NASCAR has responded to the injunction request issued by 23XI Racing and Front Row Motorsports detailing the reasons why a federal judge in North Carolina should force the sanctioning body to issue temporary charters to the teams throughout the duration of an antitrust lawsuit.
For the layman, a legal injunction is a court order that requires an entity to do or stop doing a specific action and they can be issued temporarily or permanently.
Specifically, the two teams are once again asking Judge Frank D. Whitney to provide them temporary charters until a resolution to the lawsuit is reached because not doing so would cause them irreparable harm.
Whitney previously denied that request, citing that harm was speculative and not certain, but 23XI and Front Row have now re-filed with the Western District alleging that there have been four significant changes to the facts.
Three of those reasons have been redacted and not made public. The fourth was NASCAR eliminating the language in the document for non-chartered teams entering races that prevented entrants from bringing forth a lawsuit.
NASCAR, through lead attorney Christopher Yates, argued in a Monday night legal filing that the teams have still not proven immediate and irreparable harm:
“A month ago, the Court denied Plaintiffs’ first Motion, characterizing their claimed harm as ‘speculative’ and ‘possible,’ but not ‘immediate’ or ‘irreparable.’ After seeking and then dismissing an expedited appeal, Plaintiffs now claim ‘changed circumstances’ to try to overcome this ruling. Yet, even with their manufactured evidence, Plaintiffs still fall far short of a clear showing of irreparable harm.
“Their new submissions underscore that any claimed harm remains speculative, self-inflicted, and redressable with monetary damages. Moreover, Plaintiffs improperly ask the Court to bind them to provisions they claim are unlawful. And Plaintiffs still cannot satisfy the other (required) factors; their requested preliminary injunction aims to upend—not preserve—the status quo, and Plaintiffs cannot show a likelihood of success.”
Once again, NASCAR is arguing to the court that none of the four reasons in the injunctive filing show immediate harm. Exception is also taken to 23XI and Front Row requesting Whitney force NASCAR to issue charters to organizations that refused to sign them under the conviction that the terms were anticompetitive.
“Plaintiffs seek a mandatory injunction to allow them to run ‘under the terms of’ the Charter minus the release (from bringing a lawsuit). This effectively demands that NASCAR enter a now unwanted contractual relationship under terms of Plaintiffs’ choosing.
The first attempt by 23XI and Front Row to secure injunctive relief, which is being led by attorney Jeffrey Kessler, included a provision in both the driver and sponsor contracts that they could opt-out if a team did not have a charter.
Judge Whitney ruled that was speculative harm and not imminent harm, as was the potential of missing races — including the Daytona 500.
The NASCAR filing continues below:
“Since that Order, nothing has changed. Plaintiffs recycle the arguments the Court already rejected. For instance, they suggest that drivers might leave absent a Charter. The first bullet in Plaintiffs’ Motion makes this abundantly clear: Reddick can leave. But a mere ‘possibility’ of harm is precisely what this Court properly rejected in its previous Order.
“Further, the fact that some—but not all—of Plaintiffs’ drivers could leave is entirely self-inflicted, stemming from driver contracts that Plaintiffs negotiated, Plaintiffs’ decision not to sign Charters despite being aware of those exit provisions, and Plaintiffs’ dramatic rhetoric at the hearing and to the press.”
Translation: NASCAR and Yates is saying that the teams did this to themselves.
“Plaintiffs cannot manufacture a crisis by filing a lawsuit and then demanding relief from its consequences—that is just as inequitable as it is self-inflicted. And to the extent sponsor concerns are driven by the fact that Plaintiffs could fail to qualify for a race, such concerns are, as this Court already held, speculative.”
The response points out that a large majority of races are short of a full field and that both teams are likely to make the Daytona 500.
Both 23XI and Front Row Motorsports have agreed to acquire a third charter each from the recently shuttered Stewart-Haas Racing. However, NASCAR is refusing to approve those transfer requests because Stewart-Haas, which is now the single-car Haas Factory Team, signed the 2025-2032 charter agreement.
23XI has since announced the addition of Riley Herbst to drive a third car while Front Row has yet to name a third driver to pair with Noah Gragson and Todd Gilliland.
23XI and Front Row are attempting to acquiring a team each that has already agreed to the terms, the terms the two teams suing NASCAR chose not to agree to before filing antitrust litigation.
From the NASCAR filing:
“Antitrust litigation is not an appropriate tool to rewrite contractual terms between NASCAR and a third party. Nor is a party’s desire for preferred contractual terms the proper use of a preliminary injunction. Ultimately, Plaintiffs’ desire to acquire Charters underscores the hypocrisy of this lawsuit, including Plaintiffs’ frivolous contention that Charters are anticompetitive. …
“No extraordinary circumstances exist here: Plaintiffs had their chances to sign Charters but refused to take them, and were well aware that they would need to accept the Charter terms to which SHR agreed. Plaintiffs cannot now simply exclaim ‘monopoly’ to rewrite agreements giving[themselves] unilateral benefit.”
Also, any injunctive relief has to be the result of irreparable damages that cannot be calculated. If the general amount of a damage can be calculated, that’s covered under judgement should 23XI and Front Row win their antitrust lawsuit.
So NASCAR and Yates argue that the teams cannot show irreparable harm and proof of that is in the redacted amount of money spent to purchase the two charters from Stewart-Haas in the first place.
“And Plaintiffs’ willingness to spend (REDACTED) dollars to buy Charters from another team, plus 23XI’s decision to run yet another open car during the pendency of this lawsuit, evidence their financial strength.
“In all events, Plaintiffs’ losses are clearly calculable: they have even identified the potential dollar values.”
NASCAR points out that it will be easier for 23XI and Front Row to avoid missing races because the number of open teams will expand in 2025 with less chartered teams due to the lawsuit:
“But any concern regarding the Daytona 500 is speculative, as this Court already ruled in its last Order. It remains ‘impossible to ascertain when,’ if ever, such a harm will occur—as failing to qualify for a race is dependent on a number of factors and might be months, or years, in the future.
“Nor is it possible to say ‘with confidence that the harm is more likely than not to occur at all.’ Indeed, the evidence shows that Plaintiffs will almost certainly qualify for every Cup Series race, just as the last full-season Open team (JTG) did, including because there will be eight open spots (not four, as in previous years).
“And the fact that 23XI intends to expand the number of cars it runs from two to four in 2025 underscores the sky is not really falling. Finally, even if Plaintiffs did fail to qualify for races, any loss of sponsorship would be entirely self-inflicted, as Plaintiffs had the chance to sign Charters that would have guaranteed them entry … but rejected the offer.”
What is the deal with the two SHR charters?
NASCAR argues that the language in the charter agreement requires an independent arbitrator, and not the court overseeing the lawsuit, must determine whether 23XI Racing and Front Row can acquire the two SHR charters without having the legal release clause, the one that prevents lawsuits, from being enforced.
“Whether SHR’s agreement to the release in the 2025 Charter would release Plaintiffs’ antitrust claims if the SHR Charter were assigned to Plaintiffs is precisely the type of advisory-opinion request that courts routinely refuse to entertain. …. the release in SHR and NASCAR’s agreement is wholly enforceable. Numerous courts conclude that releases like Section 10.3 (the lawsuit release clause) are enforceable, even when they operate to bar claims predicated on continuing pre-release conduct.”
The complete 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
NASCAR opposes expedited timeline
France, NASCAR motion to dismiss, deny SHR charter transfer request
NASCAR says injunctive request still fails to show irreparable harm