Busch has one last-ditch appeal available, NASCAR spokesman David Higdon said, and NASCAR Final Appeals Officer Bryan Moss will hear the Stewart-Haas Racing driver's case Saturday night at 7:30 p.m.
"We are very disappointed that our appeal was rejected by NASCAR's appeal panel," Busch attorney Rusty Hardin said in a statement. "We are re-appealing immediately, per the proscribed process. We have significant and strong evidence that contradicts the commissioner's conclusions.
"In the end we are confident that Kurt will be vindicated and he will be back racing. Until then we will continue to fight on his behalf by ensuring that the entire truth is known."
A three-member panel of former NASCAR executive Paul Brooks, former race-car driver Lyn St. James and Greenville Pickens (S.C.) Speedway track owner Kevin Whitaker voted Saturday afternoon to deny Busch's initial appeal as the 2004 Sprint Cup champion attempts to become eligible for the sport's biggest race.
Even if Busch had won the appeal, it was far from a guarantee he would race Sunday in the Daytona 500. SHR executive vice president Brett Frood said Saturday morning that no final decision had been made on whether Busch would race if the appeal was granted, and Chevrolet, a major SHR sponsor, has suspended its personal services relationship with Busch.
Frood said SHR plans for Regan Smith to replace Busch as the driver of the No. 41 car for the Daytona 500. Smith, who practiced the car Saturday, will have to 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 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 International Speedway.
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 is different than the initial one because now Busch has the burden proof rather than NASCAR.
Busch must show that he did not violate a rule, that the penalty is not within the scope of NASCAR guidelines and/or he was denied his rights during the initial appeal. Moss, the former president of Gulfstream, can ask questions and call any witnesses he wants.
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 unless. 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.
Busch Loses Appeal Of Indefinite Suspension
Marty Smith reports from Daytona Beach, Florida, where he has the latest on Kurt Busch, who had his initial appeal from indefinite suspension denied.