NASCAR appeals: A look at the process for Brad Keselowski
By Bob Pockrass
FOX Sports NASCAR Writer
Brad Keselowski will appeal his 100-point penalty Thursday, and it is a process that many view as an uphill battle.
Over the past three years, there have been 11 appeals resulting in seven penalties upheld, two penalties modified and two rescinded. That percentage of "success" is much better than in previous years, as many teams don’t bother with what they think is a futile process.
Keselowski has reason to appeal: The 100-point penalty in the driver and owner standings is massive and includes the docking of 10 playoff points if he makes the postseason. The penalty also includes a four-race suspension and $100,000 fine to crew chief Matt McCall, who has already served two races of his suspension.
NASCAR said the team had an illegally modified piece supplied from a single-sourced vendor on its 12th-place car at Atlanta last month. Sources familiar with the violation say a rear body panel on the bumper was altered. The question will be whether that was done intentionally — and whether that matters in issuing a penalty.
What is the appeals process? NASCAR’s rule book chapter on appeals has 29 sections. Here are some of the key elements.
* NASCAR has a two-step appeals process for regular appeals. The first is an appeal with three appeals panel members. If a team loses that appeal, it can appeal to the final appeals officer (if NASCAR loses an appeal, the process is over; NASCAR cannot appeal the panel decision to the FAO). For race disqualifications, there is only one appeal heard by three panelists, which can include the final appeals officer.
* Teams have three business days after receiving a penalty notice (not including the day they get the notice) to file an appeal, with two exceptions: 1) An appeal that must be expedited because of playoff or championship implications must be filed within one business day. 2) A race disqualification appeal is typically due by noon on the next business day, but NASCAR specifies that deadline on its race disqualification notice. The cost of a regular appeal in the Cup series is a nonrefundable $1,000; for race disqualification appeals, it’s a nonrefundable $5,000.
* Teams can ask for suspensions to be deferred pending appeal, which typically is granted, though suspensions related to charges of violent crime, trafficking, endangerment and the like will not be deferred. Appeals are supposed to be heard within 30 days (except for expedited appeals).
* NASCAR has an appeals panel of about 60 members who can hear appeals. Their experience in the industry ranges from marketing and track promotion to former racers to crew chiefs, engine builders and mechanics. NASCAR typically chooses at least one panel member whose area of expertise coincides with the penalty issued. Both sides can ask for a panelist to be replaced due to a conflict of interest, such as someone who has financial relationships with any of the parties, a current or past working or business relationship with any of the parties or anything that might lead to the appearance of impropriety or impair the integrity of the hearing or decision. NASCAR’s appeals administrator determined if the conflict of interest warrants a change.
* NASCAR and the appellant can submit appeals summaries (no more than two pages, standard-size letter paper, Times New Roman size-12 font, single-spaced) plus any relevant photos, diagrams, charts, etc. Those summaries — which are not to be released to the public — are given to the opposing side. Each side must also give the appeals administrator and the other side 24 hours' notice about any witnesses they plan to call. Neither party can call a witness from the other party’s witness list.
* Both sides are in the appeals room the entire time and can hear the testimony. During an initial appeal, the burden of proof is on NASCAR. During a final appeal, the burden of proof switches to the team.
* What is proof? NASCAR uses the wording typically used in civil trials of "more likely than not." In other words, it’s not "beyond a reasonable doubt," like in a criminal trial.
Chase Elliott on the Keselowski violation
* The appeals panel has the option to call anyone with a NASCAR license to testify, and that person must testify. If they don’t, they could be suspended by NASCAR.
* During a hearing, appeals panelists can ask questions of anyone present, but neither side can ask questions of the opposing side or the opposing side’s witnesses. Neither the team nor NASCAR can have legal representation. Witnesses who are not parties to the penalty can be barred from hearing any of the testimony. NASCAR gives its case first, then the appellant. They then get a short break to determine any rebuttals; NASCAR goes first, then the appellant and then NASCAR again because NASCAR has the burden of proof. Recording of the proceedings is prohibited.
* During the hearing, any speculation on the impact of the penalty — such as if the penalty could shut a team down economically or put the team in violation of a contractual obligation with a sponsor — is not to be considered by the panel.
* In making the decision, it’s a two-step process: First, determine if a violation occurred. Second, if a violation occurred, determine whether the penalty should be modified. The panel has the option to increase or decrease the penalty, though neither the panel nor the final appeals officer is allowed to go outside the range of the penalties listed for the infraction (infractions primarily are categorized as "Level 1," "Level 2" or "Level 3") in the rule book "unless there are overwhelming circumstances unique to the violation that compel Panel members to decide that the Deterrence System as written and published does not apply in this case."
* Once the hearing ends, the appeals panelists deliberate. There does not need to be a unanimous decision; just a majority among the three. NASCAR doesn’t release how a panelist votes but does share whether it is a unanimous decision. Typically, the panelists come to a decision the day of the appeal, but they can take up to 10 days to make their decision. If it is an expedited appeal or race disqualification appeal, the panelists have 12 hours to deliberate. If they can’t come to a decision, the penalty is automatically appealed to the final appeals officer.
* The finals appeals officer for 2022 is Roger Werner, a former cable television executive with an extensive motorsports history. If he can’t hear a final appeal, then the first alternate is Chris Harris, a Daytona Beach-area attorney with extensive motorsports experience.
Bob Pockrass has spent decades covering motorsports, including the past 30 Daytona 500s. He joined FOX Sports in 2019 following stints at ESPN, Sporting News, NASCAR Scene magazine and The (Daytona Beach) News-Journal. Follow him on Twitter and Instagram @bobpockrass. Looking for more NASCAR content? Sign up for the FOX Sports NASCAR Newsletter with Bob Pockrass!
