NASCAR chairman and CEO Brian France has said that the sanctioning body is willing to take a second look at the application of the Top 35 rule which many believe needs a thorough examination in light of the recent gerrymandering of owner points that has made partners of some strange bedfellows in the Sprint Cup garage.

"It was a good rule, basically, when it was first set up," said Richard Petty, the most visible victim of the side deals that have locked Sam Hornish Jr's #77 Dodge and the #33 and #34 Chevrolets, driven by Clint Bowyer and John Andretti respectively, into the Daytona 500.

For the first five races of the Cup season - at Daytona, California, Las Vegas, Atlanta and Bristol - the top 35 in owner points from 2008 are locked into the starting fields, but what's raising eyebrows, not to mention the ire of those adversely affected, is that the cars of Hornish, Bowyer and Andretti didn't earn the owner points that have guaranteed them starting spots.

They acquired the points through business dealings, rather than through performance on the racetrack.

The #77 Dodge is locked in because owner Roger Penske entered into a partnership with Bill Davis, who sold some of his physical assets to Marty Gaunt and Mike Held during the off-season but retained the 31st-place owner points of the #22 Toyota driven by Dave Blaney in 2008. The #22's points go to the #77.

The #33 Chevrolet gets in because Bobby Ginn is still a minority owner in the #01 Chevrolet that was part of a 2007 merger with Dale Earnhardt Inc. Ginn is long gone from the racetrack, and DEI has merged with Ganassi Racing, but the #01's 32nd-place owner points - earned primarily by rookie 2008 Regan Smith - go to the #33 owned by Richard Childress.

An engine partnership between DEI and Childress continues to operate after the merger with Ganassi, but Ginn is the owner of record of the #33 Chevy. This is the same Bobby Ginn who was sued by Hendrick Motorsports for non-payment of an engine contract - as was DEI - and by the PGA Tour for yanking his sponsorship from the Champions Tour's Ginn Championship.

The 27th-place owner points from DEI's #15, earned by Paul Menard last year, transfer to the #34 driven by Andretti under the new Earnhardt Ganassi Racing banner in affiliation with Front Row Motorsports. NASCAR, however, vetoed a transfer of owner points from Ganassi's #41 Dodge, driven largely by Reed Sorenson in 2008, to James Finch's #09 Chevy, to be driven in the Daytona 500 by rookie Brad Keselowski.

NASCAR rightly ruled that such a move would have violated the spirit of the provision that allows a team to field a fifth car, one more than the per-team limit, for a rookie driver.

Now, as France suggested, NASCAR needs to take a harder look at the intent of the rule per se. And the sanctioning body should consider establishing a date well in advance of the start of the new season to freeze the top 35 for the coming year.

Petty's primary gripe is that he believed that the #44 Richard Petty Motorsports Dodge of AJ Allmendinger was locked into the first five races and communicated that to potential sponsors.

"It doesn't make any difference what kind of rules you throw out there," Petty said, "Somebody's going to figure the best thing for them, and that's what everybody's done. We were told when the race was over the week right after Homestead that we was in.

"So we go out and talk to sponsors and stuff and say 'okay guys, we're in', so we've got more to sell and look at it that way. Then, last Saturday was the first time I found out that we weren't in the thing - or that they were looking at it again and reshuffling. The #22 comes in and the #33, and they keep shuffling around."

Accordingly, Petty had to go back to Allmendinger's sponsors and explain. And he realised that he had no leverage with NASCAR.

"I didn't have nothing to petition them with," he said, "We were where we were. Our concept was that there were some [cars] that weren't coming back [in 2009] and, then again, that NASCAR had told us 'hey, you're in'. That's all we had to go by. We couldn't form another partnership with somebody, because they was already partnered up."

The owner point transfers that benefit Hornish, Bowyer and Andretti aren't the only ones this year. The points of the #28 and #38 Yates Racing Fords, earned by Travis Kvapil and David Gilliland, now belong to the #98 and #96 Fords driven in 2009 by Paul Menard and Bobby Labonte.

Those two cars, at least, merely replace cars that will operate from the same shop. And there are other cars that merely changed numbers, such as the #14 and #39 entries at newly-minted Stewart-Haas Racing.

The Top 35 rule is perhaps more important now than ever, in that it ensures that sponsors willing to invest in the sport in the face of a challenging economy will get the exposure they deserve, but racers will find loopholes in the rulebook, and it's up to NASCAR to close them to preserve the spirit of the law.

The bottom line is that performance on the track should carry more weight than the stroke of a pen.

by Reid Spencer
Sporting News NASCAR Wire Service