It is likely now that 23XI Racing and Front Row Motorsports will no longer be recognized as chartered NASCAR Cup Series teams come the race weekend at Dover Motor Speedway.
The two teams, suing NASCAR on antitrust claims, were awarded what amounted to temporary chartered status this year while the legal process played itself out. This decision was made by the federal district judge presiding over the case because the two teams were able to show that harm was taking place due to a case that was likely to succeed on the merits.
Read more: Why two Cup teams and NASCAR are suing each other
The plain-spoken version of this is that the judge determined 23XI and Front Row needed charter status, for a document they did not sign last year, to protect the status quo until the December 1 trial but also because the teams showed that drivers and sponsors had opt-outs in their contracts if the teams didn’t have charters.
However, the teams say they did not sign the charter extension document because there was a provision that did not allow participating teams to bring litigation against the Sanctioning Body.
NASCAR appealed that decision by the district judge and won after both sides made oral arguments before three members of the Fourth District of Appeals in Richmond, Virginia on May 9. Judges Paul Victor Niemeyer, Judge Steven Agee, and Judge Stephanie Thacker made their decision on June 5.
23XI and Front Row lead attorney Jeffrey Kesseler was told the teams ‘can’t have their cake and eat it too’ in being part of a charter agreement they didn’t agree to terms with while also not signing it.
Kessler motioned for a rehearing in front of the full court but it was denied on Wednesday.
“The court denies the petition for rehearing and rehearing en banc. No judge requested a poll under Fed. R. App. P. 40 on the petition for rehearing en banc. Entered at the direction of the panel: Judge Niemeyer, Judge Agee, and Judge Thacker.”
Kessler had hoped that the high-profile nature of this case would have attracted the interested of at least one other judge in the district who could approve a second oral argument before their entire panel.
No judge took a figurative flier on it.
This means the original appeals order will be made official in seven days, meaning 23XI and Front Row will not have charters starting next weekend at Dover. Most races do not have full fields, meaning its unlikely for these teams to miss races, but Bubba Wallace would have missed the race on Sunday at Chicago with a 41-car field had this decision been made sooner.
In addition to not having guaranteed starting spots, the teams will also lose out on millions of dollars in revenue that comes with being part of the system for the rest of the season.
Read more: What is NASCAR’s charter system and how it works
A statement from Kessler:
“We are disappointed by the Fourth Circuit Court of Appeals decision to deny our request for a full rehearing. This decision has no bearing on the strength of our antitrust case, which we look forward to presenting at trial. We are committed to racing this season as we continue to fight for more competitive and fair terms for all teams to ensure the future of the sport, and remain fully confident in our case.”
