Michael Jordan never shot 0-for-15 in an NBA game, but the U.S. Court of Appeals for the Fourth Circuit on Wednesday delivered something akin to that. A brief order rejected a petition for rehearing en banc filed by 23XI Racing, which Michael Jordan co-owns with Denny Hamlin, and Front Row Motorsports.
“The court denies the petition for rehearing and rehearing en banc,” the statement by clerk Nwamaka Anowi read. “No judge requested a poll under Fed. R. App. P. 40 on the petition for rehearing en banc.”
Last month, a three-judge Fourth Circuit panel (Judges Steven Agee, Stephanie Thacker and Paul V. Niemeyer) unanimously held against 23XI and Front Row when the panel vacated a preliminary injunction issued last December by U.S. District Judge Kenneth D. Bell. The injunction required NASCAR to offer 23XI and Front Row the same terms offered to charter teams without the two teams having to sign mutual releases of claims. The panel reasoned Bell’s injunction was unsupported by applicable legal precedent.
As Sporticodetailed, a petition for a rehearing en banc was among the longest of long shots. Data indicates rehearings en banc are only granted about 1% of the time, and the odds are especially bad when—as here—none of three panel judges offered a dissenting viewpoint. Under Fourth Circuit appellate procedures), a majority of active judges must vote in favor of holding a rehearing for it to be held. There are 15 active judges on the Fourth Circuit, and according to Anowi’s statement, none of the 15 requested a poll of judges.
To be clear, vacating the injunction doesn’t mean 23XI and Front Row will lose their antitrust lawsuit; a jury trial is scheduled for December. The winner and loser of a motion for an injunction regards related, but distinct, topics from the legal issues that would be presented in a trial.
In a statement shared with the media on Monday, 23XI and Front Row attorney Jeffrey Kessler said he was “disappointed” by the Fourth Circuit’s decision but stressed it “has no bearing on the strength of our antitrust case, which we look forward to presenting at trial.” He added he and his group “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.”