I’ve held out all week – trying not to write a posting on NASCAR’s “secret” fines. I didn’t want to add fuel to the story; I didn’t want to beat this long-dead horse. Over and over again, I told myself I would not write anything on NASCAR’s “secret” fines.
So, I am here – with great disdain – doing exactly what I said I wouldn’t do. But, at least I decided to break my thoughts and opinions into a frequently asked questions format.
1. Why is NASCAR fining drivers for voicing their opinions? Drivers are entitled to their opinions, right?
Drivers are certainly entitled to their opinions. And, I don’t think NASCAR is fining drivers because of what they said, as much as for the venues in which they chose to say it. This is a sport of men (and women), not boys (or girls). If a driver has an issue with NASCAR, they should take it up with NASCAR, in the hauler; not in front of cameras or through Tweets, or any other form of public forum. It’s disrespectful, and ultimately hurts the sport because, as Toby Christie, from RubbingsRacing.com , put it, some fans take what the drivers say as gospel.
We’re all aware of the problems NASCAR is facing. But, when we hear about them week in and week out, it diminishes the good things NASCAR is trying to do to improve the racing product. By fining the drivers, NASCAR is attempting to send a message that they’d rather have the drivers working with them, instead of against them.
And, as the drivers are agents for NASCAR, the sanctioning body is well within its rights to fine them for making disparaging remarks. A year or so ago, a Philadelphia Eagles employee criticized the team for letting go of Brian Dawkins on his Facebook page. He was fired. You can’t criticize your employer in a public forum and expect to continue working for them without punishment. NASCAR is a business, and therefore should not be any different.
2. Don’t fines amount to violating their First Amendment rights?
Not really – if my research and interpretation are correct. Being a NASCAR driver is a privilege, and to enjoy that privilege, one must follow the rules. One of those rules – the one that is almost always violated – is not to commit actions that are detrimental to stock car racing (Section 12-1 of the NASCAR Rule Book.)
If NASCAR determines that comments are detrimental to NASCAR, they can, and now will, levy fines. This is done to protect the brand. In order to remain profitable, NASCAR has to get fans to buy into the fact that they are providing a superior product. And if, through comments, their credibility is called into question by drivers (claiming that the races are rigged) the product no longer appears superior. (It gets compared to WWE, which makes it lose credibility as a sport.) If that happens, NASCAR loses fans, which translates into lost money and lost profits. To ensure that this does not happen, NASCAR must be in control of their employees (drivers), just like any other business.
If a driver chooses to sue NASCAR, claiming their First Amendment rights were violated, Korb v. Raytheon (1991) seems to indicate that that driver would lose. In Korb, a man was fired from Raytheon after complaints were received of the man’s involvement with an anti-nuclear proliferation nonprofit. The man was critical of increased defense spending, which drew complaints to Raytheon from military committees that they were working with.
After being fired, the man sued claiming his rights to free speech were violated. The court ruled that the man was free to speak out, and he had the right to disagree with Raytheon, but he did not have the right to do so at Raytheon’s expense. Because the man was an at-will employee, Raytheon had the right to terminate him with or without cause, so long as they did not violate public policy, which they did not.
If we flip that to NASCAR, a driver has the right to speak out. But, in doing so, NASCAR has the right to fine and/or fire him because, as is my understanding, drivers are essentially at-will employees. NASCAR can fire (not let them race) them for any reason, without cause so long as it does not violate public policy.
Note: The team may not be able to fire him. It depends on what is stated in the contract between him and the team. But since drivers don’t have contracts with NASCAR, they would have to prove that there is something in the NASCAR handbook – if one exists – indicating that an employee will not be fired without good cause. And, the burden of proof would fall on the driver.
Knowing that, a driver could still try to sue. But, if you were a driver, would you risk the millions you make year after year from racing for a potential settlement (that might be a few hundred thousand dollars) that you may not even get? (Do you think NASCAR would let you back in after you sue them? Ask Jeremy Mayfield.)
3. Isn’t that censorship?
Yep. But the culture in professional sports in this country is such that censorship not only occurs, it is expected.
4. What justification could there be for keeping the drivers’ identities private?
Christie makes two very good points on this subject. First, he notes that if the drivers identities were made public right off the bat, news outlets would have pulled out what they think are the quotes/actions that got the drivers fined, and they would replay them over and over and over. That would only serve to increase the harm cause by their statements. So, they tried to keep them quiet.
The second reason for keeping them quiet, Christie says, is that unlike failed drug tests or illegal parts, they do not affect the racing on the track. When penalties are assessed, NASCAR has to publicize them to explain why a driver is suspended or why they were docked points. With fines for making disparaging remarks, there isn’t usually a penalty beyond the fine, therefore it’s not as imperative that NASCAR divulge that information.
Also, by publicizing the drivers involved, the possibilities of what comments drew the fine are narrowed down, which could lead some drivers to think that if they don’t go as far as Denny Hamlin or Ryan Newman, they might not get fined. I think by leaving the drivers’ identities out of it, others would have taken a “better safe than sorry” approach, and that would have effectively ended the negative, public comments.
By making the identities public, and virtually exposing what comments drew the fines, now that drivers know, some may be more willing to push the envelope, leading to more fines.
5. What’s next, fining the media?
I can’t imagine a scenario – and I’m sure NASCAR feels this way, too – where NASCAR would feel like it would be a good idea to fine the media. They would lose all credibility for that.
Drivers are agents for the sport. They are representatives. The media is the watchdog of the sport. They are there to report the facts and expose all information, positive or negative. They are not agents of the sport. They are not representatives of the sport. They are representatives of their news outlets.
Drivers are paid to drive and to be ambassadors of the sport. Journalists are paid to report – regardless of whether or not NASCAR likes what they are reporting. That’s what helps NASCAR stay on the up and up.
A prime example of this would be the fact that the drivers’ identities were leaked. Let’s say, hypothetically, NASCAR was able to keep the identities private. Wouldn’t that mean NASCAR can fine whomever they want, whatever amount they want, for whatever they feel is disparaging?
At the end of the day, it was probably silly for NASCAR – one of the leakiest businesses I’ve ever seen – to believe they could keep the identities private. (It could be that they didn’t want to “release” the names, but knew eventually it would get out. If that’s the case, they may have just underestimated the PR hit they would take.) But, we all knew that eventually, through the media’s persistence, they would be identified. Without the media, we all wouldn’t have known, which would have allowed NASCAR to operate in the dark. But, the media was there to shine light on it.
6. What justification can be made for not disclosing what comments drew fines?
As I said earlier, I believe NASCAR hoped that by leaving drivers in the dark, they would force the drivers to take a “better safe than sorry” approach, which would curtail all negative comments. By telling drivers exactly what was said, it gives them a little more confidence to push the envelope.
The fines also shine a little more light on the fact that a lot of the non-technical actions that draw fines and penalties are subject to interpretation, which I’m sure is something NASCAR wants to downplay (remember what I said about credibility and protecting the brand earlier).
It makes fans wonder why one comment warrants a fine when another doesn’t? Why does one retaliatory action on the track garner a penalty while another doesn’t?
7. Won’t this make drivers bland, PR machines who don’t speak their minds? Should we believe anything they say?
I think initially, it will. If you watched this week’s driver press conferences, all of the drivers stuck to generic responses. But, I think that in the heat of the moment, drivers will be as candid as they are now. Most of the best quotes from drivers come from right after they get out of the car while adrenaline is flowing and the emotions are high.
If drivers could control their emotions, we wouldn’t have seen Brad Keselowski flip at Atlanta. We wouldn’t have seen Jeff Burton yelling at Kyle Busch. We wouldn’t know that DeLana Harvick wears the firesuit in the family.
That hasn’t changed, and there’s no reason to think fines for negative comments will change that.
I think NASCAR was well within their rights to fine Denny Hamlin and Ryan Newman for their comments. I even believe they had the right to try to keep it quiet, if they wanted to. It was silly to think they could, but I don’t have a problem with them trying to. As a matter of fact, the only thing I do have a problem with is the amount of coverage this story is getting. So, with that, I’ll end.
Let’s hope I never write anything on this topic again.