For the last two years, the topic of racetrack bans against trainers has been widely discussed among people who are both fans of horse racing and legal minutiae. The subject was a focus of one session at the recent Racing And Gaming Conference at Saratoga, where four attorneys examined the question of how these exclusions work, and how the Horseracing Integrity and Safety Authority may change them in the future.
The question of whether or not a racetrack can ban a trainer on the basis of its private property rights has become one of greater interest since Churchill Downs and the New York Racing Association chose to exclude trainer Bob Baffert after Medina Spirit's positive drug test in the 2021 Kentucky Derby.
Historically speaking, it's uncommon for a racetrack to choose this course of action, according to panelist Alan Foreman, who is chairman and CEO of the Thoroughbred Horsemen's Association and general counsel to the Maryland THA.
“It very rarely happens and it's usually done for political purposes,” said Foreman. “Most of them were reactions to media coverage or public interest in the image of the industry, so tracks would act out. Typically a track, if they wanted to exclude somebody but they knew what the implications of that would be, they'd call the trainer and say, 'Look, you've got to get out of here. We're not going to say anything but you go somewhere else. We don't want you here.' … That was part of the undercurrent for why we have HISA, because bad actors were going around to other places.”
Like almost anything else in horse racing, private property exclusions are not handled uniformly around the country.
“Exclusion at racetracks depends on what jurisdiction you're in,” said panel moderator Bennett Liebman, government lawyer in residence at Albany Law School in New York. “At some racetracks it's virtually impossible to exclude licensees. Traditionally that's been the case in Louisiana. In others it's been fairly easy, such as Ohio. It can even vary within the jurisdiction. It's extremely difficult and time-consuming, although not impossible as we've seen, for NYRA to exclude a licensee but it's far easier for the New York harness tracks to exclude licensees.”
Foreman recalled the landmark Maryland case of trainer Nick Lemberos, who he described as a “thorn in the side” of racetracks in the state. Lemberos applied for stalls at Timonium and was granted a single stall, and was then told to vacate the stalls he had at Laurel. Lemberos moved his horses to the receiving barn and when the stewards suspended him, he sued seemingly everyone – the state commission, the stewards, the racetracks, and a number of individuals. His argument was that he was entitled to a due process hearing from the racetrack before the property could exclude him, because the trainer's license he'd been issued by the state gave him a right to be on the property. Because he didn't get a due process hearing, he believed he was not only entitled to an injunction against the ban but to damages.
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If you appreciate our work, you can support us by subscribing to our Patreon stream. Learn more.The judge applied two tests to the case to determine whether Lemberos had a valid point, analyzing the history of racing and racetracks in Maryland to understand the relationship between the facilities and the state regulators
“They ended up concluding there was no relationship that would cause the track owners to be what are called state actors,” said Foreman, which upheld the track's right to exclude the trainer.
The court did find that the stewards should have given the Lemberos a hearing before suspending him, however.
In subsequent cases about private property exclusions, similar questions have been posed about whether a racetrack may be considered an agent of the state. Several panelists expressed surprise that in the case between Bob Baffert and NYRA, the racing organization didn't offer him a due process hearing at the jump to avoid the inevitable legal argument about it later. Liebman believes that, since a judge required this process take place in the Baffert case, NYRA will probably be less likely to take action against other licensees in the future, now that it understands how time-consuming and complicated the hearing process would be.
None of the panelists were sure how the implementation of HISA would change the ability or interest of tracks to exclude trainers.
“I think HISA takes the position that as it relates to medication, safety and welfare, which is their space, that they preempt state law, so therefore the track does not have the right of exclusion,” said Foreman. “I'm not sure that's a correct interpretation.”
Regardless, Foreman believes that national, uniform regulation via HISA may, in some cases, negate tracks' appetite to take similar actions to the Baffert case.
“At the time of the Baffert case there was extraordinary frustration among a number of track owners that the regulatory system was not dealing with frequent violators,” said Foreman.
Before the Baffert exclusion, trainer Jerry Hollendorfer was excluded from Stronach Group racetracks after the ownership group noted concerns about the number of catastrophic breakdowns his barn experienced during the Santa Anita fatality spike in 2019. It remains unclear, Foreman said, whether HISA would or could initiate a similar action against Hollendorfer were the same situation to occur today.
Louis Trombetta, executive director of the Florida Gaming Control Commission, expressed concern about whether exclusion was still an option in cases where HISA is taking enforcement action. As has been previously reported, trainers on provisional suspension by HISA see no change to their state license status and can still access the backstretch, although they're not allowed to enter their horses in races.
“We're worried about how someone who is suspended under HISA would be treated if we were worried about them being a paper trainer and HISA wasn't taking care of it,” said Trombetta. “That's a situation where, in the past, we might look towards exclusion in that type of case.”
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