Michael Jordan-owned 23XI Racing and Front Row Motorsports have engineered a “frivolous” legal controversy to “rewrite contractual terms” superior to those accepted by chartered teams, NASCAR argues in an opposition memorandum filed in a North Carolina federal district court Monday night.
At issue in the memorandum is 23XI Racing and Front Row’s second attempt at a preliminary injunction. If granted, the injunction would allow the two teams to compete as de facto chartered teams despite not signing a charter agreement. An injunction would also ensure 23XI Racing and Front Row would not forfeit antitrust claims as other teams have done by signing a charter. Further, an injunction could last until a trial, which would likely not occur for a long time. From the filing of a complaint to a trial, antitrust litigations—especially when they involve parties with a lot of money to spend on lawyers (Jordan and NASCAR are both billionaires)—often last several years.
In early November, U.S. District Judge Frank D. Whitney denied the Jordan-backed group’s first motion for a preliminary injunction mainly because, he said, the plaintiffs failed to show how they would be harmed without an injunction. Whitney criticized 23XI Racing and Front Row for forecasting that drivers, sponsors and fans would cut ties without offering specifics or evidence to corroborate that forecast.
To address that critique, 23XI Racing and Front Row filed a second (or “renewed”) motion for a preliminary injunction in late November. Although much of the motion is redacted, it contends 23XI Racing and Front Row faced a tangible and imminent risk of losing a deal. 23XI Racing and Front Row had “contracted” to make a “purchase from Stewart-Haas Racing” and their deal apparently hinged on 23XI Racing and Front Row obtaining a release.
In its latest filing written by Tricia Wilson Magee and other attorneys from Shumaker, Loop & Kendrick and Latham & Watkins, NASCAR argues 23XI Racing and Front Row’s second attempt still falls “far short” in establishing the need for a preliminary injunction, which judges only grant “in the most extraordinary circumstances.”
NASCAR contends the plaintiffs have “manufactured evidence” in an attempt to claim “speculative” and “self-inflicted” harm. Even if the harm materialized, NASCAR contends it would be “redressable with monetary damages” and thus ill-suited for an injunction. An injunction is intended to remedy irreparable harm, meaning harm that monetary damages can’t fix.
To support those assertions, NASCAR maintains that even if some drivers who race for 23XI Racing and Front Row could leave them, that possibility “is entirely self-inflicted.” NASCAR attributes that possibility to “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.”
More specifically, NASCAR underscores that while 23XI Racing and Front Row argue “[Tyler] Reddick can leave” his association with 23XI Racing, that doesn’t mean Reddick “actually plans to leave.” Further, the plaintiffs contend that a “suggestion” in a court document stating Reddick might leave “contradicts his numerous reaffirmations post-lawsuit” that he “stands behind” 23XI Racing and his decision to join the team “has not changed.”
In that same vein, NASCAR accuses 23XI Racing and Front Row of “creating” the so-called “new circumstances” used to justify an injunction.
NASCAR notes that Bubba Wallace signed a multiyear contract extension with 23XI in September “even though 23XI had not signed a Charter for 2025,” and then five days later, 2XI Racing and Front Row “announced that they would race as open teams without a Charter.”
Although partially redacted, NASCAR’s memorandum also references “seemingly prepared-for-litigation emails” that are “similarly-worded” regarding drivers and their contracts—“suggesting,” NASCAR argues, “a coordinated effort behind the scenes” to have 23XI Racing and Front Row drivers give the impression they were thinking about leaving. NASCAR emphasizes “no driver has indicated his intent to actually leave.”
As to possible losses of sponsorships for 23XI Racing and Front Row, NASCAR argues that outcome is speculative. Even if those losses happen, NASCAR asserts 23XI Racing and Front Row would deserve the blame since they initiated the high-profile litigation.
“A party’s decision to initiate a lawsuit and engage in disparaging press statements,” the memorandum asserts, “cannot serve as the basis for claiming entitlement to an injunction, as any resulting consequences are plainly self-inflicted.”
Jeffrey Kessler and other attorneys for 23XI Racing and Front Row will file a rebuttal to NASCAR’s arguments by Dec. 12.
