Appeal of Stewards' Decision Puts Rule Under Scrutiny

Should a federal court examine Kentucky's law that doesn't allow for an appeal of stewards' judgment calls on interference, an industry standard will be under scrutiny.

Gary and Mary West—owners of Maximum Security, who was disqualified from victory in the Kentucky Derby Presented by Woodford Reserve (G1) for interference in the far turn—have filed a case in a U.S. District Court appealing that decision on the grounds that it violated their constitutional rights. That appeal includes an argument noting the Kentucky rule that doesn't allow for a regulatory appeal of the stewards' decision violates their rights to due process.

While longtime horse racing followers may recall interference calls occasionally being appealed to the racing commission level, a model rule adopted in 2002 effectively ended that practice in the majority of racing states. The Association of Racing Commissioners International, a racing regulator umbrella group, adopts model rules that its member jurisdictions are then encouraged to adopt to facilitate uniformity.

A pair of model rules adopted in 2002 address the issue. Under the model rule on proceedings by stewards or judges, license holders are allowed to appeal some stewards' decisions to the racing commission—for instance, sanctions based on a post-race drug test—but the rule does not allow appeals of stewards' in-race calls on interference and disqualifications.

One 2002 model rule on the topic reads: "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."

The other model rule updated in 2002 makes the stewards the final arbiters and falls under the heading "Protests, Objections, and Inquiries." It states: "The stewards shall make all findings of fact as to all matters occurring during and (incidental) to the running of a race, shall determine all objections and inquiries, and shall determine the extent of disqualification, if any, of horses in the race. Such findings of fact and determinations shall be final."

The rule in place in Kentucky is in line with the model rule, stating, "Matters occurring and (incidental) to the running of the race," shall be final and not be subject to appeal.

The Wests requested an appeal of the stewards' decision to the full commission May 6, and it was denied the same day. The Kentucky Horse Racing Commission cited the rule in place and noted that licensees in Kentucky agree to abide by the commission's rules and regulations. 

KHRC general counsel John Forgy, in a letter denying the appeal request, said, "Because the stewards' disqualification determination is not subject to appeal and for the reasons set forth below, your request for an appeal is denied."

The rule in Kentucky, along with the industry standard model rule, is being called into question in the federal lawsuit.

In the Wests' appeal filed May 14 in the United States District Court for the Eastern Division of Kentucky, Frankfort Division, they contend that their constitutional rights have been violated, in part, because Kentucky rules go against the 14th Amendment allowing for due process. The case argues the rule needs to allow some process for appeal.

In citing violations of due process, the Wests' filing notes the KHRC "refused to allow plaintiffs to appeal the stewards' final order to the commission or in any other way to administratively challenge the final order disqualifying Maximum Security." 

There was a time when commissions allowed such stewards' decisions to be appealed. Perhaps the most recognized case was Chief's Crown in the 1985 Flamingo Stakes (G1) at Hialeah Park. Chief's Crown reached the wire first, scoring by 1 1/4 lengths in that 1 1/8-mile race, but the stewards disqualified the champion 2-year-old to second for interference with runner-up Proud Truth. 

The stewards' decision was overturned on appeal, and Chief's Crown, who was campaigned by Andrew Rosen, was reinstated as winner of the Flamingo a dozen days after the race. Oddly enough, it wasn't the connections of Chief's Crown who brought the appeal but rather the connections of third-place finisher Stephan's Odyssey.

John Stuart, a bloodstock agent and founder of Bluegrass Thoroughbred Services, began advising the Rosen family that year in a relationship that has lasted to this day. He recalled that when the owner of Stephan's Odyssey, Henryk De Kwiatkowski, appealed the stewards' decision, Rosen hired an attorney who did a great job with the case. In the appeal, the parties agreed they would not appeal the case to court but would respect the call of Bob Rosenberg as mediator from the state's pari-mutuel division.

Stuart said he would like to see racing regulators allow an appeals process of stewards' decisions.

"I think it's important for the connections to be able to appeal a decision. Mistakes can be made; referees and stewards are like anyone else," Stuart said. "When you have a lot of people upset with a decision, allowing an appeal gives everyone an opportunity to speak. It gives the entire process a legitimacy that is good for the game."

Lonny Powell, the CEO for the Florida Thoroughbred Breeders' and Owners' Association, served as ARCI president and CEO in 2002 when the model rule prohibiting appeals of stewards' race decisions was put in place.

Powell recalled there wasn't a single controversial incident or all-out cry for change so much as some industry stakeholders felt there was a need for decisions to be final. Also, he recalls concerns about appeals being available in some states but not others. He said the hope was the model rule would push more states toward uniformity.

ARCI president Ed Martin recalls being a New York regulator when the current standard was put in place. He thinks it's a good rule.

"You hire professionals who are experts on racing and the rules to make decisions on the race," Martin said. "These are judgment calls and you put people in place with the experience to make those calls. To put that process up for appeal, suddenly you're putting the decision in the laps of people who likely do not have that expertise and background."

Martin said regulators should make sure they hire trained, accredited stewards to make these calls. Stewards' overall performance can be evaluated, and if changes are needed, they can be removed or rotated out. He said having three stewards in place ensures a single misguided person can't foul up a decision.

Also, Martin noted that an appeals process can set up a situation where the connections with the deepest pockets—providing ability to hire top attorneys and pursue cases through an appeals process—would have an advantage.

Horse racing isn't the only sport this year where a federal court case followed a decision by officials. Season-ticket holders of the New Orleans Saints sought a ruling to have playoff ticket expenses repaid or the game rescheduled after a controversial non-call went against their team in the NFC championship game and favored the Los Angeles Rams, who won the game and advanced to the Super Bowl. That case was dismissed March 1. 

Martin noted stewards sometimes have to make difficult decisions or high-profile calls that often divide participants and fans.

"These decisions are always going to make some people happy and others mad," Martin said. "That's not unique to our sport."