ITHA vs. Arlington to Federal Court

A $775,000 purse account dispute between the Illinois Thoroughbred Horsemen's Association (ITHA) and Arlington International Racecourse, LLC, that has simmered for over half a year got escalated to federal court Wednesday.

The ITHA is alleging a purse account underpayment in 2021 from now-defunct Arlington and a breach of contract triggered by Arlington's refusal to hand over the money once it became known the property was scheduled to be sold and that no racing would occur there in 2022.

Asked for comment via email late Wednesday afternoon, Arlington president Tony Petrillo wrote, “I haven't heard of this matter.” TDN then provided Petrillo with a copy of the lawsuit and gave him an hour to digest it, but did not receive a further reply prior to deadline for this story.

However, Churchill Downs Inc. (CDI), the Kentucky gaming corporation that owns Arlington, had stated in a March 23, 2022, letter to the ITHA that an overpayment actually occurred last racing season, and that any additional purse-account revenues that did accrue via simulcasting after the race meet ended in September don't have to be delivered to the horsemen just yet.

A chunk of this dispute hinges on how the two long-time adversarial entities define the word “track” as it appears in the contract they inked for the 2020-21 race meets.

“The term 'TRACK' as used in the Agreement refers to the entity Arlington Park Racecourse, LLC, not the physical racetrack itself,”  wrote Joseph Quinn, CDI's corporate counsel. “Arlington is actively pursuing additional horse racing opportunities in the State of Illinois. Until Arlington knows that it will not hold a future succeeding Race Meeting, it is not required to deliver the amounts held in the purse account to the ITHA.”

Quinn's letter to the ITHA then included this stunner: CDI wants the horsemen to pay $150,000 toward the purse account, “as required under the agreement”-even though Arlington missed the deadline for applying for 2022 dates at any Illinois location more than eight months ago.

The ITHA, in its Apr. 20 civil complaint filed in United States District Court (Northern District of Illinois, Eastern Division), disputed the points made by CDI in the Mar. 23 letter and framed the situation like this:

“The parties negotiated specific terms regarding any 'underpayment' of purses to address the possibility that Arlington would not be holding races at the Arlington Park racetrack in 2022….

“The contract provided that if Arlington underpaid purses in any amount during 2021, the underpayments would be 'carried forward and added to Purses for distribution at the next succeeding Race Meeting at TRACK.'”

“The contract further provided that 'if no such succeeding Race Meeting takes place, Arlington 'will deliver to ITHA the amount of the underpayment as soon as it is known that there will be no such Race Meeting…'”

Notwithstanding “multiple written requests” to deliver the money, the ITHA is alleging that Arlington and CDI are still refusing to pay.

“It has been known for many months that Arlington Park has sadly hosted its last horse race,” the complaint stated. “As has been widely reported and acknowledged, Arlington, LLC, and/or CDI has agreed to sell the Arlington Park property to the Chicago Bears.

“There will be no succeeding race meeting at Arlington Park in 2022. Indeed, there will be no such race meeting in 2022 at any venue operated by Arlington, LLC, in Illinois….

Arlington, LLC, has no plans to conduct a race meeting in Illinois at any time in the foreseeable future.”

With regard to CDI's “reminder” in the Quinn letter for the ITHA to pay the $150,000 to the purse account, the complaint stated that CDI has both the purpose of the payment and the financial calculations wrong.

According to the ITHA, the contract “provided that if certain conditions were met with respect to the purses”  the ITHA would “contribute $150,000 to purses for Illinois-restricted stakes races.”

CDI's Mar. 23 request instead asked for that money to be paid “to the purse account.”

“Arlington's own accounting of the purse account balance from 2021 (more than $775,000) already reflects a $150,000 reduction in the underpayment,” the complaint stated.

“In other words, if ITHA were to send Arlington, LLC, a check for $150,000 today, the result would be that the already-substantial underpayment of approximately $775,000 (money to which ITHA is legally entitled) would grow by $150,000 to approximately $925,000.

“By the time Arlington, LLC, requested that ITHA make a payment to the purse account, Arlington, LLC, was already in material breach of the parties' agreement,” the complaint stated.

With regard to CDI's assertion that it is searching for an alternate Illinois location at which to apply for a license to stage races, the ITHA's complaint stated this:

“While Arlington, LLC's, letter claims that it is 'actively pursuing additional horse racing opportunities in the State of Illinois,' Arlington, LLC, has never identified any such opportunities, even when pressed to do so by the Illinois Racing Board.”

The ITHA's suit seeks a declaration that Arlington has breached the contract, all allegedly outstanding purse amounts, plus damages in an amount to be established at trial.

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CDI: Baffert’s Derby Lawsuit a ‘Manufactured Emergency’

The gaming corporation that owns Churchill Downs told a federal judge in a late-night Tuesday court filing that Bob Baffert's lawsuit to try and get his private-property banishment and exclusion from the GI Kentucky Derby lifted would not only harm the corporation's portfolio of tracks, but would hurt the owners and trainers of other horses who have rightfully earned Derby berths but would be precluded from entering if the court rules they had to be pushed off the qualifying list to make room for the barred trainer.

“This lawsuit is Bob Baffert's latest attempt to evade responsibility for his wrongdoing,” stated the Mar. 29 filing by Churchill Downs Incorporated (CDI), in United States District Court (Western District of Kentucky).

“Baffert could have filed this lawsuit ten months ago,” the filing continued. “Instead, his lawyers spent the time working the press and trying without success to persuade other courts and tribunals of Baffert's innocence. They only came to this Court after all their other gambits and legal maneuvers failed.

“They are now rushing into this Court with the 2022 Derby just over a month away, demanding an expedited preliminary injunction on the basis of a manufactured emergency in hopes of litigating Baffert's way into the race.”

Baffert had sued CDI Feb. 28 in an attempt to get an injunction enjoining CDI from suspending him from its tracks and races, and prohibiting Baffert and/or any horse trained directly or indirectly by him from earning points, qualifying and entering the Derby in 2022 and 2023.

Baffert has since transferred four Derby aspirants to other trainers, and he is simultaneously fighting an under-appeal Kentucky Horse Racing Commission suspension of 90 days that is set to start Apr. 4 because of a betamethasone positive in Medina Spirit, his now-deceased 2021 Derby winner.

“There is no legal precedent, in more than a century of Kentucky and federal law, for what would amount to a judicial takeover of the Derby—an eleventh-hour edict forcing CDI to accept a trainer whose conduct threatens the safety and integrity of the race,” CDI's filing stated, explaining how Baffert has failed to meet any of the three requirements for relief.

“First, Baffert has not shown he will suffer irreparable harm absent an injunction,” the filing stated. “His tactical, ten-month delay negates any claim of irreparable harm. His primary alleged harm—the loss of purse money—is speculative and would be fully compensable by money damages in any event.

“Nor will he lose his client base or suffer a loss of goodwill absent relief. Since his CDI suspension began, he has run horses in hundreds of races around the world at virtually the same frequency he did prior to the suspension. Although he claims some horses have been transferred from his care, he provides no evidence that these transfers resulted from CDI's suspension, rather than from the suspension imposed by the KHRC or another state racing authority…

“Second, Baffert has failed to establish a likelihood of success on the merits. His due process claim fails because CDI is a private corporation, the individual defendants are not government officials, and no one violated Baffert's rights in any event,” the filing continued.

“Baffert's claim for “wrongful exclusion” fails because CDI has a well-settled common law and contractual right to exclude from its property and its races repeat offenders like Baffert who endanger the safety of horses and jockeys, and threaten the integrity of the sport and CDI's signature events. And his antitrust claim fails because he does not allege, let alone establish, basic elements of Sherman Act liability.

“Third, the equities cut strongly in CDI's favor. An injunction would cause substantial harm to CDI, including to its business interests, brand, and customer goodwill, and would injure the owners and trainers who would lose their fairly-earned berths in the Derby to make room for Baffert,” the filing stated.

“An injunction would also undermine the strong public interest in ensuring that all who attend, watch, or bet on horse races have confidence in the safety and integrity of the sport. For all these reasons, this Court should deny Baffert's motion for a preliminary injunction. Defendants will soon file a motion to dismiss this lawsuit in its entirety.”

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CDI to Abandon Online Sports Betting

Bill Carstanjen, the chief executive officer of Churchill Downs, Inc. (CDI), said during a quarterly conference call with investors Feb. 24 that after only a brief foray into online sports betting, the gaming corporation plans to phase out operating in that sector by mid-2022.

“When the U.S. Supreme Court overturned the federal ban on sports betting in May of 2018, we had high hopes for the potential to build a profitable business in this space,” Carstanjen said. “Our initial strategy was to leverage a variable cost technology model and be disciplined in our marketing spend with a focus on bottom-line profitability as states legalized online sports wagering and iGaming.

“We have profitable retail sports books in four of our casinos,” Carstanjen said. “However, the online sports betting and online casino space is highly competitive with an ever-increasing number of participants that the states have licensed. Many are pursuing maximum market share in every state with limited regard for short-term or potentially even long-term profitability.

“Because we do not see for us a path in which this business model delivers predictable and acceptable margins for at least several years, if ever, we have decided to exit the business-to-customer online sports betting and iGaming space over the next six months…

“We are always committed to building long-term value for our shareholders. And consistent with this commitment, when we see that an investment is not progressing as we had planned, we will redeploy the resources and capital to other growth projects or return the capital to our shareholders,” Carstanjen said. “We have proven with our past decisions that we are willing to walk away from businesses where we do not see a secure enough path to consistent profitable growth with an acceptable return for our shareholders.”

The Thoroughbred industry is painfully aware of the gaming corporation's previous decisions to abandon aspects of its business. Under CDI's stewardship, horse racing has ceased over the past decade at Hollywood Park in California and Calder Race Course in Florida. A sale is in currently the works to turn historic Arlington International Racecourse near Chicago into a football stadium.

CDI currently owns four active Thoroughbred tracks (Churchill Downs, Turfway Park, Fair Grounds and Presque Isle Downs). Because of its recent history of shuttering racetracks, an announcement by CDI earlier this week that it intended to acquire Colonial Downs and its Virginia gaming properties drew widespread social media chatter among racing industry participants and fans, with skepticism and concerns for Colonial's future far outnumbering comments that considered the deal to be a positive one for the sport.

“This isn't the result we wanted when we started [online sports betting] back in late 2018, but it is the prudent next step forward for our company,” Carstanjen said. “We remain absolutely committed and excited about TwinSpires Horse Racing as its top line, bottom line, and margins continue to demonstrate that this is a special online business with a sustainable, scalable and unique business model that delivers profitable growth today just as it has since we started the business well over a decade ago.”

At a later point in the call when investment analysis were permitted to ask questions, Carstanjen responded this way to one query about the decision to exit online sports betting:

“[G]ambling ultimately is a margin-driven business, and you have to set up your teams and you have to set up your processes to guarantee that you can drive margins. We can do that with TwinSpires Horse Racing, but we just don't see that for us in the broader online segment. So, we'll keep watching that business over time. We'll watch the others that are in it. And we'll see where the future takes that space.”

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Fair Grounds Not Definite on Dates Reduction

Jason Boulet, the Fair Grounds director of racing, was repeatedly pressed by Louisiana State Racing Commission (LSRC) member Tom Calvert Tuesday about whether or not his track would once again seek a statutory change to reduce its required number of race dates from 80 to 75 when the state legislature convenes its 2022 session Mar. 14.

The exchange did not yield a definitive answer beyond Boulet's disclosure that the Fair Grounds and its corporate parent, the gaming firm Churchill Downs, Inc. (CDI), would be in favor of participating in discussions among stakeholders that might reduce race dates in Louisiana with the goal of making it easier to fill entries at the state's four Thoroughbred tracks.

The dates statute wasn't on the agenda for the Jan. 18 LSRC meeting. But Calvert brought it up after Boulet reported that so far through the November-through-March meet, the number of starters per Fair Grounds race has dipped from 8.3 to 7.6 in a year-over-year comparison, a decrease Boulet termed “alarming.”

“The struggle for entries is a reality for us,” Boulet said, noting that the Fair Grounds has already had to obtain permission from Louisiana Horsemen's Benevolent and Protective Association (LHBPA) on three occasions during the current meet to card eight-race programs instead of the required nine.

“The [handle] numbers so far after 34 days–not a good, positive thing so far at 11.9% down year-to year,” Boulet said.

But Boulet also noted that year-to-year comparisons are difficult nationwide because the COVID-19 pandemic has skewed the industry's metrics.

Boulet did manage to make the handle numbers sound rosier by offering a pre-pandemic comparison that stated the Fair Grounds handle is “actually trending up 7%” from the 2019-20 meet.

“Overall handle has been a struggle,” Boulet explained. “That being said, even with that, we've had positive video poker and slots revenues over the year. That's been good for us. And it allowed us to actually do a purse increase for 15%.”

Calvert then wanted to know if Fair Grounds or CDI has legislation either pending or planned to reduce the dates requirement.

“I'm not aware of that, sir,” Boulet answered.

“Wouldn't that be a good thing for you?” Calvert asked.

“I think that, in front of this commission, yeah, I mean, that's always been a very sensitive subject about touching that 80-day minimum statute,” Boulet said. “Again, the Fair Grounds is a proponent of trying to move forward with talking about overlap, and we hope that the conversation is brought forth to this commission. Of course, the HBPA has all the rights to be concerned about moving forward with allowing us to go below the 80 days…”

Calvert then pointed out that last year, the Fair Grounds and CDI advocated for just such a five-date reduction. He noted the provision was included in 2021 racing legislation, “but at the last minute it was pulled out of the bill.”

Boulet then said he has not recently met with the legal counsel or lobbyists the Fair Grounds employs, so he allegedly wasn't sure what might be in the legislative pipeline.

“What I'm saying, I think the commission would be receptive to it,” Calvert said. “We understand that most of the successful models around America have less days than the Fair Grounds has. I just think that you guys can't drag your feet on it. You've got to move it. And sometimes I know it's like swimming against the current, but you've still got to put it out there.”

Boulet said, “I appreciate the way you put it, because I know that in the long run [that] once we are given that door to open, then all the tracks, including Churchill Downs [Inc.], would take advantage and try to move toward these boutique meets and whatever…” Boulet said. “Basically, it comes down to we hope that the commission can consider it case by case, track by track, and the HBPA has to have the final approval…”

LHBPA president Benard Chatters wasn't about to let this back-and-forth between Calvert and Boulet go without getting on the record how his organization's membership felt.

“The horsemen absolutely oppose a reduction in racing dates,” Chatter said. “The Fair Grounds runs 80 days per year. The other three tracks run 84 days, so [Fair Grounds] has a reduction in days that other tracks don't.”

Chatters noted that for some portions of the current meet, the Fair Grounds chose to run five-date race weeks instead of four, compounding race-filling difficulties.

“Everything in the horse world from the [horse] owner's perspective is on the rise,” Chatters said. “Expenses are on the rise. The one thing that's not on the rise is opportunities to race these horses. It is imperative that these owners have as many opportunities to race these horses as they can so that they stay in this business. If you look at the numbers, if you look at all of the positive things that we have coming into racing in the near future [like a cut from online sports betting], you'll be able to see that everything is in place to be able to draw more horses to the state, to bring more horses into the grounds…

“It is very, very critical that you never forget that the owners [of horses] put on this [show] and we're the ones that take all of these [negative financial consequences] by the seat of our own pants,” Chatters said, pointing out that revenues for track operators are “through the roof.”

Chatters continued: “I want to make sure that you're listening. Profits are up, betting is up, and all of this stuff. And so this 'difficulty' in getting horses is kind of far-fetched, I think…When you go to talk about cutting race days and that kind of thing [it] means that it makes it very, very difficult to not necessarily make a profit in the horse racing business as an owner, but just to keep your nose above water so that you're not drowning. When we run these [smaller outfits] out, we're in trouble.”

Calvert then asked, “How do you respond to the criticism of your position which says you want to have terrible horse racing? [That] you want to have races with four or five horses in [them] so that this low level of horsemanship, this low level of trainership, can pick up money and keep being in the business? I mean, I'm of the proposition that this should be sort Darwinistic and that [outfits that can't survive] should be eliminated from the world of horse racing. What do you think?”

Chatters responded by rattling off a sizable list of people and entities that all benefit from purse money trickling down into the economy, including all the way to farmers who grow hay and vehicle dealers who sell pickup trucks.

“So, the importance of as many people participating in horse racing as possible on the state economy is critical, or crucial,” Chatters said.

“I disagree with you when you say the owners are the bedrock of horse racing,” Calvert said. “I would say the racing fan is the bedrock of horse racing…How do you respond to those fans that say we have to eliminate this low level of horse racing to keep the fans interested? A four-horse field, a five-horse field with $5,000 claimers is not something the fans are going out to the racetrack to see. They're not even betting on those races. How do you respond to that?”

Chatters answered that those $5,000 claimers sometimes outhandle higher-quality races. Calvert didn't buy that idea. He said not with short fields, they don't.

“I have no problems, Mr. Chatters, with a $5,000 claiming race that has 12 horses,” Calvert said. “I do have a problem with four-horse races. And [CDI] has advised that the reason why [Fair Grounds has them] is because they have an 80-day meet. If they had a 75-day meet, they'd have greater purses, which would be a benefit to the horsemen…”

Chatters, in closing, said, “We're simply asking that opportunities to race is not touched [in the legislature]. We are asking this commission to stay the course with where we are with these types of issues.”

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