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In a significant legal maneuver ahead of a pivotal antitrust trial, 23XI Racing and Front Row Motorsports have formally petitioned the Western District of North Carolina court to compel comprehensive depositions from racing titans Rick Hendrick and Roger Penske. This request aims to ensure a thorough examination of the two influential team owners before they are slated to testify on behalf of NASCAR during the upcoming proceedings.
The development stems from NASCAR’s inclusion of Hendrick, owner of Hendrick Motorsports, and Penske, head of Team Penske, on its witness list last month. This late addition, according to 23XI and Front Row, has been characterized as a tactic of "sandbagging" by the sanctioning body, particularly as neither owner appeared on initial lists of individuals likely to possess discoverable information pertinent to the case. Representatives for 23XI and Front Row assert that they had inquired on three separate occasions about Penske and Hendrick’s intentions to testify, receiving denials each time, which amplified the surprise of their subsequent inclusion.
In response to this unexpected development, 23XI Racing and Front Row Motorsports promptly filed a motion requesting the opportunity to depose both Hendrick and Penske. However, the two legendary owners have resisted this demand, seeking court intervention to limit the scope of potential questioning and advocating for virtual depositions conducted via Zoom rather than in-person interviews.
The filing submitted on Monday by 23XI and Front Row directly challenges this resistance, urging the court to mandate in-person depositions. The plaintiffs argue that the pushback from Penske and Hendrick amounts to seeking preferential treatment. Their legal team stated, "Mr. Hendrick and Mr. Penske’s confidentiality concerns about their team financial information cannot justify preventing Plaintiffs from cross-examining them in open court on a plainly relevant topic. If they have a proper basis to move to seal any of this information, they may do so subject to the strict requirements that the Court applies in considering such a motion."
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While 23XI and Front Row could have contested NASCAR’s motion to place Hendrick and Penske on the witness stand due to their late inclusion, their current legal strategy appears to be an effort to maximize the acquisition of discoverable information from these key figures.
The scope of information that 23XI and Front Row aim to probe is extensive. The filing outlines that the declarations provided by Hendrick and Penske cover a broad spectrum of topics, including the intricacies of the charter system, the negotiations and acceptance of NASCAR’s final terms for the 2025 charter renewal, the economic realities of team ownership, NASCAR’s NextGen car program, and even Roger Penske’s ownership of the IndyCar series. 23XI and Front Row contend that they are entitled to examine the factual basis for these statements and the personal knowledge of Hendrick and Penske on all these subjects, not merely the "high-level contents" of their declarations. This inquiry extends to any other topics deemed relevant to the testimony they are expected to present on NASCAR’s behalf.
As a specific example, the filing references public statements made by Jeff Gordon, a partner in Hendrick Motorsports and a member of the Team Negotiating Committee involved in the 2025 Charter Agreement negotiations. Gordon reportedly stated that despite Hendrick Motorsports’ considerable success and long tenure in the Cup Series, the team has not been profitable for a decade. 23XI and Front Row argue they have the right to question Mr. Hendrick about these assertions and the financial condition and profitability of Hendrick Motorsports under the current charter system, as it directly pertains to the antitrust claim that NASCAR may have exercised monopoly power to compensate racing teams, including Hendrick’s, below competitive market rates.
The plaintiffs also find the request for Zoom depositions to be "preposterous," particularly as they themselves have expressed a willingness to travel to Charlotte to testify in person. In a footnote within their filing, 23XI and Front Row stated, "Plaintiffs do not understand how conducting the depositions by Zoom will save time, as Plaintiffs are willing to travel to Mr. Hendrick and Mr. Penske and presumably their counsel will be present in person to defend their depositions regardless. Nevertheless, Plaintiffs are happy to meet and confer with counsel for Mr. Hendrick and Mr. Penske about this issue, which they never raised prior to filing their Motion."
Further points of contention for 23XI and Front Row include investigating how charter payments disproportionately benefit teams with historical significance, such as Hendrick and Penske, and how Hendrick Motorsports is grandfathered into operating four charters, exceeding the three-charter limit for new teams established by NASCAR. The filing argues, "Hendrick Motorsports and Team Penske are paid more than other Cup Series teams based on the combination of a historical revenue allocation formula and the fact that Hendrick Motorsports is allowed to have four chartered cars—as opposed to the typical three—which gives them a better cost structure than other teams. These facts are highly relevant to their testimony about the charter system and why they accepted the final terms offered by NASCAR for the 2025 Charter Agreement."
Additionally, the plaintiffs cite testimony from NASCAR senior executive Scott Prime, who reportedly stated during his deposition that the absence of a cost cap for Cup Series teams is due, in part, to Hendrick and Penske’s preference for maintaining their competitive advantage. 23XI and Front Row believe these factors are highly relevant to the testimony Hendrick and Penske will present for NASCAR and suggest a potential bias in favor of NASCAR and its leadership due to these perceived special preferences.
The filing emphasizes that Hendrick and Penske have "little to complain about" given their voluntary decision to testify after previously indicating they would not. Furthermore, 23XI and Front Row assert that a prior court order requiring non-party teams to submit broad, non-identifying financial records on an average car basis no longer applies to Hendrick and Penske, as they have now agreed to testify in support of NASCAR and the France family. The plaintiffs contend, "At that time, Mr. Hendrick and Mr. Penske were mere third-party bystanders who were not voluntarily agreeing to testify, at NASCAR’s behest, at trial. Having made that voluntary decision to aid Mr. France and NASCAR, they have no basis to resist the scope of cross-examination and inquiry that all trial witnesses must face."
NASCAR, in its own court filing, has countered these assertions. The sanctioning body argues that 23XI and Front Row cannot claim Hendrick and Penske possess essential information for their case, as they did not include them on their own potential witness lists. NASCAR stated, "Plaintiffs did not include Mr. Hendrick or Mr. Penske on their potential witness lists, so they cannot claim that any of their testimony is essential to Plaintiffs’ case. Nor could Plaintiffs claim that they must have access to additional financial information from Team Penske or Hendrick Motorsports, because Plaintiffs never sought that information during discovery. Plaintiffs strategically took ‘no position on the relevance of the specific financial information’ of non-party teams during discovery. So, Plaintiffs cannot now claim that this information is relevant, let alone essential, to their case."
NASCAR also maintains that its need for testimony from Penske and Hendrick is limited in scope, stating, "NASCAR’s questioning will not seek information regarding the teams’ income, expenses, profitability, employee salaries, or payments to drivers."
The sanctioning body also refutes the "sandbagging" accusation, asserting that 23XI and Front Row had ample notice and opportunity to depose Hendrick and Penske. NASCAR’s filing points out that their initial disclosures in January 2025 identified "Owners of NASCAR Cup Series race teams" as likely to have relevant information. NASCAR subsequently disclosed Hendrick Motorsports and Team Penske as entities holding materials they intended to rely upon. The filing argues that both the plaintiffs’ initial disclosures and NASCAR’s amended disclosures in March, well before the close of fact discovery, provided adequate time for 23XI and Front Row to arrange depositions.
NASCAR further elaborated, "NASCAR’s September 10, 2025 amended disclosures included both Mr. Hendrick and Mr. Penske, leaving nearly three weeks for Plaintiffs to depose them under the Case Management Plan. […] Plaintiffs never asked for a deposition. Nor did they object to the timing of NASCAR’s amended disclosure. Nor did they move to strike. Instead, they strategically chose to sit on their hands and wait until less than four weeks before trial. Had they moved or said anything at the time of the disclosure, there would have been ample time to take the depositions within the discovery period."
This legal battle over deposition scope and format highlights the intensifying strategic maneuvers as the antitrust trial approaches, with significant implications for the future structure and economics of NASCAR team ownership.
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