The civil trial between 23XI Racing, Front Row Motorsports and NASCAR is now three days old. And for three days, the 23XI/FRM team led by lawyer Jeffrey Kessler has appeared to throw fastballs right over the center of the plate.
Court isn’t baseball; NASCAR has plenty of time and witnesses to start carving out its defense. But in speaking with those in and around the courtroom today, it’s hard to find anyone who could say Wednesday (Dec. 3) ended in their favor. And the more one side runs up the score, the deeper the hole is going to be to dig out of in a civil case where, remember, you don’t need to prove things beyond a reasonable doubt.
Read all of Frontstretch’s content covering the NASCAR vs. 23XI/FRM antitrust lawsuit here
Here’s some analysis on the important moments of the day.
A witness admitted NASCAR chose a “take it or leave it” charter offer over other options, and there was no real counterargument
This moment was the most important one of the day. Scott Prime, NASCAR’s evp and chief strategy officer, was pressed by Kessler as to whether the current charter agreement, put in place in 2025, was a “take it or leave it” offer.
For those who might not know or remember, NASCAR gave a deadline of Friday, Sept. 6, 2024, to sign onto the current agreement or else. Prime not only admitted, after much prodding, that the deal was “take it or leave it” but that the teams would not be on strong financial footing to stay in the sport otherwise.
It led to the following back-and-forth between Kessler and Prime about NASCAR.
Kessler: “Because you’re a monopoly, yes?”
Prime: “We are the premier stock car series.”
Kessler: “Because there’s no other one?
Prime: “Premier means there’s only one of them, yes”
Let’s stop right there. The whole crux of the 23XI/FRM argument is that NASCAR used its monopoly (already established as one in this case) to inflict financial harm on those with less power.
The very definition of bullying reads “seeking to harm, intimidate, or coerce (someone perceived as vulnerable).” Right here is the heart of the argument, something Prime admitted was true: they put together a take-it-or-leave-it situation, then shoved it down the throat of the teams or else grave financial harm would be inflicted upon them by their exclusion.
NASCAR’s move to counter Prime’s admission was to reemphasize how the sport had negotiated in good faith, offering a significant increase in revenue. Again, they emphasized how the deal that was signed resulted in more money for the teams.
Prime was also directly asked, “Did you believe you were putting a gun to their heads?” regarding the Sept. 6 deadline. Prime replied with a “no, we believe we had all the issues resolved,” attempting to show it was not so much a deadline to sign the agreement but a formality.
Not to 23XI/FRM it wasn’t. And there was plenty of evidence out there Wednesday in support of that point.
No matter how you slice it, Kessler showed that the final move in negotiation was the very definition of a bullying tactic. And as Prime left the stand, it was hard to find any evidence that contradicted it.
NASCAR put options on the table internally to blow up the system
One of the more fascinating parts of Prime’s testimony was an email where he presented five options to NASCAR executives on how to handle the charter negotiations. Not all of them were to keep the current charter system in place.
Among the interesting ones: Having a first-come, first-served situation where the first 32 teams get a charter. Could you imagine? It’s like going to a baseball stadium where the first 1,000 fans get a bobblehead doll, except hundreds of millions of dollars are at stake.
What if someone misses the email? Bob Jenkins, for example, said he was out to dinner when the infamous Sept. 6 charter demand came in and wasn’t aware of the signing deadline. If NASCAR chose this option, you could literally have someone like Roger Penske on vacation or something and they come back hours later only to find out they lost all their charters. What a crazy idea.
Another option Prime listed: the “Gold Codes,” a situation where NASCAR would retake full control of the charters. That option would have ripped away all the leverage from teams and put the sport fully in charge of who gets to race going forward. There was also an option openly discussed to ditch charters altogether and go back to a 100% open qualifying system, cutting off the partnership NASCAR had worked to establish with team owners over the past decade.
In the end, NASCAR went with the “take or leave it” style of negotiating, a PR nightmare in its own right. But a look at these other choices shows just how much worse it could have been.
Bob Jenkins has lost a lot of money in owning a NASCAR team, and has the receipts to prove it
The second and final witness for Wednesday was Bob Jenkins, the owner of FRM for the past two decades. While 23XI is a year removed from making the Championship 4, Jenkins’ history makes him the quintessential middle-class NASCAR owner for the jury. He’s won just four times through the years, posting no finish better than 15th in points, and has not made a profit in any season he’s been racing in NASCAR.
Just think about that for a second. An owner of three Cup teams, comprising 7.5% of a hypothetical 40-car grid, loses money every year. Compare that to, say, a NBA franchise like the Boston Celtics that was recently valuated and sold at $6.1 billion. It’s some financial dysfunction that separates this sport from the stick-and-ball ones in a highly negative way.
It’s not just a profit Jenkins is missing out on. As he testified, what’s hobbling FRM is the increasing amount it’s spending. A powerful moment is when Jenkins explained he only paid $1.8 million for parts between the 2017 and 2021 seasons, only for that to increase substantially to $4.7 million from 2022-24. Of course, those years were when the Next Gen chassis, designed to reduce expenses, became mandatory for all Cup race teams.
As Jenkins explained it all, Kessler got busy building up his character to the jury. The fact he doesn’t charge his sons whenever they sponsor his cars through the family’s Long John Silver’s franchise. His commitment to build and support Christian schools. The money Jenkins spent freely out of his own pocket, knowing he wouldn’t recover it because of his passion for the sport.
That makes him a more sympathetic figure to a new-to-NASCAR jury than Denny Hamlin. Despite his millions, Jenkins came off like a decent man trying to simply survive in the sport but suffering, in his words, “taxation without representation.”
Some drivers pay money to race in the Cup Series
This revelation isn’t a surprise, per se, to fans who follow the sport closely. It won’t even have a bearing on the outcome of the case. But it’s one of myriad problems NASCAR needs to work on solving long after this trial is over.
FOX Sports’ Bob Pockrass had a good summary of how Jenkins’ driver contracts worked.
For a sport born and bred from blue-collar roots, it’s hard to relate to drivers who are paying millions for the right to get behind the wheel of a racecar, regardless of past results or overall talent. It’s a total disconnect in a sport where independents like Dave Marcis and Jimmy Means were able to qualify, then race with a crew of near volunteers.
Could you imagine if Shohei Ohtani had to fundraise $2 million just to get on the field? Or if LeBron James was replaced in the starting lineup because he didn’t have enough sponsorship to keep the team financially viable? It’s a pay-to-play system that doesn’t make it feel like NASCAR is fielding the most talented drivers available.
A court case fighting over millions, with drivers fundraising millions just to drive in it every weekend? Feels very unrelatable to the average guy just looking to play around at your local short track while making ends meet during the week. The hope is, whatever happens, a better system emerges so your corporate marketing skills don’t dictate a driver’s future athletic career.
Follow Tom Bowles at @NASCARBowles
The author of Did You Notice? (Wednesdays) Tom spends his time overseeing Frontstretch’s 50+ staff members as its majority owner and Editor-in-Chief. Based outside Philadelphia, Bowles is a two-time Emmy winner in NASCAR television and has worked in racing production with FOX, TNT, and ESPN while appearing on-air for SIRIUS XM Radio and FOX Sports 1's former show, the Crowd Goes Wild. He most recently consulted with SRX Racing, helping manage cutting-edge technology and graphics that appeared on their CBS broadcasts during 2021 and 2022.
You can find Tom’s writing here, at CBSSports.com and Athlonsports.com, where he’s been an editorial consultant for the annual racing magazine for 15 years.
As the author noted, I wasn’t really surprised that many Cup drivers are essentially pay to play, and though this likely would surprise some casual fans, I doubt many readers here at Frontstretch are surprised.
NASCAR isn’t really unique here…even the pinnacle of worldwide motorsports (F1) has had, and continues to have many drivers who fit this. Nikita Mazepin (aka Mazespin) had a ride at Haas F1 because his Russian oligarch daddy sponsored the team. Lance Stroll has a ride at Aston Martin F1, because his daddy owns the team, and therefore strokes the checks. It’s widely thought Yuki Tsunoda’s career ascended because Honda had a vested interest in him being on the grid.
Indycar is currently littered with drivers who either directly bought their seat, or are only there due to bringing massive sponsorship dollars to their team.
Back to the case, common sense doesn’t win law suits, but Scott Prime’s comments add yet more fuel to the belief that NASCAR is operating as a monopoly.
Is this lawsuit going to make NASCAR racing (the product) better? If not, it’s just a bunch of rich folks throwing money away.
I just want to see better racing.
Breaking up NASCAR’s dictatorship with this lawsuit is supposed to help make the racing better, but we’ll see.
How come Denny the plaintiff was on the stand the first day, and then Scott Prime, the defense, was on the stand next? Am I missing something? I’m used to the plaintiff going first with all their witnesses, and then the defense.
Does it have to do with the witnesses being sequestered?
The reason for Denny being first was explained in another article.
Yes I understand that. My question is why a defense witness went next.
Bob Jenkins since 2017 has run 2-3 cars a season. If he’s complaining about prices of parts going up maybe drop a car or 2. But also they complain about NASCAR tracks not hosting other races. There are tracks that NASCAR runs on that held other race series. I’ve been to New Hampshire International Speedway and watched Indy car when Tony Stewart was still driving. And even Denny admitted the driver’s for 23XI are exclusive to that team only so it’s ok if a team has exclusive rights to a driver but NASCAR can’t have exclusive rights to tracks that NASCAR owns. I think the chatter system should be 2 per team and if you own more cars then the others are open cars. Guarantee The 2 teams sueing would not like that and neither would the owners who followed the rules.