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In a significant escalation of legal maneuvering ahead of next month’s antitrust trial, 23XI Racing and Front Row Motorsports have petitioned the Western District of North Carolina court to compel full, in-person depositions from NASCAR titans Roger Penske and Rick Hendrick. The two prominent team owners, unexpectedly added to NASCAR’s witness list last month, are now the focal point of a dispute over the scope and format of their anticipated testimony, with the plaintiff teams alleging a deliberate delay tactic by the sanctioning body.
The motion filed on Monday by 23XI and Front Row seeks to ensure that Penske and Hendrick are subjected to comprehensive examination, challenging their prior resistance to detailed questioning and their preference for a limited, remote deposition. This move comes after NASCAR placed the influential figures on its witness list, a decision that caught the plaintiff teams by surprise. According to 23XI and Front Row, they had previously inquired about Penske and Hendrick’s intention to testify, receiving assurances that they would not be appearing, only to be confronted with their inclusion on NASCAR’s witness roster.
The legal filing from 23XI and Front Row asserts that Penske and Hendrick have attempted to restrict the breadth of topics covered during their depositions and have requested the proceedings be conducted remotely via Zoom. In response, the plaintiff teams are advocating for in-person testimony, arguing that the resistance from Penske and Hendrick suggests an attempt to seek preferential treatment.
"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," the filing states. "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 challenged NASCAR’s late addition of Penske and Hendrick to the witness list, their current motion indicates a strategic decision to maximize their opportunity to extract critical information from the team owners, who represent some of the most established and successful entities in NASCAR.
The scope of questioning sought by 23XI and Front Row is extensive, aiming to delve into various aspects of team ownership, NASCAR’s operational and financial structures, and the broader implications of the charter system. Key areas of inquiry highlighted in the filing include:
- The Charter System and 2025 Renewal: The teams wish to explore the specifics of the charter system, including the negotiations for the 2025 charter renewals and the acceptance of NASCAR’s final terms by Penske and Hendrick. This is crucial as the charter system significantly impacts team revenue and operational stability.
- Team Economics and Profitability: A central tenet of the antitrust lawsuit is the assertion that NASCAR has engaged in practices that result in below-market compensation for racing teams. 23XI and Front Row intend to question Hendrick and Penske about the financial realities of team ownership, specifically referencing public statements made by Hendrick Motorsports partner Jeff Gordon, who indicated that Hendrick Motorsports has not been profitable in the past decade despite its success. This financial disclosure, if explored, could directly support the claim that NASCAR’s business model stifles team profitability.
- NASCAR’s NextGen Program: The introduction and evolution of the NextGen car have been a significant factor in the sport’s recent economic landscape. The teams want to understand the perspectives of Penske and Hendrick on this program and its financial implications.
- Roger Penske’s IndyCar Ownership: The filing notes that Roger Penske’s ownership of the IndyCar series is a relevant area of inquiry, potentially exploring any conflicts of interest or strategic alignments that may influence his perspectives on NASCAR’s operations.
- Charter Allocation and Financial Advantages: 23XI and Front Row aim to scrutinize how Hendrick Motorsports and Team Penske receive preferential financial treatment due to historical revenue allocation formulas and the fact that Hendrick Motorsports operates with four charters, exceeding the typical limit of three for new teams. This advantage, they argue, impacts cost structures and competitive balance.
- Absence of a Cost Cap: The teams intend to question Penske and Hendrick on their stance regarding the absence of a cost cap for Cup Series racing teams. Testimony from NASCAR executive Scott Prime is cited, suggesting that Penske and Hendrick have historically opposed a cost cap, a position that could be interpreted as a desire to maintain their competitive advantage.
The plaintiff teams find the request for remote depositions particularly incongruous, especially given their own willingness to travel to North Carolina to provide testimony. A footnote in their filing states, "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."
Furthermore, 23XI and Front Row contend that Penske and Hendrick have little standing to resist the scope of cross-examination, having voluntarily agreed to testify after initially indicating they would not. This shift in position, they argue, makes them trial witnesses and subject to the standard scrutiny applied to all individuals providing testimony in a legal proceeding. The filing also clarifies that previous court orders mandating broad, non-identifying financial records from non-party teams do not apply to Penske and Hendrick, given their active decision to support NASCAR and the France family at trial.
"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," the filing asserts. "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, however, has pushed back against these demands in its own legal filings. The sanctioning body argues that 23XI and Front Row cannot claim Penske and Hendrick possess essential information if they did not initially include them on their own potential witness lists or seek discovery from their teams. NASCAR contends that the plaintiff teams strategically opted not to pursue this financial information during the discovery phase, suggesting their current claims of relevance are opportunistic.
"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," NASCAR’s filing states. "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."
NASCAR also asserts that its need for Penske and Hendrick’s testimony is narrowly defined and will not extend to detailed team finances. "NASCAR’s questioning will not seek information regarding the teams’ income, expenses, profitability, employee salaries, or payments to drivers," the filing clarifies.
The sanctioning body further disputes the notion that Penske and Hendrick’s inclusion on the witness list was a deliberate attempt to disadvantage the plaintiff teams. NASCAR points to its initial disclosures in January 2025, which identified "Owners of NASCAR Cup Series race teams" as likely to possess relevant information. They contend that both Hendrick Motorsports and Team Penske were disclosed as likely holders of materials NASCAR would rely upon. NASCAR argues that the plaintiff teams had ample opportunity to depose Penske and Hendrick, citing disclosures made in March and September, well before the close of fact discovery and the trial date.
"Plaintiffs’ first disclosure in this case in January 2025 identified the ‘Owners of NASCAR Cup Series race teams’ as likely to have relevant information," NASCAR’s filing reads. "NASCAR then disclosed Hendrick Motorsports and Team Penske as likely to have relevant materials that NASCAR would rely upon. Plaintiffs’ own initial disclosures and NASCAR’s amended disclosures in March – months before the close of fact disclosure – were more than adequate notice and time for Plaintiffs to depose Movants."
NASCAR also highlights that the plaintiff teams never requested a deposition, objected to the timing of NASCAR’s amended disclosure, or moved to strike the witnesses. "Instead, they strategically chose to sit on their hands and wait until less than four weeks before trial," NASCAR argues. "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."
The ongoing legal battle underscores the high stakes of the antitrust trial, where the fundamental economic structure and operational practices of NASCAR are under intense scrutiny. The demands for unrestricted testimony from Penske and Hendrick by 23XI and Front Row indicate a determined effort to expose potentially damaging information about the sport’s governance and financial dealings. The court’s ruling on this motion will likely shape the landscape of the upcoming trial and influence the depth of public understanding regarding the financial intricacies of professional stock car racing.
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