Kentucky Derby appeal: Even when everything goes right, racing is portrayed in a negative light

I read with dismay this piece on Monday in the Paulick Report titled, “‘An Outrageous State Of Affairs’: Wests Plan To Appeal Judge’s Dismissal Of Maximum Security Kentucky Derby Lawsuit.”

It seems racing just can’t catch a break this year. We have in the disqualification of the Kentucky Derby winner an example our rules being enforced appropriately — to the letter of the law — without the hint of favoritism, and it may appear to millions of readers that this is another example of a sport that just doesn’t have its act together.

Gary West, the owner of Maximum Security, along with his wife Mary said in a statement Monday that the Wests plan to appeal a judge's ruling last week that dismissed their lawsuit against the Kentucky Horse Racing Commission and the stewards who disqualified their horse from this year's Kentucky Derby.

“Kentucky's regulations make clear that the disqualification is not subject to judicial review,” read judge Karen Caldwell's opinion. “Further, the disqualification procedure does not implicate an interest protected under the Due Process Clause of the U.S. Constitution.

“Accordingly, the Court must grant the motion to dismiss.”

I’ve selected the most pertinent comments in Mr. West’s statement:

The Court's decision holding that disqualification decisions by Kentucky's stewards are never “subject to judicial or any kind of review” literally puts Kentucky's stewards above the law. 

Sadly, the Court's Opinion allows secret deliberations by Kentucky's stewards that affect millions of people and billions of dollars to forever go unreviewable by any court; indeed, by anyone, no matter how negligent, reckless or nefarious such secretly-made decisions may be.

The opportunities for abuses under such a bizarre and un-American system are self-evident. This is an outrageous state of affairs that does irreparable damage to the “trust” in the sport of thoroughbred racing in Kentucky.

The secret and unreviewable actions by state actors that have been authorized by the Court's Opinion are the way things are done under totalitarian regimes in third world countries. The Kentucky State Racing Commission should be ashamed to have created a “rule” like this; it is no wonder most people routinely question stewards' rulings on disqualifications.

I cannot and will not allow such a dangerous precedent to stand unchallenged. I have, therefore, authorized my attorneys to immediately appeal.

Commentary

As a regulator I never subscribed to the adage that “rules were made to be broken.” My view was that rules are made to be followed by the participants and enforced by the regulators.

I was not shy in praising the stewards presiding at Churchill Downs this spring and the Kentucky Horse Racing Commission for their handling of disqualification. Shortly after the race I wrote a blog piece for Horse Racing Reform titled, “The Derby: What went Right?”

But let’s get back to the now.

I’ll focus on what I believe to be Mr. West’s main issue. That is the statement that “The Kentucky State Racing Commission should be ashamed to have created a ‘rule’ like this.”

It is most important to note that the rules “like this” that prohibit appeals of racing disqualifications are not only consistent with the model rule for horse racing in the U.S., but they are similar to the appeals rights (or lack thereof) of most professional sports.

Here is the model rule of the Association of Racing Commissioners’ International on this matter:

“A decision by the stewards/judges regarding a disqualification during the running of the race is final and may not be appealed to the Commission.”

We see football officials refer to video replay on certain plays. Sometimes after the review they overturn the initial call. We have seen it in the end zone. Did the receiver have two feet in bounds when he caught the ball?  Did the ball cross the plane of the end zone for a touchdown?

We have also seen plays botched by officials, often without any video review. Sometimes this leads to the difference between winning or losing a ball game. Or the difference of making the playoffs or going home. Sometimes the stakes are huge.

When is that last time you saw the NFL change the result of a game after it had been played?

Never?

That’s not the way the game is played because that is not the way the rules are written.

And that’s the way it should be.

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