23XI and Front Row call NASCAR countersuit on antitrust claims an "act of desperation"

Bob Jenkins, owner of Front Row Motorsports and Co-Owner Michael Jordan, of 23XI Racing, pose before a NASCAR Cup Series auto race at Talladega Superspeedway, Oct. 6, 2024, in Talladega, Ala. (AP Photo/ Butch Dill)

CHARLOTTE, N.C. — The two teams suing NASCAR over antitrust allegations said Wednesday in a filing that a countersuit against 23XI Racing, Front Row Motorsports and Michael Jordan’s manager is “an act of desperation” and asked that it be dismissed.

NASCAR’s countersuit contends that Jordan business manager Curtis Polk “willfully” violated antitrust laws by orchestrating anticompetitive collective conduct in connection with the most recent charter agreements.

23XI and Front Row were the only two organizations out of 15 that refused to sign the new agreements, which were presented to the teams last September in a take-it-or-leave-it offer 48 hours before the start of NASCAR’s playoffs.

The charters were fought for by the teams ahead of the 2016 season and twice have been extended. The latest extension is for seven years to match the current media rights deal and guarantee 36 of the 40 spots in each week’s field to the teams that hold the charters, as well as other financial incentives. 23XI — co-owned by Jordan — and Front Row refused to sign and sued, alleging NASCAR and the France family that owns the stock car series are a monopoly.

Wednesday’s filing claims that NASCAR’s counterclaim is “retaliatory” and “does not allege the facts necessary to state a claim.”

“NASCAR is using the counterclaim to engage in litigation gamesmanship, with the transparent objective of intimidating the other racing teams by threatening them with severe consequences if they support Plaintiffs’ challenge to the unlawful NASCAR monopoly,” the response says.

23XI and Front Row have requested NASCAR’s counterclaim be dismissed because it “fails at the threshold because it does not allege facts plausibly showing a contract, combination or conspiracy in restraint of trade.

“The counterclaim allegations instead show each racing team individually determining whether or not to agree to NASCAR’s demands through individual negotiations — the opposite of a conspiracy.”

The filing also defends Polk, who was specifically targeted in NASCAR’s counterclaim as the mastermind of the contentious two-year battle between the teams and the stock car series. NASCAR claimed in its countersuit that Polk threatened a team boycott of Daytona 500 qualifying races, but the teams argued Wednesday “there is no allegation that such a threatened boycott of qualifying races ever took place.”

“None of NASCAR’s factual claims fit into the very narrow categories of blatantly anti-competitive agreements that courts summarily condemn as per se unlawful,” the teams said.

Jordan, through a spokesperson, sent word to The Associated Press that Polk speaks for him and the NBA icon views any attack on Polk as “personal.”

NASCAR’s attorney has warned that a consequence of the 23XI and Front Row lawsuit could lead to the abolishment of the charter system outright — NASCAR argues it would be a consequence and not what NASCAR actually wants to do — and that 23XI first made this personal by naming NASCAR chairman Jim France in the original antitrust lawsuit.

But, the teams struck back at the threat to eliminate the charter system in Wednesday’s filing. It alleges it is an empty threat meant to scare the 13 organizations that did sign the charter agreements.

The claim also says Front Row should be dismissed from NASCAR’s countersuit because “NASCAR does not allege any specific conduct by Front Row or its owners or employees to support a claim that it participated in the alleged conspiracy.”

“The other allegations in the counterclaim against Front Row are all entirely conclusory or improper group pleading that seeks to lump in Front Row with 23XI Racing, Mr. Polk, and “others,” while never identifying what — if anything — Front Row Motorsports itself has done to purportedly participate in the alleged conspiracy.”

There is no deadline for a judge’s decision.

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AP auto racing: https://apnews.com/hub/auto-racing

Jenna Fryer, The Associated Press