In a court filing on Monday, NASCAR described a demand by Michael Jordan-owned 23XI Racing and Front Row Motorsports to accelerate review of their appeal as “highly unfair” and one that would impose “significant burdens” on both NASCAR and judges.
Through attorney Gregory G. Garre and his colleagues at Latham & Watkins, NASCAR recommends that the U.S. Court of Appeals for the Fourth Circuit deny the two teams’ emergency motion to expedite review of U.S. District Judge Frank D. Whitney’s recent denial of their motion for a preliminary injunction.
23XI Racing and Front Row Motorsports unsuccessfully sought a court order that would have let them compete as de facto chartered teams despite not signing the charter and would have tabled a contractual release of their antitrust claims. Whitney reasoned the teams failed to specify how competing as open teams instead of chartered teams would prove harmful. While the teams forecasted they’d lose drivers, sponsorships and fans, Whitney deemed those risks, at least as articulated by legal briefs, as speculative and dependent on other things happening.
23XI Racing and Front Row Motorsports appealed Whitney’s ruling to the Fourth Circuit and have asked the appellate court to speed up the review process. They want an oral argument by no later than Dec. 13, since the next day the court would hold a session is Jan. 28, 2025. By that point, the teams argue, any relief would prove too little too late since the first 2025 NASCAR Cup Series race will be held on Feb. 2, 2025.
Garre’s brief challenges those assertions. He wrote “there is no urgency to this appeal,” especially not one that would justify the two teams’ “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.”
Further, Garre maintained the two teams’ proposed schedule “is highly unfair to this court” since it would give the judges, who obviously have other cases to handle, only a week to review briefing before oral argument.
Garre also insisted that the teams, who are represented by famed sports litigator Jeffrey Kessler, fail to address why Whitney denied a preliminary injunction. The teams’ theory of harm “is both unsubstantiated and baseless, as [Whitney] explicitly found,” Garre insisted. Garre added that a risk of harm occurring in a couple of years “does not justify the extreme expedition” the teams now demand.
Monday’s court filing also referenced Kessler announcing that 23XI Racing and Front Row Motorsports will compete as open teams in 2025. Garre noted NASCAR has provided teams with an open team agreement that “does not include any release of claims provision.” That means that 23XI Racing and Front Row Motorsports can compete in 2025 without forgoing their antitrust claims. Garre suggests this development strengthens NASCAR’s position that “this case simply does not present any circumstances remotely warranting the kind of extreme expedition Plaintiffs propose.”
The parties now wait for the Fourth Circuit to decide whether to expedite the appeal.
