Legal Landscape Shifting Around Bedrock Rules

By T. D. Thornton

The Week in Review

From a legal standpoint, these are interesting times in the Thoroughbred industry, particularly if you lean toward the “question authority” mindset.

Racing’s “absolute insurer” rule, which places the ultimate responsibility for anything having to do with the care of a Thoroughbred squarely on the shoulders of its licensed trainer, was declared unconstitutional last month by a circuit court judge in Kentucky because its rigidity deprives trainers who are accused of improper equine treatment of their due process rights.

The decision is currently being appealed by the Kentucky Horse Racing Commission, and even though the ruling does not directly affect absolute insurer regulations in other states, the final outcome is being watched closely because that long-accepted trainer responsibility standard forms the basis for anti-doping and medication control rules in most United States jurisdictions. More challenges in other states could be in the pipeline.

Next month, the United States Supreme Court is scheduled to hear a case from New Jersey challenging the constitutionality of the Professional and Amateur Sports Protection Act of 1992 {PASPA), which is the backbone for the nationwide prohibition on sports betting in all but four grandfathered states (Nevada, Oregon, Montana and Delaware).

A ruling on the PASPA case could be expected a few months later. But as a pre-emptive strike in case some sort of federal action nullifies the near-nationwide ban on sports betting, this past Wednesday a Kentucky state senator filed a bill to establish a framework to allow sports wagering at any horse track or off-track wagering facility in the commonwealth.

Without such a regulatory framework in place, sports betting might become legal at the federal level anyway, depriving Kentucky (and its racing industry) of a slice of the revenue stream while simultaneously providing daunting competition to pari-mutuel horse betting.

Also last Wednesday, a federal judge in Indiana struck down a version of the Thoroughbred industry’s long-standing “jail” rule that prohibits claimed horses from racing outside the state for 60 days. As of this writing, no appeal has been filed by the defendant, the Indiana Horse Racing Commission.

Theoretically, a federal precedent is now on the books striking down the jail restrictions for claimed horses, meaning owners should be free to race horses they purchase via claims whenever and wherever they choose. But in practice, expect that few, if any, state racing commission regulations or “house rules” at racetracks will change as a result of this court order.

The federal court’s specific directive not to enforce the jail rule (because it is an unfair restriction of interstate commerce) only applies within Indiana, and trainers who wish to challenge similar jail rules in other states should expect that they will have to initiate their own lawsuits in order to do so, at which time they could cite the Indiana federal ruling as a precedent to bolster their cases.

California could be the first jurisdiction where the jail rule first gets batted around like a legal pinata.

In July, a proposed amendment to California Horse Racing Board (CHRB) rule 1663 to provide that a claimed horse in ineligible to race in any other state than California (except in a stakes race) until 60 days after the close of the meeting was pushed off the agenda for further study by the CHRB’s Legislative, Legal and Regulations Committee before being potentially brought back before the full board for action.

At the time, that measure was presented as a commission-level way to improve short fields by cutting down on the number of horses being claimed in California that end up being transferred to other states where they are lured by gaming-enhanced purses. Del Mar Thoroughbred Club and Santa Anita Park currently have house rules that call for similar jail restrictions, but the CHRB does not have a direct say in enforcing those house rules.

CHRB officials testified at that July meting that the legal landscape might be ripe for instituting a commission-mandated jail rule because, in their opinion, the federal scope pertaining to interstate commerce had narrowed, thus making a jail regulation better legally defensible.

But the Sep. 20 federal ruling out of Indiana seems to contrast sharply with the above-stated CHRB reasoning.

The CHRB has an agenda item pertaining to discussion and action on rule 1663 scheduled for its meeting this Thursday. Yet the CHRB also posted a notice on its website announcing that Wednesday’s Legislative, Legal and Regulations Committee has been canceled, and the claim-jail rule change had been agenda item No. 1 for that committee meeting.

Now it remains to be seen whether the claim-jail rule will come up for a vote at all on Thursday, or if it will resurface in some different structure.

Sophmores jinxed?

The year’s final graded two-turn stakes for male 3-year-olds were run over the weekend. If you were holding your breath for either the GI Pennsylvania Derby at Parx or the GIII Oklahoma Derby at Remington Park to produce a dominant, bust-out winner to carry the divisional flag as a serious threat against older rivals in the GI Breeders’ Cup Classic, you’d best exhale right now.

This is not so much a knock on Pennsylvania Derby victor West Coast (Flatter) as a frank assessment of the lack of depth within the 3-year-old male division as a whole.

West Coast, after winning his fifth consecutive race (and second straight Grade I route), appears to be peaking at just the right time to factor in the Classic. But he has yet to face a stern, deep-stretch, battle-searing test to get a true read on how he would stand up to the likes of Arrogate (Unbridled’s Song) and Gun Runner (Candy Ride {Arg}) over ten furlongs.

In the July 15 GIII Los Alamitos Derby, West Coast dropped far back, gave up significant ground on both turns, and looped a subpar group of stakes horses at 2-5 odds. The Aug. 26

GI Travers S. shaped up to be a corker of a race on paper, but West Coast was really the only horse who brought his “A” game. After establishing a moderate early pace, no other horse–including all three winners of this year’s Triple Crown races–mounted realistic challenges to either soften up West Coast’s lead or cut him down late in the Saratoga lane.

On Saturday, West Coast settled willingly, alternated heads down the backstretch with 18-1 pacemaker Outplay (Bernardini), shrugged off that rival just prior to the quarter pole, then had the length of the Parx stretch all to himself for an unchallenged 7 1/4-length win. His next closest competitors were Irap (Tiznow), who raced erratically and was subsequently vanned off with a fractured sesamoid, and Giuseppe the Great (Lookin At Lucky), a 47-1 long shot.

At Remington, 7-5 favorite Battle of Midway (Smart Strike) encountered similar early traffic woes that hampered his effort in the GI Haskell Invitational back in July. But in the Oklahoma Derby he settled enough down the backstretch to remain poised to pounce off the far turn.

His Haskell nemesis Girvin (Tale of Ekati) was briefly pocketed three-eighths out but thereafter failed to rally when roused, and the horse who got clear run after a stalking, mid-pack trip in the Oklahoma Derby ended up being Untrapped (Trappe Shot), a capable sort who has picked up minor awards in graded stakes since January but needed until Sunday night at Remington to record his second lifetime victory.

Ladies first?

In contrast, the filly 3-year-old division looks as if it will provide a bit of intrigue at the Breeders’ Cup when its top-seeded sophomores square off against older distaffers.

Mike Smith’s slingshot move up the rail aboard 4-5 favorite Abel Tasman (Quality Road) proved to be a premature tactic in the GI Cotillion at Parx, allowing It Tiz Well (Arch) to be the main beneficiary after that filly rated kindly behind the fully engaged Abel Tasman and pacemaker Lockdown (First Defence).

But don’t make the mistake of chalking up It Tiz Well’s Parx win to circumstances of attrition. After winning the GIII Delaware Oaks in July, It Tiz Well turned in a much-better-than-it-looks performance when setting solid fractions and holding for second behind Elate (Medaglia d’Oro) in the GI Alabama S. at Saratoga Aug. 19, and she has quietly been building a capable, under-the-radar resume heading into the championship time of the year.

As for Abel Tasman, neither Smith nor trainer Bob Baffert expressed post-race doubts about how the loss on Saturday will affect her readiness for the GI Breeders’ Cup Distaff. The extra half-furlong stretchout from the Cotillion to the Distaff will work in Abel Tasman’s favor, and a blinkers-off change might also result in less keyed-up antics that have required Smith to move early in both of her last two tries.

Elate will get her first taste of older competition this Saturday in the GI Beldame at Belmont Park. Right now she’s the queen of the 3-year-old filly division based on her emphatic Alabama victory and her gutsy, close-quarters stretch battle in the Grade I Coaching Club American Oaks when beaten a head by Abel Tasman.

And even though her complete-control win at 1-5 odds in Sunday’s Remington Park Oaks amounted to little more than a rousing public workout, last year’s 2-year-old filly champ Champagne Room (Broken Vow) signaled that she too might have a say in the Distaff fray. The win represented her first start since February (ankle chip surgery), and was only her second outing since Champagne Room won last November’s GI Breeders’ Cup Juvenile Fillies.

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