23XI Racing, Front Row Motorsports face prospect as open teams after Appeals Court order

23XI Racing and Front Row Motorsports could lose their charter status and race as open teams as soon as next week at Dover Motor Speedway after the Fourth Circuit Court of Appeals denied their request for a rehearing Wednesday.

The most significant aspect of the decision is that as open teams, 23XI Racing — co-owned by Denny Hamlin and Michael Jordan — and Front Row Motorsports would receive significantly less money per race compared to charter teams. They also would not be guaranteed starting spots. However, there is not likely to be more than a full field of cars for many of the upcoming races.

“We are disappointed by the Fourth Circuit Court of Appeals decision to deny our request for a full rehearing,” Jeffrey Kessler, attorney for 23XI Racing and Front Row Motorsports, said in a statement.

“This decision has no bearing on the strength of our antitrust case, which we look forward to presenting at trial. We are committed to racing this season as we continue to fight for more competitive and fair terms for all teams to ensure the future of the sport, and remain fully confident in our case.”

Kessler’s statement reaffirms what Hamlin told reporters June 7 at Michigan about 23XI Racing continuing to compete this season even if it became an open team.

“Same as what we said in December is that we’re committed to run this season open if we have to, even before they decided on the injunction,” Hamlin said then. “So we’re going to race and fulfill all of our commitments no matter what. We’re here to race. Our team is going to be here for the long haul and we’re confident of that.”

Hamlin’s comments came after a three-judge appellant panel vacated a preliminary injunction order June 5 that allowed 23XI Racing and Front Row Motorsports to run as chartered teams even though they did not sign the charter agreement last year.

RFK Racing’s Chris Buescher has scored three consecutive top-five finishes at Sonoma Raceway.

The teams requested a rehearing June 20 from the full Fourth Circuit Court of Appeals. Had 23XI Racing and Front Row Motorsports not done so, the decision by the three-judge panel would have gone into effect a week later.

With Wednesday’s order, the appellant panel’s decision to vacate the preliminary injunction would go into effect next week — meaning the six cars of 23XI Racing and Front Row Motorsports could lose their charter status ahead of the July 20 Dover race.

23XI Racing has chartered teams for Tyler Reddick, Bubba Wallace and rookie Riley Herbst. Front Row Motorsports has chartered cars for Todd Gilliland, Zane Smith and Noah Gragson.

“We’re all just focused on our jobs and allowing the lawyers to kind of take care of that side,” Smith said in response to a question from NBC Sports on Wednesday afternoon. “We’re racers, not lawyers. I don’t know anything about that so I’m not going to act like I do. We’re excited to compete.

“With this charter change, we often don’t see 40-plus cars (per race) so I don’t know what it will look like … but I know I’ll still have the same tools every Saturday for practice and qualifying and same for the race and my seat is not going to change. Just trying to stack up some good runs and hopefully get (Front Row Motorsports car owner) Bob Jenkins a win here shortly.”

This will mark the second year in a row that the exhibition event will be held at the historic track.

23XI Racing and Front Row Motorsports sought the injunction last year to run as charter teams despite not signing the charter agreement as 13 other Cup organizations did.

23XI Racing and Front Row Motorsports didn’t sign the charter agreement because a clause in it that prohibited teams from suing NASCAR. The two teams stated that if they could not run as chartered teams they faced the possibility of losing sponsors and drivers.

In his argument for the preliminary injunction last November, Kessler stated in court, referring to Reddick: “So right here, for example, 23XI has a driver who might be the champion this year. He will be in the finals next week. Says if we do not have a charter, he is free to leave. He could be the number one driver. We will never be able to get him back if we do not have a charter.”

U.S. District Court Judge Kenneth D. Bell granted the preliminary injunction on Dec. 18, stating in his opinion that “NASCAR fans (and members of the public who may become fans) have an interest in watching all the teams compete with their best drivers and most competitive teams.”

The three-judge federal appellate panel gave an indication its decision was likely during a May 9 hearing. One of the judges stated in the hearing: “If you don’t want the contract, you don’t enter into it and you sue. Of if you want the contract, you enter into it and you’ve given up past releases. But … you can’t have your cake and eat it too.”

This matter is only a part of the lawsuit 23XI Racing and Front Row Motorsports filed against NASCAR and NASCAR CEO Jim France. The case is scheduled to go to trial Dec. 1.