Kentucky Speedway co-founder worried appeal to Supreme Court would keep track off 2011 Sprint Cup schedule

By Bob Pockrass

Friday, March 05, 2010

Bruton Smith (left) and Jerry Carroll.

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HAMPTON, Ga. – Kentucky Speedway is in jeopardy of having to wait until 2012 for a Sprint Cup race if a request for the U.S. Supreme Court to consider the case is made, track co-founder Jerry Carroll said in court documents Thursday as well as in a phone interview Friday.

The founders, who are split on how to proceed, have until May 19 to make an appeal to the Supreme Court in their antitrust case against NASCAR and International Speedway Corp.

With 30 days allotted for a response and 10 more days allotted for a reply, there would not be enough time for the case to get on the calendar before the Supreme Court’s July-September break if both sides wait until the dates their briefs are due to file them.

NASCAR officials have consistently said they would not consider a request from current track owner Speedway Motorsports Inc. to realign a date to Kentucky as long as the antitrust litigation is pending, and NASCAR likely would not wait until October before determining whether Kentucky would get a 2011 Cup date. NASCAR typically begins working on the schedule in April and has it set by July or August.

“It will stretch [to October], no doubt about it, if we let it go,” Carroll said Friday. “There’s no way we can get any kind of decision [on a Cup date] until 2012. Of course, NASCAR could do whatever they want.”

But NASCAR has been steadfast that it wants the case – filed in 2005 – completed before considering realignment. In January 2008, a U.S. District Court judge granted a motion for summary judgment in favor of NASCAR and ISC, and a U.S. Appeals Court panel affirmed that decision last December. The track founders’ only appeal left is to the Supreme Court, and if they win that appeal, the case would be sent back to U.S. District Court for trial.

Carroll, the managing partner of the founders, does not want to appeal to the Supreme Court, but co-founder Richard Duchossois has sued Carroll in federal court claiming that Carroll needs 75 percent of the founding group’s support in deciding whether an appeal is made to the Supreme Court. Carroll said Friday that while he still believes in the case, the majority of the founding group wants the case to end and he claims in court documents he has the authority to make that decision.

“We do not think we were wrong in what we were doing, but my feeling is doing something that is right at the right time,” Carroll said in the phone interview Friday. “Sometimes you have got to make decisions that play better for the overall picture in the economic development of a state such as Kentucky than your own well being in a way.

“I would like to see us move along now. … The odds are long [with the Supreme Court] that they would take this case. You weigh out the two things – whether the race will come or you play these tremendous odds.”

SMI will owe the track co-founders $7.5 million once a Cup date is awarded to the track, and SMI Chairman Bruton Smith has been asking Duchossois to drop the suit for more than a year. Carroll’s attorneys warned in a Feb. 24 letter to the track attorneys that “there is a genuine risk that if this litigation remains pending, no race will ever be scheduled, the $7.5 million will never be paid, and SMI will pursue litigation to recover the damages it will have sustained. This entirely plausible scenario would be disastrous for all of our clients.”

Kentucky Speedway, located about 25 miles south of Cincinnati, opened in 2000 at a cost of $152 million, and without being awarded a Cup date, the founders sued in 2005 alleging that NASCAR and ISC illegally conspire to keep independent tracks from obtaining Cup races. The facility was sold to SMI, which is considered a co-conspirator in the case, in a $78.3 million deal completed in December 2008.

Carroll reiterated his feeling that Smith should be allowed to move the race regardless of the lawsuit. Smith has not said which of his tracks would lose the Cup date.

“I see no reason whatsoever that Bruton Smith can’t move the race next year whether the lawsuit is on or not,” Carroll said in the phone interview. “But that is not the point to me [in this case]. It’s time now to do what I think is the thing to do – the odds of making this happen [through the courts] in our favor are insurmountable, and I hate to say that because we are absolutely correct in what we tried to do.

“What we tried to do was bring a race and what’s going to happen in Kentucky? A race is coming.”

Carroll and the other Kentucky Speedway founders sought more than $200 million in damages and are asking for the France family, which controls both NASCAR and ISC, to sell off NASCAR and/or most of its tracks and for new criteria to be created for awarding Sprint Cup race dates.

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.