lawsuit | Horse Racing Free Tips

Asleep At The Wheel? British Horseracing Authority Doesn’t Show Up To Paralyzed Jockey Lawsuit

In his regular Monday commentary, the Racing Post's Chris Cook expressed his lamentations at the fact that the British Horseracing Authority did not bother to have a representative present at last week's High Court case in which paralyzed jockey Freddy Tylicki filed a lawsuit against rider Graham Gibbons for negligence that resulted in his injury.

On the line is not only the difficulty of ensuring jockeys have insurance coverage if the judge orders a payout to Tylicki, but also that several members of the racing community, both a jockey and a steward, spoke on the stand about the “code of conduct among jockeys” that often prevents them from speaking up.

“Readers of the Racing Post were better briefed about what went on than the folk who run the game,” Cook wrote. “A BHA presence last week would have been a reassuring sign that in fact the sport is well run and its top people can tell what really matters. Instead, I'm left imagining a group of people chiseling away in their own little silos and nobody sticking their head outside to see if there's something that might need to be dealt with.”

The BHA sent the following reply to the Racing Post after the publication of Cook's commentary: “The suggestion that the BHA has not identified the significance of this hearing is entirely incorrect. Alongside any detailed judgement issued by the judge, a full transcript of the proceedings has been requested which will allow the BHA to take the time to study the proceedings in detail and carefully reflect on any items of concern.”

Wesley Ward Asks Court To Allow Sale Of Ramsey Horses

Trainer Wesley Ward has filed a new motion in Jessamine County circuit court requesting that a judge allow the sale of 14 of Ken and Sarah Ramsey's horses to put toward unpaid training bills, reports bloodhorse.com. The legal dispute traces back to March of this year, when both Ward and trainer Mike Maker filed civil suits against the Ramseys for nearly $2 million in unpaid bills.

At that time, Ward also acquired agister's liens against Ramsey's horses, essentially giving him ownership of the horses for one year.

Ward and Ramsey had previously agreed to an arrangement in which Ramsey was to pay $100,000 per month until the debt was paid off, but the motion alleges that Ramsey only made one payment. Ward also alleges he told Ramsey he could race the horses and use any earnings toward that debt, but that Ramsey declined.

The 14 horses have continued to incur care costs of $1,500 per day.

“Rather than pay his debt to Ward Enterprises and take possession of his horses, Ramsey has instead chosen to publicly make false assertions against Ward Enterprises in a misguided attempt to trump up claims against Ward Enterprises,” the Dec. 1 motion states.

The new motion requests that the court require all 14 horses to be sold during the Keeneland January sale.

Judge Won’t Dismiss Ohio HBPA’s Suit Over $2.7M in Disputed VLT Money

A federal judge on Thursday denied a motion to dismiss a lawsuit filed by the Ohio Horsemen's Benevolent and Protective Association (OHBPA) against the present and former owners of Belterra Park that involves the OHBPA trying to recoup more than $2.7 in gaming revenues that the horsemen's group alleges the track wrongfully withheld between 2014 and 2018.

Back on Dec. 18, 2020, the OHBPA's suit contended that Belterra never made good on a four-year difference between a placeholder rate first established for video lottery terminal (VLT) gaming and the eventually revised rate, which it claimed totals $2,769,652. “The OHBPA has been deprived of these funds, which go directly toward the benefit of horse breeding and horse racing in Ohio,” the lawsuit stated.

On Feb. 16, 2021, Belterra had asked the United States District Court for the Southern District of Ohio (Eastern Division) to dismiss the OHBPA's suit, alleging that “OHBPA's cleverly labeled claims are nothing more than an attempt to plead around the fact that there is no private right of action under the relevant Ohio statute or regulation.”

On Sept. 30, Chief U.S. District Judge Algenon Marbley wrote in a 17-page court order that the defendants who owned and/or operated Belterra during that time frame (Boyd Gaming Corporation. Pinnacle Entertainment, Inc., and Penn National Gaming, Inc.) did not present a strong enough case to get the lawsuit thrown out of court.

“On May 1, 2014, the day that Belterra Park reopened, no rate agreement had been reached
with OHBPA,” the court order stated. “Belterra therefore entered into an Escrow Agreement with the Racing Commission on that same day, which would terminate once the Racing Commission set the final rate by rule. Plaintiff states that the Escrow Agreement set aside 9% of Belterra's VLT commission, which OHBPA began receiving on May 1, 2014.

“By November 2014, six months after Belterra Park reopened, the Racing Commission had
not set the percentage of Belterra's VLT commission owed to OHBPA. OHBPA and Belterra tried to reach an agreement on the percentage but failed to do so. In fact, the Racing Commission would not set its rate for about four years, allegedly due to various delay tactics employed by Defendants. OHBPA maintains that Belterra's capital expenditure submissions were unrealistic and overly aggressive attempts to persuade the authorities that it was entitled to the lowest statutory rate; this caused delays in the determination by the Racing Commission.

The order continued: “OHBPA had no access to Belterra's records of purported capital expenditures and no way to expedite the rate-setting process. By Plaintiff's account, OHBPA and Belterra each understood that, pursuant to the statute, the actual rate was to be set by the Racing Commission, and that Belterra would need to make a 'catch-up' payment to OHBPA for any difference between the 9% placeholder rate in the Escrow Agreement and the actual rate so set. Plaintiff contends that the delay in setting the statutory rate was due to Belterra's years of stalling before providing to the State a reasonable submission of capital expenditures incurred.

“On June 27, 2018, the Racing Commission passed Resolution No. 2018-05. This resolution set the VLT commission percentage at 9.95%. As of July 1, 2018, Belterra began paying, and OHBPA began receiving, the 9.95%. As Defendants emphasize, the resolution does not contain any express language making the higher rate retroactive to May 1, 2014.”

The judge wrote in the order that, “From OHBPA's standpoint, Chapter 3769 gives them a right without a remedy. The law entitles OHBPA to payments but does not provide the procedure or framework by which OHBPA can secure them. The legislature cannot have intended such an outcome, and this Court will not compel it…

“On the consistency question, the Court determines that a private remedy would be consistent with the legislative scheme. The clear motivation for Section 3769.087(C), appearing directly in the text, is to direct resources 'for the benefit of breeding and racing in this state.' OHBPA seeks here to recover funds withheld in derogation of that purpose.”

Regarding retroactivity, the order stated that, “Defendants correctly observe that the statute, regulation, and resolution do not specify catch-up payments. But nor do they grant Defendants leave to pay the statutory minimum while the Racing Commission determined the actual rate—especially under circumstances where Defendants are alleged to have engaged in bad-faith delay.

“The statute and regulation refer to only one percentage rate, falling between 9% and 11% as determined by the Racing Commission. They do not provide any method for changing the percentage so determined, which suggests that the rate is intended to be fixed—even if it could not be known to a certainty until the State had reviewed the capital expenditure reports.”

The order continued: “Moreover, as to wrongfulness, OHBPA has alleged bad faith in Defendants' multi-year delay, using unrealistic and overly aggressive capital expenditures in an apparent effort to persuade authorities that it was entitled to pay a lower final rate. Without the report, the Racing Commission could not determine its final rate, which allowed Defendants to continue setting aside only the statutory minimum (9%) per the Escrow Agreement. This too supports a finding of wrongful conduct, satisfying the second element…

“For all of these reasons, OHBPA has established a plausible entitlement to catch-up
payments under Section 3769.087(C). To support Defendants' contrary position, the Court would
need to read a clause into the statute allowing for different rates before and after the Racing
Commission's determination, into the Escrow Agreement to state that the 9% set-aside is in full
satisfaction, and into the resolution to set an effective date of July 1, 2018. By Defendants' own
cited authority, none of this is permissible.”

The order summed up: “Across the finish, it's Plaintiff. For the reasons set forth above, Defendants' Motion to Dismiss is denied.”

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Motions to Dismiss Now Active in Both HISA Constitutionality Lawsuits

Defendants in one of two currently active federal lawsuits aiming to get the Horseracing Integrity and Safety Act (HISA) and its regulatory Authority voided for alleged constitutional violations fired back Aug. 16 with a two-pronged motion to dismiss the case.

This is the suit brought Apr. 26 by state governments and private entities. Oklahoma and its racing commission are joined as plaintiffs by West Virginia and its racing commission, plus the state of Louisiana. Three Oklahoma tracks–Remington Park, Will Rogers Downs and Fair Meadows are also among the plaintiffs.

The defendants are the United States of America, the HISA Authority, and six individuals acting in their official capacities for either HISA or the Federal Trade Commission (FTC).

This lawsuit is separate from the similar complaint over constitutional issues initiated by the National Horsemen's Benevolent and Protective Association against FTC members that is also currently facing a “motion to dismiss” by the defendants.

According to two documents filed Monday in United States District Court (Eastern Division of Kentucky), the defendants told the court that the plaintiffs' suit “falters out of the starting gate, as no Plaintiff has alleged an injury that satisfies Article III standing or has pressed a claim that is ripe for review.”

The motion to dismiss argues that “The FTC has not considered or subjected to notice-and-comment a single proposed rule under the Act, and any rule that the FTC may ultimately promulgate would not take effect until July 2022. Plaintiffs' allegations of harm are thus conjectural at best.

“Moreover, the non-Thoroughbred associations …will never be subject to the FTC-approved rules unless they or other third parties independently make that election. And the States' asserted harm from federal preemption is not fairly traceable to–rather, is inconsistent with–the commandeering claim they actually press.”

The filing continues: “Beyond those threshold stumbling blocks, Plaintiffs fail to state a claim on the merits. Their lead theory is that the Act unconstitutionally delegates legislative power to the Authority. But longstanding Supreme Court precedent makes clear that private entities may lawfully assist the development and implementation of federal regulation so long as the agency retains final review.”

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