CHARLOTTE, N.C. — The opening day of an antitrust lawsuit trial between 23XI Racing/Front Row Motorsports and NASCAR/Jim France featured a packed schedule. The legal teams selected the jury members and each made an opening statement.
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23XI Racing and Front Row Motorsports filed this antitrust lawsuit in October 2024 and alleged that NASCAR and France use anti-competitive practices that unfairly benefit them at the expense of teams, drivers, fans, and sponsors.
The first half of the day featured more than 30 potential jury members filing into the courtroom, many seeking a way out of spending the next 10 days in a courtroom. The judge and the legal teams dismissed two who needed to care for elderly parents with dementia.
They dismissed another who said that "NASCAR killed NASCAR." They also dismissed two who openly expressed their adoration of 23XI Racing co-owner Michael Jordan before ultimately settling on the nine jury members who will decide the winner in this civil suit.
Once the jury selection concluded, one attorney for each team stepped up to the podium and made an opening statement lasting around 70 minutes.
The Plaintiffs Opening Statement
Jeffrey Kessler, lead attorney for the legal team representing 23XI Racing and Front Row Motorsports, made his opening statement first. He spoke to the nine jurors, the majority of whom have no knowledge of NASCAR, and he tried to "provide a roadmap" for the 10-day trial.
Kessler asked two questions, starting with "Did NASCAR maintain a monopoly by engaging in anti-competitive acts?" He followed that question up by asking, "Were the teams hurt by this monopoly power if we prove it was illegally maintained?"
Obviously, the Plaintiffs believe this to be the case, but they will have the burden of proof. They must prove to jury members that it is "more than likely" that NASCAR hurt the teams with anti-competitive acts.
Unlike a criminal case, this must not be beyond a shadow of a doubt. Judge Kenneth D. Bell explained that a 51-49% majority will work.
"I am committing to you now, I will produce evidence," Kessler said to the jury members before diving into some of his key points.
- Kessler said that the Next Gen car was NASCAR restricting the cars so that they could not be used in other series. They also would prevent a "copycat" league popping up in the United States.
- He said NASCAR tied up all of the top-tier tracks, ones that he compared to Major League Baseball Stadiums.
- Kessler mentioned the unsealed messages between NASCAR executives Steve Phelps (commissioner), Steve O'Donnell (president), and others expressing concern about an outside entity coming into stock car racing and creating its own league, much like LIV Golf did with the PGA Tour.
- Kessler said that NASCAR charges teams hundreds of thousands of dollars per year for WiFi at the various tracks on the schedule.
- Kessler said that 23XI Racing has made a profit since entering the Cup Series in 2021 but that is only due to Michael Jordan being a co-owner. For comparison, he said that Front Row Motorsports owner Bob Jenkins has never made a profit since entering the Cup Series in 2004.
- He added that NASCAR hired a consulting firm called McKenzie to examine finances. According to Kessler, McKenzie said that teams lost $85 million in 2014, which played a role in the creation of the charter system.
- A central part of this antitrust lawsuit trial is the charter system. Kessler said that NASCAR only created the charters out of "self-serving" interests and that these were just a way to help the teams survive and keep the show going.
- Kessler compared the charters to franchises in other sports, saying that they are just a contract that expires. He also compared charters to renting a home, saying that you can lose it at the end of the lease despite making renovations.
- Kessler said teams sought four key things during the Charter Agreement negotiations, none of which they landed. These were Permanent Charters, the ability to vote on potential rule changes that would increase costs, around 30% in money for NASCAR to use their IPs (team names, etc.) as opposed to nothing, and at least $20 million average in payments to cover the car costs. He said that the Charter Agreement increased the average payment but only to $12.5 million.
- Kessler said the France Family received almost $400 million in three years, which went to the France Family Trust.
- Kessler said that documents show that France viewed the negotiations as a competition that he was going to win.
The Defendants Opening Statement
"I'm here to tell you that the evidence will show this is not an anti-competitive case," said John E. Stephenson, the attorney who took point for the Defendants, to the jury.
Chris Yates had led the way for NASCAR during the hearings over the past year, but Stephenson spoke to the jury members during the opening day of the trial.
Stephenson made numerous points in his opening statement, including that charters are "just a contract" or a handshake agreement. He said that NASCAR never once broke its word while paying teams every penny owed in the first nine years of the charter system.
While Kessler focused on the alleged "anti-competitive" acts during his opening statement, Stephenson focused on the concept that the Plaintiffs are attacking the charter system itself. He said that if the Plaintiffs viewed the charters as unfair, anti-competitive, and below market, why did they each buy three charters over the years?
- Stephenson, who used multiple fishing references for the North Carolina jury members, said that 23XI Racing and Front Motorsports had sent letters to NASCAR explaining why they didn't sign the 2025 Charter Agreement. He said that not once in the letters did they mention these alleged anti-competitive acts. He said that they had eight issues and that seven were resolved.
- Stephenson said that evidence will show that this lawsuit was always part of the plan. He said that 23XI Racing co-owner Curtis Polk, the Defendant in NASCAR's countersuit, had a "playbook" and a timeline for negotiations.
- The attorney also said that permanent charters "don't make sense" in the context of the sport.
- In terms of charters, Stephenson said that these charters had no value in 2016 upon their introduction. He then said that they reached $45 million last year.
- Stephenson talked about the France family as the victims in this case while calling them an American success story that built this sport from nothing using hard work. He said that unsealed documents from June 2023 show Polk actually said he admired the France family.
- He argued the "teams don't make a profit" point by saying that some teams will just spend whatever it takes to win.
- Stephenson specifically pointed to Denny Hamlin's "pitch deck" that he used to convince Jordan and his business partners to form 23XI Racing. The attorney said that Hamlin listed the charter system as the No. 2 reason to start a team while saying that they could make $900,000 per year in profit.
- He also said that the pitch deck included comments about how the Gen 7 car would cut costs. Hamlin made this point in 2020 as the teams prepared to move into the new era.
- Stephenson argued against the point that teams can't race the Gen 7 car beyond the Cup Series, saying that some teams recently took their cars to Japan. This was for an exhibition event featuring one car from Legacy Motor Club, one from 23XI Racing, and the Garage 56 car from Hendrick Motorsports.
- He also argued that NASCAR taking track owner ISC private in 2019 opened up opportunities to race on the streets of Chicago and at the LA Memorial Coliseum. He added that this gave NASCAR flexibility to change the schedule during the COVID-altered season.
- The other key point of this opening statement focused on the Goodwill Provision in the Charter Agreement. Stephenson said that it doesn't prevent drivers from competing in other series — teams do. He said that it doesn't stop owners from competing in other racing series.
- Stephenson also argued that the Goodwill Provision asks teams to be "all in" on growing NASCAR.
