I’m not a lawyer or a law expert, but I’ll give it my best shot.
Earlier this week, NASCAR went out of its way to file a counter lawsuit against 23XI Racing and Front Row Motorsports in the antitrust case they filed against the sanctioning body last October.
There are two signs that things aren’t going well for NASCAR.
For one, it filed a lawsuit that sort of accuses the teams of the same thing it’s being sued for.
The lawsuit says that “the undisputed reality is that it is 23XI and FRM, led by 23XI’s owner and sports agent Curtis Polk who willfully violated the antitrust laws by orchestrating anticompetitive collective conduct in connection with the terms of the 2025 Charter Agreements.”
What’s the basis for this accusation?
“Polk put this plan into action during 23XI-led negotiations on behalf of the members of the Race Team Alliance, seeking to extract more favorable financial and non-financial terms than in the 2016 Charter,” the lawsuit reads. “Polk played an active role in coordinating the Counterclaim Defendants’ concerted actions, negotiating on behalf of all RTA members when engaging with NASCAR on terms such as the payments the teams would receive as part of the 2025 Charter.
“Polk sent multiple requests to NASCAR on behalf of all RTA members demanding changes to the 2025 Charter, and otherwise threatening that the RTA members would take adverse group actions if such demands were not met. Polk’s individual role was at the very center of the plot to use collusive behavior to extract more favorable commercial terms from NASCAR in the Charter negotiations.”
According to the lawsuit, this “collusive behavior” includes raising the possibility of “a group boycott and threatened group boycotts of NASCAR events, including televised qualifying races, negative media campaigns, meetings with at least one NASCAR media partner to affect ongoing NASCAR negotiations for a new media rights agreement, and threats/coercion to other team owners to ‘not break ranks.’”
So let me get this straight. An apparent attempt by Polk to *check notes* try to coordinate negotiation efforts between teams and potentially boycotting the Daytona 500 qualifying races is … “collusive” antitrust violations?
Sure, Jan.
Someone with a vast history of antitrust history please let me know if the act of boycotting something has violated antitrust statutes.
It’s not like Polk dropped a new charter agreement in the laps of NASCAR and said it had six hours to read it and accepts the terms of it before midnight or there wouldn’t be a charter system anymore.
That doesn’t sound familiar at all.
Jeffrey Kessler, the high-profile attorney representing 23XI and FRM, said that NASCAR’s suit “is a meritless distraction and a desperate attempt to shift attention away from its own unlawful, monopolistic actions.”
According to NBC Sports, Chris Yates, the lead attorney for NASCAR, said the countersuit will be included in the jury trial for the lawsuit, which is scheduled for Dec. 1
If it even makes it to trial, that is.
Yates told reporters March 5 that while NASCAR will take part in mediation, “I don’t see a great path to settlement.”
Even before a trial could happen, do you know what happens if there isn’t a settlement?
Discovery.
Per the American Bar Association, this is the pre-trial phase when both sides exchange information about the witnesses and evidence that will be presented at the trial.
In other words, NASCAR would likely have to open its accounting books for 23XI and FRM’s lawyer to see and vice versa.
And if it this goes to trial, who knows how much of NASCAR’s financial history would become public record?
The only people in the NASCAR world who don’t want that to happen have the last names of France, Kennedy and Phelps.
The other sign that the case might not being going NASCAR’s way?
Buried on page 20 of the 31-page lawsuit is an interesting and questionable footnote.
In law documents, footnotes are where attorneys can include citations to documents, books or even websites in order to show where they’re getting their information.
This is paragraph 65 of the lawsuit:
“In February 2023, 23XI co-owner Denny Hamlin admitted publicly that the RTA purposefully engaged in a media campaign regarding the 2025 Charter negotiations at the same time that NASCAR was negotiating with broadcasters in order to put pressure on NASCAR ‘to make a deal with us.’
“Hamlin explained the RTA’s reasoning and threatened that the teams would boycott NASCAR if they did not achieve their demands: ‘I don’t see how you can go out and get the most money from a TV partner if you don’t have your house in order. No TV partner wants any interruptions in service. And with the teams publicly saying they weren’t happy with the deal, that could throw up red flags for TV.’”
NASCAR’s attorneys got this from the website Essentially Sports, which ran a story based on a February 2023 episode of Hamlin’s podcast.
The headline for that story: “Denny Hamlin Admits RTA Deliberately Made Their Feud With NASCAR Public to Sabotage & Leverage New TV Deal Amid ‘75% vs 25%’ Row.”
First off, Hamlin never framed what he said as it being a sabotage attempt. That’s putting words in his mouth.
Second, no one who knows anything about reputable journalism outlets would cite a clickbait site like Essentially Sports, especially when it seems like you’re only doing so because of what the headline says, rather than the article’s content.
It all reeks of grasping at straws.
Daniel McFadin is a 10-year veteran of the NASCAR media corp. He wrote for NBC Sports from 2015 to October 2020. He currently works full time for the Arkansas Democrat-Gazette and is lead reporter and an editor for Frontstretch. He is also host of the NASCAR podcast "Dropping the Hammer with Daniel McFadin" presented by Democrat-Gazette.
You can email him at danielmcfadin@gmail.com.
Thank you for pointing out that Essentially Sports is just a ‘sensationalistic- headline-with-no-substance-behind-it’ infantile attempt at journalism…in my opinion. With this counter suit there is no longer a path for a settlement. This will go to court as both sides have no path to compromise. If Nascar loses, the entire 2025 Charter deal will have to be renegotiated. If Nascar wins, 23XI and Front Row will cease to exist. The idea of Nascar looking for an investment banker to partner with coupled with this action tells me they think they are in trouble. From the outside its hard to tell if Nascar ever attempted to bargain with the teams at any point in the process. It appears they did not.
From what little I can piece together from the bits and pieces that get leaked, the teams got between a 9 and 25 % increase in money in the new deal, but no other concessions. With the case going to trial in December, there isn’t much time to adjust should Nascar lose its case prior to the Daytona 500.
Lots of jobs are hanging in the balance
Bill Sr. carried a gun to “persuade” people to fall in line with what he wanted. Apples don’t fall far from the tree!