
“When a litigant does not have either the law or the facts on its side, it will pound the table. But Defendants’ pounding has become tired, familiar, and shrill. This Court did not make any mistake in its Preliminary Injunction decision. Defendants are simply re-arguing — but louder — the same points that this Court has already heard and properly rejected. There is no basis for the Court to stay its ruling, which is necessary to protect Plaintiffs from the irreparable harm that Defendants are so desperate to inflict upon them.”
Thus begins the response from 23XI Racing and Front Row Motorsports, penned by lead attorney Jeffrey Kessler, to NASCAR’s request from a federal district judge to delay his order forcing the transfer of the two Stewart-Haas Racing charters to the organizations that agreed to purchased them.
Following a week in which NASCAR’s lawyers and Judge Kenneth D. Bell were openly critical of each other’s legal approach, Kessler and the teams joined in with some strongly worded legal sniping of their own:
“The lead argument of Defendants’ motion to (delay that order) —that they did not have a fair opportunity to address charter transfer issues—is the exact same argument Defendants made in their Motion to Strike, which this Court considered and rejected. Other than an elevated tone, Defendants offer no reasons for the Court to reconsider its ruling on this issue.”
One of the key components of NASCAR’s rebuttal is that 23XI and Front Row made a new preliminary injunction relief ask in a response, rather than its initial filing, asking the court to force the blocked transfers of the purchased charters.
The teams say they added it when they did as a response of NASCAR, in their eyes, effectively going back on its word to approve the transfer request. They say that the decision to not approve the SHR charter transfer was more anticompetitive behavior from NASCAR.
NASCAR said it was not approving the transfer on the basis that Gene Haas and Joe Custer had signed the 2026-to-2031 charter extension document that 23XI and Front Row did not when negotiations broke down over the summer. In other words, NASCAR said the teams could not acquire a charter that had terms rejected with its other two cars that formed the basis of their lawsuit.
“The fact that Plaintiffs (the teams) did not previously know that Defendants (NASCAR) would engage in new exclusionary conduct by refusing to approve the transfers of the charters to Plaintiffs unless they agreed to forfeit their antitrust rights did not give Defendants a free pass to inflict new irreparable harm upon Plaintiffs in violation of the Sherman Act without being subject to a request for preliminary relief.
The Complaint anticipated the possibility of Defendants engaging in new unlawful acts to maintain Defendants’ monopsony power over Plaintiffs by requesting that ‘Defendants be permanently enjoined from further violations of the antitrust laws and that an injunction be issued to grant such relief as is necessary to restore competition in the relevant market.’
The teams echoed what the judge determined last week in chastising NASCAR for requested the motion to include the charter transfer as part of the injunctive relief be stricken from the record, instead of making a legal argument against it.
“As this Court has observed, Defendants made a ‘strategic decision’ to file a motion to strike Plaintiffs’ evidence and request for relief against Defendants blocking the charter transfers, instead of directly providing further arguments and exhibits in response to Plaintiffs’ evidence prior to the injunction order.
“Indeed, as the Court noted, Defendants’ motion to strike ‘included many, if not all, of the same arguments’ that now appear in Defendants’ motion to stay. Choosing to sit on their arguments was Defendants’ choice— ‘the Court did not limit their ability to present their position and evidence in any way, including with respect to the issue of the [SHR] charters.’ Defendants chose to not ‘simply put in the record everything they now ask the Court to consider.’ That choice does not support their request for a stay of the Court’s Order and does not in any way support their already rejected arguments against Plaintiffs’ likelihood of success on the merits.”
Much of the document is a rehash of previous arguments, filled with examples of alleged anticompetitive behavior from NASCAR and examples of how not having charter status in 2025 shows irreparable harm.
But the teams did respond to assertions from NASCAR, who had ‘multiple questions’ about 23XI Racing’s ‘compliance with the Team Owner and Control Person requirements of the Charter’ and cited numerous examples of praise league president Steve Phelps had for both owners Denny Hamlin and Michael Jordan.
A lot of the ‘prohibited person’ definitions are redacted and under seal so what that entirely means is not public knowledge.
“I love that Michael Jordan is in our sport. I personally like Michael and think he’s good for the sport.”
“Denny Hamlin’s … doing a tremendous job …. I’d like to have 36 Denny Hamlins.”
-Steve Phelps
“The only reason Defendants have now claimed that they may consider the owners of 23XI to be Prohibited Persons is because they have asserted their antitrust rights and filed this lawsuit. And that is the exact unlawful conduct that the Court has properly enjoined. As the Court has already found, ‘NASCAR was willing to approve this transfer on the merits but has now refused approval solely on the grounds of Plaintiffs’ lawsuit and the application of the release of claims, so it rises and falls on the same grounds as Plaintiffs’ existing charter agreements.”
The teams also stated as they have before, that they are not seeking a court order that forces NASCAR into a charter agreement through 2031 but instead just maintaining the status quo from previous seasons until this matter is resolved.
And, with NASCAR continuing to use a release clause in the charter agreement, one that prevents teams from signing without waiving their rights to bring an antitrust lawsuit, 23XI and Front Row supported the judge’s finding that this inclusion itself is a violation of the law.
23XI and Front Row also argued that neither NASCAR nor Stewart-Haas Racing would suffer irreparable harm in having the transfer request go through.
The filing called NASCAR’s assertion ‘nonsense’ that the ruling would force the sanctioning body to share information that it otherwise wouldn’t need to with 23XI and Front Row. It also said SHR is the one that would be harmed if their sale of the charters was not approved since Custer has stated that the single-car Haas Factory Team born from the ashes of SHR does not have the bandwidth to field a three-car team.
They also argued that the consumer, in this case fans, would suffer in 2025 if 23XI and Front Row were not guaranteed entry into every race and with the financial terms awarded a charter team.
“Defendants’ partial stay would benefit Defendants at the expense of Plaintiffs. That is because Defendants could count on 23XI and Front Row fans buying tickets and tuning in to watch their teams that are now guaranteed entry into every race, while Defendants would have no obligation to share any of that increased revenue with Plaintiffs. Under the 2025 Charter Agreement, (REDACTED REDACTED REDACTED REDACTED) An injunction should not provide ‘a windfall to [Defendants], rewarding [them] for [their] nefarious actions.’”
What next?
Judge Bell, who now has all the issues raised by NASCAR and the response from 23XI and Front Row Motorsports will now weigh whether or not to grant the delay in forcing the Stewart-Haas charter transfers or maintaining his decision.
If the order is maintained, 23XI and Front Row will close out the transaction.
Either way, NASCAR has already signaled its intent to appeal to the fourth circuit court, likely asking it to allow the teams entry into every race but not to include it in the financial perks of the charter agreement.
NASCAR also has a filing due on Monday, independent of the injunction ruling, on its motion to dismiss the lawsuit entirely.
Full legal documents
Lawsuit timeline
23XI Racing, Front Row decline to sign NASCAR’s final 2025-2031 charter document
Why 23XI, Front Row filed a lawsuit against NASCAR
23XI, Front Row makes his case in antitrust lawsuit against NASCAR
Richard Childress says he had ‘no choice’ but to sign charter document
How drivers feel about the lawsuit
Michael Jordan comments on his team’s lawsuit against NASCAR
Meet NASCAR’s antitrust defense lawyer
NASCAR files injunction to be included in charter system through lawsuit
NASCAR motions against team’s preliminary injunction request
NASCAR, teams consent to redacting charter details in filings
Teams make case for injunctive relief, expedited discovery
NASCAR’s lengthy rebuttal to injunction, lawsuit
Teams respond to NASCAR response over injunction
23XI, Front Row and NASCAR go to court over injunctions
Judge rules against teams preliminary injunction request
Denny Hamlin says 23XI may not race next year
What preliminary injunction denial means for lawsuit
NASCAR drops ‘lawsuit release clause’ in open agreement
Appeal timeline rebuttal filed by NASCAR
Why 23XI may not have to race in the Clash without charters
Teams drop appeal, may re-file in district court
23XI, Front Row re-file injunction request
NASCAR opposes expedited timeline
France, NASCAR motion to dismiss, deny SHR charter transfer request
NASCAR says injunctive request still fails to show irreparable harm
Teams say NASCAR went back on its word over SHR charters
23XI, Front Row respond to NASCAR’s motion to dismiss
Judge orders NASCAR to issue charters to 23XI, Front Row
NASCAR plans to appeal injunction ruling; other details
Judge grants partial stay of injunction in blunt response to NASCAR
Teams accuse NASCAR of petulance in response to delay request