CHARLOTTE, N.C. — Over a week after it began, the NASCAR antitrust trial that has two teams, 23XI Racing and Front Row Motorsports, suing the league and its majority owner, Jim France, has finally reached the halfway point as the plaintiffs rested their case Wednesday.
The past eight days have featured big names in the sport on the witness stand, such as driver and 23XI Racing co-owner Denny Hamlin and NASCAR executives Steve O’Donnell and Steve Phelps. There have been uncomfortable exchanges, such as NASCAR Hall of Fame team owner Richard Childress being surprised mid-testimony by a NASCAR attorney revealing Childress had been in talks to sell a good share of his team, and NASCAR executives peppered by opposing attorneys about topics they’d rather not discuss, such as financial records and their annual salaries.
And then there is, of course, Michael Jordan — NBA legend, one of the most recognizable figures in the world and a plaintiff in this case as the co-owner of 23XI Racing. He’s been sitting in the front row throughout the proceedings and testified last week.
His appearance on the witness stand packed the gallery so much that court security officers stopped letting people in and even turned one of NASCAR’s attorneys into a fan, saying how his 9-year-old son will think he’s cool because he got to talk to “His Airness.”
So what’s to come in the second act? Probably not as many fireworks, considering many of the anticipated witnesses have already given their testimony.
Still, something more will emerge as this trial approaches the finish line. Because if we’ve learned anything in the most compelling reality show NASCAR has ever staged, it’s that there is always an unexpected twist around the bend. There are still some notable names scheduled to testify, including NASCAR Hall of Fame team owners Roger Penske and Rick Hendrick, and Curtis Polk, the 23XI co-owner who is a central player in the trial. Surely, more juicy details are ahead.
What the defense must show
Jeffrey Kessler, the lead attorney for 23XI and Front Row, and his team painted what they felt was a damning picture of NASCAR’s alleged anticompetitive conduct during their portion of the trial. Now, it will be up to NASCAR to demonstrate that while it may be a monopoly (something the judge has already ruled), it did not abuse its power to maintain or extend that monopoly — and to prove to the jury the teams are just upset about a negotiation gone wrong.
The race teams attempted to show NASCAR engaged in exclusionary conduct to continue its monopoly in three main ways: exclusive agreements with the racetracks that prevented a competitor series from forming; non-compete clauses with its team owners, which limited the supply of owners for a potential new series; and the restricted use of NASCAR’s Next Gen car at non-NASCAR events.
NASCAR on Wednesday took its first crack at disassembling the teams’ case, with executive John Probst telling the jury the Next Gen car has intellectual property restrictions because it was solely developed by NASCAR and carries several patents, not because of exclusionary reasons.
“IP (protections) was an outcome of doing it, not the reason to do it,” Probst said.
Rick Hendrick, left, and Roger Penske, in 2017. The two team owners are expected to testify for the defense this week. (Chris Trotman / Getty Images)
NASCAR now needs to have witnesses make similar arguments for why its contract language with the racetracks and race teams does not constitute anticompetitive conduct. Most of its key executives have already testified, so NASCAR will rely on two titans of the sport — team owners Hendrick and Penske — to vouch for their close friend France and declare they thought the charter agreement was a fair deal.
Jury members have repeatedly been told not to make up their minds before hearing NASCAR’s side. However, the plaintiffs presented their case for more than seven days, and NASCAR attorney Chris Yates said he will try to tell his side in three (some of the plaintiffs’ witnesses were also NASCAR’s witnesses, so they overlapped).
If the damage has already been done — the jury members surely can recite many of the points and evidence in their sleep by now — then NASCAR can either settle the case or hope to try its luck with the Fourth Circuit Court of Appeals.
But the latter is a tremendous risk — as is continuing with the trial at all — since Judge Kenneth D. Bell could force NASCAR to sell its racetracks or cede control of the sport in a similar manner.
Of course, it’s entirely possible that France, the same person whom the teams spent seven days painting as stubborn and unwilling to listen to anyone — even his closest friends and highest-ranking executives — might be the same person who is just as unwilling to settle this case.
