The Breeders’ Cup Forum: Exploring Racing Regulations and Law

by | 09.05.2012 | 1:49pm
Bob Heleringer

“Equine Regulatory Law” is a new book published by Robert Heleringer, an attorney, former 11-term member of Kentucky's House of Representatives, pari-mutuel clerk, racing official, turf writer, lecturer, and instructor at the University of Louisville, where he received his law degree in 1976.

The book traces the history of landmark legal decisions that have had profound influence on the horse racing industry, explaining in simple language how and why their impact is felt today. With so many regulatory issues and efforts to police horse racing bouncing from the tracks, to racing commissions to the justice system, “Equine Regulatory Law” provides those interested or involved in these issues a better understanding of what may be going on, and why. For more information on the book, click here.

Why did you write this book, and who is its audience?
In 1999, I was hired by the University of Louisville's Equine School to teach Equine Regulatory Law. I asked to see what textbook my predecessor, Kent Hollingsworth, had used. I was politely informed there was no textbook, the class had been taught with notes and hand-outs of court cases. I more or less resolved right there to write such a textbook. In 2006, I started to write the book in earnest and completed it in the spring of this year.

The task evolved over time – I no longer just wanted a textbook, but a true history book as well with (hopefully) interesting profiles of litigants, judges, legislators, and racing personalities – especially in the early years – who have through time made this field of law not only important to the sport but, at times, even fascinating and colorful.

Its intended audience is not just lawyers, law professors, or judges, but anyone who works in and around the racing industry in any capacity – and that includes racing fans in general. Equine Regulatory Law is not written in complex legalese, but in a text anyone can understand.

It's obviously been a labor of love. How long did it take from start to finish?
As I said, it basically took six years from gate to wire to finish. As my publisher – Butler Books – can attest, it was difficult to force myself to break it off at some point, really finish it, and hope that no major case would be decided making the book almost obsolete when it was delivered to me. Luckily, that did not happen.

It seems over time judicial rulings have taken authority away from the tracks to exclude or evict trainers or others based using private property laws. Are there any particular cases you can cite that were landmark decisions in that regard?
It is important to note the distinction between exclusion of licensed and unlicensed individuals. Racetracks still retain their “inherent” right to eject “undesirables” (essentially would-be patrons) almost at will. Licensed people (trainers, jockeys, etc.) are another matter, legally and constitutionally, as both state and federal courts have long held that licenses are “property rights” that cannot be summarily revoked, suspended, denied re-issuance without some modicum of due process of law.

There has been a noticeable trend – depending largely on what state one finds oneself in – of a diminishment of a racetrack's heretofore unfettered right to exclude/eject even licensed people for little or no quantifiable basis, only a “suspicion” of perceived dishonesty. We have indeed come a long way from the “Bobby” Martin case (Martin v. Monmouth Park Jockey Club, a 1956 case) where a federal judge upheld Monmouth Park President Amory L. Haskell's decision to bar a licensed Martin from riding at the New Jersey track, an exclusion based entirely on Martin's past “record” (which was, admittedly, extensive) to the decision in late 2011 by the West Virginia Supreme Court of Appeals to prohibit a racetrack's (Charles Town) banishment (pending exhaustion of all appeals) of seven jockeys who had been caught on videotape failing to honestly weigh out after several races. (PNGI, LLC v. Reynolds, et al).

Are exclusions without due process a thing of the past? Jeff Gural, who is running the Meadowlands, seems to be enforcing them in the Standardbred world.
Beginning with the famous “Riley” Grannan case in 1896 (the nation's first published equine regulatory law decision), and up through today's modern era where prominent names like Pletcher, Baffert, Albarado, and Dutrow can be found in published appellate cases, due process of law will always be available and aggressively pursued and defended by those licensees that can afford such efforts. There are no Legal Aid Society attorneys available for those on the backside who cannot afford to vigorously challenge their sanctions.

Again, it sometimes depends on what jurisdiction you're looking at – courts in some states (Kentucky, New York, Maryland, Ohio come to mind) are seemingly loathe to overturn almost any final decision of their racing commissions. Other states (I would suggest Florida, Pennsylvania, Louisiana, and even Mr. Gural's New Jersey) are not so reticent about reversing agency decisions despite the obligatory lip service to “not substituting the Court's judgment for that of the commission's.”

All case outcomes, in every state, are of course 100% fact-dependent.

Doesn't a trainer who signs a heavy-handed stall application virtually give up his rights to certain things?
Stall applications, stakes nomination forms, and license applications are all classic examples of “adhesion contracts” – take-it-or-leave-it “agreements” in which there is no bargaining or any meaningful “offer and an acceptance” between equal parties. As I point out in the book, sweeping language in the current Keeneland and Colonial Downs (just to cite two of the more egregious examples I found) stall applications, regarding searches of “rooms” and the confiscation of “suspicious” items therein – all without a warrant – seemingly violate every precept of the 4th Amendment, particularly as applied to track-owned dormitory facilities on the backstretches of most American racetracks.

Recent, successful federal court challenges to warrantless searches of these accommodations on the backsides of Arlington Park and Yonkers Raceway would suggest that judges are increasingly wary of some of the broad language in these typical, pre-printed forms, once considered legally “bullet-proof.” And when judges are “wary,” racetracks can suddenly have serious problems.

Racing commissions don't have the power they used to in handing out suspensions. Some cases are dragged out for years in the courts. Why is that?
I would suggest that racing commissions today do not have the unquestioned or unlimited power some say they had in other eras in racing history. Again, depending on the state, commissions remain fairly autonomous and powerful agencies depending on the personalities of members and even the proclivities of a state's Governor (see Kentucky's recent version of same in unilaterally ordering implementation of new race-day drug rules over the strident objections of the legislative branch).

Yes, some cases take an inordinate amount of time to conclude. But that is not unusual. The 1968 Kentucky Derby case (DQ of the winner, Dancer's Image, because of a positive drug screen), took exactly four years to resolve, 3 1/2 years of that time in Kentucky's courts. The wheels of justice grind exceedingly slow, as the axiom says. Let's face it, most of the “delay” occurs once a case is appealed to court – a fundamental due process protection for licensees that will never be compromised – and there is then an all-but-palpable desire of the judicial branch, that often displays an appalling ignorance of the realities or the intricacies of our unique racing universe, to “get it right.”

That education process for a judge (and her/his law clerks who ghost-write a ton of the actual opinions) takes a lot of time. But racing should always do all it can not to exacerbate any delay. Stewards' hearings and commission decisions should be prompt and announced with all deliberate speed so that the public can always be confident that its interests – the most paramount by far of all the varied interests in our sport – are being jealously protected.

In part two, we'll talk about efforts to create uniformity of rules and a central authority to oversee horseracing on a national basis.

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