In a fiery brief that depicts NASCAR as something akin to the NCAA as an antitrust violator, attorney Jeffrey Kessler—who defeated the NCAA in NCAA v. Alston and now represents 23XI Racing and Front Row Motorsports against NASCAR—urges a federal judge to grant a preliminary injunction that would enable 23XI and Front Row to compete with the same benefits as charter teams.
The brief, submitted to U.S. District Judge Kenneth D. Bell on Monday, is a response to NASCAR’s recent brief opposing an injunction.
23XI and Front Row say there is “no merit” to the argument that they “are seeking to make the NASCAR brand its own market.” This is an important point for the purposes of antitrust law—the more NASCAR is seen by Bell (and appellate judges) as a company that simply doesn’t agree to 23XI’s and Front Row’s demands, the less likely the dispute would represent a problem for antitrust law.
To illustrate, the NFL defeated an antitrust lawsuit in the 1980s brought by owners of the World Football League’s Mid-South Grizzlies. The plaintiffs represented a team, the Memphis Southman, that wanted to play in the NFL. The lawsuit accused the NFL and its teams of violating antitrust law by refusing to admit the Grizzlies as an NFL team. One big problem for the Grizzlies: the NFL is a company, not a market, and it doesn’t have to admit a team it doesn’t want.
Kessler argues that line of thinking is off base in the context of NASCAR.
He maintains the relevant market for his lawsuit is “premier stock car racing,” which—23XI and Front Row contend—is a market where “NASCAR has precluded all entry” so that only NASCAR buys the services of top drivers and teams.
In that same vein, Kessler suggests NASCAR is akin to the NCAA’s Division I which, he writes, “essentially is the relevant market for elite college football and basketball” and has no “viable substitutes.”
Kessler also rebukes NASCAR for citing cases involving dirt track racing and amateur auto clubs.
“NASCAR,” Kessler wrote, “cannot seriously argue that dirt track or amateur racing are substitutes for the top-tier stock car teams competing in the Cup Series.”
In addition, Kessler asserts that his clients will suffer irreparable harm, meaning a kind of harm that monetary damages can’t cure, if Bell doesn’t grant an injunction.
Kessler warns his clients won’t be able to compete in the upcoming Cup Series “on economically viable terms”—in other words, like charter teams, and not open teams. Along those lines, he insists that competing as charter teams, which comes with guaranteed spots in races, is fundamentally superior to open teams, which must qualify. Although details are redacted in the public version of the court filing, Kessler writes that the absence of charter recognition “will cause [23XI and Front Row] drivers and sponsors to leave.”
23XI Racing is co-owned by Michael Jordan, Denny Hamlin and Curtis Polk. Kessler contends that NASCAR’s court filings are “filled with inaccurate personal attacks” on “Polk and anyone else who has dared to challenge NASCAR’s monopoly.”
Bell will review the dueling arguments for an injunction. As of now, the parties are scheduled to appear at a jury trial that begins in North Carolina on Dec. 1. For a variety of reasons, the trial date could be postponed.
23XI, Front Row and NASCAR might also negotiate a settlement long before a trial starts. While the two high-profile sides have submitted legal briefs featuring hyperbolic assertions and personal slights (seemingly with media coverage in mind), their disagreement is largely about money and usually money disputes can be resolved without a trial.
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