23XI and Front Row Seek to Bar Hendrick Testimony Amid Deposition Dispute in NASCAR Antitrust Lawsuit

A contentious legal battle is escalating in the antitrust lawsuit filed by 23XI Racing and Front Row Motorsports against NASCAR, as the plaintiff teams have filed a motion to exclude Hendrick Automotive Group chairman Rick Hendrick from testifying at the upcoming trial. The motion stems from an ongoing dispute over scheduling Hendrick’s deposition, with 23XI and Front Row arguing that NASCAR’s late disclosure of Hendrick as a witness and his subsequent unavailability for pre-trial questioning will cause significant prejudice.

The core of the issue lies in the timing of Hendrick’s deposition. A court order by Judge Kenneth D. Bell mandated that both Hendrick and Roger Penske, chairman of Team Penske, submit to oral depositions prior to the trial, which is scheduled to commence on December 1, 2025. Initially, Hendrick’s deposition was slated for November 18, 2025, at his company’s offices in Charlotte, North Carolina, a date and location chosen for his convenience. However, according to the motion filed by 23XI and Front Row, Hendrick’s counsel informed them that he would be unavailable on that date and "is otherwise not available on any other day before the December 1, 2025 trial."

Hendrick’s legal team reportedly offered to schedule the deposition during the first week of the trial. This proposal, however, has been met with strong opposition from the plaintiff teams. In their filing, 23XI and Front Row argue that allowing the deposition during the trial would be "prejudicial" because their legal counsel will have already established their trial strategy, including witness scheduling, and will be fully immersed in the proceedings. They contend that diverting attorneys’ attention from the trial to conduct a deposition would be "not warranted" and that the "prejudice that deposing Mr. Hendrick during trial… is not justified and unfair." The teams explicitly blame NASCAR for creating these "tight scheduling constraints" by only disclosing Hendrick as a trial witness late in the process, after the close of fact discovery.

NASCAR, in its response to the motion, disputes the assertion that Hendrick is being inflexible. The sanctioning body’s filing highlights that Hendrick’s counsel "diligently alerted the Court to the possibility of the deposition needing to occur on December 1 or later, but noted that the situation is in flux." NASCAR also claims that Hendrick’s counsel has offered "numerous options to accommodate the deposition, including the possibility of a virtual deposition," which they allege the plaintiffs have refused. Instead, NASCAR states, the plaintiffs "insisted on the take-it-or-leave-it Tuesday, November 18 deposition."

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The inclusion of Hendrick and Penske as witnesses was reportedly requested by NASCAR chairman Jim France himself, who is also named as a defendant in the lawsuit. The plaintiff teams have accused NASCAR of "sandbagging" their participation by designating these high-profile figures as witnesses so close to the trial and after the discovery period had concluded. Judge Bell had previously deemed it "absurd" for Penske and Hendrick to attempt to limit the scope of their depositions regarding their race teams’ financials, ordering that they be subject to unrestricted questioning.

NASCAR’s filing further argues that the plaintiffs’ claims of prejudice and surprise are hypocritical. They point to a trial subpoena that 23XI and Front Row allegedly served just days prior on an accountant from GreerWalker LLP, who, according to NASCAR, does not appear on any witness list or in the plaintiffs’ initial disclosures. This, NASCAR contends, is a similar tactic to what the plaintiffs are accusing them of.

The underlying antitrust lawsuit, filed in July 2024, alleges that NASCAR has engaged in anti-competitive practices that harm independent team owners. 23XI Racing, co-owned by NBA legend Michael Jordan and NASCAR driver Denny Hamlin, and Front Row Motorsports, led by Bob Jenkins, claim that NASCAR’s business model and operating procedures stifle competition and limit their ability to generate revenue and grow their organizations. The teams argue that NASCAR’s control over various aspects of the sport, including media rights, sponsorship, and the allocation of charter agreements, creates an unfair playing field that benefits NASCAR itself and its affiliated entities.

The dispute over Hendrick’s deposition underscores the high stakes and intense legal maneuvering involved in this case. Hendrick Automotive Group is a massive entity with significant investments across motorsports, including a substantial ownership stake in Hendrick Motorsports, the most successful team in NASCAR Cup Series history. His testimony, and potentially his insights into the business operations and strategic decisions within NASCAR, could be crucial for both sides.

NASCAR’s position is that they are entitled to present their witnesses, including Hendrick, as part of their defense. They are pushing back against the plaintiffs’ attempt to exclude him, arguing that even if the deposition occurs during the trial, there are sufficient resources within the plaintiffs’ extensive legal team to handle the brief questioning. NASCAR’s filing notes that "Plaintiffs have affirmatively reassured Mr. Hendrick’s counsel and NASCAR that their deposition questioning will not last more than 2.5 hours." They also cite precedent, referencing "Kunzman v. Enron Corp.," which supports the court’s ability to order witnesses to be made available for deposition even during trial.

The legal strategy employed by both 23XI and Front Row, and NASCAR, reflects the complex nature of antitrust litigation, where evidence gathering and witness testimony are critical to proving or disproving claims of market manipulation and unfair competition. The outcome of this motion to exclude Hendrick’s testimony could have a significant impact on the flow of information and the evidence presented when the trial begins in December.

As the trial date approaches, the legal teams are engaged in a strategic battle of attrition, utilizing motions and counter-motions to gain an advantage. The court’s decision on this specific motion will provide further clarity on the procedural path forward for the deposition of key figures in the sport and could set precedents for how such disputes are handled in future antitrust cases within professional sports. The ongoing legal wrangling highlights the deep divisions and complex business interests at play within NASCAR’s ecosystem, as independent teams challenge the long-standing authority and practices of the sport’s governing body.