23XI Racing, co-owned by Michael Jordan, and Front Row Motorsports filed a brief Wednesday in their court fight with NASCAR, expanding their argument for a preliminary injunction that would let them compete as de facto chartered teams in 2025 despite not signing NASCAR’s charter agreement. They’re also seeking to shelve a contractual release of their antitrust claims.
23XI Racing and Front Row Motorsports “are independent contractors,” plaintiffs’ attorney Jeffrey Kessler wrote in a brief obtained by Sportico. These two teams, which accuse NASCAR of violating antitrust law in a recently filed federal case, are “not joint venture members of NASCAR,” Kessler insisted.
Kessler’s depiction of his clients as mere independent contractors, which here means self-employed entities that compete in NASCAR sanctioned events on a contractual basis, is part of a strategy to defuse NASCAR’s contention that, like other sports leagues, it should receive deference in setting competition and eligibility rules. Kessler, who has litigated against the NFL through his work for Tom Brady and the NFLPA, maintains “NASCAR cannot rely on joint venture case law.”
The NFL, NBA and other leagues are joint ventures of independently owned franchises that collectively bargain rules with players’ associations representing unionized players who are employed by teams. Courts have allowed joint venture leagues to reject aspiring owners, implement equipment rules and institute various other actions limiting competition. The underlying logic, courts have reasoned, is that while teams in joint venture leagues are competing businesses, some degree of coordination through a league is sensible and permissible.
Kessler says those cases are “of no relevance” to NASCAR, since its racing teams are neither franchises nor composed of unionized employees. Jordan is acutely aware of these structural distinctions: The basketball legend was, of course, an NBA player and later an NBA team owner.
The attorney also underscores that NASCAR “does not dispute” its Cup Series “is the only premier stock racing series” in which 23XI Racing and Front Row Motorsports can compete. Pivoting from that assertion, Kessler concludes NASCAR enjoys “monopoly power” to prevent competition to racetracks and racing teams. Kessler argues these points to style his demand for injunction as essential to ensuring his clients can compete in premier stock car racing.
Kessler’s arguments are only one side of the debate. NASCAR has asserted its charter system is negotiated voluntarily with teams and promotes a competitive product that, empirical evidence shows, consumers and television viewers enjoy. Also, NASCAR’s use of competition restrictions is arguably consistent with not only joint venture sports leagues, but with UFC, the PGA Tour and other sports enterprises that feature independent contractor athletes.
U.S. District Judge Frank D. Whitney will weigh both sides’ arguments in deciding whether to grant an injunction. The larger antitrust litigation could remain on the docket for many months or longer. Both sides have the financial wherewithal to play the “long game” with antitrust litigation, which can last years.
