appreciate the way he rules, I don't think they want to get involved in driver contracts."
Agajanian said sponsors are the biggest difference in the way driver movement is handled now and 10 years ago.
"The sponsors continue to have more influence over what is done," he said. "A sponsor will think twice before he spends a lot of money on a marketing program around a driver if they're not sure he'll be around.
"Otherwise, I don't see any real difference or change in how things have been done over the years."
David Newton covers NASCAR for ESPN.com. He can be reached at firstname.lastname@example.org.
NASCAR calls it free enterprise at its best. Ray Evernham's not so sure. Free agency for drivers and other team members has no checks and balances, he says. And sooner or later, NASCAR will be forced to take a stand.