The hardest words to say keep Kurt Busch on NASCAR's shelf
Ask anyone who's been married and they will tell you that perhaps the hardest three words in the world to say aren't “I love you”. Instead, that title belongs to the phrase “I was wrong”. There's a reason why pride is one of the seven deadly sins. As a general rule, people prefer to justify their mistakes instead of admitting them. The same is true for large organizations and nowhere in NASCAR has that been more clear than in the handling of domestic violence allegations against Kurt Busch.
The last month has seen plenty of action on the allegations. A Delaware family court announced that it would grant a protective order for Busch ex-girlfriend, Patricia Driscoll, due to an incident at Dover last fall. The judge in that case found that based on his review of the evidence, it was more likely than not that Busch abused Driscoll. Within hours, Kurt was out of the car, suspended by both NASCAR and his manufacturer (Chevrolet). Then this past week, the Delaware Attorney General announced that his office would not be filing criminal charges due to a lack of evidence.
The two statements seem to be at odds with one another and reflect the inherent biases and standards of evidence held on both ends. The Attorney General is an elected official who is charged with providing justice to the citizens of Delaware. He is also a steward of the office and the people, responsible to avoid conducting prosecutions he does not believe will lead to a conviction. Moreover, the burden of proof there is to prove someone guilty beyond a reasonable doubt. It's a high standard and the one most often cited by those defending persons accused of a crime.
Initial NASCAR announcement of Busch suspension
A family court rules based solely on the preponderance of evidence- in other words, which side of the argument is most likely to be true. It also relies on the opinion of a sole observer (the judge) instead of a jury comprised by 12 citizens. Finally, the family court also is charged with protecting people against their (former) loved ones. So there's an inherent bias against the accused; they must essentially prove that they are not a threat to the other party. Innocent until proven guilty does not apply. NASCAR failed to take this bias into account when the decision to suspend was made.
Instead, they took the “lifetime achievement award” approach so eloquently described by ESPN's Ryan McGee here. They looked at Kurt's history of temper tantrums, threats of violence and contrasted that with Driscoll's relatively quiet history with the sport. In that context, the decision to suspend Busch at the first opportunity was an easy one. Based on the speed at which the decision was announced, NASCAR clearly intended to drop the hammer on Kurt the minute charges were filed or the protective order granted- whichever came first.
The Attorney General's decision was slow in coming for a number of different reasons, the most important being organizational. Former AG Beau Biden declined to run for reelection in 2014, resulting in a new AG. The newcomer (Matthew Denn) is a fellow Democrat and Biden clearly did not want to make the decision for Denn. He also didn't want to be remembered for either charging or passing on Kurt Busch and make this investigation to be the last thing he did in office. It was Denn's first major public case since winning election and he had every right to make sure the decision reached was one he would be comfortable with.
The delay didn't help Busch or NASCAR. Had the two differing opinions come out simultaneously, Busch would have had a powerful argument to remain on the track. After all, the remaining court case was a civil matter and would not result in criminal charges no matter the outcome. In turn, NASCAR would have had a powerful PR defense for allowing Busch to remain. They could point to the “lack of evidence” portion of the AG's statement and say (correctly) that it is not NASCAR's policy to interfere in civil proceedings. After all, the sanctioning body didn't suspend either party in the Turner-Scott implosion when the former partners sued one another over Scott's departure to run a Sprint Cup team.
Instead, all NASCAR saw was the potential of a Ray Rice-sized quagmire at the sport's biggest event. They pictured Kurt Busch in the Daytona 500 and the various stories of his alleged acts being what fans took away from the weekend. After a video of Rice's assault went public, the NFL in general and commissioner Roger Goodell in particular took weeks of abuse in the media. Brian France and the NASCAR brain-trust wanted no part of that circus in stock car racing. Imagine the scene that would play out if Busch won the race?
But instead of making the issue go away, the suspension took a minor story and made it into front page news. The hubbub around Driscoll's allegations (and Busch's counter-arguments that she was a trained assassin) had finally died down when NASCAR poured gasoline onto the fire. Instead of making the story go away, Busch became one of the biggest parts of the 500 and he didn't race a lap. Opinions poured in on all sides as fans debated whether the suspension was too fast in coming, too slow, or never should have been there in the first place.
NASCAR also succeeded in doing something I personally thought was impossible. They made Kurt Busch into a sympathetic figure. For those inclined to distrust NASCAR and their use/abuse of power, here was a shining example of Brian France screwing up once again. They noted that the concept of “Innocent until proven guilty” had been turned on its head and Busch was out of the car because he couldn't prove his innocence on a domestic abuse allegation. The presumption of innocence technically applies only in a court of law but to many people, it's a bedrock principle in how accused persons should be viewed at any time.
Signed Kurt Busch memorabilia on Amazon
Read more on NASCAR's reaction
Multiple quotes from NASCAR spokesman David Higdon on why Busch remains suspended, from Dave "the Godfather" Moody's blog
With the announcement that charges will not be filed, NASCAR now had to face its own double-standard. They have to admit that Busch wasn't punished strictly over this once incident. It's ultimately their ballgame and their decision to make. But in an era of “fan engagement” the sport is trying to avoid credibility issues instead of creating more. It would be publicly embarrassing to change horses at this point.
So instead of admitting their error, NASCAR doubled down on their original justification. The decision was,“based on what we heard from the Commissioner in the Family Court of the state of Delaware,” according to NASCAR spokesman David Higdon on Friday. “When you have a legitimate court in Delaware make a statement like they did, it would have been ridiculous for us to not act.” Yet is the Attorney General's office any less legitimate? Does their evaluation of the evidence- one made after an investigation involving numerous individuals and the prior court hearing's testimony- mean nothing at all? Is it any less ridiculous to suspend someone over a crime they were never charged with?
NASCAR could have reinstated Busch this weekend. They've extracted their pound of flesh for his various missteps over the years by denying him entry into the sport's biggest race. They could also refuse to grant Busch a Chase waiver and force him to make the top 30 in points and win in order to make NASCAR's playoffs. As of today, he's 23 points out of 30th place and 51 points out of 16th. That kind of punishment would hit Kurt where he lives. It would also be a pointed slap in the face of co-owner Gene Haas, who NASCAR likely wishes had saved them the trouble and suspended Busch directly.
But they won't. They will continue to insist that Busch complete his “Road to Recovery” despite the fact that no such road was considered necessary before the accusations (whether it should have been is another story). They will cling to the family court's ruling and ignore the factors that went into that ruling. Those factors extend well beyond whether Busch assaulted his ex-girlfriend. They will continue to pretend that Busch isn't being punished because of his past mistakes. They will explain away the apparent inconsistency in Travis Kvapil's total lack of punishment from NASCAR by saying they wish things had been handled differently. After all, it's not as if Kvapil remains a NASCAR driver, right? Why? Because “I was wrong” isn't in NASCAR's vocabulary- any more than it is in anyone else's.