Racing Teams Demand Unrestricted Depositions from Penske, Hendrick Ahead of Antitrust Trial

In a significant escalation of legal maneuvering, 23XI Racing and Front Row Motorsports have petitioned the Western District of North Carolina court to compel comprehensive depositions from motorsports titans Rick Hendrick and Roger Penske. The request comes in anticipation of their scheduled testimony as witnesses for NASCAR during the upcoming antitrust trial next month.

The two prominent team owners were formally added to NASCAR’s witness list last month. This late inclusion prompted an immediate objection from 23XI and Front Row, who accused the sanctioning body of intentionally delaying their notification. They asserted that neither Hendrick nor Penske had previously appeared on any lists identifying individuals "likely to have discoverable information" pertinent to the ongoing legal proceedings.

According to court filings by 23XI and Front Row, repeated inquiries were made to ascertain if Penske and Hendrick intended to testify. The consistent response, they claim, was negative, making their subsequent inclusion on NASCAR’s witness list a considerable surprise.

Consequently, 23XI and Front Row formally moved for deposition interviews with both Hendrick and Penske. However, the owners reportedly resisted, seeking to limit the scope of questioning and advocating for virtual depositions via Zoom rather than in-person proceedings.

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The recent filing by 23XI and Front Row directly challenges this stance, urging the court to mandate their appearance for in-person depositions. They contend that the resistance from Hendrick and Penske amounts to seeking 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."

While 23XI and Front Row could have formally challenged NASCAR’s motion to place them on the witness stand due to the late disclosure, their current legal strategy appears to be a calculated effort to maximize the opportunity to extract crucial discoverable information from these influential figures.

The teams are seeking to probe a broad range of topics, including the intricate details of the charter system, negotiations surrounding the 2025 charter renewal and the acceptance of NASCAR’s final terms, the overarching economics of team ownership, and NASCAR’s NextGen car program. They also aim to question Penske regarding his ownership of the IndyCar series.

"The topics covered by Mr. Hendrick and Mr. Penske’s declarations are broad, including the charter system, the 2025 charter renewal negotiations and their acceptance of NASCAR’s final terms, the economics of team ownership, NASCAR’s NextGen program, Mr. Penske’s ownership of the IndyCar series, and more," the filing details. "Plaintiffs are entitled to probe the basis for their declaration statements and their personal knowledge on all those topics—not just the ‘high level contents of their respective Declarations’—along with any other topics that are relevant to the testimony they are going to present on NASCAR’s behalf."

As a specific example, 23XI and Front Row highlighted statements made by Jeff Gordon, partner at Hendrick Motorsports, who publicly disclosed that Hendrick Motorsports has not turned a profit in the past decade, despite its long and successful history in the Cup Series. This assertion, made by Gordon as a member of the Team Negotiating Committee that negotiated the 2025 Charter Agreement on behalf of the Race Team Alliance, is a key point of contention.

"As just one example, Mr. Hendrick’s partner in Hendrick Motorsports, Jeff Gordon, was a member of the Team Negotiating Committee, which, as the Court knows, negotiated the 2025 Charter Agreement on behalf of all the Race Team Alliance members with NASCAR. Mr. Gordon has stated publicly that, despite being one of the most successful and longest-running Cup Series teams, Hendrick Motorsports has not made a profit in ten years," the filing elaborated. "Plaintiffs are entitled to question Mr. Hendrick about those statements and the facts about Hendrick’s financial condition and profitability under the charter system that Mr. Hendrick discusses in his declaration, as they bear directly on whether NASCAR has exercised its monopoly power to pay the racing teams, including Mr. Hendrick’s team, below-competitive-market compensation."

In a pointed footnote, 23XI and Front Row dismissed the suggestion of conducting depositions via Zoom as "preposterous," especially given their willingness to travel to Charlotte for in-person testimony. "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."

Furthermore, the teams intend to question Penske and Hendrick about how their charters provide preferential financial treatment compared to other teams, citing historical relevance as a contributing factor. They also aim to scrutinize Hendrick Motorsports’ grandfathered status for four charters, a deviation from current NASCAR regulations that limit new teams to three.

"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," the filing asserts. "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."

The filing further suggests that the absence of a cost cap for Cup Series racing teams is a direct result of Hendrick and Penske’s preference for maintaining their competitive advantage, a point purportedly supported by testimony from NASCAR senior executive Scott Prime. "Further, one of the reasons there is no cost cap for Cup Series racing teams is because Hendrick and Penske prefer not to have one for their own competitive advantage, as NASCAR senior executive Scott Prime testified at his deposition. All these subjects are highly relevant to the substance of the testimony they will present on behalf of NASCAR as well as their bias in favor of Mr. France and NASCAR for agreeing to give them these special preferences."

The filing concludes that Penske and Hendrick "have little to complain about" given their voluntary agreement to testify after previously indicating they would not. While a prior court order mandated that non-party teams submit broad, non-identifying financial records on a per-car average basis, 23XI and Front Row argue this stipulation no longer applies to Hendrick and Penske due to their decision to testify on behalf of NASCAR and the France family.

"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 states. "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’s Counterarguments

NASCAR, in its own legal submission, contends that 23XI and Front Row cannot simultaneously argue for the essential nature of Penske and Hendrick’s testimony while failing to list them as potential witnesses themselves during the discovery phase.

"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 argues. "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 further asserts that its need for testimony from Penske and Hendrick is specifically defined. "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 accusation of "sandbagging" regarding the inclusion of Penske and Hendrick on the witness list. "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 stated. "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 pointed to the timeline of its amended disclosures on September 10, 2025, which included both Mr. Hendrick and Mr. Penske, arguing that this left nearly three weeks for depositions 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."