A subsidiary of Churchill Downs, Inc. that operates advance deposit wagering companies TwinSpires and BetAmerica is suing Thoroughbred Owners of California for invoking state statute in an effort to bring a dispute over simulcast hub fees into binding arbitration.
Churchill Downs Technology Initiatives Company (CDTIC) filed the suit on Tuesday in United States District Court Central District of California's Western Division, seeking declaratory and injunctive relief while alleging that the arbitration provisions of California Business & Professions Code section 19604 are invalid and unenforceable because they violate the U.S. and California Constitutions' Due Process and Contracts Clauses.
The dispute centers around a hub agreement reached on Dec. 22, 2020, between Santa Anita Park and CDI's two online wagering companies, TwinSpires and BetAmerica. The agreement specified the percentage the ADW companies would receive on each dollar wagered by California residents using their platforms. By California statute, the maximum an ADW company may receive to facilitate a wager is 6.5%. The agreed-upon percentage in the agreement between the ADW companies and Santa Anita is redacted in the court filings. According to the lawsuit, TOC asked that the hub fee be reduced to 4.1%, which the complaint said “would cost Churchill Downs Technology millions of dollars and upset almost a decade of an established course of dealing between the contracting parties.”
TOC is not a party to the contract. By law, according to the complaint, an ADW provider can choose to enter into a hub agreement with a racetrack, a horsemen's organization, or both. However, under section 19604, the horsemen's organization (or racetrack) may file a written demand for arbitration within 10 days of receiving a copy of a hub contract. TOC did so on Dec. 31.
Two months earlier, on Oct. 28, the suit alleges, TOC president and CEO Greg Avioli asked Churchill Downs Inc. executive Mike Ziegler to “voluntarily return the equivalent of 1% of the total” wagered on the company's ADW platforms in 2020. “TOC threatened that if Churchill Downs Technology did not comply with its 'voluntary' request, it would demand arbitration pursuant to section 19604,” the complaint alleges, calling the effort a to retain additional revenue a “shakedown.”
In a statement issued by Avioli after the TOC learned of the lawsuit, he said: “ADW wagering in California increased by over 40% year over year statewide in 2020 while purse generation from live tracks and OTBs dropped substantially due to COVID-19 closures and restrictions. In 2020 CDTIC received over $7 million of hub fees from ADW wagers by California on Thoroughbred races. TOC's decision to exercise its arbitration rights under California law came after CDTIC declined to reach a voluntary settlement of the matter.”
The complaint suggests that California racing – not TwinSpires or BetAmerica – was the real beneficiary when wagering shifted from on-track to online during the pandemic.
“Online and telephonic wagering, known as advanced deposit wagering, has transformed horse racing in the state, and allowed the many stakeholders involved in horse racing to continue to prosper,” the complaint states. “This has been particularly true since the beginning of the COVID-19 pandemic, which led to limited races and limited spectators for months.
“ADW providers, such as TwinSpires and BetAmerica, make significant investments in technology, marketing and customer service to bring horse racing to as many fans possible, attract new fans, and make wagering on horses fun and easy,” the complaint continues. “During the COVID-19 pandemic, the ADW distribution not only kept fans engaged when they could not otherwise go to a racetrack, but also attracted and created many new fans of horseracing. Rather than appreciating this necessary and growing distribution outlet, the TOC has treated the ADW providers as competition, not as valued partners. This is bad for racing fans and horseracing as a whole.”
TOC's Avioli said the statute concerning arbitration is long established and clear.
“The specific provision in California law (Business and Professional Code 19604 et. seq.) authorizing the arbitration of hub fees is nothing new and, in fact, has been unchanged in California law for more than two decades,” Avioli said in a statement. “We intend to move forward with the hub fee arbitration in an expedited manner and believe the attempt to disrupt the arbitration by CDTIC with this last-minute federal lawsuit has no merit.”
According to section 19604, the arbitration must take place within 60 days of a formal request. The arbitrator has 15 days to render a decision on whether to maintain the contract as signed or to change the fee to the percentage requested by TOC.
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