NASCAR and 23XI Racing Clash Over Owner Testimony Access in Antitrust Trial

Charlotte, NC – As the highly anticipated antitrust trial between 23XI Racing and Front Row Motorsports against NASCAR approaches, a critical procedural dispute has emerged concerning the presence of key 23XI ownership figures in the courtroom. NASCAR has formally petitioned the court to exclude two of the team’s three principal owners, Denny Hamlin and Curtis Polk, from the proceedings while other witnesses are giving testimony. This motion hinges on the interpretation and application of Federal Rule of Evidence 615, which governs witness sequestration.

Federal Rule of Evidence 615 dictates that, upon a party’s request, the court must order witnesses excluded from the courtroom to prevent them from hearing each other’s testimony. This rule aims to safeguard the integrity of testimony by prohibiting witnesses from shaping their accounts based on what others have said. While the rule includes an exception for individuals "essential to the claim or defense," the application of this exception is at the heart of the current contention.

23XI Racing, represented by lead attorney Jeffrey Kessler, has designated basketball icon Michael Jordan as the "individual representing the party" under the rule’s exceptions. However, the team is actively contesting NASCAR’s attempt to exclude both Hamlin and Polk, arguing for their continued presence throughout the trial.

One of 23XI’s primary arguments for Polk’s inclusion stems from his status as a counter-defendant in NASCAR’s countersuit. Although this specific counterclaim was recently dismissed by Judge Kenneth D. Bell, 23XI asserts that Polk’s role remains significant, particularly given NASCAR’s indication of a potential appeal to reinstate it. In a written motion, 23XI’s legal team stated, "The Court’s summary judgment ruling does not change his status as a party until there is a final judgment under Federal Rule of Civil Procedure 54. Moreover, NASCAR has already indicated that it is considering appealing this Court’s decision in an attempt to resurrect the counterclaim, which is based on many of the same facts as Plaintiffs’ claims. Mr. Polk therefore should be permitted to attend the trial in full as a party to the action."

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Beyond Polk’s party status, 23XI contends that both Polk and Hamlin are indispensable to the effective presentation of their case. The team argues that Polk’s extensive involvement in the critical 2025 Charter Agreement negotiations, and his intimate knowledge of the surrounding facts and circumstances, are vital for counsel to construct a comprehensive narrative. Similarly, 23XI posits that Denny Hamlin, as a driver actively competing in NASCAR and a principal figure in the team’s development, offers a unique and necessary perspective on the events leading to the litigation. The team’s motion elaborates, "Mr. Polk and Mr. Hamlin are essential to the presentation of Plaintiffs’ case against NASCAR. Even if Mr. Polk is not considered a party for purposes of Rule 615, he is essential given his extensive role in the 2025 Charter Agreement negotiations, and his knowledge of the facts and circumstances are necessary to aid counsel in presenting Plaintiffs’ case. Mr. Hamlin further presents a unique perspective and role in the operations of 23XI, competing in NASCAR as a driver, and the build-up to the facts that gave rise to this litigation. These two owners act as distinct pieces to the puzzle, each of which is necessary for counsel to be able to provide a complete picture to the jury."

23XI Racing has also indicated that they do not object to multiple members of the NASCAR-owning France family being present in the courtroom for similar reasons, suggesting a reciprocal understanding of essential party presence.

NASCAR, conversely, led by attorney Chris Yates, has invoked established legal precedent to bolster its argument for exclusion. Citing the case of Opus 3 Ltd. v. Heritage Park, Inc., NASCAR emphasized the foundational principle of witness sequestration: "It is ‘well recognized that sequestering witnesses ‘is (next to cross-examination) one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice.’" The sanctioning body reiterated that Rule 615’s core purpose is "to preclude fact witnesses from shaping their testimony based on other witnesses’ testimony," and maintains that Hamlin and Polk do not fit within the narrow exceptions to this rule.

NASCAR further disputes 23XI’s assertion that there is no concern about testimony influencing other witnesses. The organization argues that plaintiffs cannot justify the attendance of multiple key fact witnesses under Rule 615’s exceptions. Citing the "presumption favoring sequestration," NASCAR points out that the Fourth Circuit narrowly construes these exceptions in favor of the party requesting sequestration, placing the burden on the party seeking to avoid sequestration to prove an exception applies.

Reinforcing its position, NASCAR also referenced United States v. Olofson, which held that merely designating a party as a "critical witness" is insufficient to warrant an exception to sequestration. NASCAR’s overall stance is that Jordan, Polk, and Hamlin are all crucial fact witnesses whose testimony is integral to the disputed issues. Therefore, to mitigate the risk of their testimony being tailored, the court should issue an order enforcing sequestration under Rule 615(a) and (b).

The judge is expected to render a decision on this matter before the upcoming Thanksgiving holiday. This ruling will significantly shape the courtroom dynamics of a trial that is poised to address fundamental questions about the competitive landscape and economic structures within NASCAR.

The dispute arises from a lawsuit filed by 23XI Racing and Front Row Motorsports, alleging that NASCAR’s charter system, which governs team participation and revenue distribution, constitutes an illegal antitrust violation. The teams contend that the system unfairly restricts competition and limits their ability to operate independently. NASCAR, in turn, argues that the charter system is essential for the sport’s stability and long-term viability.

23XI Racing, co-owned by basketball legend Michael Jordan and NASCAR driver Denny Hamlin, has emerged as a significant player in recent years. Since its inception in 2020, the team has achieved multiple victories, including two in the 2023 NASCAR Cup Series season with driver Tyler Reddick. Front Row Motorsports, a long-standing organization in NASCAR, has also experienced success, most notably with its 2021 Daytona 500 victory with driver Michael McDowell. The legal challenge from these teams signals a potential turning point in the ongoing dialogue between NASCAR and its team owners regarding the sport’s governance and business model.