                                                                     [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 07-12299                   AUG 13, 2007
                          ________________________           THOMAS K. KAHN
                                                                 CLERK
                      D. C. Docket No. 07-00623-CV-MSH-1

AT&T MOBILITY, LLC,
f.k.a. Cingular Wireless LLC,

                                                        Plaintiff-Appellee,

                                     versus

NATIONAL ASSOCIATION FOR
STOCK CAR AUTO RACING, INC.,

                                                        Defendant-Appellant,

SPRINT NEXTEL CORPORATION,

                                                        Intervenor-Appellant.

                          ________________________

                  Appeals from the United States District Court
                      for the Northern District of Georgia
                        _________________________

                                (August 13, 2007)

Before EDMONDSON, Chief Judge, CARNES and FAY, Circuit Judges.

FAY, Circuit Judge:
       Appellants, the National Association for Stock Car Auto Racing, Inc.

(“NASCAR”) and Sprint Nextel Corporation (“Sprint Nextel”), appeal the district

court’s order granting Appellee, AT&T Mobility LLC (“AT&T Mobility”), a

preliminary injunction enjoining NASCAR from interfering with the display of the

AT&T logo on the #31 Car in NASCAR Cup Series races. The parties have raised

numerous issues on appeal, including a jurisdictional issue whether AT&T

Mobility has standing to challenge the decision by NASCAR to bar the owner of

the #31 Car, RCR Team # 31, LLC (“RCR”), from displaying the AT&T logo. For

the reasons stated below, we conclude that AT&T Mobility lacks standing to

challenge NASCAR’s decision and therefore, we vacate the district court’s order.

                                     I. BACKGROUND

       Appellant NASCAR is the sanctioning body of stock car racing. Each year,

NASCAR holds 17 of the top 20 attended sporting events in the United States.

NASCAR races are broadcast in over 150 countries to approximately 75 million

fans. NASCAR consists of three major national series as well as eight regional

series and one local grassroots series.1 One of NASCAR's highest profile and




       1
        Many of the facts summarized here are further detailed in the district court’s order. See
AT&T Mobility LLC v. National Ass'n for Stock Car Auto Racing, Inc., 487 F.Supp.2d 1370
(N.D. Ga. 2007).

                                                2
most visible racing series is known as the “Cup Series.”2

       On June 17, 2003, NASCAR and Appellant Sprint Nextel, which is engaged

in the business of providing telecommunications services, entered into the “Nextel

Sponsorship Agreement,” providing that beginning with the 2004 Season, Sprint

Nextel would become the Official Series Sponsor of the NASCAR NEXTEL Cup

Series.3

       The Nextel Sponsorship Agreement granted exclusivity to Sprint Nextel as

the sole telecommunications company sponsoring NASCAR Cup Series races.

Sprint Nextel agreed to pay a publicly reported price of $700 million for its

exclusive sponsorship rights over a 10-year period. To implement Sprint Nextel's

exclusivity, the Nextel Sponsorship Agreement contained, inter alia, a “Category”

definition and a list of “Competitors.” The parties agreed that Sprint Nextel would

receive exclusive sponsorship rights in its Category, which includes wireline and

wireless communications services, including local and long distance services,

wireless services, two-way radio services and associated equipment such as

wireless phones and PDAs (e.g., Palm Pilots).

       2
        From 1972-2003, the series was known as the “Winston Cup Series” and was
sponsored by R.J. Reynolds Tobacco Company.
       3
          The Nextel Sponsorship Agreement was originally executed between NASCAR and
Nextel Communications, which has since merged with Sprint Corporation and changed its name
to Sprint Nextel Corporation.

                                             3
      Sprint Nextel insisted upon exclusivity in its Category of

telecommunications services because it believed that without such rights, a

Competitor might attempt to enter the sport as a sponsor. The Nextel Sponsorship

Agreement defines “Competitor” to include certain designated companies,

including Alltel, AT&T, AT&T Corp., AT&T Wireless, SBC Communications,

BellSouth and Cingular. Under the Nextel Sponsorship Agreement, Competitors

of Sprint Nextel are barred from advertising and sponsorships in connection with

NASCAR Nextel Cup Series events.

      During the negotiation of the Nextel Sponsorship Agreement, Sprint Nextel

became aware that certain Sprint Nextel Competitors already sponsored two racing

teams, including the #31 Car, which since 2001 had been sponsored by Cingular

Wireless LLC. The #31 Car, which races in NASCAR's Cup Series, is owned by

RCR and driven by Jeff Burton. As an accommodation to the racing teams already

sponsored by Sprint Nextel Competitors, NASCAR and Sprint Nextel

incorporated into the Nextel Sponsorship Agreement narrow exceptions to Sprint

Nextel's exclusivity. The Nextel Sponsorship Agreement identified the racing

teams, including RCR’s #31 Car, that under certain terms and conditions would be

permitted by NASCAR to continue their pre-existing sponsorship agreements with

Sprint Nextel Competitors. Pursuant to the provisions of the Nextel Sponsorship

                                         4
Agreement providing narrow exceptions to Sprint Nextel's exclusivity, NASCAR

agreed to take all legally permissible steps to protect Sprint Nextel's exclusivity.

       NASCAR regulates stock car racing through annual contracts between itself

and drivers and car owners, known as “Driver and Car Owner Agreements.”

NASCAR, RCR and Jeff Burton are parties to a 2007 Driver and Car Owner

Agreement (the “RCR Agreement”).4 The RCR Agreement implements the

exclusivity NASCAR granted Sprint Nextel by preventing RCR from, inter alia,

placing Sprint Nextel Competitors’ product or service identifications on the #31

Car. However, an Addendum to the RCR Agreement designed to give effect to the

narrow exceptions envisioned by the Nextel Sponsorship Agreement includes a

grandfather clause that permits RCR to renew its non-complying sponsorship so

long as the sponsor’s brand position is not increased on the #31 Car. In addition,

the grandfather clause provides that in the event the sponsorship relationship with

the Sprint Nextel Competitor is not renewed, RCR will not be permitted to enter

into a subsequent sponsorship agreement with a different Sprint Nextel

Competitor.5

       4
         Since at least 2004, NASCAR and RCR have executed materially indistinguishable
annual agreements.
       5
         On April 4, 2005, in response to marketplace rumors concerning mergers in the
telecommunications industry, NASCAR sent a letter to RCR clarifying that in the event Cingular
Wireless LLC’s name changed, NASCAR interpreted the grandfather clause as prohibiting any

                                              5
       Appellee AT&T Mobility is a limited liability company formerly known as

Cingular Wireless LLC (“Cingular”) whose members are subsidiaries of AT&T

Inc. and BellSouth Corporation. Since 2001, when it entered into its first

sponsorship agreement with RCR (the “Cingular Sponsorship Agreement”),

Cingular has been the primary sponsor of the #31 Car.6 Pursuant to the Cingular

Sponsorship Agreement, the #31 Car originally featured the Cingular brand and

logo as part of its paint scheme. However, on December 29, 2006, AT&T Inc.

merged with BellSouth Corporation. In connection with the merger, Cingular

changed its name to AT&T Mobility LLC and is currently transitioning its trade

name, brand, and logos from “Cingular Wireless” to “AT&T.”

       On January 4, 2007, after the merger of AT&T Inc. and BellSouth

Corporation, RCR submitted for NASCAR’s approval a paint scheme for the #31

Car that, while maintaining the Cingular Wireless logo on the hood of the car,

introduced the AT&T logo on the rear quarter panel. On January 16, 2007,

NASCAR rejected RCR’s proposed change to the paint scheme basing its decision

on its belief that the Sprint Nextel Sponsorship Agreement prohibited the display

of the AT&T logo and that RCR’s grandfather right pursuant to the Addendum in

paint scheme or branding on the #31 Car that promoted this new name or a new third party.
       6
          The original Cingular Sponsorship Agreement expired in 2004, but was renewed by the
parties and is set to expire in December 2010.

                                              6
the RCR Agreement applied only to the Cingular logo.

      On March 26, 2007, AT&T Mobility filed an amended complaint against

NASCAR setting forth claims for, inter alia, breach of the RCR Agreement and

breach of the implied covenant of good faith and fair dealing. AT&T Mobility

also sought a declaratory judgment from the district court that it could place the

name, brand, logos, and marks of its choosing on the #31 Car, driver uniforms,

helmets, and in all merchandising and licensing rights, including a change of its

name, brand, logos, and marks to “AT&T.” In addition, AT&T Mobility requested

a preliminary injunction enjoining NASCAR from interfering with its right to

place its name, brand, logos, and marks on the #31 Car. On May 18, 2007, the

district court concluded that AT&T Mobility had standing as a third party

beneficiary of the RCR Agreement to sue NASCAR and granted the requested

preliminary injunction.

                                  II. DISCUSSION

      We generally review a district court’s order of a preliminary injunction with

deference, reversing only in the event of an abuse of discretion. See Delta Air

Lines, Inc. v. Air Line Pilots Ass'n, Intern., 238 F.3d 1300 (11th Cir. 2001) (“[T]he

grant of permanent injunctive relief is generally reviewed for an abuse of

discretion.”); Cumulus Media, Inc. v. Clear Channel Communications, Inc., 304

                                          7
F.3d 1167 (11th Cir. 2002) (noting the “trial court is in a far better position . . . to

evaluate that evidence, and we will not disturb its factual findings unless they are

clearly erroneous.”); but see Solantic, LLC v. City of Neptune Beach, 410 F.3d

1250, 1253 (11th Cir. 2005) (“We review the district court's . . . application of the

law de novo, premised on the understanding that application of an improper legal

standard is never within a district court's discretion.”).

      Standing, however, “is a threshold jurisdictional question which must be

addressed prior to and independent of the merits of a party's claims.” Dillard v.

Baldwin County Comm'rs, 225 F.3d 1271, 1275 (11th Cir. 2000); EF Hutton &

Co., Inc. v. Hadley, 901 F.2d 979, 983 (11th Cir. 1990). In fact, we are obliged to

consider standing sua sponte even if the parties have not raised the issue because

an appellate court “must satisfy itself not only of its own jurisdiction, but also of

that of the lower courts in a cause under review.” Bochese v. Town of Ponce Inlet,

405 F.3d 964, 975 (11th Cir. 2005); see also Florida Ass'n of Med. Equip. Dealers

v. Apfel, 194 F.3d 1227, 1230 (11th Cir. 1999) (stating that “every court has an

independent duty to review standing as a basis for jurisdiction at any time, for

every case it adjudicates.”). As with all jurisdictional issues, this Court reviews

standing de novo. See, e.g., McKusick v. City of Melbourne, Fla., 96 F.3d 478,

482 (11th Cir. 1996); Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 408 (11th

                                            8
Cir. 1999).

       For AT&T Mobility to have standing to challenge NASCAR’s decision

under the RCR Agreement to prohibit the display of the AT&T logo on the #31

Car, it must establish that it has suffered an injury in fact. See Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) . To

establish injury in fact, AT&T Mobility must first demonstrate that NASCAR has

invaded a “legally protected interest” derived by AT&T Mobility from the RCR

Agreement between NASCAR and RCR. See Dillard, 225 F.3d at 1275 (11th Cir.

2000) (quoting Lujan, 504 U.S. at 560-61).

      The question of whether, for standing purposes, a non-party to a contract

has a legally enforceable right is a matter of state law. See, e.g., Miree v. DeKalb

County, 433 U.S. 25, 29-33, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977) (holding that,

even when the United States was a party to the contracts at issue, “whether

petitioners as third-party beneficiaries of the contracts have standing to sue” was a

question of state law, not of federal common law); see also Osman v. Hialeah

Hous. Auth., 785 F.2d 1550, 1550 (11th Cir. 1986) (observing that whether a

plaintiff has a constitutionally protected property interest in an employment




                                          9
contract is a question of state law).7

       Notwithstanding AT&T Mobility’s status as a non-party to the RCR

Agreement, Georgia law permits a “beneficiary of a contract made between other

parties for his benefit [to] maintain an action against the promisor on the contract.”

GA. CODE ANN. § 9-2-20(b) (West 2007). However, in order for a third party to

have standing to enforce a contract under section 9-2-20(b) of the Georgia Code, it

must clearly appear from the contract that it was intended for his benefit. Danjor

v. Corporate Constr., Inc., 613 S.E.2d 218, 220 (Ga. Ct. App. 2005); Rowe v. Akin

& Flanders, Inc., 525 S.E.2d 123, 125 (Ga. Ct. App. 1999); Backus v. Chilivis,

224 S.E.2d 370, 372 (Ga. 1976).

           We disagree with the district court’s conclusion that the RCR Agreement

on its face illustrates an intention by NASCAR and RCR to benefit Cingular (now

AT&T Mobility). A third party beneficiary need not be specifically named in the

contract, but the parties' intention to benefit the third party must be evident from

the face of the contract. See Northen v. Tobin, 585 S.E.2d 681 (Ga. Ct. App.

2003); Plantation Pipe Line Co. v. 3-D Excavators, Inc., 287 S.E.2d 102 (Ga. Ct.

App. 1981). The RCR Agreement clearly did not require RCR to renew its


       7
         The district court in its order and the parties on appeal have elected, without a choice-
of-law analysis, to rely on Georgia law. We therefore apply Georgia law in reaching our
conclusion.

                                                10
sponsorship with Cingular. In fact, under the RCR Agreement, RCR was free to

seek the sponsorship of any company not included within the narrow universe of

Sprint Nextel Competitors as defined by the Sprint Nextel Sponsorship

Agreement. The Addendum to the RCR Agreement was intended to protect RCR

from the potential harm caused by a sudden loss of sponsorship due to Sprint

Nextel’s exclusivity. Any benefit to Cingular (now AT&T Mobility) resulting

from NASCAR’s commitment to grant RCR the option to continue and renew its

sponsorship agreement was merely incidental to NASCAR’s intended purpose of

preserving RCR’s choice of sponsorship. The mere fact that Cingular (now AT&T

Mobility) would “benefit incidentally from performance of the agreement is not

alone sufficient.” Danjor, 613 S.E.2d at 220.

      That the RCR Agreement limited RCR’s options with respect to seeking a

new sponsor in the telecommunications industry is insufficient evidence of an

intention to make Cingular (now AT&T Mobility) an intended beneficiary of the

RCR Agreement. The Addendum to the RCR Agreement prevented RCR from

allowing Cingular to increase its brand position on the #31 car or executing a new

sponsorship agreement with another Sprint Nextel Competitor. Any effect these

limitations had in persuading RCR to keep Cingular (now AT&T Mobility) as its

sponsor was incidental to the intended purpose of providing RCR the option to

                                        11
renew its current sponsorship if, and only if, it elected to do so, and freezing the

status quo with respect to the sponsorship of racing teams by Sprint Nextel

Competitors. Consequently, we are unable to see how the parties could have

intended these sponsorship guidelines to produce anything more than an incidental

benefit to Cingular (now AT&T Mobility).

      Further, we are unable to conclude that in executing the RCR Agreement

NASCAR promised to render any performance to Cingular. Georgia law is clear

that there must be “a promise by the promisor to the promisee to render some

performance to [the] third person, and it must appear that both the promisor and

the promisee intended that the third person should be the beneficiary.” Danjor,

613 S.E.2d at 220. The promisor NASCAR made a promise only to the promisee

RCR to preserve and protect RCR’s sponsorship agreement with Cingular

notwithstanding the exclusivity granted to Sprint Nextel. RCR was the intended

beneficiary of that promise, not Cingular. Nothing in the RCR Agreement

required NASCAR to ensure that RCR continued with Cingular as its sponsor.

RCR had the option to discontinue or elect not to renew its sponsorship agreement

with Cingular, and NASCAR assumed no duty to preserve or protect Cingular’s

(or any of its successor’s) rights in the event RCR exercised that option.




                                          12
      NASCAR’s admission that RCR may continue to display the branding of

“Cingular” despite its status as a Sprint Nextel Competitor is inapposite to the

question of whether Cingular (now AT&T Mobility) is an intended third party

beneficiary of the RCR Agreement. NASCAR’s admission is simply evidence of

its recognition of RCR’s right pursuant to the RCR Agreement to continue its

current sponsorship, combined with a statement of which logos NASCAR believes

RCR is permitted to display pursuant to the RCR Agreement.

      The mere fact that RCR has opted to exercise its right to retain Cingular as

its sponsor does not convert that option into a “legally protected right” for

Cingular or AT&T Mobility under NASCAR’s agreement with RCR. RCR’s

absolute discretion under the RCR Agreement to retain Cingular as its sponsor,

and NASCAR’s lack of a role in RCR’s decision, foreclose the possibility that

Cingular or AT&T Mobility is a third party beneficiary of such agreement. It is

well settled that a “plaintiff generally must assert his own legal rights and

interests, and cannot rest his claim to relief on the legal rights or interests of third

parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975); see also Miccosukee Tribe of

Indians of Florida v. Florida State Athletic Com'n, 226 F.3d 1226, 1230 (11th Cir.

2000) (“Absent exceptional circumstances, a third party does not have standing to

challenge injury to another party.”).

                                           13
      Because Cingular (now AT&T Mobility) was neither a party to nor an

intended beneficiary of the RCR Agreement, it has not itself suffered a legally

cognizable injury as a result of NASCAR’s interpretation of the Addendum to the

RCR Agreement. Thus, even though it might benefit collaterally from an

interpretation of the RCR Agreement that is inconsistent with NASCAR’s

position, AT&T Mobility lacks standing to enforce its interpretation of the RCR

Agreement.

                                III. CONCLUSION

      We conclude that under Georgia law AT&T Mobility was not a third party

beneficiary of the RCR Agreement executed between NASCAR and RCR and, as

a result, AT&T Mobility lacks standing to challenge NASCAR’s interpretation of

that agreement. Therefore, the district court’s preliminary injunction is

VACATED and the matter is REMANDED for dismissal.




                                         14
