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Kentucky Lasix Suit To Continue After Judge Reverses His Own Order

The civil suit in Franklin County Circuit Court over a partial Lasix phaseout in Kentucky will continue after a judge granted a motion from the Kentucky Horsemen's Benevolent and Protective Association to set aside, vacate, alter or amend an earlier judgment dismissing the case.

In June, Judge Thomas Wingate had denied a motion from the KHBPA for a temporary injunction to stop Churchill Downs and Keeneland from writing races for 2-year-olds requiring Lasix to be given 24 hours pre-race, rather than the typical four hours. The tracks had begun carding those races while waiting for regulations approved by the Kentucky Horse Racing Commission (also named as a defendant in the suit) to go into effect. The KHBPA contended that the tracks don't have the legal power to card no-Lasix races, since medication regulation is supposed to be made and enforced by the commission.

The tracks and commission argued that existing rules do permit racetracks to card no-Lasix races.

Part of the reason Wingate dismissed the case in June was due to a technical point about associational standing on the part of the KHBPA; “associational standing” in a legal sense refers to whether the organization represents members who had grounds to bring a suit in their own right, whether it is seeking to protect interests relevant to its members and whether the claims it makes require participation of individual members to the suit.

In an order this week, Wingate wrote “the Court understands the Plaintiff's position that it was not given adequate time, once standing was raised, to sufficiently address the issue prior to the Court dismissing the Complaint for lack of standing.”

Now, Wingate wrote, it's likely the matter will be decided on the strength of competing motions for summary judgment from each side in the suit. Wingate ordered the parties involved to set a date for oral arguments in the case within 10 days of granting the KHBPA's motion to vacate on July 29.

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Sparks Fly In Testimony Before Kentucky Legislative Committee On Question Of Harness Representation

Regulation changes that would permit the creation of a second horsemen's group for harness racing in Kentucky may be moving through the validation process, but that doesn't mean everyone is happy about it.

The Kentucky Horse Racing Commission approved language in December 2019 giving a new organization, the Kentucky Harness Association, equal footing to the existing group, the Kentucky Harness Horsemen's Association (KHHA). Racing associations would be permitted to negotiate contracts with either entity with regards to takeout, number of race dates, and other considerations, according to the existing wording of the regulation.

After the language was approved in December, the regulation language went out for public comment and was presented before the Interim Joint Committee on Licensing, Occupations and Administrative Regulations during a meeting July 30.

Representatives of the Kentucky Horse Racing Commission and the KHHA were on hand to field questions from joint committee members as they considered whether to send the proposed regulation along its way to the state legislature.

The Kentucky Harness Association has faced criticism from the KHHA and this publication about its nebulous nature. By its own admission, the organization has three members, no bylaws and no web presence. One of the founding members is Bob Brady, brother-in-law of Ken Jackson, who is a member of the racing commission. Together, the two are partners in Kentuckiana Farm. Jackson co-owns the Lexington Selected Yearling Sales Company along with The Lexington Trots Breeders Association, which is the ownership of the Red Mile racetrack. The Red Mile and Churchill Downs, which owns Oak Grove, spoke in favor of the regulation changes.

Jackson said there's nothing nefarious about the relative lack of structure to the Kentucky Harness Association at this point – it's merely a matter of caution.

“The process that was chosen by the KHA was to go through in a methodical way of getting approved to be able to advocate, to be able to be in this position and then members will be secured at that point in time,” he said. “There are many individuals that have expressed their interest in being a part of this, but to go out ahead of this approval is not the path that was chosen.”

Rep Jerry T. Miller (R-District 36) asked what problem the new regulations were aiming to solve.

“It's not what's being held back, it's about changing and being prepared for what's going forward, making sure the right agreements are in place going forward, making sure the purse funding is spent the proper way to advance the industry, not only the owners but the breeders,” said Jackson.

Rep. Tom Burch (D-District 30) expressed concern that the issue was so divisive at this stage in the process of the rule-making.

“Usually when we get involved in these types of discussions, we send the groups back to work out their problems prior to bringing it in,” said Burch. “The legislature doesn't want to be a referee in these regulations and I believe that's what we're doing here.”

Jackson argued the KHHA doesn't really have a problem with the rule – KHHA has a problem with the idea that it would no longer be the only game in town making contracts.

“The only thing that's in dispute is that the KHHA does not want someone else to come in and help grow the industry,” said Jackson, who said he welcomed any KHHA members who wanted to join the new group. “There's a lot of history here and a lot of things that have happened, and it's time to run the industry professionally.”

Jim Averitt, president of the KHHA, cast doubt on the motivations of Jackson and others, questioning how the Kentucky Harness Association could purport to represent the interests of anyone other than the racetracks given the members' close associations with track ownership.

“Essentially you can have an organization of three people enter into a contract for years simply to race for a day and bind the entire industry,” said Averitt. “Once you give your approval, they don't have to get any more members. They can keep the three members that they have. They don't need anybody else.”

Averitt also pointed out the relative lack of discussion of the regulation at racing commission meetings last year and how he thought it strange that commission members weren't on record as asking about the new group's membership, bylaws, or other background details.

“One of two things happened–either none of those people cared enough about their jobs to ask questions, or there was some kind of deal cut behind the scenes,” said Averitt. “They were informed by Mr. [Marc] Guilfoil [commission executive director] or Mr. Jackson about this new association and they were told all kinds of things.”

Sen. Damon Thayer (R-District 17) reacted with anger to the suspicious nature of Averitt's comments.

“Mr. Averitt, I find your testimony insulting,” said Thayer. “This is the second time in a row I've sat in a committee meeting and come watch you make specious comments that attack the character of men and associations that have invested tens of millions of dollars into the industry. I think you owe this committee and the administrative regulations committee an apology for your terrible testimony.

“You think they don't want to race? Are you kidding me? The sales model for yearlings doesn't work unless you have someplace to race them … I don't know what you're upset about, other than maybe the fact your organization got caught flat-footed.”

Rep. Susan Westrom (D-District 79) wrapped up the proceedings by asking Averitt whether, if the regulation passed, the KHHA could work with the Kentucky Harness Association for the benefit of both. Averitt's answer was no.

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View From The Eighth Pole: A Coup d’Etat Of Kentucky Horsemen

Horse owners and trainers should very much beware when a racetrack advocates on behalf of a new horsemen's organization. That is what is happening in Kentucky as Churchill Downs Inc. in Louisville and The Red Mile in Lexington have endorsed a fledgling group to rival the 47-year-old Kentucky Harness Horsemen's Association to represent horsemen at the new casino/harness track in Oak Grove near the Tennessee border, an hour's drive northwest of Nashville.

In fact, “endorsed” may not be a strong enough term. It wouldn't be that much of a stretch to say Churchill Downs Inc. and The Red Mile have masterminded a quiet coup d'etat of an existing harness horsemen's organization and that the Kentucky Horse Racing Commission obsequiously rubber-stamped it in April, giving legitimacy to a nebulous entity called the Kentucky Harness Association.

Approval of this dubious move is on the agenda of the Kentucky General Assembly's Legislative Research Commission at the state capitol in Frankfort on Thursday. There's no reason to believe the commission will do anything but accept the changes recommended by the Kentucky Horse Racing Commission.

There is so much wrong with this, not the least of which is that Churchill Downs Inc. appeared to work in collaboration with the Kentucky Horse Racing Commission on language for the regulation that helps create this new organization while neutralizing the longstanding harness horsemen's representative.

Last Nov. 22, Mike Ziegler, executive director of racing for Churchill Downs Inc., sent an email to Marc Guilfoil, executive director of the Kentucky Horse Racing Commission, stating: “Per a conversation between John and Secretary Russell, attached are the proposed regulation changes in a word document for the track extension regulation and the Standardbred horsemen group.”

The email was acquired from the commission via public records requests.

Interestingly, Nov. 22 is also the date of a letter Ziegler sent to Guilfoil saying that “it has been brought to our attention that the Kentucky Harness Association has requested approval from the Kentucky Horse Racing Commission to serve as an association representing Standardbred horsemen in the Commonwealth. Churchill Downs Incorporated is fully supportive of this request.”

It's amazing how Ziegler and Churchill Downs Inc. simultaneously went from having something “brought to our attention” to actually proposing language for the regulation to make it happen – all on the same day.

In that Nov. 22 email from Ziegler to Guilfoil, “John” would be John McCarthy, a powerful lobbyist in Frankfort representing Churchill Downs Inc. “Secretary Russell” would be Gail Russell, then secretary of the Public Protection Cabinet for lame duck Gov. Matt Bevin, who lost his bid for reelection on Nov. 5, 2019.

While the wheels were set in motion during Bevin's tenure as governor, his successor, Andy Beshear, will share in the blame if these changes are approved by the general assembly.

By their own admission, this new Kentucky Harness Association had a grand total of three members when the issue came before the Kentucky Horse Racing Commission for recognition. Let me repeat that: three total members.

The person said to be the organizer of the Kentucky Harness Association, Bob Brady, is brother-in-law of Ken Jackson, a member of the Kentucky Horse Racing Commission. Jackson voted in favor of recognizing the organization started by his brother-in-law that could be charged with negotiating contracts on behalf of hundreds or thousands of horse owners and trainers.

Brady and Jackson are partners in a Lexington-based Standardbred auction company co-owned with the entity that owns The Red Mile harness track. The latter endorsed Brady's new organization, an association it might negotiate contracts with. This is about as incestuous as you can get.

It should also be noted that Jackson, in his role with the Kentucky Horse Racing Commission, made the motion in 2018 to award the Oak Grove casino and harness license to Churchill Downs Inc., which partnered with the Keeneland Association on the proposed project. There were other viable bidders.

Why should anyone in the Thoroughbred industry care about what organization represents harness owners and trainers at a small Kentucky casino/racetrack?

If you are a Thoroughbred owner or trainer, don't think this can't happen to you. I've seen this movie play out in Florida, where loopholes in state law are exploited to create bogus race meetings that operate with the approval of sham horsemen's organizations. The organizers do this to exploit revenue from casinos, card rooms or simulcasting and they don't have to share revenue with the sham horsemen's organizations. Can this happen in Kentucky? I wouldn't bet against it.

Churchill Downs pulled a bait and switch scheme at Calder Race Course in Florida, getting horse owners and trainers to support a slots machine referendum and then, after public approval, tearing down the grandstand and eventually connecting the casino license the horsemen helped secure to a jai-alai permit.

I can't blame Churchill Downs Inc. for trying to overthrow a legitimate harness horsemen's organization and replacing it with hand-picked toadies. Company executives are only trying to maximum revenue to shareholders and increase the potential for their own bonuses. They are not looking out for the best interests of the horse industry.

That's my view from the eighth pole.

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Ky Racing Commission Shoots Down Dutrow Attempt to be Reinstated

Suspended trainer Rick Dutrow’s attempts to resume his career were dealt a blow Tuesday by the Kentucky Horse Racing Commission’s License Review Committee. After hearing from Dutrow and others who testified on his behalf, the committee voted unanimously to allow Dutrow to withdraw his application for a license. It was within the committee’s right to grant Dutrow a license, with or without conditions.
Dutrow’s attorney, Karen Murphy, reluctantly agreed and withdrew the application for the license.

Dutrow was suspended for 10 years in 2011 by New York regulators for what it alleged was a long history of racing violations. He fought off the suspension in the courts for nearly two years before exhausting his appeals and began taking his penalty in 2013. Along the way, Dutrow has picked up a number of supporters, many of whom believed the penalty was far too harsh and that Dutrow was targeted because of his brash personality. There have also been allegations that syringes found in Dutrow’s barn were planted. Those allegations have been made by former New York Gaming Commission steward Stephen Lewandowski, who was among those who testified Tuesday on Dutrow’s behalf.

Murphy brought the case to Kentucky after her attempts to have the case revisited in New York failed. Had Dutrow been given a license, he would have been able to train in Kentucky but likely would have remained suspended in New York until 2023.

After hearing the decision, Murphy was clearly upset.

“I can’t tell you how disappointed I am,” she told the committee. “Can I ask you all a question? There was nothing persuasive in everything we supplied to you? I don’t know what you want. I don’t know what you considered. I don’t know what you found. I don’t know what you found so unpersuasive that you took this action, which I find to be profoundly disappointing. I’d like an answer.”
Murphy was told by chair Ken Jackson that it was the committee’s policy not to comment on its rulings once they had been made.

Appearing on the teleconference, Dutrow, 60, pleaded with the committee to allow him to resume training. He was emotional, talked in a shaky voice and appeared to be near tears.
“The racetrack means everything to me, my family,” he said. “It’s just really been a hard time with this. Just watching from afar and saying, ‘Man, I used to do this. Why am I not doing it anymore?’ I have a had a hard time with that. Since I have been away I have had a chance to reflect on things and look at myself. I know that I am part of the problem. There’s no question about that but I have done a lot of time for this. I just need an opportunity to train horses. That’s all I want to do. That’s all I’ve ever wanted to do. I’m sorry to take up all your time and cause all this stuff, but I just need to train horses. Please.”
Trainer Dale Romans was the first to testify for Dutrow and said New York racing officials were out to get his fellow trainer.

“I cannot sit on the sidelines and let this happen to one of my colleagues because what will ever stop it from happening to me?” Romans said. “In the racing world we are so concerned about integrity, and it is important to the game. Buy you also have to have integrity for people who work in the game. What this boils down to is a vendetta in New York. With all the evidence that is obvious.”
Veterinarian Dr. Larry Bramlage testified that he had found Dutrow to be someone who took excellent care of his horses and had an impressive record when it came to safety.

“My experience with Rick is simply how he treats these horses,” Bramlage said. “His approach to training is impeccable. He never takes short cuts with anything. He always goes with the best alternative for the horse. He never sacrifices a horse’s welfare to try to win a purse before something becomes clinical. His record on lack of fatalities speaks to that and to his approach for training the horse. I’m a big fan of how he approaches training the race horse.”

By allowing Dutrow to withdraw his application it will not go on his record that he had a license application denied. That could make it slightly easier for him to win reinstatement in another state, but he and his legal team are running out of options. Kentucky is off the table for now and New York does not seem inclined to even look into Dutrow’s case. Finding a racing commission that would go against those two states would likely be difficult.

In a recent story in the New York Daily News on Dutrow’s fight to be reinstated, it was reported that Dutrow has lost his home and filed for bankruptcy.

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