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CUP: Kentucky Speedway Seeks Another Hearing In Antitrust Case
Kentucky Speedway founders have decided to continue their antitrust lawsuit against NASCAR over its refusal to grant a Sprint Cup date to the track.
Bob Pockrass  | http://www.scenedaily.com  |  Posted December 30, 2009   Charlotte, NC
Today's NASCAR press conference at Kentucky Speedway at 2 p.m. ET. will feature Kentucky governor Steven L. Beshear, SMI Chairman and CEO Bruton Smith and other officials. (Photo: LAT Photographic))
Kentucky Speedway founders have decided to continue their antitrust lawsuit against NASCAR over its refusal to grant a Sprint Cup date to the track. (Photo: Getty Images)

Kentucky Speedway founders have reversed their course and decided to continue their antitrust lawsuit against NASCAR over its refusal to put a Sprint Cup date at the track.

Although co-founder Jerry Carroll said Dec. 18 that the antitrust lawsuit was over, the founders met a Monday night deadline to request another hearing in the case, keeping the lawsuit alive and possibly delaying when the track might eventually get a Sprint Cup date.

The founders are asking for a another hearing in front of a three-judge panel or a hearing in front of all 24 judges in the U.S. Court of Appeals for the Sixth District. A three-judge panel from the district issued an opinion Dec. 11 affirming a district court summary judgment ruling in favor of NASCAR and sister company International Speedway Corp. in the antitrust case.

Related Story: Kentucky Speedway Concedes Court Case

“The panel’s decision undermines decades of established antitrust law … and needlessly increases the burden of enforcing our nation’s antitrust laws,” the founders’ motion says.

The panel based its decision on the fact that the track founders’ experts needed to consider alternative forms of entertainment in trying to prove that NASCAR had a monopoly over a clearly defined market.

The founders’ attorneys argue that the panel erred because previous rulings in other cases indicate no market definition is necessary when evidence of monopoly power exists, that expert testimony is not a requirement to establish a market and that because the customers are race fans, race tracks are the relevant market.

“It is impossible for race tracks to switch to host ‘Bengals or Reds games,’ even though the panel suggested such a switch might be possible for final consumers,” the founders’ motion argues.

The fight in appeals court would determine only whether there is enough evidence for the case to go to trial. A victory by the founders would send the case back to U.S. District Court, and then both sides would prepare for trial.

"Obviously we are surprised they flip-flopped their recent decision to end the case,” NASCAR spokesman Ramsey Poston said in a statement. “However, we remain prepared to continue to fight on behalf of the industry. NASCAR, like other sports leagues, can schedule its events where and when works best for everyone."

If the motion for the rehearing fails, the founders have 90 days to decide to whether to appeal to the U.S. Supreme Court.

“A rehearing is necessary in this case both because of the exceptional public importance of the issues here and because the panel decisions directly conflict with binding authority from this Court and the Supreme Court,” the motion states.

Kentucky Speedway, a 1.5-mile track located about 25 miles south of Cincinnati, opened in 2000 at a cost of $152 million. It was sold to Speedway Motorsports Inc., which is considered a co-conspirator in the case, in a $78.3 million deal completed in December 2008.

While the track was sold to SMI, the Kentucky Speedway founders retained the right to continue the lawsuit, which was filed in 2005 alleging that NASCAR and ISC illegally work together to keep independent tracks from getting Cup events. SMI wants to realign a Cup date to the track, but NASCAR will not consider a request until the lawsuit is resolved.

It appeared that, by Carroll’s remarks Dec. 18, the matter was resolved, but the filing Monday night continues the case.

According to court documents, NASCAR, the sport’s sanctioning body, is owned privately by Jim France, the brother of the late Bill France Jr., and Lesa France Kennedy, daughter of Bill France Jr. and sister of NASCAR Chairman Brian France.

ISC is a publicly traded company, the majority of whose stock is owned by members of the France family. ISC has 19 of the 36 Sprint Cup events at its 12 tracks, while SMI has 12 races at seven tracks. The other five races are held at independent facilities.

Kentucky Speedway’s founders seek in excess of $200 million in damages and are asking for the France family to sell off NASCAR and/or most of its tracks and for new criteria to be created for awarding Sprint Cup race dates.

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