Charlotte, NC (AP) – A federal judge urged Nascar and two of his teams, including one belonging to the Grand Michael Jordan of the retired NBA, to settle their increasingly acrimonious legal fight which has spread in stretched arguments during a hearing on Tuesday.
US District Judge Kenneth Bell of the western district of North Carolina has toasted Nascar and the teams – 23Xi Racing, which belongs to Jordan and three times the winner of Daytona 500 Denny Hamlin, and to the first row Motorsports, owned by the entrepreneur Bob Jenkins – on what they hoped to accomplish months.
“It is difficult to imagine a winner if it goes to the carpet – or to the flag – in this case,” said Bell. “It scares me to death to think about what it costs.”
23Xi and Front Row were the only two organizations to refuse to sign an NASCAR offer to take last September on a new charter agreement. The charters are the NASCAR version of a franchise model, each charter guaranteeing the entry of the races of the lucrative series of the CUP and a stable source of income; 13 other teams signed the agreements last fall, some saying that they had no choice.
The almost two-hour hearing was at the request of the teams of throwing the counter-combination of Nascar, who accuses the commercial director of Jordan Curtis Polk of violating “voluntarily” the antitrust laws by orchestrating anticoncurrential driving in the negotiations. Nascar said he learned that Polk in messages among the 15 teams had tried to form a “cartel” type operation which would include threats to boycott races and a refusal to negotiate individually.
One of the lawyers of Nascar even quoted a quote from Benjamin Franklin that Polk would have sent to the 15 organizations that read: “We must all hang together, or especially we will all hang separately.”
Jeffrey Kessler, a lawyer representing the teams, was irritated by the opening revelation, saying that the privileged information is only revealed in Discovery. Kessler also argued that none of Nascar’s statements in the complaint plans proves that something illegal was done by Polk or the Team Alliance race during the charter negotiation process.
“Nascar knows that he has no defense against the monopolization affair, so they found this assertion concerning the joint negotiations, which they accepted, never opposed, and now it is suddenly an antitrust violation,” said Kessler outside the court. “This has absolutely no sense. It will not help them deviate from the monopolization they have made on this market and the damage they inflicted.”
He added that “the attacks” against Polk were “false, unfounded and frankly under the dignity of my opponent to even make this type of comments, which he should know better”.
NASCAR lawyers said Polk had unduly tried to put pressure on the 15 teams that include RTA to keep themselves collectively in negotiations and encouraged the boycott of qualification races for Daytona 500 2024. NASCAR, they said, took the threat seriously because the teams had previously boycotted a meeting planned with executives.
“Nascar knew that the next step was that they could boycott a race, which was a threat that they should take seriously,” lawyer Lawrence Buterman said Nascar.
Kessler said outside the court that the two teams are open to settlement talks, but that Nascar said that she would not renegotiate the charters. Nascar lawyers refused to comment after the hearing.
Bell did not indicate when he reigns, apart from saying that he would decide quickly.
Preliminary injunction status
Kessler said he would appeal by the end of the week after a federal appeal committee of three judges rejected a preliminary injunction which forced Nascar to recognize 23XI and at the forefront as approved teams while the legal fight is resolved.
Kessler wants the question to be heard by the entire court of appeal. The injunction has no impact on the substance of the case, which should be tried in December. The first NASCAR can treat teams as not cartorized is a week after the deadline to appeal, provided that there is no appeal pending or whenever the call process has been exhausted.
There are 36 cars approved for the field of 40 cars each week. If 23XI and the first row are not recognized as chartered, their six cars should compete in “open” teams – which means that they should qualify on speed each week to race and that they would receive a fraction of the money guaranteed for the approved teams.
Discovery problems
Some of the arguments were centered on Jonathan Marshall, executive director of RTA. Nascar asked for SMS and emails from Marshall and said that he received around 100 texts and more than 55,000 pages of emails.
Nascar wants all the texts between Marshall and 55 people from 2020 to 2024 which contain specific research terms. RTA lawyers said it covers more than 3,000 texts, some of which are privileged, and some who have been “deleted to save storage or he no longer needed it”.
This problem should be heard during an audience next Tuesday before Bell.