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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF NORTH CAROLINA
`CHARLOTTE DIVISION
`CIVIL ACTION NO. 3:24-CV-00886-KDB-SCR
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`2311 RACING LLC AND FRONT
`ROW MOTORSPORTS, INC.,
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`Plaintiffs,
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` v. MEMORANDUM AND ORDER
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`NATIONAL ASSOCIATION FOR
`STOCK CAR AUTO RACING,
`LLC, ET AL.,
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`Defendants.
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`The basic facts of this matter are now familiar. Plaintiffs are two teams that participate in
`defendant NASCAR’s Cup Series, stock car racing’s highest level series. While a few spots are
`left in each race for unchartered “open” teams, since 2016 all viable NASCAR Cup Series race
`teams (the “Teams”) have operated under identical, limited duration Charters granted by NASCAR
`that guarantee entry into each race, a portion of NASCAR’s media revenue and other benefits in
`consideration for various Team obligations (including the core requirement to race so NASCAR
`can field its events with high quality race teams). The Teams’ 2016 Charters were set to expire at
`the end of 2024. Beginning in 2022, the Teams and NASCAR voluntarily engaged in both joint
`and individual Team negotiations towards a new 2025 Charter , as they had done in drafting the
`initial Charters. Ultimately, 13 of the 15 Teams signed NASCAR’s final proposed 2025 Charter.
`Plaintiffs did not agree to sign the 2025 Charter and sued NASCAR , James France
`(NASCAR’s Chairman), and the other Defendants (collectively, “NASCAR”), alleging that they
`unlawfully monopolized premier stock car racing in violation of the Sherman Act, 15 U.S.C. §§ 1,
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`2. NASCAR answered , denied liability, and moved to dismis s the Complaint. It also opposed
`Plaintiffs’ request for a Preliminary Injunction to continue racing, describing the 2025 Charters, in
`part, as “undeniably fair” and extolling the virtues of its partnership with the Teams to “grow the
`sport” through the Charters. No counterclaim was asserted.
`After the Court partially granted the Plaintiffs’ requested Preliminary Injunction and the
`litigation continued, Defendants filed an Amended Answer and NASCAR filed a Counterclaim
`and then an Amended Counterclaim .1 Doc. Nos. 111, 136. The Counterclaim asserts that rather
`than the 2025 Charters being “ fair and balanced,”2 NASCAR is the alleged victim of an “illegal
`cartel” made up of all the Cup Series racing teams,3 who collectively forced NASCAR to pay too
`much to the Teams through unlawful “joint nego tiations.” On June 23, 2025, the Court denied
`Plaintiffs’ Motion to Dismiss the Counterclaim, allowing it to proceed through full discovery. Doc.
`No. 162.
`Now before the Court is the Counterclaim Defendants’ Motion for Summary Judgment on
`the Amended Counterclaim, Doc. No. 215. For the reasons discussed briefly here and more fully
`below, the Court will GRANT the motion and dismiss the Counterclaim.
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`1 Plaintiffs describe the Counterclaim as “retaliatory.” While that could be true (it is a common
`litigation tactic to file a counterclaim in the belief that “the best defense is a good offense” ), the
`Court need not and does not consider NASCAR’s “motives” in filing its Counterclaims. Rather,
`what is before the Court is only whether the Counterclaim survives Plaintiffs’ Summary Judgment
`motion under the applicable legal standards.
`2 This is how NASCAR described the 2025 Charters prior to the lawsuit. On September 11, 2024,
`after the Charter agreement had been finalized and negotiations concluded, NASCAR wrote to
`Michael Jordan and Denny Hamlin, saying “We firmly believe that we have come to a document
`that is fair and balanced based on the interest of all the stakeholders in the industry.” Doc. No.
`216-25 at 3.
`3 NASCAR only sued the Counterclaim Defendants (Plaintiffs and Curtis Polk) for their roles in
`the alleged “cartel.” The remaining Teams who agreed to NASCAR’s final 2025 Charter offer,
`which contained mutual releases, were not sued.
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`First, NASCAR has failed to establish an agreement to unreasonably restrain trade, which
`is necessary to establish liability under Section 1 of the Sherman Act. 15 U.S.C. § 1. As the Court
`explained in its earlier Order, Doc. No. 162 at 5-9, and confirms here after considering the full
`record, joint selling (or buying) efforts are not always per se antitrust violations. See Broad. Music,
`Inc. v. Columbia Broad. Sys., Inc. , 441 U.S. 1 , 23 (1979) (“BMI”) (holding that “not all
`arrangements among actual or potential competitors that have an impact on price are per se
`violations of the Sherman Act or even unreasonable restraints”) .4 And under BMI and the
`applicable Rule of Reason analysis , the fact that individual negotiations with Teams were more
`than “realistically available” dooms NASCAR’s claim. See Matsushita Elec. Indust. Co. v. Cinram
`Int'l, Inc., 299 F. Supp. 2d 370, 376 (D. Del. 2004) (granting Summary Judgment against Sherman
`Act claims related to DVD licensing negotiations, explaining, “[T]he opportunity to acquire a pool
`of rights does not restrain trade if an alternative opportunity to acquire individual rights is
`realistically available.”). The evidence here establishes that not only were individual negotiations
`“available” but NASCAR had such negotiations regularly during the negotiation period. And ,
`those individual negotiations achieved concrete results, including the final 2025 Charter agreement
`that was signed by 13 teams acting individually (and contrary to the supposed “joint agreement”).
`Based on these undisputed facts, the Counterclaim Defendants did not engage in an unreasonable
`restraint of trade.
`Second, and independently, NASCAR has failed to sufficiently establish that it suffered
`the required “antitrust injury” as a result of the allegedly unlawful “joint negotiations” and other
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`4 Further, allowing “joint negotiations” (with a continuing opportunity for individual negotiations
`as occurred here) could well be said to enhance competition between buyers and sellers where the
`counterparty NASCAR is the only buyer in the alleged relevant market ( defined by NASCAR in
`the Amended Counterclaim as the “market for entry of cars into NASCAR Cup Series races …”)
`and thus has significant power over any single race team.
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`conduct. It has long and often been said that the Sherman Act was “enacted for ‘the protection of
`competition, not competitors.’” Atlantic Richfield Co. v. USA Petroleum Co ., 495 U.S. 328, 338,
`(1990) (quoting Brown Shoe Co. v. United States , 370 U.S. 294, 320 (1962)); United States v.
`Google LLC, No. 1:23-CV-108, 2025 WL 1132012, at *18 (E.D. Va. Apr. 17, 2025). NASCAR’s
`allegation that it paid too much to the Teams in the 2025 Charters is not itself an injury to
`competition; rather, it is only a private economic loss to NASCAR.
`More directly, NASCAR’s expert economist, Dr. Hubbard , testified that he saw no
`evidence that the Teams’ collective actions caused NASCAR to increase its Charter payments .
`Doc. No. 255-1 at 108:15–21 (Q. “Have you seen any evidence that the concerted behavior
`engaged in by the teams after October of 2022 caused NASCAR to increase the amount of money
`it was willing to pay the teams from what it was willing to offer in October of 2022?” . . . A .
`“No.”);5 see also Doc. No. 255-3 at 76:3–10 (NASCAR damages expert Hansen testifying he is
`not offering any opinions on harm to competition or what conduct would not have occurred in a
`competitive market). Simply put, if the supposed increased payments did not harm competition,
`they could not cause any antitrust injury to NASCAR . See Brunswick Corp. v. Pueblo Bowl -O-
`Mat, Inc., 429 U.S. 477, 489 (1977). Therefore, Summary Judgment is also required because of
`the absence of proof of an “antitrust injury.”
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`5 Dr. Hubbard did offer an opinion that the Charter system has reduced the number of entrants on
`the track. Doc. No. 216-1 at ¶¶ 47–51. However, how the Charter system itself affects competition
`is a different question than whether the “joint negotiations ” harmed competition. Indeed,
`NASCAR has repeatedly argued that the Charter system is good for the sport and not
`anticompetitive. See, e.g., Doc. No. 206, Aug. 28 PI Hr’g Tr. 27:13–14; 28:21–22 (Mr. Yates: “We
`think the charter system is good. We think it’s good for all teams. . . . I don’t believe the charter
`system harms competition.”).
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`I. LEGAL STANDARD
`Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
`to any material fact and the movant is entitled to judgment as a matter of law.” United States v.
`8.929 Acres of Land in Arlington Cnty., Virginia, 36 F.4th 240, 252 (4th Cir. 2022) (quoting Fed.
`R. Civ. P. 56(a)); see United States, f/u/b Modern Mosaic, LTD v. Turner Construction Co., et al.,
`946 F.3d 201, 206 (4th Cir. 2019). A factual dispute is considered genuine “if the evidence is such
`that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
`Inc., 477 U.S. 242, 248 (1986); 8.929 Acres of Land, 36 F.4th at 252. “A fact is material if it might
`affect the outcome of the suit under the governing law.” Id. (quoting Libertarian Party of Va. v.
`Judd, 718 F.3d 308, 313 (4th Cir. 2013)).
`The party seeking summary judgment bears the initial burden of demonstrating the absence
`of a genuine issue of material fact through citations to the pleadings, depositions, answers to
`interrogatories, admissions, or affidavits in the record. See Celotex Corp. v. Catrett, 477 U.S. 317,
`323 (1986) (when the nonmoving party “has failed to make a sufficient showing on an essential
`element of [his] claim with respect to which [he] has the burden of proof,” summary judgment is
`warranted); United States ex rel. G ugenheim v. Meridian Senior Living, LLC , 36 F.4th 173, 178
`(4th Cir. 2022). If the movant satisfies his initial burden to demonstrate “an absence of evidence
`to support the nonmoving party’s case,” the burden shifts to the nonmovant to “present specific
`facts showing that there is a genuine issue for trial.” 8.929 Acres of Land, 36 F.4th at 252 (quoting
`Humphreys & Partners Architects, L.P. v. Lessard Design, Inc. , 790 F.3d 532, 540 (4th Cir.
`2015)). “The mere existence of some alleged factual dispute between the parties will not defeat an
`otherwise properly supported motion for summary judgment. Hixson v. Moran, 1 F.4th 297, 302
`(4th Cir. 2021). Rather, the nonmoving party must establish that a material fact is genuinely
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`disputed by, inter alia, “citing to particular parts of the materials of record” and cannot rely only
`on “conclusory allegations, mere speculation, the building of one inference upon another, or the
`mere existence of a scintilla of evidence.” Fed. R. Civ. P. 56(c)(1)(A); 8.929 Acres of Land , 36
`F.4th at 252 (quoting Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013)).
`Still, summary judgment is not intended to be a substitute for a trial of the facts. Anderson,
`477 U.S. at 249. In determining if summary judgment is appropriate, “courts must view the
`evidence in the light most favorable to the nonmoving party and refrain from weigh[ing] the
`evidence or mak[ing] credibility determinations.” Variety Stores, Inc. v. Wal -Mart Stores, Inc. ,
`888 F.3d 651, 659 (4th Cir. 2018) (citation modified). “Summary judgment cannot be granted
`merely because the court believes that the movant will prevail if the action is tried on the merits.”
`Jacobs v. N.C. Admin. Office of the Courts , 780 F.3d 562, 568 –69 (4th Cir. 2015) (quoting 10A
`Charles Alan Wright & Arthur R. Miller et al., Federal Practice & Procedure § 2728 (3d ed.1998)).
`In the end, the relevant inquiry on summary judgment is “whether the evidence presents a sufficient
`disagreement to require submission to a jury or whether it is so one -sided that one party must
`prevail as a matter of law.” Anderson, 477 U.S. at 251–52.
`II. FACTS AND PROCEDURAL HISTORY
`The Court has fully described the background of this antitrust dispute in several earlier
`orders. See, e.g. , Doc. Nos. 74, 162. Plaintiffs hav e sued NASCAR alleging that they have
`unlawfully monopolized premier stock car racing in violation of the Sherman Act, 15 U.S.C. §§ 1,
`2. See Doc. No. 74 at 5 -8. Again, most relevant here, in 2016, NASCAR implemented a Charter
`Agreement system that defines the relationship between NASCAR and the Teams which typically
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`field 36 of the 40 spots in each Cup Series race .6 Plaintiffs acquired their 2016 Charters in 2016
`(Front Row Motorsports) and 2020-21 (2311 Racing).
`Well in advance of the expiration of the 2016 Charters on December 31, 2024, NASCAR
`began negotiations towards a 2025 Charter Agreement with the 15 teams that collectively held
`NASCAR’s Charters. NASCAR negotiated with the Teams individually and together (through a
`Team Negotiating Committee (“TNC”) ). 7, 8 See Doc. No. 58 (Answer) at ⁋⁋ 17 (“ Defendants
`further admit that NASCAR negotiated with the teams collectively and with individual teams, but
`denies that it ceased negotiating with the teams collectively. ”), 107 ( “Defendants … admit that
`NASCAR engaged in individual negotiations with certain teams to address their individual
`requests regarding the 2025 Charter Agreements while still negotiating with the teams negotiating
`collectively.”). NASCAR agreed to negotiate with the TNC as it had done with the RTA in 2016.
`Doc. No. 216-29 (Phelps Tr. 40:3–19 (Q: “[Y]ou never said, we don’t want to proceed that way;
`correct?” A: “Not that I am aware of.”); Doc. No. 216-31 at 409 (“Obviously, the Teams[] would
`like us to go thru their group of 4 – which I think we should do initially, but then pivot and get to
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`6 In addition to “chartered cars,” NASCAR races may include a few “open” cars, which are
`required to qualify for each race separately. Because of the cost of racing in the Cup Series and
`the uncertainty for teams, drivers and sponsors in not having a guaranteed spot for each race, no
`non-chartered team has consistently participated as a “open” team since the Charter system was
`put in place in 2016.
`7 Both “joint” negotiations through the RTA (the Teams’ trade group) and with individual teams
`were used to reach an agreement on Charter terms that applied to all Teams during the 2016 Charter
`negotiations. Doc. Nos. 216-1 at ¶ 24; 216-11 (NASCAR Expert Rep. of John L. Hansen) at ¶ 22.
`8 In early 2022, the teams nominated a group of team executives to negotiate with NASCAR,
`known as the TNC. Doc. No. 216-26 (Polk Deposition) at 29:13–19. The TNC consisted of four
`team representatives: (1) Dave Alpern (President of Joe Gibbs Racing); (2) Marshall Carlson
`(President of Hendrick Motorsports); (3) Steve Newmark (President of Roush Fenway Keselowski
`Racing); and (4) Curtis Polk, one of the owners of 23XI. Doc. No. 216-27 at 489. At NASCAR’s
`request, Jeff Gordon (Executive Vice Chairman of Hendrick Motorsports) replace d Mr. Carlson
`as a TNC member. Doc. No. 216-28 at 243:24 to 247:10..
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`influential owners like Rick Hendrick(s).”) 9 In turn, the Teams to ld NASCAR that individual
`negotiations could continue, writing in a September 2022 letter that , “[i]t is understood that
`NASCAR and the individual Race Teams remain free to continue bilateral or multilateral
`discussions in the customary and normal course of business.” Doc. No. 216-27 at 489–90.
`According to NASCAR, the first joint Charter negotiation session was held in Tall adega
`on October 2, 2002 , with “Individual Team meetings at race shops” occurring immediately
`thereafter during October 2022. See Doc. No. 216-25 (Pre-litigation, NASCAR prepared “Charter
`Negotiation Timeline”) at 4. The Charters were extensively negotiated during the ensuing two
`years, and NASCAR held meetings with the TNC and with individual teams throughout the
`negotiations.10 Doc. No. 216-25 at 4-7 (noting numerous “joint” negotiating sessions and “one on
`one” and individual team meetings in October 2022, May/June 2023, July 2023, February 2024
`and April/May 2024 as well as numerous communications sent to Teams individually); Doc. No.
`216 at 12-13 (describing numerous individual team negotiations). NASCAR requested meetings
`with the TNC to present NASCAR’s counterproposals and invited the TNC to present the Teams’
`counterproposals. Doc. No. 216-34 at 786 (April 17, 2023, talking points prepared for individual
`team meetings includes note that NASCAR “invited the TNC to make a proposal” and “[t]he ball
`is in [the TNC’s] court”); Doc. No. 216-35 at 975 (NASCAR executives met with TNC members
`“at NASCAR’s request” and “presented NASCAR’s ‘counter-proposal’ to the TNC’s/Teams’ last
`proposal”).
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`9 However, as discussed below, the Parties agree that NASCAR’s voluntary participation in joint
`negotiations is not, standing alone, dispositive of its claims – the realistic availability of individual
`negotiations is also required.
`10 NASCAR also agreed to negotiate directly with the law firm of Covington & Burling, which
`was jointly representing all teams through the RTA. Doc. No. 216-25 at 6-7; Doc. No. 216-37 at
`355.
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`NASCAR and the Teams thus pursued their own agendas , individually and collectively.
`For example, NASCAR’s negotiation timeline notes that on May 10, 2024, it received a “Letter
`from 3-4 teams with their concept/feedback from the [recent] meeting ” but “(23XI said they did
`not support and would be sending their own comment with TNC. )” Id. at 6. Similarly, “June 11,
`2024: email to teams acknowledging the request from some teams to extend the window to provide
`feedback … , so provided that extension to all teams.” Id. Both the TNC and individual
`negotiations contributed to the final language of the 2025 Charters. While NASCAR has suggested
`in argument that the individual negotiations were “meaningless,” that assertion is not supported in
`the record. To the contrary, NASCAR described at oral argument how one particular team had
`requested a provision that becam e part of the 2025 Charters (for all teams) . Doc. No. 293 at 29-
`31. And most significantly, all but two of the teams individually agreed to the terms of the 2025
`Charters, even though the terms fell well short of the TNC “joint” negotiating position.11
`The negotiations ended on Friday September 6, 2024, when NASCAR told the Teams in
`the late afternoon to either sign its final proposal for the 2025 Charters by midnight that same day
`or lose their Charters. 13 of the 15 teams signed 2025 Charter Agreements later that evening. The
`32 signed Charters were identical - the same terms applied to all Teams, even though they vary
`significantly in size, resources and number of Charters held.
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`11 NASCAR offered that it s Chairman and CEO Jim France would at trial testify as to all his
`individual meetings with Teams, including that he “went to individual owners and he said , ‘what
`do you need to sign the deal?’” Doc. No. 293 at 29-30. Putting aside that Mr. France’s offer of
`future testimony confirms that NASCAR was able to have individual negotiations with the Teams
`which led to nearly all the Teams signing NASCAR’s final proposed Charter, the Court cannot
`consider testimony that is not already before the Court at Summary Judgment . With respect to
`record evidence, NASCAR has failed to present any evidence that any of the Teams that signed
`the 2025 Charters refused to meaningfully negotiate as an individual team.
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`Plaintiffs – the two racing teams that did not sign a 2025 Charter Agreement – filed this
`action on October 2, 2024, seeking damages, injunctive relief (such as requiring NASCAR to
`divest some of the racing tracks that it owns) and a Preliminary Injunction to be allowed to race
`under the terms of the 2025 Charters. NASCAR opposed the Preli minary Injunction, arguing in
`part that the terms of the 2025 Charters reflected a fair and beneficial deal for all concerned. See
`Doc. No. 89 at 9. NASCAR also filed an A nswer and Motions to Dismiss the Complaint on
`December 2, 2024. Doc. Nos. 56-58. No Counterclaim was asserted. On December 18, 2024, the
`Court entered a Preliminary Injunction, allowing the Plaintiffs to race under the terms of the 2025
`Charters.12 Doc. No. 74. NASCAR’s Motions to Dismiss were denied by the Court on January 10,
`2025. Doc. No. 104. By consent, Plaintiffs filed an Amended Complaint on February 3, 2025, to
`name the proper NASCAR affiliated entities as Defendants. Doc. No. 106.
`In response, on March 5, 2025, NASCAR filed an Answer to the Amended Complaint,
`adopting its earlier Answer as stipulated among the Parties, but also adding a Counterclaim against
`Plaintiffs and Curtis Polk (a co -owner of 2311 Racing) , alleging that the Teams had formed an
`“illegal cartel” and violated Section 1 of the Sherman Act by join tly negotiating to “pressure
`NASCAR to accept their collusive terms” during the 2025 Charter negotiations. Doc. No. 111.
`Plaintiffs and Mr. Polk moved to dismiss the Counte rclaim. The Court denied that motion, Doc.
`No. 162, and the Parties pursued extensive discovery of the Counterclaim along with Plaintiffs’
`claims. On September 12, 2025, the Counterclaim Defendants filed a Motion for Summary
`Judgment on the Counterclaim. The motion has been fully briefed, and the Court held oral
`argument on the motion on October 23, 2025. It is ripe for the Court’s ruling.
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`12 On June 5, 2025, the Fourth Circuit Court of Appeals issued a ruling vacating the Preliminary
`Injunction, thereby returning the Plaintiffs to the status of other non -chartered teams (i.e., having
`to qualify as “open” cars to participate in races). Doc. No. 151.
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`III. DISCUSSION
`NASCAR’s Counterclaim alleges a single count - violation of Section 1 of the Sherman
`Act. Doc. No. 111 at 24. Section 1 prohibits “every contract, combination in the form of trust or
`otherwise, or conspiracy, in restraint of trade [in interstate or foreign commerce].” 15 U.S.C. § 1.
`Although the Act, by its terms, prohibits every agreement “in restraint of trade,” the Supreme Court
`has long recognized that Congress intended to outlaw only unreasonable restraints. See, e.g.,
`Arizona v. Maricopa County Medical Soc., 457 U.S. 332, 342–343 (1982) (citing United States v.
`Joint Traffic Assn., 171 U.S. 505 (1898)). To establish a violation of Section 1 of the Sherman Act,
`NASCAR must prove the following elements: (1) a contract, combination, or conspiracy; (2) that
`imposed an unreasonable restraint of trade. Dickson v. Microsoft Corp., 309 F.3d 193, 202–03 (4th
`Cir. 2002) (citing Oksanen v. Page Mem'l Hosp., 945 F.2d 696, 702 (4th Cir.1991)) (en banc). If
`NASCAR is able to prove a violation of Section 1, it then must also prove the “existence of
`“antitrust injury, which is to say injury of the type the anti-trust laws were intended to prevent and
`that flows from that which makes defendants' acts unlawful.” Id. (emphasis in original) (quoting
`Atl. Richfield, 495 U.S. at 334). NASCAR’s evidence fails to establish either an unreasonable
`restraint of trade or that it suffered antitrust injury.
`A. Unreasonable Restraint of Trade
`The Court has previously held that NASCAR’s Counterclaim must be analy zed under the
`“Rule of Reason.” See Doc. No. 162. In the Rule of Reason analysis, “the factfinder weighs all of
`the circumstances of a case in deciding whether a restrictive practice should be prohibited as
`imposing an unreasonable restraint on competition.” Continental T.V., Inc. v. GTE Sylvania, Inc.,
`433 U.S. 36, 49 (1977) . In these circumstances – where a buyer is faced with a group of sellers
`acting both collectively and individually – the guiding authority is BMI and its progeny. In BMI,
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`the Supreme Court held that composers and authors agreeing to offer their works through a joint
`license (which, of course involved a joint price agreement) did not commit a per se Sherman Act
`violation or necessarily even an unreasonable restraint of trade, where “[t]he individual composers
`and authors have neither agreed not to sell individually in any other market nor use the blanket
`license to mask price fixing in such other markets.” 441 U.S. at 23–24. Other courts have followed
`this reasoning to award judgment to defendants in cases where the antitrust plaintiff had a “realistic
`opportunity” to negotiate individually with the joint sellers and thereby did not suffer an
`unreasonable antitrust restraint. See Buffalo Broad. Co. v. ASCAP , 744 F.2d 917, 933 (2d Cir.
`1984) (“Since the blanket license restrains no one from bargaining over the purchase and sale of
`music performance rights, it is not a restraint unless it were proven that there are no realistically
`available alternatives. [Because the plaintiffs failed to establish the absence of realistic
`alternatives, there is no restraint and] … it cannot be a violation of section 1.”); Matsushita Elec.
`Indust. Co. v. Cinram Int'l, Inc., 299 F. Supp. 2d 370, 376 (D. Del. 2004)13 (“If the antitrust plaintiff
`has the opportunity to license independently, then the pool of rights does not restrain trade in
`violation of Section 1 of the Sherman Act.”).
`In other words, if a buyer has a “realistically available” choice to deal with the sellers either
`collectively or individually, then the joint activity of the sellers does not effectively restrain trade
`because the buyer has a choice of how to pursue its purchase. Again, the goal of the antitrust law
`is to protect competition and the competitive process. See Dickson, 309 F.3d at 206. Where, as
`here and in the cases cited above, there are pro-competitive reasons to support collective activity
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`13 In Matsushita Elec., the court granted summary judgment against a Section 1 challenge to an
`agreement by competitors to offer a joint license to DVD patents, where the record showed that
`“individual licenses present[ed] a realistic alternative” to the joint licenses being of fered. 299 F.
`Supp. 2d at 379. Because individual bargaining was a realistic alternative for purchasers, the court
`held that also offering joint terms “does not violate antitrust laws.” Id.
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`then prohibiting such conduct harms rather than promotes competition . In its earlier Order, Doc.
`No. 162 at 7-8, the Court explained that the “NASCAR Cup Series is in all respects a collective,
`not an individual sport,” requiring common rules for a fair competition. Indeed, NASCAR sought
`to and did reach the same agreement with all the Teams in both the 2016 and 2025 Charters ,
`including the same percentage of media revenue, intellectual property rights and rules related to
`tires and other elements of racing – all of which would be difficult if not impossible to negotiate
`differently for each team.14 And still, as discussed at length above, NASCAR had a choice. It could
`and did negotiate individually with the Teams , ultimately concluding agreements with the vast
`majority of the Teams , notwithstanding the significant differences between the joint negotiating
`offers and the final terms of the 2025 Charters.
`In sum, viewing the evidence of record and all reasonable inferences to be drawn therefrom
`in the light most favorable to NASCAR as the non-moving party, the Court finds that there are no
`genuine issues of material fact regarding whether individual negotiations were a realistic
`alternative to joint negotiations . In fact, there is no credible dispute that individual team
`negotiations were regularly and meaningfully pursued by NASCAR .15 Therefore, NASCAR has
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`14 And NASCAR failed to proffer any record evidence that it either desired to negotiate different
`economic terms for individual teams or that it sought to do so . (In connection with the Motion to
`Dismiss the Counterclaim, NASCAR’s counsel suggested NASCAR was interested in such
`negotiations, but never offered any actual evidence then or in connection with this motion to
`support his statement). In the absence of any evidence of negotiations seeking individual team
`economic terms (either by NASCAR or a team) there is no basis on which the Court could find (as
`argued by NASCAR) that the Teams were somehow competitors in th e context of their
`negotiations with NASCAR towards a single, identical Charter for all the Teams.
`15 To be clear, the Parties agree that NASCAR’s voluntary participation in joint negotiations is
`not, standing alone, dispositive of its claims . As discussed, the realistic availability of individual
`negotiations must also be present, which it was here.
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`failed to establish that the Teams’ joint negotiation efforts were an unreasonable restraint of trade
`in violation of Section 1 of the Sherman Act.
`In addition to its argument that BMI is inapplicable authority, which the Court rejects for
`all the reasons discussed above, NASCAR primarily raises two arguments in support of allowing
`its claims to proceed to trial. First, it argues at great length that Mr. Polk and others stridently
`promoted the Teams’ joint negotiations and discouraged the Teams from participating in
`individual negotiations. See Doc. No. 249 at 2-15. However, as discussed above , based on
`NASCAR’s documents and testimony there is no genuine dispute that despite Mr. Polk’s urgings
`otherwise, NASCAR had a more than “realistic” opportunity to negotiate with the Teams
`individually. Mr. Polk and others cheerleading for joint negotiations and the joint negotiating
`position is insufficient to establish Section 1 liability. Further, NASCAR has produced no evidence
`that any of the Teams that signed the 2025 Charters (contrary to Polk’s advice and much to his and
`Plaintiffs’ disappointment) agreed to solely pursue the joint terms16 and refused to meaningfully
`negotiate in the individual team negotiations that indisputably occurred.17 Thus, that conclusory
`allegation and NASCAR’s attacks on Mr. Polk do not permit NASCAR to avoid Summary
`Judgment.
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`16 As in BMI and the other cases cited, the fact that the other Teams might have endorsed or even
`preferred the joint terms offered doesn’t aid NASCAR . Those cases didn’t turn on whether the
`antitrust defendants liked their joint offerings more or less than individual licenses, etc. What is
`important is whether the antitrust plaintiff had a realistic opportunity to negotiate individually.
`Here, there was plainly such an opportunity and no evidentiary proof of an agreement otherwise.
`17 NASCAR must establish an unlawful agreement with respect to the joint negotiations beyond
`the Counterclaim Defendants. There is no evidence that Plaintiffs alone have the market power
`required under the Rule of Reason analysis . See Carolina Rest. Grp., Inc. v. Pepsico Sales, Inc .,
`2015 WL 4250395, at *7 (W.D.N.C. July 13, 2015) (“[A] plaintiff must allege facts sufficient to
`show that the defendant has market power.”) Indeed, the fact that the Cup Series proceeded without
`interruption when Plaintiffs did not sign the 2025 Charters like the other Teams strongly suggests
`otherwise. Relatedly, the Court need not and does not reach the question of whether NASCAR has
`sufficiently proven that the Teams collectively possessed the requisite market power.
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`Finally, NASCAR accuses the Teams of participating in an unlawful “boycott” of a Team
`Owners Council (“TOC”) informational meeting in April 2023 that it contends is a per se violation
`of