As per the order from Judge Kenneth D. Bell earlier in the day, NASCAR was permitted to file an amended and expanded countersuit against Front Row Motorsports, 23XI Racing and Curtis Polk but much like the original version filed in March, this version is redacted.
In other words, whatever new information NASCAR found in the discovery phase thus far and felt compelled to ask the judge to be included in a re-write is also redacted.
The claims of the amended countersuit against the two teams follow the familiar refrain for those who have followed the story over the past year.
NASCAR and chairman Jim France were sued in October after 23XI and Front Row were the only two (of 15) teams that compete in the Cup Series refused to sign the extension of the charter agreement that regulates competition and revenue sharing in the Cup Series. Those two teams, after not getting the terms it sough through two-plus years of contentious negotiation, sued NASCAR on federal antitrust grounds.
Six months later, following several pre-trial developments, NASCAR then filed a counterclaim against the two teams and Polk, alleging both a conspiracy to undermine NASCAR business while also citing violations of federal antitrust law.
As part of the legal process, both sides are now digging through each other’s records in a procedure called discovery and NASCAR asked Judge Bell if its counterclaim could be revised to include newly uncovered instances of antitrust violations.
That amended countersuit was filed on Thursday night.
Again, the unredacted parts of the document read very familiar to the version published in March, with claims that Polk, a co-owner of 23XI and longtime business associated of team partner Michael Jordan, colluded with other owners to boycott the 2023 Daytona 500 qualifying races, an act that was also an effort to disrupt ongoing negotiations with FOX Sports.
NASCAR also claims that Polk, who created a unified negotiating committee to interface with NASCAR over charter document negotiations, acted in violation of federal antitrust laws by banding competing teams together to go back-and-forth with NASCAR.
The key lines, remaining from the March filing is as follows.
“Beginning no later than June 2022, Counterclaim Defendants engaged in a conspiracy and agreement in unreasonable restraint of interstate trade and commerce, constituting a violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. Curtis Polk knowingly and actively orchestrated and participated in this illegal conspiracy, while working as a member of the TNC on behalf of the (Race Team Alliance) and aiding 23XI’s and Front Row’s participation in the scheme, also constituting a violation of Section 1 of the Sherman Act, 15 U.S.C. § 1.”
NASCAR is (still) arguing that ‘23XI, Front Row, and their co-conspirators are horizontal competitors and separate economic actors who agreed to join together to collectively negotiate with NASCAR’ which would be different than a collectively bargained position from entities that are equal participants, like players of a stick and ball sport.
It says that Polk and the two teams pressured the other teams to participate in a boycott of a qualifying race, the 2024 Duel at Daytona, and ‘agreed to a scheme to pressure NASCAR to accept their collusive terms’ and interfered with negotiations with broadcast partners over contract extensions.
“On information and belief, Polk organized this threatened boycott in order to harm NASCAR, including NASCAR’s relationships with its broadcast partners,” the filing stated.
NASCAR also claims that the teams and Polk engaged in ‘active threats and coercive behavior in order to maintain their per se illegal cartel.’ The counter-suit claims that such ‘collusive conduct achieved its goals’ and that horizontal competitors jointly negotiating is a violation of Section 1 of the Sherman Act.
This is the second time that NASCAR has called someone involved in the suit ‘a cartel,’ making the reference to RTA executive director Jonathan Marshall in court in January as he sat in a proceedings over the preliminary injunction decision that ultimately granted both teams charter status this season.
Even though the teams did not sign the charter extension, federal district judge Kenneth D. Bell sought to maintain the status quo from before suit was filed through a trial that is set for December 1.
The injunction was also granted because the teams successfully argued that they would suffer irreparable harm if they were not recognized as charter teams in 2025 as drivers and sponsors both had opt-out clauses. The judge also waived a provision in the charter agreement that prevented teams from suing NASCAR, deciding that such an inclusion was likely a violation of federal antitrust laws.
That injunction decision has been appealed by NASCAR to the fourth circuit court in Richmond, Virginia. That hearing will take place on Friday morning at 8 a.m.
