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False facts NASCAR asks for dismissal of Texas lawsuitPosted: Thursday April 11, 2002 10:48 AMSHERMAN, Texas (AP) -- NASCAR has asked a judge to dismiss a lawsuit that claims the stock car association has illegally withheld a second Winston Cup date from the Texas Motor Speedway. In the motion, filed in federal court, attorneys for NASCAR attack all counts of the lawsuit filed by Francis Ferko of Plano, a shareholder in Speedway Motorsports Inc. -- the company that owns and operates TMS. NASCAR contends that many of Ferko's "factual allegations" are false and that -- none of the claims has substantive merit, but even as a matter of pleading, they are so fatally deficient the court can dismiss them now. NASCAR says its sanctioning agreements with SMI contain clauses:
The motion also say the charge of NASCAR's holding a monopoly fails because Ferko did not "allege antitrust injury that results from the alleged monopoly"; that NASCAR and International Speedway Corp. did not conspire to withhold dates from non-ISC racetracks; and that Ferko failed to prove that NASCAR keeps SMI from securing "non-NASCAR sanctioned races." The strongest claims of the motion center around the promise of the second Cup race that Ferko claims NASCAR made to SMI. NASCAR emphasizes that SMI "entered into express, written agreements" ... with NASCAR that bar all of "Ferko's common-law claims." Through the sanction agreements, NASCAR says it awarded SMI a Cup race each year from 1997 to 2002, and each agreement says: "Nothing in this agreement, or in the course of dealing between the parties, will be construed to require promoter Texas Motor Speedway or NASCAR to enter into a sanction agreement or to issue a sanction agreement or to issue a sanction for the event or any other event in the future." The agreements, NASCAR says, contain clauses that void previous "communications and negotiations between NASCAR and promoter, whether oral or written." Furthermore, NASCAR says, SMI "well understood" the agreements because the Bruton Smith-owned company filed documents with the SEC that said: "Each NASCAR event license is awarded on an annual basis" and that "NASCAR is under no obligation to continue to license SMI to sponsor any event." "In short," the motion says, "in each and every year relevant to Mr. Ferko's claim, SMI and NASCAR expressly agreed in writing that the course of dealing between them did not require NASCAR to provide a second date to the Texas Motor Speedway during that year or any future year." Samuel A. Cherry, lawyer for Ferko, could not be reached at his office in Dothan, Ala. Cherry said Saturday at TMS that he expected NASCAR to file a motion to dismiss.
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