Michael Jordan’s first attempt to dunk NASCAR’s antitrust defense clanked off the rim last week, but Jordan-owned 23XI Racing and Front Row Motorsports are now taking their case to a higher court.
On Tuesday, the two teams’ attorney, Jeffrey Kessler, filed notice with a federal district court in North Carolina that they are appealing U.S. District Judge Frank D. Whitney’s denial of their motion for a preliminary injunction to the U.S. Court of Appeals for the Fourth Circuit.
On Thursday, Kessler filed a motion in the Fourth Circuit to expedite the appeal, with a request the appellate court hold an oral argument by no later than Dec. 13. Kessler noted that Dec. 13 is the next available date on the court’s calendar. He warned that if the Fourth Circuit doesn’t hear the argument by then, the court’s subsequent session isn’t until Jan. 28, 2025–a date that, Kessler contends, would “be too late for this Court to issue a decision that prevents irreparable harm” to 23XI Racing and Front Row Motorsports.
These legal moves aim to convince the appellate court that 23XI Racing and Front Row Motorsports that NASCAR should be compelled to allow them to compete as de facto chartered teams despite not signing the charter. An injunction would also effectively insulate 23XI Racing and Front Row Motorsports from having to release their antitrust claims.
Whitney was unconvinced a preliminary injunction is warranted at this stage. In his order issued last Friday, the trial court judge described 23XI Racing and Front Row Motorsports’ alleged harms as speculative and predicated on contingencies that might not occur.
To that point, Whitney noted that while 23XI Racing and Front Row Motorsports say they are worried NASCAR could exclude them from the chance to compete, that hasn’t happened. In fact, both teams “could sign open contracts today and continue racing in 2025.” Whitney also found the feared possibilities of the two teams losing drivers and sponsors as lacking corroborating evidence, such as a documented threat by a specific driver or sponsor that it plans to cut ties unless the teams enjoy chartered status.
Kessler hopes the Fourth Circuit sees the matter differently. Thursday’s filing recaps 23XI Racing’s and Front Row Motorsports’ central argument that NASCAR has monopolized the marketplace for stock car racing teams and used “anticompetitive acquisitions, exclusive contracts, and the imposition of non-compete and release terms on participating teams” to insulate the NASCAR Cup Series from competition.
Kessler warns that the 2025 series will hold its first race on Feb. 2, 2025, and asserts that without an injunction, his clients “will be forced to make a Hobson’s choice.” They’ll either “risk releasing their antitrust rights in this action” or “be out of business from competing as premier stock car racing teams.”
While Whitney wasn’t persuaded that 23XI Racing and Front Row Motorsports would suffer irreparable harm if they competed as open teams, Kessler implores the Fourth Circuit to rule differently. He suggests that while competing as open teams might sound acceptable, it wouldn’t be economically viable on a long-term basis.
Kessler also asserts that irreparable harm “has already begun” because his clients “cannot assure sponsors, drivers, and fans they will be able to compete as chartered teams.” Kessler says that predicament could endanger his clients’ relationships with sponsors, drivers, and fans—especially since the Daytona 500, which will take place on Feb. 16, 2025, and is a marquee event, is only three months away.
NASCAR, which denies any wrongdoing and describes the plaintiffs’ legal theory as illogical, will have the chance to rebut Kessler’s arguments. Expect the association to argue that Whitney correctly denied a preliminary injunction since injunctions are extraordinary forms of relief in law that ought to be granted in only the most compelling of circumstances. NASCAR will also contend that 23XI Racing and Front Row Motorsports remain fully capable of competing if they sign open contracts. Any harm emanating from their refusal to do so, NASCAR could assert, is a harm of their own choosing.
