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Legal Expert Bennett Liebman on Who Won, Who Lost in Baffert Decision

As a Government Lawyer in Residence at Albany Law School and an adjunct professor of law, attorney and educator, Bennett Liebman has long had his finger on the pulse when it come to racing's rules, regulations and laws. He has written extensively on the subjects of due process and whether or not racetracks have the right to exclude licensees, two key elements of Bob Baffert's lawsuit against NYRA in which he sought injunctive relief to have his suspension temporally overturned. For three years, the New Yorker was Deputy Secretary to the Governor for Gaming and Racing. For more than a decade, he was a member of the New York State Racing and Wagering Board.

The TDN asked Liebman to take a deep dive into the ruling handed down last week by Judge Carol Bagley Amon of the United States District Court, Eastern District of New York that granted Baffert an injunction that will allow him to run horses at the Saratoga meet.

TDN: Baffert got the preliminary injunction he sought that allows him, for now, to race in Saratoga. That was because the judge ruled that Baffert's due process rights had been violated. But NYRA also won when it comes to an important point. The judge ruled that NYRA does in fact have the right to exclude someone, which they may ultimately do with Baffert once he has had a hearing. So which side was the winner and which side the loser?

BL: Baffert was the clear winner here. The only real point he lost on was on NYRA's power to exclude. And I'm not sure if (Baffert's legal team) was really serious about that issue. On all other issues, the judge clearly ruled for Baffert. Other than the power to exclude, everything in this decision could have been written by Baffert's attorneys. Really, everything. It's as if the judge discounted everything that NYRA put in. It was unnecessarily anti-NYRA.

TDN: As already mentioned, the judge made it clear that NYRA does have the right to exclude Baffert, which very well could eventually happen. How, then, is it that Baffert was “the clear winner?” Why isn't the validation of NYRA's right to exclude a bigger deal than you make it out to be?

BL: It was generally assumed all along that NYRA and all the state's racetracks have the power to exclude licensees. If NYRA follows the judge's decision, the course is to hold an unbiased due process hearing on whether they should exclude Baffert. Once that is done they will have the right to exclude him.

TDN: The judge ruled that NYRA violated Baffert's due process rights because it did not give him a hearing before suspending him. Did NYRA make a strategic error by not giving him that hearing?

BL: The judge clearly thought so. It's very hard for me to sit back and judge what NYRA did or should have done. But the judge clearly thought they would have been within their rights to have given him a hearing and that they would have been much better off to have given him a hearing before they made a decision to exclude him.

TDN: At the hearing, NYRA's lawyers said that a decision would be made regarding the terms and lengths of Baffert's suspension following an Aug. 11 meeting of the Board of Directors. What's your take on that?

BL: That's not normally something the Board of Directors does. The Board of Directors' main job is approving the budget. It's not exactly a judicial body of any note. My assumption is that NYRA will likely hire one judge or a panel of hearing officers. You would expect distinguished people, perhaps former judges, and have them make the assessment. Then NYRA management would follow their assessment. You would think that's how it is going to play out. It's hard for me to imagine, although they raised this, that this is a decision that will be made by the Board of Directors. In something like this, a board of directors does not normally get involved.

TDN: Should NYRA eventually suspend Baffert, what can he do to fight back?

BL: I think they would follow the same procedures that were used to get the temporary injunction and go back to federal court. This time, I think they would follow the case of Dr. (Michael) Galvin. He was a veterinarian who got his NYRA exclusion overturned after arguing that the procedures used by NYRA were biased against him.

TDN: A big issue in this case was whether or not NYRA was a state actor. It was largely believed that if it was determined by the court that NYRA was affiliated with the state then there would be limits to what it could and could not do with Baffert vis a vis a privately owned racetrack. How did the court find on this matter?

BL: The court agreed that NYRA was a state actor and that was a huge deal. If the court found that NYRA was not a state actor then what it did would have clearly been ok. But the judge determined that NYRA was a state actor. It's a very contentions issue. I think the judge put her thumb on the scales in favor of state action. But it's always going to be a difficult issue.

TDN: Is that why, to date, Baffert hasn't taken any legal action to have the ban issued by Churchill Downs overturned? Obviously, Churchill is privately owned and not a state agency.

BL: I'm not sure if I can assess Baffert's lawyers' motivation, but Churchill is clearly a private company. The case law in Kentucky clearly gives the tracks there considerable power over licensees. The other part here is they have a bigger issue to deal with with Churchill Downs, which is the disqualification of Medina Spirit in the Derby. They might want to deal with the disqualification issue first before they challenge Churchill on the Baffert suspension.

TDN: Was the court's decision in any way a game-changer? What impact will it have on future decisions regarding due process and the right of racetracks to exclude someone?

BL: Because NYRA is so unique, you can't say this will have a huge impact on other jurisdictions and other racetracks. NYRA's unique circumstances make this a one off when it comes to other cases. What was odd to me was the judge's determination that Bob Baffert will be harmed so extensively if not allowed to race at Saratoga. That's at a track where he normally, over the last 10 years, has raced about five times a meet. On its face, banning Baffert from a track where he rarely appears doesn't seem to be irreparable harm. That's the one issue that I think might have an effect on other cases, that someone who might occasionally show up at a track can argue irreparable harm and get a temporary restraining order if they are banned.

TDN: The Jockey Club filed an amicus brief in support of NYRA. Did that have any impact?

BL: The main reference to the Jockey Club is in a footnote. There's only one other reference, on how over the past 10 years Baffert had never gone a year without racing at a NYRA track. From reading her decision, it doesn't appear as if the Jockey Club brief had much of an impact. It is minimally referred to in the decision.

TDN: Are there any other unanswered questions?

BL: One is whether or not NYRA will appeal (Judge Amon's decision). I don't know. Instead of doing that they can simply go ahead and give him a hearing. Another question is whether or not NYRA will give Baffert stall space? There was nothing in the ruling that covered that. There's an easy way around that. He can easily find some place to stable at off track. I don't think NYRA's exactly going to make Clare Court available to him.

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Indiana-Bred, -Sired Stakes Back to $100K Minimum

A proposal from the Indiana Thoroughbred Breed Development (ITBD) to return the purse levels of all Indiana-bred and -sired stakes races to a minimum of $100,000 was approved by the Indiana Horse Racing Commission (IHRC) at a meeting held July 15 has been approved. The increase applies to 22 stakes event and is being made retroactive to the beginning of the stakes season, which kicked off May 19.

Ten stakes have already been contested and the winning connections from those races will receive an additional $25,000 coming directly from the ITBD portion of the purse account. A half-dozen stakes yet to be run with listed purses of $100,000 will be raised to $150,000, including the Governor's S., the Indiana First Lady S., To Much Coffee S., Cardinal S., Unreachable Star S. and the Lady Foghorn S.

“Seeing this addition to our already healthy stakes schedule is a great boost to our racing program,” said Eric Halstrom, Vice President and General Manager of Racing. “Indiana Grand is fortunate to have such great partnerships with both the state and the horsemen's organizations. This level of stakes purses brings us back to where we were in 2019, and it's a great incentive for future investment and participation in the state bred program.”

Jessica Barnes, Director of Breed Development, worked closely with the horsemen's organizations and Indiana Grand for the proposal to the IHRC. The increase will boost the state-bred stakes for 2021 by more than $850,000.

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A Long Time In the Making, Asmussen Poised To Become Winningest Trainer

It was back in the late seventies and early eighties, well before Steve Asmussen had his trainer's license, that the foundation was being set for what was to become a historic career. He was studying under his parents, Keith and Marilyn Asmussen, the multi-talented Texas-based team that did a little bit of everything, including breaking dozens of babies that would go on to stardom on the racetrack. Their youngest son, just a teenager then, saw what it took to be successful, the can't-miss combination of hard work, skill, devotion to every horse, opportunity and drive. They became the guiding principles of his own career.

“I feel that my training career is an extension of my parents and their horsemanship and work ethic,” Asmussen said. “It was the perfect storm to be the youngest son of Keith and Marilyn Asmussen. With the way they implemented their tools, they were an inspiration to me. To be able to do it is one thing. To be willing to work so hard for it is another. From an unbelievably young age for both me and my brother Cash, they taught us to respect the horse and the opportunity each one gave you. With them, that never wavered.”

He learned well.

As of July 18, Asmussen, 55, had 9,431 career wins, putting him just 14 behind the all-time leader, Waterford/Mountaineer Park kingpin Dale Baird. The record should fall some time later this month or in early August. He has trained champions, won Eclipse Awards, won Triple Crown and Breeders' Cup races and has been inducted into the Hall of Fame, but there is something incomparable about winning more races than anyone else in history. It takes more than skill or horsemanship. You cannot just be better than your competition, you must be more motivated and have an insatiable thirst for success.

“It's a big deal to me,” Asmussen said of his impending record. “It's huge. It really is.”

He wasn't thinking that way in the beginning. Having left the Asmussen nest in Texas and just 20 at the time, he won his first race in 1986 at Ruidoso Downs. His main goal then was to simply win another race. He went 1-for-15 that year with earnings of $2,324. He did not win another race until the following year.

“I was struggling,” he said.

A year later, he got his first break. Owner Ron Lance was a Birmingham, Alabama, native and a close friend of the Asmussen family and wanted to begin a stable at the newly opened Birmingham Turf Club. Knowing that Keith and Marilyn Asmussen had too much on their plate to set up a division at Birmingham, Lance decided to hire their son. Asmussen won 30 races that year, including a pair of $15,000 stakes at Birmingham and a $25,000 stakes at Charles Town.

“When Birmingham Race Course was opening up, (Lance) wanted horses there and he got dad to send me there with his horses,” Asmussen said. “The Ruidoso Steve Asmussen was someone who was galloping horses on a free-lance basis, had a couple of horses on the side and was enjoying being 20. The real start to this was when Ron Lance talked dad into sending me to Birmingham for the opening of that race meet. It was a completely different responsibility compared to what I had been doing. A sense of commitment had come over me.”

Between 1987 and 1993, not much changed. He never had a year where he won more than 48 races, most of them at second-tier tracks. He showed little sign of being a future Hall of Famer. But he remained confident. He was inspired by Richard Hazelton, a top trainer on the Illinois circuit who, between 1980 and 1985, cranked out 846 winners.

“He was King Richard,” Asmussen said. “I loved his personality and his horsemanship. He was on his way to winning 4,000 races. I just thought 4,000 races, that's 100 races a year for 40 years. I just thought wow. He was revered. Being around him made me want to do what he did. I thought, I can do this too.”

But he had problems breaking through. What he needed was a good horse.

At the 1995 OBS February sale, Keith and Cash Asmussen were hunting for horses for owners Bob and Lee Ackerley, who ran under the name of Ackerley Brothers Farm. It was there that they found Valid Expectations, a $225,000 purchase who was turned over to Steve.

“We won the Sugar Bowl H. on Dec. 31 at the Fair Grounds and it was my first stakes win at the Fair Grounds,” Asmussen recalled. “That was the first year when our barn went over $1 million in earnings. Next year he won the Derby Trial, which was our first graded stakes win ever and our first stakes win at Churchill Downs. He gave me my first stakes win in New York as well [in the 1996 GIII Sport Page H.]. Valid Expectations was the horse that propelled us.”

He had proven that he could win at the top levels, which opened doors. In 1995, he broke the 100-win barrier for the first time, winning 130 races. With momentum now in his favor, he proved unstoppable. In 2000, he won 233 races. In 2001, he won 294, including 31 stakes. For most everyone else, that would have been good enough, but not for Asmussen. His brand now well established, he kept getting bigger and better. In 2004, he set a single season record with 555 winners and topped it in 2008 with 621 winners. In 2013, he won his 6,418th race to pass Jack Van Berg to become the second leading trainer of all time.

His barn had as many top horses as anyone else's and he was winning the biggest races out there with horses like Curlin, Rachel Alexandra, Untapable, Summerly, Tapizar and, more recently Gun Runner.

Yet, he never forgot his roots and those early days around his parents. While Asmussen's parents were breaking yearlings for such high-profile owners as the Winchell Family, they were also kicking around tracks in Texas and New Mexico with their stable of quarter horses. Today, Steve Asmussen can just as easily be found in the entries for a beaten $10,000 claimer at Remington Park as he can for a Grade I race at Saratoga. There is no other trainer like him when it comes to the diversity of his stable. That he still races at places like Remington, Lone Star, Delta Downs and Sam Houston is a major reason he has been able to compile the numbers he has.

“Why have those races always been important to me?” he asked. “When you think of my mom and dad's stable, you think of them running in south Texas with Quarter horses and at the mixed meet at Ruidoso in the summer. During that time, my parents were still starting young horses off for the Winchells. When I was in junior high, with them, I was around Tight Spot, Silver Ending, Olympio, Sea Cadet. So I was so blessed to be around champions and Grade I-caliber horses while we were making a living with lower-level horses. It goes back to my mom and dad showing me that every horse in front of you is important. To them, every single one of them was important, every horse just as important as the next one.”

To make it work, to have so many horses at so many tracks, Asmussen has to have a deep and talented team working behind him. He is always quick to praise assistants like Scott Blasi, Mitch Dennison, Toby Sheets and Pablo O'Campo. He also credits his family, his wife Julie and his three sons. Not only are they understanding of his hectic schedule, but they stay involved and pitch in any way they can. Asmussen was understandably overjoyed last year when his son, Keith, spent his summer vacation from college riding horses and winning races as an apprentice jockey for his father.

“We have all done this together,” he said of his team.

After passing Baird, Asmussen will have to set his sights on new goals. He admits that he very much wants to win his first GI Kentucky Derby. There's also a trainer in Peru named Juan Suarez, who has more winners than Asmussen has. He wants to pass him. Beyond that, he simply wants to keep winning. There will be no slowing down.

“This has never been better,” he said. “It is so fun to train for the Winchells, the Heiligbrodts, the Ackerleys, because you ran their mothers and now we ran their sires. You had their half-sisters. When they come, in I like to notice the similarities and the differences. That is the fabulous part of it right now. We'll have Gun Runner babies this summer. We've had the Curlin babies. You look at the pedigrees of some of these horses and I broke their third dam when I was in high school working for my dad.

“Then there is my wife and my kids. It consumes all of us and it is so much fun that they are a part of it. It's been really fun to pursue this with my family, just realizing how much joy horse racing has brought to us as a family.”

In his mid-fifties, Asmussen has many good years left. If he keeps up his current pace, and there's no reason to suggest that he won't, he could have as many as 15,000 wins by his 70th birthday. With fewer and fewer races being run each year, he is sure to set records that will never be broken.

In some ways he can't help himself. Winning is in his blood.

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CDI Reportedly Asks for ’22 Illinois Dates Application

The Week in Review, by T.D. Thornton

Two months before Arlington International Racecourse is scheduled to run what is feared to be the historic track's final race, Churchill Downs, Inc. (CDI), the gaming corporation that owns the up-for-sale landmark, has reportedly requested an application for 2022 race dates from the Illinois Racing Board.

But as columnist Jim O'Donnell of the Daily Herald in suburban Chicago put it in his Friday scoop of this story, “What the carnivorous CDI will do with the application remains to be seen.”

With a July 30 deadline looming to apply for next year's dates, this pull-the-papers move could just end up being a gambit to make sure CDI has various contingencies lined up.

Requesting an application doesn't mean a track owner has to actually file for dates.

Nor does it mean CDI intends to file for dates at Arlington. The corporation could be eyeballing some other still-secret Illinois location.

Nevertheless, this news is likely to kindle hope (perhaps of the false variety) that Arlington could survive the wrecking ball–at least for another few race meets while CDI reaps the benefits of entitlements related to live racing licensure, like off-track betting and advance-deposit wagering.

O'Donnell also notes that CDI could also be using the move as a ploy to replenish its “depleted goodwill” with regulators and elected officials in Illinois. This could come in the form of using another season or two at Arlington as an olive branch while simultaneously pursuing bigger-picture casino endeavors at two lucrative locations where CDI wants to expand its gaming footprint in and near Chicago.

It was last July 30 that Bill Carstanjen, the chief executive officer of CDI, first outlined the corporation's desire to rid itself of Chicago's premier Thoroughbred venue. In February, CDI put the 326-acre property up for sale. It has since attracted four known bidders, only one of whom has publicly disclosed an interest in keeping Arlington operational as a Thoroughbred track.

TDN emailed Arlington's president Tony Petrillo on Saturday to ask if either Arlington or CDI actually intended to file a 2022 dates application. No response was received prior to Sunday's deadline for this column.

Carstanjen also was silent when asked by the Daily Herald to explain what was going on.

For the latest rundown in this ongoing saga, it's best to absorb O'Donnell's full column here.

But the two biggest points that O'Donnell brings up relative to continued racing in Illinois are:

1.) The possibility that CDI could be planning to either run a race meet itself, or partner with and/or enter into some sort of lease arrangement with a new owner (because large-parcel developments such as this take years to happen, such as when CDI sold Hollywood Park in 2006, and racing continued there under different management until 2013).

2.) What will Hawthorne Race Course do? O'Donnell reported that Arlington's rival racetrack 35 miles to the south is “preparing two dates applications predicated upon what Churchill does. If CDI or a nominee request a summer Thoroughbred meet, [Hawthorne] will simply repeat their spring-and-fall Thoroughbreds of 2021, bookending a midyear [Standardbred] season. If CDI completely exits the 2022 Illinois racing frame, Hawthorne will apply to run a summer Thoroughbred season with harness racing in the spring and fall.”

Fundraiser for Fallen Rider

Crooked River Roundup in central Oregon is about as far off the horse racing grid as you can get in America. Yet racegoers there passed the hat to raise a reported $3,500 July 14 upon learning they had witnessed the death of jockey Eduardo Gutierrez-Sosa in the first race of the meet when his mount collided with the inner rail and flipped the 29-year-old rider headfirst into the infield.

According to published reports, racetrackers gave another $16,000 the next night to help Gutierrez-Sosa's widow and three children (ages four, eight and one in high school). The outpouring of aid continued via donation bins in the betting area over the weekend.

The fundraising effort has now gone digital, with this GoFundMe page to help pay for funeral costs having already brought in another $18,000 as of Sunday afternoon.

Gutierrez-Sosa rode both Thoroughbreds and Quarter Horses, primarily on the mixed-meet circuit in the Pacific Northwest. The Mexican native who was a longtime Oregon resident was remembered by friends in this televised KTVZ tribute as an always-smiling family man who was easily identified on horseback for his distinctively pink riding attire.

The Quarter Horse that Gutierrez-Sosa rode in his final race, Godfather Advice (who walked off the track after the accident), was a 2-year-old Quarter Horse maiden trained by his wife, Rosa Rodriguez. According to members of the backstretch community, Rodriguez was standing at trackside after saddling her horse to watch the running of the race.

“She was on the race track when it happened,” Jennifer Abraham told KTVZ. “My heart breaks for Rosa that that's her last time with him. I hope she cherishes the memories they had together.”

Crooked River Roundup (aka Prineville Turf Club) annually hosts a four-date, under-the-lights meet on the four-track Oregon summer fairs circuit. It was questionable whether the racing there would even continue there this year after the track was forced to cancel its meet in 2020 because of the pandemic.

There was also some sentiment about canceling the rest of the meet after Wednesday's accident. But after abandoning the July 14 card following the second race, the decision was made to continue racing as scheduled Thursday through Saturday in honor of Gutierrez-Sosa.

“It's hard for some of us,” Dustie Crystal, one of his backstretch friends, told KTVZ. “Some of us [just wanted] to go home and not have the rest of the race meet. But we all know that, Sosa being the person he is, he'd want us to stay.”

When racing resumed Thursday night, KTVZ reported that the entire jockey colony was wearing some form of pink to honor Gutierrez-Sosa.

“It's hard to describe, but I feel like I lost my brother,” jockey Jose Figueroa told KTVZ. “We're going to ride for him.”

Nebraska the New Wild West?

No fewer than five new racetracks were proposed at last Friday's Nebraska Racing and Gaming Commission meeting. According to published reports, no action was taken on any of the applications, which were triggered by the passage of a trio of ballot initiatives last year that authorized casinos at licensed horse race tracks.

The gold rush-like flurry of proposals were tied to new locations in Bellevue, York, Norfolk, North Platte and Gering. According to the Sioux City Journal, the most lucrative sites are considered to be in the eastern part of the state near the Iowa border.

A standing-room crowd at that July 16 meeting generated plenty of opposition from Thoroughbred horsemen, who fear that a sudden glut of racing venues will only water down Nebraska's recently resurgent racing product.

According to the Journal, Lynne McNally, the executive vice president of the Horsemen's Benevolent and Protection Association, said that new tracks in places like Bellevue and York “will gut the purse structure.”

The Norfolk Daily News reported that Garald Wollesen, president of the NHBPA, said at the meeting that, “Building up casinos should build up the racing industry, not line the pockets of others.”

Robert Moser Jr., the former president of the NHBPA, testified that if both the Bellevue and York proposals are approved, it would put four tracks within 100 miles of each other on the eastern edge of the state. According to the Journal, he said that the only place in the country where that exists is in New York, in an area with 20 million people.

Nebraska has six racetracks that are currently eligible for racino licensure. Fonner Park in Grand Island races the only extended Thoroughbred season, with other limited Thoroughbred dates at Omaha, Lincoln and Columbus. Quarter Horse mini-meets occur at South Sioux City and Hastings.

Major purse upswing at Timonium

At last Thursday's Maryland Racing Commission meeting, officials from the Maryland State Fair in Timonium told commissioners that purses at the Aug. 27-Sept. 6 race meet would be level with what Thoroughbreds race for at Laurel Park and Pimlico Race Course.

The surge in daily average purses from $175,000 last season to a hefty $287,000 in 2021 will represent the highest amounts ever offered at the five-furlong fairgrounds track with the distinctively banked turns.

Although late summer is the most competitive time on the calendar for racing in the mid-Atlantic region, Timonium should benefit from an expected equine population boost this season from the 600 horses that have been stabled on the grounds since late spring because of the closure of the stable area at Laurel, which

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