23XI Racing and Front Row Motorsports formally re-filed their preliminary injunction request in district court on Tuesday night, again requesting the judge grant them chartered status over the duration of their lawsuit against NASCAR, this time citing imminent irreparable harm.
An injunction is a court ordered relief to mitigate damages and this is preliminary because it is prior to the legal process.
The district judge from the Western District Court of North Carolina overseeing the case, Frank D. Whitney, denied the initial request on November 8 with a judgement that irreparable harm was only a possibility and not a guarantee but also stated, ‘should circumstances change, Plaintiffs may file a renewed motion’ and now they have.
The teams initially appealed to the fourth circuit court in Virginia but withdrew it on the basis of four ‘changed circumstances,’ three of which were redacted in the legal filing on Tuesday night. The one that wasn’t redacted was NASCAR’s decision on November 16 to remove a provision from the non-chartered entry blank that prevents teams from bringing forth antitrust litigation against the Sanctioning Body.
That provision, Section 10.3, remains in the 2025 charter agreements, just as it was in the 2016 charter agreements, but NASCAR also hasn’t waived that provision from the two Stewart-Haas charters that both 23XI Racing and Front Row have agreed to purchase in expanding to three teams respectively.
“NASCAR has not removed the release from the SHR Charter Agreements even though it has removed it from the open agreement. This puts Plaintiffs in present jeopardy of having to choose, within three weeks, whether to close their transactions and risk releasing their antitrust claims or forego the irreplaceable opportunity to purchase charter rights for another car.
“To prevent this immediate irreparable harm, Plaintiffs request the Court to enjoin Defendants, for the duration of this case, from seeking to enforce the release in the SHR Charter Agreements against their antitrust claims to ‘prevent the irreparable loss of rights before judgment.’”
In other words, the teams are arguing that they cannot close out on the agreement to purchase those charters unless NASCAR waives the section in those charters that prevent teams holding them from bringing forth a lawsuit.
They argue this has to be decided before the end of the year, at which point their current charter status ends, and it remains an open question what happens to their charters in the absence of an agreement.
Joe Custer and Gene Haas of Stewart-Haas Racing signed the 2025 charter document so 23XI and Front Row are attempting to acquire a charter that has agreed to the new provisions, even though they have not agreed to the new provisions with the four combined charters they already held.
NASCAR has stated its intent to contest next season with 32 chartered teams, and eight open teams, but that doesn’t include the two Stewart-Haas charters. Haas Factory Team is not going to field cars for those charters no matter what next season thus the need to resolve this transaction, and the charter status of 23XI and Front Row, prior to next season.
23XI Racing formally introduced Riley Herbst as driver of the new third entry last week.
“But even if the Court determines it is still premature to grant a preliminary injunction, it should, at a minimum, rule that Plaintiffs’ antitrust claims fall outside the scope of the release in the SHR Charter Agreements so that Plaintiffs can close those transactions without risking their antitrust rights.
Translation: 23XI and Front Row are asking the court to intervene to allow the teams to purchase the two charters without giving up the ability to maintain its antitrust lawsuit against NASCAR, which it would have to do if buying them as is.
Additionally, the teams say they are subject to imminent irreparable harm because they are working towards finalizing sponsorship agreements but ‘cannot provide assurances that they will have charter rights.’
Translation: Even if the court once again rules against the teams in their ask for charter protection for 2025, thus having to run next season as open teams, 23XI Racing and Front Row want to close out on the acquisition of the third charters without giving up their right to sue on the basis of buying charters that agreed to the section 10.3 release clause.
“Further, the Court can alternatively rule that the release is void, as against public policy, because: (a) it constitutes an unlawful exclusionary act to maintain NASCAR’s monopoly power, and (b) it cannot release future antitrust violations. … The Court should rule now that Defendants may not use their anticompetitive release in the SHR charter agreements as a weapon to preserve their monopoly.”
The teams are also still arguing that running as open teams will produce imminent harm due to the possibility that they could miss races like the Daytona 500, or any race next season, and the opt-out clauses sponsors and drivers have should both teams not hold charters next season.
Statement from teams’ lawyer
“Consistent with Judge Whitney’s earlier ruling, 23XI and Front Row Motorsports are submitting a second preliminary injunction to the court with new evidence. My clients are also seeking this relief to strike down the release language that NASCAR removed from its open agreement but still maintains in its charter agreements as part of its monopolistic control. I’m confident the court will act to protect my clients from NASCAR’s anticompetitive conduct.”
What next?
NASCAR must now file a response. The teams wants it by December 6 and NASCAR wants December 9. The teams then must reply to that. Teams want to respond by December 10 but NASCAR wants December 11. Teams wants a hearing on December 12 or 13 and NASCAR wants a date at the court’s discretion.
Simplify this
Before the two teams’ antitrust lawsuit against NASCAR can proceed, what becomes of the charters they hold and those they purchased needs to be determined. The teams want to maintain the status quo of chartered protection until judgement or a settlement, despite not signing the deal that preceded this lawsuit. NASCAR rejects this proposal on the basis that the teams did not sign the agreement and should run as open teams, which is something 23XI and Front Row have publicly stated an intent to. In any case, this has to be resolved before the start of the season, much less before the lawsuit itself can even begin in earnest.
The document
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
Matt Weaver is a Motorsports Insider for Sportsnaut. Follow him on Twitter.