Does West Virginia Case Imperil Racing 'Purity?'

(Originally published in the December 3, 2011 issue of The Blood-Horse magazine. Feel free to share your own thoughts and opinions at the bottom of the column.)

Bob Heleringer is an attorney, former racing official, and former Kentucky state legislator. He teaches Equine Regulatory Law at the University of Louisville’s Equine Studies Program

A closely-divided West Virginia Supreme Court of Appeals dealt a crippling blow to the racing industry’s formerly impregnable legal right to eject, for cause, licensed “permit-holders” such as jockeys.

In a closely watched decision released Nov. 18, West Virginia’s highest court held 3-2 that the Charles Town racetrack had no “common law” right to defy a lower court’s injunction to admit seven jockeys who had been suspended and fined for violating West Virginia’s “weighing out” rules.

PNGI Charlestown Gaming LLC v. Lawrence Reynolds, et. al., had its genesis in a sting operation conducted in March 2009, when a hidden camera recorded seven jockeys failing to report their accurate weights to Charles Town clerk of scales Michael Garrison. Garrison was eventually fired and, after a hearing the track’s stewards suspended and fined the seven riders.

One week after this ruling Charles Town formally notified one of the jockeys, Lawrence Reynolds, that he was being ejected “effective immediately.” Reynolds promptly filed suit and obtained a stay until the West Virginia Racing Commission could hold a de novo hearing.

Relying on its perceived common law right to eject even licensed individuals for any non-discriminatory cause, Charles Town denied entry to all the suspended jockeys despite the issuance of the stay. The court then enjoined the track from denying the riders’ admission to its grounds until the racing commission dealt with their respective appeals.

After the commission upheld the stewards’ rulings, Charles Town reinstated its ban on the seven jockeys, despite their appeal of the commission’s order. After that court issued yet another stay, track management appealed to West Virginia’s Supreme Court.

In an unusual if not unprecedented alliance, the West Virginia Racing Commission supported the legal position of the ejected jockeys, arguing that its administrative prerogatives and the “permit-holders” due process rights took precedence over the racetrack’s rights of exclusion. Making this case truly national in scope, the Jockeys’ Guild and the National Horsemen’s Benevolent and Protective Association filed “friend-of-the-court” briefs in support of the commission and the banned jockeys.

Speaking for her slim majority, Chief Justice Margaret Workman agreed with the lower court that Charles Town has no “unrestricted common law right to eject a jockey from its premises.” The court took pains to distinguish state and federal case law endorsing a racetrack’s right to eject “undesirable” patrons from the higher scrutiny required for the exclusion of “permit-holders” who have a vested “property right” in their licenses. The majority held that a racetrack’s “right” to eject licensees is subject to the “plenary authority” of the state’s racing commission and emphasized that the ultimate fate of any such disciplinary action begins and ends with that agency.

Only time will tell if this landmark decision portends a new direction in American equine regulatory law or is dismissed as an aberration by an activist court. The  majority opinion omitted any discussion of decades-old precedents that have recognized racing’s “inherent” right to eject even licensed individuals if there is a “reasonable determination that their presence is detrimental to the best interests of horse racing.” (Iwinski v. Pennsylvania State Horse Racing Commission).

In the most famous manifestation of this principle, prominent but often-ruled-off jockey Robert J. “Bobby” Martin was ejected from Monmouth Park in 1956 despite his possession of a valid license. A New Jersey federal court upheld the track’s exclusion that was based entirely on the rider’s “record.”

“In a sport where the greatest importance should attach to dissipating any cloud of association with the undesirable,” the court observed, “and in which the appearance as well as the fact of complete integrity is of paramount consideration, to exclude (Martin) from riding because of his record was an understandably warranted exercise of discretion.” Until the West Virginia high court ruled in November, a racetrack’s “discretion” in these matters was settled law.

It is ironic that the West Virginia Supreme Court cited a 1975 federal case, Hubel v. West Virginia Racing Commission, for its contention that a privately owned racetrack is nevertheless subservient to the state legislature that allows it to exist. Overlooked by the court was the following sentence contained in that same decision: “(Horse racing) has two substantial interests to be served. It has a humanitarian interest in protecting the purity of the sport…and (in) protecting the patrons from being defrauded.”

Racing’s “purity,” a quaint euphemism for the game’s integrity, is in serious jeopardy if a state’s racing commission not only abdicates its own primary duty to protect the public, but staunchly opposes—before a state’s highest court—a racetrack’s right it has held since at least 1896 (Grannan v. Westchester Racing Association) to be the sport’s last line of defense to prevent serious violations of racing’s rules.

6 Comments

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PipeDope

The esteemed "attorney" doesn't seem to have a clue in this matter.

For there is no state legislature in the land which has the power to "allow" "a privately owned racetrack" "to exist".

There are training tracks all over North America, effectively built in peoples' back yards, over which the state legislature has no more and no less influence than it does over homes owned by you or I.

These training centers are effectively "racetracks" with the only difference being that they can't allow parimutuel wagering.

Parimutuel wagering is the only thing which makes attorney Heleringer's image of what he calls a "racetrack" perceptibly different from the local training center with a training track.

Thus the state does not dictate who is and who isn't allowed to build his "privately-owned  racetrack".  The state merely determines who gets to host parimutuel wagering legally.

With parimutuel wagering comes the need for the state to regulate the goings-on behind the scenes.  When there is clear evidence of corruption at a licensed parimutuel establishment then it is the state's responsibility to effectively demand control of who comes, lays, stays, or prays at said establishment.

This obviously has nothing to do with the age old custom of excluding on a whim bookmakers, moneyrunners, and other persons of their ilk from the grounds of "a privately owned racetrack".

Of greater importance is the question of why we are wasting "Industry Voices" column space on something so completely foolish and poorly presented when there is an entire industry out there to save with common sense?

What say we turn over a new leaf and devote this column space to those who might better understand how to right the many wrongs put upon us by the leaders of the North American horse racing industry?

29 Nov 2011 4:07 PM
Barry Irwin

A wonderful example of why racing needs to cut a deal with all of the States to opt out of their control. Tracks should pay a couple of percent to the State and tell them to stay out of their business. The tracks need to call their own shots and not be subjected to laws other than their own rules. They need to be a private club. This is the only way racing can gain control of an intolerable situation.

29 Nov 2011 8:30 PM
Needler in Virginia

Well, OK then. West Virginia has spoken. Fraud is OK, lying is OK and racing is again the loser, but the jockeys are happy............ARE THEY KIDDING? After this "decision" (she said snidely), you couldn't get me to bet 5 cents on a walkover. After the road kill decision, I thought WV was joking; now it appears the state is deadly serious about accepting dishonesty in a sport that has had more than its' share of troubles in that arena. This is one for the record books, folks, and it's a DOOZY!

BAH and humbug.........

29 Nov 2011 10:57 PM
Karlin

Racetracks will have to develop a new legal method to restrict dirty jockeys and trainers from their grounds. This requires ingenuity. I would suggest criminal charges. Otherwise they might as well go into another business as legal due process rights last forever. Where gambling is involved and the public needs to be protected, the industry cannot afford to continue as is.

30 Nov 2011 5:11 PM
horseman

"A closely-divided West Virginia Supreme Court of Appeals dealt a crippling blow to the racing industry’s formerly impregnable legal right to eject, for cause, licensed “permit-holders” such as jockeys."

Mr. Heleringer, with all due respect, you should get your facts correct before making erroneous assumptions such as your introduction.  

Prior to this ruling, track managements in West Virginia could eject/exclude permit holders with, or without cause, for any or no reason, with no due process protections for the over 5,000 occupational permit holders in West Virginia.  The threat of arbitrary exclusion was very real, and political retaliation and intimidation was the norm.  

Shouldn't the Racing Commission be the sport's last line of defense to protect all particpants, permit holders and track owners, from all purported wrongs?  You seem to have a track management bias with no concern for those who invest their money and lives in the industry who could have been (and some have been) arbitrarily excluded from their livelihoods.

The "slim majority" promoted justice and fairness in its ruling.

Do you contend track managements should be judge, jury, and executioner simultaneously?

The Racing Commission should, and now does, have the right to overturn unjust exclusions (while affirming just ones).    

01 Dec 2011 9:24 AM
judgebork

Bob, Is there no collective effort on the part of West Virginia's horse and dog track operators being discussed to appeal this atrocious decision?

02 Dec 2011 6:17 AM

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