(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.
