Michael Jordan and the Michael Jordan of sports antitrust litigation—attorney Jeffrey Kessler—say in a new court filing that NASCAR and its CEO, James France, are acting like a “monopolistic bully” by attacking those daring “to question their authority.”
But in their own new filing, NASCAR and France blast Jordan and Kessler’s demand for a preliminary injunction as a “masterclass in contradiction” and a ploy to “secure more money” and more favorable contract terms than they could broker at the bargaining table.
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The two sides submitted their dueling briefs Wednesday in a North Carolina federal court as 23XI Racing, which Michael Jordan co-owns, and Front Row Motorsports continue their antitrust case.
The Jordan-led plaintiffs filed a memorandum in support of their motion for expedited discovery. The two racing teams seek an order from U.S. District Judge Frank D. Whitney that would let them compete as de facto chartered teams despite not signing NASCAR’s 2025 charter agreement. The injunction would also block NASCAR from enforcing a contractual release of antitrust claims. NASCAR contests expedited discovery and on Wednesday submitted a brief outlining its opposition to a preliminary injunction.
23XI Racing and Front Row Motorsports have retained Kessler and his firm, Winston & Strawn, in hopes that Kessler will continue his win streak in sports antitrust cases.
Kessler, who previously litigated on behalf of Tom Brady, members of the U.S. women’s national soccer team (USWNT) and major sports unions, has gained fame by representing college athletes who sue the NCAA, conferences and colleges over how they agree to restrain the recruitment and retention of athletes. In 2021, Kessler convinced the U.S. Supreme Court to rule 9-0 against the NCAA in the Alston case, which concerned rules restricting compensating athletes for education-related expenses. He also has played an instrumental role in negotiating a multibillion-dollar settlement that, if it secures final approval and withstands challenges, would resolve the House, Carter and Hubbard antitrust litigations by transforming college sports into a pro sports-like model with colleges directly paying athletes.
In a filing last week, NASCAR insisted that 23XI Racing and Front Row Motorsports are trying to use the antitrust discovery process as a “weapon” to inflict business damage on the auto racing sanctioning company. The plaintiffs are also depicted as trying to secure the benefits of charter agreements—which other teams signed—without accepting the responsibilities. NASCAR further contends that the plaintiffs impermissibly seek documents from before the four-year statute of limitations period for antitrust claims.
Kessler challenges those contentions by raising several assertions in his brief. The attorney describes his client’s motion for expedited discovery as reasonable since the defendants “should have been preparing” to turn over documents once they were notified of requests on Oct. 9. He also argues that evidence of anticompetitive conduct prior to the statute of limitations period “is relevant in a monopolization case,” since it can help to establish the existence and pattern of exclusionary practices.
Kessler also blasts as unwarranted NASCAR’s “headline-grabbing” depiction of his client’s demand for copies of financials. He contends those documents are “directly relevant” to a plaintiff that seeks to establish that a defendant generated monopoly profits and caused economic damages.
Meanwhile, NASCAR’s new filing, authored by Tricia Wilson Magee and other attorneys from Shumaker, Loop & Kendrick and Latham & Watkins, takes aim at the plaintiffs’ underlying demand for a preliminary injunction. NASCAR argues that while a preliminary injunction is supposed to maintain the status quo, what 23XI Racing and Front Row Motorsports seek is a superior condition that they failed to land via negotiations. NASCAR shells the plaintiffs for criticizing the 2025 charter as anticompetitive. In fact, as NASCAR puts it, the terms were bargained and secured the plaintiffs “guaranteed Cup Series race spots and a far larger share of NASCAR’s media revenues.”
NASCAR also stresses case precedent—including Brantmeier v. NCAA, which the NCAA is currently winning—that an injunction should only be granted “in the most extraordinary circumstances.” Jordan’s group fails to meet that lofty standard, NASCAR argues, since they “had their chance to sign charters but refused to take it.”
The plaintiffs’ contention that they could lose goodwill without an injunction is also depicted by NASCAR as veering off track. NASCAR notes that injunctions are supposed to prevent irreparable harm, which ordinarily means a kind of harm that money damages can’t later fix. Here, NASCAR says, the alleged damages to competition would all be “redressable with money damages,” especially since 23XI Racing and Front Row Motorsports have already confirmed they will compete without charters, “as they have in the past.”
As an additional argument, NASCAR underscores that it should be treated as a sports enterprise under antitrust law. No such enterprise, NASCAR charges, is required “to admit every team that wants to participate” or “protect teams that do not want to compete.”
To that point, NASCAR insists exclusivity provisions are “common across sports” and enhance economic competition, “because they make the product more appealing for broadcasters, fans, and sponsors that have other entertainment options.”
That argument is similar to one raised by the PGA Tour, UFC and other sports enterprises in defending exclusivity clauses, since they provide confidence to broadcasters and sponsors that the best the sport has to offer will compete in the enterprises’ broadcasted and sponsored events.
Expect additional filings as the court weighs whether to grant expedited discovery and a preliminary injunction.
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