In the latest legal filing concerning the appeal made by 23XI Racing and Front Row Motorsports seeking an injunction in the form of charter status for the duration of its antitrust lawsuit against NASCAR, the sanctioning body pushed back against both the merits and an expedited hearing and decision.
First, NASCAR confirmed a statement made by that the teams over the weekend that the league has removed the clause in its open entry blank that prevented entrants that raced without a charter from bringing lawsuits based on antitrust claims.
That was an important decision because the teams argued that an injunction was necessary on the basis that both the charter agreement and open entry blanks would cause irreparable harm because it would force the teams to not race at all.
So, NASCAR removed that clause from the open agreement and detail
“That argument was always unfounded,” said the lawyers representing NASCAR in the latest appeal filing. “But now it rests on an entirely false premise. NASCAR provided teams with the 2025 open team agreement last week, and it does not include any release of claims provision. Plaintiffs’ counsel has since confirmed to the media that Plaintiffs will compete as open teams in 2025 regardless of what happens in this litigation. This case simply does not present any circumstances remotely warranting the kind of extreme expedition Plaintiffs propose.”
The teams also argued in its injunction filings and hearing, one that federal judge Frank Whitney of the Western District of North Carolina ruled against 23XI and Front Row, that not receiving charter protection would cause irreparable harm.
The argument the teams made came in the form of the potential of missing races, and the resulting loss of status within the industry, while also citing contractual opt out clauses drivers and sponsors have should 23XI and Front Row not hold charter status next season.
The two teams chose not to sign the 2025-to-2031 charter agreement and the breakdown in negotiations formed the basis of the eventual lawsuit.
NASCAR’s filing on Monday addressed the merits to the appeals court as well.
“Indeed, Plaintiffs’ primary claim of irreparable harm—that they might lose sponsors, drivers, and fans if they compete as “open” teams during NASCAR’s 2025 Cup Series season—is both unsubstantiated and baseless, as the District Court explicitly found.
“Plaintiffs’ arguments for expedition to this Court simply repeat the fact-bound arguments that the District Court carefully considered and rejected after a hearing. Moreover, Plaintiffs’ own motion underscores, no less than seven times, that any potential harm of losing sponsors, drivers, and fans is merely a “risk” that is still speculative, contingent on a series of events, and not remotely imminent.”
In other words, NASCAR argued that it is not certain that 23XI and Front Row will miss races, but merely a possibility, especially since the Cup Series very seldomly has full fields of 40 cars.
To receive the injunction, 23XI and Front Row must prove certain irreparable harm and not the potential of it. Anything less, NASCAR argues, would be financially covered should the teams eventually win judgement against the sanctioning body.
NASCAR also pushed back against an expedited timeline the teams asked for to conduct oral arguments in front of the appeals court on the basis of the approaching Thanksgiving holiday.
“Plaintiffs’ emergency motion to expedite proposes significant burdens on both Defendants and the Court without any valid justification,” the legal filing reads. “There is no urgency to this appeal, and certainly no urgency that would justify Plaintiffs’ extraordinary request to require NASCAR to file its opening brief within a mere 12 days, over a period that includes the Thanksgiving holiday, when many counsel for NASCAR are traveling to be with their families.
“Moreover, Plaintiffs’ proposed schedule is highly unfair to this Court: it would give the Court only one week with that briefing before oral argument. There is no need for this impractical schedule.”
If the court decides expedition is necessary, this is NASCAR’s requested timeline, after the Thanksgiving holidays.
- Appellants’ opening brief: November 25, 2024
- Appellees’ response brief: December 23, 2024
- Appellants’ reply brief: December 30, 2024
- Oral argument: At the Court’s convenience on or after January 26, 2025
The teams want a resolution, obviously, before the start of the 2025 season. They have asked the court to file its brief by December 3, ‘just 12 days receiving (teams’) brief, and shortly after the Thanksgiving holiday’ and referred to that timeline as prejudicial.
“The way to shorten the briefing period without prejudicing NASCAR is straightforward: Plaintiffs may file their own brief early without shortening NASCAR’s time to respond. NASCAR thus has no objection to setting a briefing schedule that has Plaintiffs’ brief and the joint appendix due November 22, as they have requested, and NASCAR’s brief due thirty days later, as the rules would ordinarily provide. Plaintiffs would then be free to file their reply brief whenever they are ready. Nor does NASCAR object to scheduling oral argument for the first available scheduled sitting after briefing is completed, at this Court’s convenience.
“But NASCAR strenuously objects to having only 12 days to respond to Plaintiffs’ opening brief—and for those 12 days to be over a holiday weekend, and when NASCAR’s appellate counsel already has many other obligations.”
But again, the NASCAR argument is that the teams asking for resolution before the season is without merit because they have already signaled an intent to race as open teams in the media over the past three months over the legal process.
“As NASCAR recently informed Plaintiffs, the 2025 open team agreement does not include any release of claims provision. So, Plaintiffs do not face the choice of ‘risking’ releasing anything by competing as open teams next season — a course of action they have already repeatedly and publicly committed to taking regardless of what happens in this litigation.”
NASCAR also reiterated to the appeals court that the teams’ position is ‘self-inflicted’ because they chose not to sign the charter agreement extension in the first place.
“As the District Court found, Plaintiffs are sophisticated entities that had the opportunity to sign Charters but chose not to due to their inability to ‘negotiate a contract’ with all their preferred terms. But failing to secure all of a party’s preferred contractual terms in a commercial negotiation does not amount to irreparable harm, nor does it warrant expedited court proceedings. If every failed negotiation justified expedition, this Court’s docket would be burdened unnecessarily.”
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