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The Week in Review: Remember the Context of 2019 Derby DQ

After a federal appeals court on Friday upheld a district court’s decision to dismiss a lawsuit that sought to reverse the disqualification of Maximum Security (New Year’s Day) from first place in the 2019 GI Kentucky Derby, co-owner Gary West told TDN that even though he disagreed with the ruling, “it is time to move on and the decision will not be appealed.”

Country House (Lookin At Lucky), of course, has been considered the winner of the 2019 Derby ever since he was elevated from second to first via the DQ process. So this latest judgment changes nothing regarding the already-official results.

The court ruling also does not mean that the Churchill Downs stewards got the call right. The three-judge panel simply affirmed that the plaintiffs had no legal basis to challenge the outcome.

What the ruling does mean is that another precedent will get entered into the law books underscoring how hard it is (and should be) to get a judge in a court of law to overturn a field-of-play ruling by an umpire, referee, or board of stewards.

And the decision by Gary and Mary West to not pursue further legal action does finally lift the miasma of litigious dread that descends whenever sports and the courts collide.

The Kentucky Horse Racing Commission (whose members and executive director Marc Guilfoil were defendants in the lawsuit along with chief state steward Barbara Borden, state steward Brooks “Butch” Becraft, and Churchill Downs steward Tyler Picklesimer), issued a statement after the Aug. 28 judgment in which Guilfoil said the stewards’ decision to DQ Maximum Security was “an easy call to make, but a tough day to make it on.”

An “easy” call? I respectfully disagree.

Easy DQ calls in stewards’ booths don’t take 22 minutes to adjudicate. Nor do they customarily keep getting debated 16 months after the fact.

To this day you can find a balanced mix of supporters and detractors on both sides of the Derby DQ decision. It was a difficult call then and it remains difficult now even with the benefit of hindsight. Let’s not revise history to make it seem otherwise.

As the 2019 Derby gets nudged into the rear-view mirror, it’s important not to lose focus of what was happening on the macro level within our industry when the Churchill stewards decided to make the first disqualification of a winner for an in-race foul in 145 runnings of the Derby.

No sports official (or board of stewards) ever wants to be the arbiter whose judgment call alters the outcome of a big game or race. In America, there’s always been an unwritten rule that officials “let the players play” in crucial contests, even though referees, umpires, and stewards rarely admit it.

Coupled with that, the Kentucky Derby itself has always had a high bar when it comes to whether or not the stewards could or should step in to alter the running order. This dates at least back to the 1933 “Fighting Finish” in the pre-replay era, when Brokers Tip nosed Head Play after their jockeys grabbed and whipped each other in the stretch run. A foul claim by the runner-up rider was dismissed and the result stood, although both jockeys were later suspended 30 days each.

In more modern times, the 20-horse Derby has become known as an anything-goes cavalry charge into the first turn in which jockeys know they have considerable leeway to ride with more assertiveness because the stakes are so high.

But 2019 was the year when the Derby was run under shell-shocked circumstances because the sport was reeling in the wake of the 30-horse fatality crisis that shut down racing at Santa Anita Park. Tracks nationwide were under intensified scrutiny, and in the week leading up to the Derby, the sport was being called out and protested against over equine safety issues.

It was impossible to ignore the national headlines that blared “Horse Deaths Are Haunting the Racing World Ahead of the Kentucky Derby” (Time magazine), “At the Kentucky Derby, Prayers for a Safe Race” (New York Times) and “Horse Safety at the Kentucky Derby has officials ‘On the Edge of a Razor Blade'” (Louisville Courier-Journal).

In fact, Guilfoil himself told the Courier-Journal the day before the before the 2019 Derby that, “We realize we’re under a microscope.”

So while a subconscious “Let ’em play” mindset might have previously been the unspoken norm for officiating a big race, the over-arching context of the 2019 Derby was rooted in the hyper-aware context of safety.

As the nation watched slo-mo replay after replay of the narrowly averted pile-up off the far turn in the Derby, the Churchill stewards surely, at some level, must have recognized that if they didn’t make a call that doled out punishment for the near-disaster, it wouldn’t mesh with the safety-centric image the industry had been trying to hammer home on many levels.

Did they get the call correct? That’s always going to be up for debate.

But let the record reflect that Maximum Security’s historic DQ was as much a product of the sport trying to come to grips with the enormous pressures of maintaining safety in an inherently dangerous setting as it had to do with the colt’s shifting and drifting while leading the pack off the final turn in the Derby.

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Federal Court Affirms Dismissal of Derby Lawsuit; Wests Won’t Pursue Further Action

A three-judge panel of a federal appeals court Friday upheld a district court’s decision from last November to dismiss a lawsuit by Gary and Mary West, the owners of Maximum Security (New Year’s Day), which sought to overturn the colt’s controversial disqualification from first place in the 2019 GI Kentucky Derby.

“What should have been the fastest two minutes in sports turned into over a year of litigation,” wrote Judge John K. Bush in the opinion accompanying the judgment of the United States Court of Appeals for the Sixth Circuit. “Neither Kentucky law nor the Fourteenth Amendment allows for judicial second-guessing of the stewards’ call.

“The district court dismissed the suit for failure to state a claim,” the opinion stated. “It determined that the stewards’ decision was not reviewable under Kentucky law, that the Wests had no property interest in the prize winnings, and that the challenged regulation is not unconstitutionally vague…. We agree and affirm the judgment of the district court.”

Gary West told TDN via email he won’t be pursuing further legal action.

“This is the only comment I will ever have,” West wrote. “I obviously disagree with the courts’ findings, but it is time to move on and the decision will not be appealed.”

The Kentucky Horse Racing Commission (KHRC), whose board members and executive director were the defendants in the lawsuit along with the three Churchill Downs stewards, issued a statement that said the organization was “pleased with the decision.”

KHRC executive director Marc Guilfoil said in the statement that the stewards’ decision to disqualify Maximum Security was “an easy call to make, but a tough day to make it on.”

In the 2019 Derby, Maximum Security led almost every step and crossed the wire first.

But there was bumping and shifting in close quarters as he led the pack off the final turn. Two jockeys filed post-race objections, but there was no posted stewards’ inquiry.

The three stewards who officiated the Derby–chief state steward Barbara Borden, state steward Brooks “Butch” Becraft, and Churchill Downs steward Tyler Picklesimer–launched a post-Derby adjudication process that played out on national TV.

After 22 agonizing minutes, Maximum Security was judged to have fouled Long Range Toddy (Take Charge Indy), and thus placed behind that rival in 17th place. Country House (Lookin At Lucky), who crossed the wire second, was elevated to first place via the DQ process.

Ten days later, the Wests sued based on allegations that “the final [revised Derby] order is not supported by substantial evidence on the whole record” and that the disqualification violated the plaintiffs’ Fourteenth Amendment rights.

The defendants’ motion to dismiss the suit was granted by a U.S. District Court judge Nov. 15, 2019. The Wests appealed, and the case was argued June 16, 2020.

The Wests put forth four arguments on appeal. First, they argued that the stewards’ decision to disqualify Maximum Security was a ‘final order of an agency’ that is subject to judicial review under Kentucky law.

Second, they argued that the stewards’ decision was not supported by substantial evidence, was arbitrary and capricious, or was otherwise deficient as a matter of law.

Third, they argued that the stewards violated the Wests’ right to procedural due process.

And finally, the Wests argued that the regulation that gives stewards the authority to disqualify a horse is void for vagueness.

“Perhaps only a racehorse itself could tell us whether it was fouled during a race,” the opinion stated. “But horses can’t speak, so the Commonwealth of Kentucky, similar to many other racing jurisdictions, has designated racing experts–the stewards, not the appointed members of the Commission or judges–to determine when a foul occurs in a horse race. It is not our place to second-guess that decision. We therefore hold that a stewards’ decision to disqualify a horse under [state regulations] is not a ‘final order’ of an agency’ under [state law] and therefore, is not subject to judicial review.”

The court next addressed the Wests’ argument that the stewards deprived them of constitutionally protected liberty and property interests. To plead a due process claim, the opinion stated, the Wests must allege “a life, liberty, or property interest requiring protection under the Due Process Clause” and a “deprivation of that interest” without adequate process.

“The Wests contend that they have a protected property interest in the winner’s share of the Derby purse, and a liberty interest in an agency following its own regulations,” the opinion stated. “Right out of the gate, the Wests fall behind. Kentucky law provides that ‘the conduct of horse racing, or the participation in any way in horse racing…is a privilege and not a personal right; and that this privilege may be granted or denied by the racing commission or its duly approved representatives acting in its behalf.'”

The opinion also noted that “a party cannot possess a property interest in the receipt of a benefit when the state’s decision to award or withhold the benefit is wholly discretionary.”

Bush wrote that the regulations “are clear that the stewards have unbridled discretion” in determining whether a racing foul occurred, and whether to disqualify a horse because of it.

“The Wests argued that [a Kentucky racing regulation] which governs the procedure after a race has been declared ‘official,’ grants them the right to the benefits of the Kentucky Derby,” the opinion stated. “Not so. That provision has no bearing here because Maximum Security was disqualified before the race results were official. Even if that regulation were to apply here, it does not grant any person the right to the benefits of winning a horse race. Rather, it dictates the procedures that the stewards must follow while they review objections and determine the propriety of any sanctions against a horse and jockey.”

The opinion continued: “Heading down the final stretch, the Wests argue that because Maximum Security was the first horse in the 145-year history of the Kentucky Derby to ever be disqualified for a foul committed during the race, the custom and practice was to declare the horse that crossed the finish line first the winner.

“[But] even though Maximum Security’s disqualification was unprecedented, the fact remains that the stewards have always had the discretion to call fouls in horse races; this just happens to be the first time that they exercised this discretion in the Kentucky Derby.

“As a condition of maintaining a Thoroughbred racing license in Kentucky, the Wests agreed to…’abide by all rulings and decisions of the stewards and the commission.’ The only mutually explicit understanding between the Wests and the Commission was that the Wests agreed to abide by the regulations, and those regulations do not give the Wests a property interest in the purse or the trophy.”

The Wests, the opinion stated, “cannot identify a property interest in the Derby winnings because Maximum Security did not win the race and they were never entitled to the winnings. The Wests have not pointed to a ‘state statute, formal contract, or contract implied from the circumstances that supports [their] claim to a protected property interest.'”

The opinion stated that the Wests’ argument that their liberty interest was violated largely mirrored their property argument. “Because the Wests do not have a liberty or property interest, their void-for-vagueness challenge fails as a matter of law.”

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West: Recent Appeals Court Ruling On Maximum Security Disappointing, But ‘It’s Time To Move On’

Three judges from the U.S. Court of Appeals for the Sixth Circuit have affirmed a lower court's ruling dismissing a suit by Maximum Security owners Gary and Mary West against the Kentucky Horse Racing Commission and Kentucky stewards for disqualifying their horse from the 2019 Kentucky Derby. The decision, published Friday, was unanimous.

Owner Gary West told the Paulick Report he has no intention of continuing the legal fight over the outcome of the race.

“I obviously disagree with the court's findings, but it is time to move on and the decision will not be appealed,” West said via email.

The U.S. District Court for the Eastern District of Kentucky had dismissed the suit for failure to state a claim upon which relief could be granted. Attorneys for the Wests argued their horse should be declared the official winner of the race based on four arguments: that a decision by stewards on disqualifications are subject to judicial review, that the stewards' decision was deficient in terms of evidence/that it was arbitrary and capricious, that the stewards violated the Wests' right to due process, and that the regulation allowing the stewards to disqualify a horse is void because it is too vague.

Judge John K. Bush, who authored the opinion on behalf of the court, disagreed with all four of the arguments, referring to Kentucky's laws and regulations outlining what stewards are permitted to do. Kentucky regulations specifically state that stewards' findings of fact and determination “shall be final and shall not be subject to appeal.” Some types of stewards' decisions, like the choice not to grant an applicant a license or a suspension for a medication ruling, are appealable through the court system. That has not previously been the case for decisions on placings.

One of the primary differences between the stewards' process in these cases is that while reviewing a potential case of foul like that of Maximum Security, the race has not yet been declared official until after stewards complete their own internal decision-making process. In the case of a medication finding, the stewards call licensees in to a hearing and hear evidence and arguments before making a decision, which better matches with the legal definition of an “administrative hearing.” Administrative hearings may be appealed.

Bush thought that distinction was correct, because in-game decisions like a race disqualification in the hands of those best equipped to make those judgements.

“To be sure, a good judge is an umpire who calls balls and strikes,” Bush wrote in part. “But we are not game officials in the literal sense, and we are ill-equipped to determine the outcome of sporting contests. The stewards, on the other hand, are racing officials who must go through rigorous training and experience before they may serve in that capacity. Perhaps only the racehorse itself could tell us whether it was fouled during a race. But horses can't speak, so the Commonwealth of Kentucky, similar to many other racing jurisdictions, has designated racing experts — the stewards, not the appointed members of the Commission or judges — to determine when a foul occurs in a horse race. It is not our place to second-guess that decision.”

Read the complete court opinion here.

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MJC President Sal Sinatra Talks Cleaning Up Racing On TDN Writers’ Room

In a sport crying out for more strict, no-nonsense regulators and administrators, Maryland Jockey Club president Sal Sinatra fits the bill. Just in the past week and a half, Sinatra has made major waves in the industry, first by calling for the eventual end to claiming races at The Jockey Club Round Table and then by busting Wayne Potts for “paper training” for a banned trainer in Maryland. Wednesday, Sinatra joined the TDN Writers’ Room presented by Keeneland as the Green Group Guest of the Week to discuss an array of issues plaguing racing and the steps, big and small, that can be taken to clean up the game for good.

“When I see forged health certificates, when I have repeated claims for not paying bills, when there’s theft, when I’m watching horses race and return and run under others’ names, [situations] that everybody’s aware of, action should’ve been before it gets to my desk,” Sinatra said of the challenges he faces as a head regulator. “Unfortunately, since I’ve been in Maryland, [Potts] is the sixth person I’ve actually tossed. And I don’t know why I seem to be the only one doing it.”

Sinatra went on to say that one of the reasons cheating trainers aren’t more severely punished is that they fill races, a byproduct of there being too much racing on the whole in America and specifically too much cheap claiming races.

“Coming from the racing secretary side, we’ve got too many races,” he said. “Most of these [cheating] guys run their horses a lot. They help you when you call them. So they’re kind of racing office favorites, and the gray area becomes not so gray when you need the horse to make six or seven to fill the entries and close.”

Sinatra added that while racing is making strides in certain areas of correcting itself, there remains one more basic long-term problem it hasn’t addressed: the morality of its participants.

“We’re all trying to make a living. We’re trying to be proud. We’re trying to clean our image as best as we can,” he said. “We have to make ourselves look better. We’re trying with the breakdowns. We’re trying with the medications. But there’s a character flaw. There has become a real character issue. There’s people in the game right now that–I hate to say it–but they shouldn’t be around animals, let alone horses.”

Sinatra caused a stir when he suggested at the Round Table that America should move toward a future without claiming races. He expounded on how a transition to that future could look.

“For one, we have too many categories for horses to enter into,” he said. “You got non-two, non-three, non-four, one win in six months, two wins in six months. I think a ratings system reduces that, so if you put two horses at a rating of 80, maybe a horse that only has three wins runs against a horse with nine wins. You could hypothetically replace starter allowances with these ratings races. There may be a way of combining claiming and letting people who don’t want to lose their horse run their horse against like horses.”

Sinatra further lamented the lack of growth in the worth of claimers over the years, despite inflation and higher purses, leading inevitably to animal welfare issues.

“We’ve created this arena, and especially with the [revenue from] slots, we never valued the horse part of it. When I worked at Monmouth in the mid-80s, the last race was always a Jersey-bred nickel [claimer]. And today the bottom is a Jersey-bred nickel. We’re talking 35 years later. That horse has to be worth a little more than that. But we keep it low so people can get in the game, and then the poor horse gets chewed up. We have to fix it.”

Sinatra said that a lot of racing’s ills come back to the core issue that has been discussed at length on the Writers’ Room in the past: an oversupply of races that exists despite the realities of declining foal crops and horses who run less frequently overall.

“A lot of things got broken down over time because we have too much racing, there’s too many opportunities and we’re trying to fill all this stuff with no supply,” he said. “That’s really the biggest problem. A horse used to run eight or nine times a year. And you have the same amount of stalls that aren’t filled as much. You do the math. Most of the tracks now are propped up by slot machines. Companies can afford to lose $5-10 million on racing when they’re printing money across the parking lot. It’s not good for our sport. So we need to clean it up. We need to look at the whole model and reboot or it’s going to go away.”

Elsewhere on the show, the writers recapped the weekend’s Grade I action and, in the West Point Thoroughbreds news segment, applauded Churchill Downs for making the decision to race without spectators for the GI Kentucky Derby and broke down the Karl Broberg situation at Remington. Click here to watch the podcast, click here for the audio-only version.

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