Commentary

The process of an appeal

Updated: October 5, 2010, 11:57 AM ET
By David Newton | ESPN.com

CHARLOTTE, N.C. -- In case you didn't know what Richard Childress Racing went through on Wednesday when it appealed Clint Bowyer's 150-point penalty to the National Stock Car Racing Commission, let a man who has been in front of the panel five times give you an idea.

Meet Geoff Smith, the president of Roush Fenway Racing, otherwise known to his attorney friends as Oh-fer because of his record against the commission.

[+] EnlargeClint Bowyer, Jeff Burton, Richard Childress and Kevin Harvick
AP Photo/Chuck BurtonClint Bowyer, Jeff Burton, Richard Childress and Kevin Harvick have circled the wagons over the predicament in which Bowyer's team finds itself.

To say Smith, also an attorney, is skeptical of the process is an understatement. He often has compared facing the three-member panel to playing the fictional roles of Don Quixote and Sancho Panza.

It would take a semester of Foreign Literature 101 to explain everything he means, but it's safe to say that he's insinuating the process isn't what it appears.

So is Richard Childress, whose appeal was denied even though he brought an accident reconstruction analyst who said there was definitive proof that Bowyer's car was knocked out of tolerance by the wrecker that pushed it after running out of gas.

His expert was skeptical as well.

"They [the commission] paid no attention, which says something about what's going on in there," said Dr. Charles Manning, who founded his Raleigh-based company in 1979 that has been used many times to prove cause in a court of law. "What we brought was positive proof that the damage was caused by the tow truck pushing the car."

Smith isn't surprised.

"Well, the appeal process has got a public veneer of fairness attached to it," Smith said. "But the reality is that it's quite a bit different than what you would be thinking from looking at the veneer."

Smith isn't necessarily trashing the process. He appreciates that there is something in place to question NASCAR's judgment, something some sports don't have.

He's just pointing out that this isn't the appellate court you see on "Law & Order." No attorneys are allowed, and there are no opportunities to cross-examine witnesses for the other side.

There's a presumption when you walk into the room that you're already guilty, so unless you find some kind of smoking gun or glove that doesn't fit, the odds of the original ruling being overturned aren't good.

So what are your chances? NASCAR will tell you that from 1999 until RCR's case this week, the commission heard 132 appeals: Eighty-eight (nearly 67 percent) were upheld, 42 (32 percent) were reduced and two (less than 2 percent) were increased.

What this doesn't say is how many of the cases reduced were in the Sprint Cup Series. Asked to break that down, NASCAR officials said that information wasn't available.

What we know is the last time a Cup penalty was reduced came in 2008 when NASCAR reversed Robby Gordon's 100-point deduction and crew chief Frank Kerr's six-race suspension for an unapproved Dodge nose. It was called a reduction because the team fine actually was increased from $100,000 to $150,000.

The last time a Cup penalty was completely overturned came in 2005, when the commission found insufficient evidence that Michael Waltrip made an inappropriate gesture during a TV broadcast.

"I would say when the actual Cup series director makes a call, the penalty reduction is minuscule," Smith said. "Where it rates larger is in some of the lesser series, where the penalties are not issued with the same level of scrutiny and experience by officials as they are in Cup.

"That's all part of the cosmetics of it. You get relief in other series where there is not much lighting. Makes it look like you have a fighting chance."

That's not where Smith's skepticism ends. He's wary that commission chairman George Silbermann is an employee of NASCAR even though he doesn't vote. He's wary that most of the commission members have a stake in the sport such as track presidents or former drivers.

"That's why I say it's one of these things where the deck is stacked against you," Smith said.

Most who serve on the commission will tell you differently. They'll say they go into an appeal with an open mind and no allegiance to NASCAR. Former Cup driver Buddy Baker actually turned down a chance to be on the RCR appeal because he'd already spoken his opinion publicly on his Sirius radio show.

"Hearing things like [what Smith said] I take offense to," said Martinsville Speedway president Clay Campbell, who has served on the commission for more than 20 years. "I take it very seriously and think everyone else does as well.

"We're not a rubber stamp for NASCAR. We have facts deliberated and come up with what we believe is a fair outcome."

Campbell says he wouldn't have taken his time to fly to Toronto last week to hear a case in a lower series if it was to just ditto the original ruling.

That decision, by the way, was reversed.

"That's foolish," Campbell said of negative comments about the commission. "Contrary to what people say that get slapped by it, it's a fair process."

Former Charlotte Motor Speedway president H.A. "Humpy" Wheeler has attacked NASCAR as much as anyone. He used to send spies into the CMS garage to make double sure nobody was bending the rules to get a competitive edge and make his race a runaway.

But when somebody hints the commission is just an appendage of the governing body, he takes offense as well.

"They do not try to influence you in any way whatsoever how to vote," Wheeler said of NASCAR.

For perception purposes, it may be in NASCAR's best interest to have a commission chairman it doesn't pay. Some might argue it would help to have committee members who are not invested in the sport, but if you do that, the odds of finding people educated well enough to make a fair judgment would be nearly impossible.

NASCAR doesn't believe that any changes are necessary.

"The appeals process exists to serve the competitors and grant them a fair and just forum to challenge NASCAR's rulings," spokesman Ramsey Poston said. "Appeals are heard by knowledgeable, independent panelists who take their role very seriously.

"Additionally, competitors have the option to take their dispute to the chief appellate officer for a second and final appeal."

That would be former General Motors executive John Middlebrook, who recently replaced Charles Strang. But whether it's Middlebrook or Silbermann, if you want to get somebody on the panel fired up, take a shot at him.

"George is very exacting and very thorough on everything he does, so he's perfect for that job," Wheeler said. "He's employed by NASCAR, but if you listen to him in the meetings, a lot of times he'll take the other side. It's very definitely not some kind of a whitewash deal."

But there are more skeptics out there than Smith, who in 2008 when considering whether to appeal a 100-point fine against Carl Edwards and six-week suspension against crew chief Bob Osborne referred to the "unpleasantness of the appeal process."

Let's look at a few others who have spoken out:

• 

Kevin Harvick blasted the process in 2006 after his Nationwide Series team lost an appeal of the severity of a 50-point penalty to driver Burney Lamar for an unapproved shock absorber. The commission said the "base plate" in the shock was prohibited. Harvick argued it was a valve and called the process "pretty shaky."

"It's hard when you have three series, and none of them is the same and one of them has different rules," Harvick said. "Mistakes happen, and we made a mistake. I don't know that they know their own rules enough to understand what their own shock rules are."

• 

Kasey Kahne took a shot at the process in 2007 after his then-Evernham Motorsports car was docked 50 points and his team fined $50,000 for unapproved aerodynamic devices found in his car during prequalifying inspection for the Daytona 500.

"My take is you don't have a shot when you go in," Kahne said at the time.

When he asked why the appeal was turned down when he felt team owner Ray Evernham had a good case, Kahne said, "There was no answer."

"I did talk to a few people that were part of that [appeal], and they said you basically have a losing cause. If you're not going to take the best case in the world, you're not going to win."

Comments such as these don't help the commission's good standing. When Smith says there's really no appealing the determination that the car was in violation of the rule, that only the severity of punishment is negotiable, it doesn't help that good standing, either.

"That's different than other appeals processes that are a determination of guilt," Smith said. "So it's much more like another sporting event where the call on the field is final."

As for exactly how the system works, Silbermann and the three on the commission are taken to a room where they independently hear what the accused and NASCAR have to say. Both parties are allowed to speak their mind, and both also are asked questions by panel members.

The process may take as little as an hour or as much as a day, depending on how much evidence is presented and how long deliberations take. Childress, for example, could have brought in an actual wrecker and had it push a duplicate of Bowyer's car in an attempt to make his case that changed the tolerances if he wanted to get that dramatic.

"I had one in Denver one time," Campbell recalled. "Since I had to fly all the way out there, I thought it would be neat to see some of the area. I had never been to Denver before. We were in the hotel all day and night. I never saw anything but the hotel and airport.

"It's not what people portray it to be. I feel it's fair."

Wheeler believes in the process so much that he helped implement a similar system for the Legend Car series. He says the reason so few penalties are overruled in the Sprint Cup Series, specifically where the body is concerned, is the box is so tight and the rules are so defined that there are few excuses.

He used as an example one case in which he was involved regarding the hood of a Truck series car being off measurement.

"The guy said somebody stood on the hood," Wheeler said. "Clearly it was not the case. The hood shrunk, and steel doesn't shrink -- not like that."

Smith understands those arguments. They're black-and-white. He said he simply hopes he doesn't have to go before the committee again before he retires after this season.

If he does, he'll go in with low expectations.

"It's a lot easier to get through life if your expectations are to adjust the penalty rather than overcome the difficulties it's created," Smith said. "It's not supposed to be easy to come up with a story to avoid a penalty. The presumptions all go to the people who made the decision that there should be a penalty.

"I'm not saying that's wrong. I'm just saying there's a public perception the process has a little more the trappings of fairness than what it actually has."

David Newton covers NASCAR for ESPN.com. He can be reached at dnewtonespn@aol.com.

David Newton | email

ESPN Carolina Panthers reporter