Maximum Security's owner Gary West will likely sue after the disqualification and ensuing controversy at the 2019 Kentucky Derby, but what are the odds of building a strong and successful legal case?  

By Michael McCann
May 07, 2019

Could the controversial finish at Saturday’s Kentucky Derby lead to a federal lawsuit?

This possibility was first raised on Sunday in a story authored by David Grening in Daily Racing Form. Grening interviewed Gary West, the owner of Maximum Security—the horse that was favored to win and that in fact finished first but was disqualified due to interfering with other horses. West told Grening that he might sue over the disqualification.

The odds of a lawsuit likely increased on Monday when the Kentucky Horse Racing Commission swiftly denied West’s appeal. As explained below, West could argue he was denied due process. However, West would face significant hurdles in pursuing any litigation.

Unpacking the unusual finish and accompanying rule violations

As SI’s Tim Layden has expertly detailed in his coverage from Churchill Downs, West and his wife Mary West believed they had earned their first Derby win after more than 40 years in the sport. Maximum Security “won” by one and three-quarter lengths over Country House on a wet track. Luis Saez, Maximum Security’s jockey, and the Wests were ready to celebrate and share in a $1.86 million prize.

The three stewards for the Kentucky Derby—chief steward Barbara Borden and associate stewards Brooks “Butch” Becraft and Tyler Picklesimer—had other ideas. Referees and stewards not only watch the race live, but they also review video following the race’s completion and attempt to resolve complaints lodged by jockeys, both before and after races.

If necessary, stewards interview riders and other witnesses to assess possible infractions. One key rule is that horses can’t engage in “interference,” which refers to impeding, hampering or otherwise obstructing the forward progress of any of the other horses. Interference can prevent a fair race and it also presents a safety risk for both jockeys and their horses. In recent months, the safety rationed has received particular attention in light of 23 horses dying at the Santa Anita racetrack in Arcadia, Calif., since December.

The jockeys of Country House and Long Range Toddy filed objections after the race. Each claimed that Maximum Security had substantially interfered with their horses at the quarter pole and adversely impacted the race. After reviewing video and interviewing affected riders, the three stewards unanimously determined that Maximum Security had interfered with War of Will, which in turn caused interference with Long Range Toddy and Bodexpress. The stewards did not find that Maximum Security had interfered with Country House.

In a brief statement, Borden explained that Maximum Security had “drifted out and impacted the progress” of other horses. Though not stated by Borden, it seems the stewards believed that Maximum Security’s inference disadvantaged the other competitors and gave Maximum Security an unfair advantage. Borden took no questions in a press conference. Here is a transcript of what she said:

“Good evening. The riders of the 18 (Long Range Toddy) and 20 (Country House) horses in the Kentucky Derby lodged objections against the 7 [Maximum Security] horse, the winner, due to interference turning for home leaving the quarter pole. We had a lengthy review of the race. We interviewed affected riders. We determined that the 7 horse drifted out and impacted the progress of number 1, in turn interfering with the 18 and 21 (Bodexpress). Those horses were all affected, we thought, by the interference. Therefore we unanimously determined to disqualify number 7 and place him behind the 18, 18 being the lowest-placed horse that he bothered, which is our typical procedure.”

For the first time in the Derby’s 145-year history, the horse that finished first was disqualified for an in-race infraction (1968 Derby winner Dancer’s Image was disqualified for testing positive for the drug Butazolidin). The beneficiary of Maximum Security’s disqualification was the runner-up, Country House, and its jockey, Flavien Prat. Country House—a 65 to 1 longshot—was declared the winner 22 minutes after the race finished. Maximum Security was dropped from 1st o 17th out of the 19 horses that competed.

The controversy continues

Since that declaration, horse racing experts and various commentators have offered divergent and sometimes heated viewpoints about whether Maximum Security should have been disqualified—and whether Country House should have been declared the winner. Those who regard the ruling as correct contend that Maximum Security clearly engaged in behavior that qualifies as interference and that this interference meaningfully impacted the outcome of the race. Video confirms that Maximum Security veered into the path of another horse, War of Will, and that in turn caused a chain reaction of interference.

Opponents of the disqualification, including President Donald Trump, tend to highlight that the track was “sloppy and wet” and thus the stewards perhaps should have been more forgiving as to those conditions influenced the horses. Other critics insist that Country House is an undeserving beneficiary of interference that impacted other horses. Still other critics reject the basic notion of changing the identity of the winner after the race has already been run.

West is checking off the boxes in preparation of suing

Before filing a lawsuit, West must first avail himself of potential remedies under the system of rules that punished Maximum Security. That system is found under regulations promulgated by the Kentucky Horse Racing Commission (KHRC), a government agency that oversees horse racing in Kentucky.

If West files a lawsuit before exhausting his appeals with the KHRC, the presiding judge would almost certainly dismiss the complaint on ripeness grounds. That is, the judge would reason that the case is not yet “ripe” for judicial review. The accompanying reasoning would be that critical facts have not yet developed and that procedural outcomes—including the possibility of a successful appeal within the KHRCs’ internal grievance system that would avert the need for a lawsuit—have not yet emerged.

It appears that West has exhausted his options with the KHRC and could now sue without worry about ripeness. On Monday, West and his attorney Barry Stilz filed an appeal to the KHRC. As The New York Times’ Joe Drape reports, the KHRC rejected the appeal only hours later. KHRC general counsel John Forgy reportedly explained in the letter that a disqualification ruling is not subject to an appeal.

How West could build a legal case: attack the process and lack of reasoning

If West sues, he will argue that under no reasonable interpretation of relevant rules did Maximum Security commit interference in such a way to justify disqualification.

One relevant rule is a Kentucky administrative regulation, specifically 810 KAR 1:016, titled “Running of the Race.” This rule instructs that “if a leading horse or any other horse in a race swerves or is ridden to either side so as to interfere with, intimidate, or impede any other horse or jockey, or to cause the same result, this action shall be deemed a foul.” The rule also states that stewards have the right to disqualify a horse if, in the opinion of the stewards, “a foul alters the finish of a race.”

Another key rule is 810 KAR 2:090, titled “Objections and Complaints.” It notes that stewards have substantial discretion when assessing whether to disqualify a horse. Specifically, stewards “shall consider the seriousness and circumstances of the incident.” Here, perhaps the stewards could have placed more weight in the wet track conditions and been more forgiving of interference. But the counter argument is that the stewards had discretion to make that assessment and it is not for others to question.

Further, under the Objections and Complaints rule, there is little ground to challenge the stewards’ reasoning. Indeed, “findings of fact and determinations shall be final and shall not be subject to appeal.” The lack of opportunity to appeal was expressed in the KHRC’s letter to West.

So, under what theories of law could West credibly sue the KHRC? The most likely claim would be one based on due process. West could contest both the stewards’ application of rules and the rules themselves. He would insist that he was denied both an adequate explanation for the disqualification and a fair and legitimate opportunity to challenge the disqualification. Even if the stewards are owed deference in their reasoning, they arguably have to offer some reasoning.

As a public entity, the KHRC is subject to constitutional requirements, including the due process clauses of the U.S. Constitution and Kentucky Constitution. This means that even though the race took place at a privately-owned venue, Churchill Downs, the fact that the race is governed by state regulations and overseen by a government commission presumably creates a sufficient nexus for constitutional protections to apply.

Attorney Patricia Morris, an animal law expert who practices in Massachusetts, New Hampshire and Vermont, told Sports Illustrated that West may have several viable arguments related to due process.

For starters, Morris points out that chief steward Borden “didn’t provide specifics as to the decision to disqualify” nor indicate “what level does the foul have to reach” to warrant a disqualification. Borden, as noted earlier, offered a 107-word statement that was bereft of much reasoning. Morris highlights that Borden didn’t explain whether disqualification required a showing of intent to interfere with another horse or whether mere accidental contact would suffice.

Morris further contends that Borden should have explained the stewards’ reasoning that Maximum Security’s interference “altered the finish of the race,” as instructed by the rule. From what perspective was the race altered? From the two jockeys who lodged complaints (Prat for Country House and Jon Court for Long Range Toddy); the one jockey (Court) whose complaint was deemed meritorious; or any and all of the jockeys? And how significant does an alteration need to be in order to justify the heavy punishment of disqualification? Borden’s explanation didn’t clarify. It’s difficult to credibly challenge a finding if it’s unclear how the finding was made.

Morris contends that a detailed and reasoned explanation is essential to fairness given that a steward’s perception of how interference altered the race inherently invites speculation: it requires comparing what actually happened with what might have happened as viewed through the eyes of a steward.

This “reimagining” has also produced an outcome—Country House being declared the winner—that some race observers doubt would have happened without interference. In his coverage of the race, Layden wrote, “it seems unlikely that Country House would have caught Maximum Security no matter how far they ran.” In other words, if the penalty for the interference were limited to remedying the harm suffered by War of Will and Long Range Toddy, there would be less controversy. Instead, Country House is the greatest beneficiary and it’s not clear if that is appropriate under the circumstances.

Indeed, the jockey who had the most compelling argument for interference was Tyler Gaffalione, who rode War of Will. Maximum Security, under the control of Baez, clearly obstructed the path of War of Will. Gaffalione, however, did not lodge a complaint—a point Morris suggests is meaningful when determining whether disqualification should have been imposed. “If Gaffalione felt the interference was so great that [the stewards] called for a DQ,” Morris asks, “why didn’t he also file an objection?”

One possible explanation is noted by Layden in his story from Sunday. Layden details how Mark Casse, the trainer for War of Will, initially didn’t claim foul for a couple of reasons. First, there was a lack of incentive in trying to move up from eighth to seventh, as neither placement carries prize money. Second, Casse wasn't aware of the severity of the collision between Maximum Security and his horse, in part because Gaffalione was too shook up to relay the facts effectively. In retrospect, Casse wishes he had instructed Gaffalione to claim foul because of the potential safety implications of Maximum Security’s interference.

Still, Morris believes it is significant that the stewards only seemed to investigate after receiving complaints. “The stewards were also watching the race,” Morris observes. “Apparently—initially at least—those stewards didn’t see anything they felt was worthy of an inquiry.”

The rule itself is also arguably too broad and vague, which presents another potential line of attack. “There is substantial room for opinion-defining,” Morris stresses, “with words such as ‘interfere, intimidate, impede’ and then leaving it up to the opinion of the stewards who have to determine (1) did it alter the finish and (2) if disqualification appropriate.”

A lawsuit would be threatening to the KHRC in part because it might force the KHRC to explain its reasoning. The pretrial discovery process that takes place if a lawsuit is not dismissed. Such discovery would compel the KHRC to clarify and defend the reasoning behind the disqualification. The stewards would be compelled to provide sworn statements and share any notes and other written and digital evidence—including applicable videos, texts and emails—related to the decision. One question that might arise is the completeness of the stewards’ investigation. While the stewards say they interviewed jockeys, Gaffalione, the jockey of War of Will, says he was not interviewed.

Challenges West would face in suing

There are two main hurdles for West in suing. First, it is generally difficult to challenge the decision-making of an administrative agency. Although judicial review of administrative agencies is a complicated legal topic, courts typically uphold formal decisions by agencies so long as those decisions are reasonable. Also, courts usually uphold informal decisions by agencies so long as those decisions are neither arbitrary nor capricious.

Unfortunately for West, these are very deferential standards of review.

While the stewards’ decision to disqualify Maximum Security is controversial and some would argue wrong, it does not appear to be an irrational or arbitrary decision. There is widespread agreement that Maximum Security, to a significant degree, interfered with at least one other horse during the race. There is, as explained above, less agreement that such interference warranted disqualification. The lack of explanation by the stewards only further invites debate. Still, the rules supply the stewards with substantial discretion on whether to issue a disqualification and how to remedy it. They clearly used that discretion here.

Second, courts eschew using the legal process to second-guess sports outcomes. Alan Milstein, a sports law attorney who previously represented jockeys in a case against their union, is highly skeptical of West’s chances in court. “Any lawsuit,” Milstein told Sports Illustrated, “would be nothing short of frivolous.” Milstein contends that “any horseplayer will tell you the foul was clear and undeniable.”

Milstein also insists that judges do not want to open the floodgates of litigation brought by those who lose in sports. “Imagine a sports world,” Milstein asks, “where any controversial game day call of an umpire or official could be appealed to a state court judge: Brett’s pine tar outReggie’s ball hitting hipthe Rams’ no interference call against the Saints. These matters are best left on the playing field after the event."

That said, courts have considered horse racing legal questions—though, to date, mainly in the context of eligibility and compliance with drug rules rather than in regard to which horse won and which one lost. This is true of the KSRC, which was embroiled in a multi-year litigation over Dancer’s Image 1968 disqualification due to the drug test. More recently, the KSRC faced litigation brought by John Veitch, who had served as chief steward of the 2010 Breeders’ Cup. The KSRC suspended Veitch for failing to have a horse inspected by a veterinarian following a report that the horse had not been warming up properly. Veitch argued the suspension violated his due process rights. Meanwhile, suspended horse trainers and owners of horses that tested positive for a prohibited substance sued the New Jersey Racing Commission. Courts in those litigations reviewed the arguments and rendered decisions.

Louisiana state courts, however, have reviewed the outcome of at least one race involving interference and those courts reversed the identity of the winner. Attorney Bill Marshall, who is also a racing writer for The Augusta Chronicle, successfully litigated on behalf of the winner of the 2014 Unbridled Stakes in Louisiana. Coalport won the race but was disqualified by the stewards due to interfering with the path of another horse, Benwill. The stewards determined that, but for Coalport’s interference, Benwill would have won. Benwill was thus named the winner. The owners of Coalport hired Marshall to challenge the stewards’ decision in court. In Ramsey v. Louisiana State Racing Commission, Judge Jay McCallum agreed with Marshall, finding that “while Coalport did foul Benwill, such did not alter the outcome of the race. This is due primarily to the relative speeds of the horses and the proximity of the foul's occurrence to the location of the finish line.”

Would a court consider the lawfulness of Maximum Security being disqualified due to an in-race infraction? History suggests that a case along those lines would face long odds, but the absence of reasoning provided by the stewards might provide an opening. We’ll see.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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