Former NBA executive Jeffrey Mishkin, one of the most prominent sports attorneys in recent decades, has been tapped to mediate the antitrust litigation involving 23XI Racing, Front Row Motorsports, NASCAR and CEO Jim France. Michael Jordan and Denny Hamlin own 23XI Racing.

According to court records, the parties notified U.S. District Judge Kenneth D. Bell last week they had agreed on a mediator, and their pick is Mishkin. In December, Bell ordered the parties to conduct a mediation and for it to occur no later than Sept. 24, 2025. The judge also ordered them to pick a mediator by Jan. 31, 2025. A 10-day jury trial—which would center on whether NASCAR uses monopoly power to suppress competition in ways that limit economic opportunities for premier stock car racing—is scheduled to begin in December.

Bell directing 23XI Racing, Front Row Motorsports, NASCAR and France to mediation reflected his reasoning that they might be better off striking a deal instead of taking their chances in court. He noted that through a settlement, “the parties can avoid the ongoing costs and risks inherent in litigation.” Bell added that “in a settlement the parties can agree on equitable or business solutions or accommodations different than or beyond those” that he or a jury might order. To those ends, Bell ordered the parties to conduct settlement talks and to try mediation.

Mediation is a confidential dispute-resolution process. Unlike arbitration, mediation is non-binding. The parties submit written materials and appear before the mediator in a setting less formal and more conversational than a court proceeding. At the conclusion of mediation, the mediator will propose a solution. The solution only becomes binding if all the parties agree and, here, if Bell signs off. At a minimum, mediation compels the parties to discuss a resolution and allows a neutral party to suggest how they can end their dispute.

Mishkin, who works at Phillips ADR Enterprises (PADRE), is uniquely well-positioned to handle this particular sports and antitrust dispute. He served as executive vice president and chief legal officer of the NBA during the 1990s. During that time, he led the NBA’s position in Williams v. NBA, where in 1995 the U.S. Court of Appeals for the Second Circuit deemed the NBA’s salary cap satisfied legal scrutiny since it was borne through league-union bargaining. Five years later, Mishkin joined Skadden, Arps, where, in addition to leading the firm in antitrust and intellectual property cases, he represented the NBA as its chief outside counsel. Mishkin played a crucial role in the NBA’s collective bargaining with the NBPA and in the league banning Los Angeles Clippers owner Donald Sterling over his racist comments. 

One of Mishkin’s old adversaries was Jeffrey Kessler, who represented the NBPA and players in legal matters with the NBA. Kessler is now leading the litigation for 23XI Racing and Front Row Motorsports. Although Mishkin and Kessler were often on opposite sides, the two men have indicated mutual respect. In 2021, Kessler told Sportico that although Mishkin had been an “adversary,” they worked together sometimes and that Mishkin served as an arbitrator in one matter. “In each role,” Kessler said, “[Mishkin] has displayed brilliance as a sports lawyer and balanced judgment.”

Mishkin’s work with the NBA also occurred while Jordan held starkly different roles with respect to the league. Mishkin was an NBA executive while Jordan was the league’s best player, and while Mishkin served as chief outside counsel, Jordan joined the club of NBA owners by purchasing the then-Charlotte Bobcats.

So far in the NASCAR litigation, Kessler and his clients have held the upper hand. But there’s no guarantee they’ll win a trial. 

Last December, Bell granted an injunction that allows the teams to compete as charter teams without forgoing legal claims and restrained NASCAR from blocking Front Row’s purchase of a Stewart-Haas Racing charter. NASCAR has appealed Bell’s granting of an injunction to the U.S. Court of Appeals for the Fourth Circuit, which is scheduled to hear oral arguments in May. 

A mediator of Mishkin’s stature and expertise might see a way the parties can end their dispute amicably. Time will tell if that proves the case.