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  • Gary and Mary West filed a lawsuit late Tuesday over Maximum Security's DQ at the Derby. What would it take to overturn the KHRC's ruling?
By Michael McCann
May 15, 2019

Does the Kentucky Horse Racing Commission have the final say on which horse won the 145th Kentucky Derby?

We’ll find out the answer from Karen Caldwell, the Chief Judge of the U.S. District Court for the Eastern District of Kentucky.

That's because the owners of Maximum Security—which on May 4 became the first horse in the Derby’s 145-year history to finish first but not be declared the winner on account of an in-race infraction—have filed a complaint in the Eastern District of Kentucky. Judge Caldwell, a former Assistant U.S. Attorney and judicial appointee of former President George W. Bush, has been assigned the case.

Gary and Mary West have retained six attorneys from Kentucky, New York and New Jersey to sue the KHRC and its officials, as well as the three stewards who disqualified Maximum Security.

Through their legal team, which includes Kentucky attorneys D. Barry Stilz and Lynn Zellen, the Wests demand the following remedies from Judge Caldwell:

• The disqualification of Maximum Security be reversed and vacated, thereby compelling the KHRC to declare Maximum Security—which had been undefeated until the Derby—the winner.

• The state’s definition of a “foul” in a race be deemed unconstitutional.

• The state’s rules for handling objections lodged by jockeys be deemed unconstitutional.

•  Attorneys’ fees incurred by the Wests—who are reportedly worth more than $1 billion—be paid by the State of Kentucky and other defendants.

The central legal argument offered by the Wests is that the process used to determine the winner of the race was “bizarre and unconstitutional.” This process is tied directly to the controversy surrounding the Derby’s finish. To fully understand that controversy, I encourage you to read Tim Layden’s in-depth Sports Illustrated stories “Disqualified: Inside the Historic Decision That Shocked the Kentucky Derby” and “As Questions and Confusion Linger, This Kentucky Derby Hangover Isn't Close to Over”.

The gist of the controversy is that Maximum Security “won” by one and three-quarter lengths over Country House but the stewards, who are referees employed by the KHRC, disqualified Maximum Security on account of interference. According to a prepared statement read aloud by chief steward Barbara Borden, Maximum Security, while under the direction of (now suspended) jockey Luis Saez, “drifted out and impacted the progress” of other horses—particularly War of Will, which ultimately finished seventh.

The main beneficiary of the stewards’ ruling was Country House, a 65-to-1 longshot that was declared the winner. Many race experts believe that Country House would not have caught up to Maximum Security, with or without interference, and thus was not “deserving” of the win. Country House’s jockey, Flavien Prat, also lodged an objection after the race, insisting that Maximum Security had interfered with his horse. Yet the stewards could not find any such interference. In other words, a horse that wasn’t going to win the Derby and that wasn’t a victim of interference was nonetheless named the winner.

The Wests appealed to the KHRC but were told they lacked viable grounds for an appeal. Specifically, the KHRC communicated that “the law does not provide for an appeal” and that all findings of fact and determinations of outcomes by the stewards are “final” and not “subject to appeal.”

The outcome proved costly for those with financial stakes in Maximum Security. Both Saez and Maximum Security’s trainer, Jason Servis, were denied $186,000 shares of the $3 million Derby purse, approximately $1.86M of which goes to the winner. Manny bettors also lost money—a point mentioned in the Wests’ complaint—though other bettors gained by Country House’s win. Speaking of Country House's win, by winning the case instead of finishing in second, those affiliated with the horse saw their winnings climb by $1.26 million.

Key themes in the Wests’ lawsuit

In their complaint, the Wests depict the stewards as deceitful, evasive and incompetent. For instance, the Wests draw attention to Borden claiming that she and the two other stewards (Brooks “Butch” Becraft and Tyler Picklesimer) “interviewed affected riders” in the course of finding that Maximum Security had interfered with War of Will and, in turn, caused interference with Long Range Toddy and Bodexpress.

The Wests’ complaint contends Borden was at best disingenuous and at worst lying. Indeed, the Wests assert that Borden’s portrayal of the record is “not truthful” since the stewards apparently failed to interview the jockeys, owners or trainers of either War of Will or Bodexpress. In other words, despite claiming to have “interviewed affected riders,” jockeys for two of the three horses most “affected” by Maximum Security’s drift out lane were allegedly not, in fact, interviewed.

The complaint goes further in attempting to rebuke the stewards’ explanation as deficient and conclusory. To that end, the complaint asserts that the stewards neglected to cite any rules concerning the fouls on which they relied. The Wests also insist the stewards inexplicably declined to explain how and why they reshuffled the order of the finish as they did. The stewards refrained from furnishing any reasoning as to why War of Will, Long Range Toddy and Bodexpress would have secured a better placement but for the alleged interference. The Wests also accentuate how the stewards refused to answer questions from the media and public. As the Wests see it, the stewards willfully avoided the risk of scrutiny because they feared that their reasoning would collapse under any spotlight.

In short, the Wests proclaim that the stewards never provided the “why” for their decision, played fast and loose with the facts, and conveniently avoided the accountability of public questioning.

The Wests’ legal claims

The Wests insist they have standing to file a lawsuit on account of a Kentucky Statute for administrative hearings, KRS 13B.150. This statute dictates how a party can challenge the decision of a state administrative agency. The KHRC is, of course, the relevant state agency.

Under this state statute, Judge Caldwell could demand that attorneys for the KHRC provide a written brief explaining the disqualification decision and also appear in her court to orally answer questions. The statute also empowers Judge Caldwell to either reverse Maximum Security’s disqualification or direct the KHRC to conduct further proceedings on the Derby.

At the same time, Judge Caldwell’s scope of review is carefully constrained by the statute. She is barred from “substituting” her judgment for that of the KHRC, at least as it relates to “the weight of the evidence on questions of fact.” Stated differently, Judge Caldwell generally must adhere to the factual findings already made by the stewards. Those findings are damaging to Maximum Security. That said, those findings were not particularly well explained by the stewards. Further, Judge Caldwell could reason that those findings did not warrant disqualification.

The statute clarifies that Judge Caldwell could reverse the disqualification if she concludes that certain conditions exist and warrant a reversal. Those conditions include Judge Caldwell finding that:

• The KHRC (including the stewards) violated constitutional or statutory provisions.

• The KHRC acted in excess of the statutory authority of the agency.

• The KHRC made a decision without support of substantial evidence on the whole record.

• The KHRC acted in an arbitrary or capricious manner.

• The KHRC prejudiced the rights of any party and likely affected the outcome of the hearing.

With these conditions in mind, the Wests plead several counts. One is that the KHRC’s decision is not supported by substantial evidence on the whole record.

To that end, the complaint highlights the relevant KHRC rule for a “foul.” It states:

A leading horse if clear is entitled to any part of the track. 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. … If in the opinion of the stewards a foul alters the finish of a race, an offending horse may be disqualified by the stewards.

The Wests charge that Maximum Security was the leading horse at all relevant times. They further note that the stewards failed to explain why Maximum Security, as a leading horse, wasn’t entitled to any part of the track at the time it impacted War of Will.

As detectable in the language of the rule, the key question is whether Maximum Security was “clear” while racing in the capacity of the leading horse. Being “clear” is a precondition for the leading horse to gain the entitlement to any part of the track. The Wests insist that the stewards failed to address whether or not Maximum Security was “clear” and that in part reflects a failure on their part to conduct required fact-finding (such as interviewing relevant witnesses). Instead, the Wests maintain, the stewards simply neglected to address whether or not Maximum Security was “clear.”

This type of argument tracks important insights offered by Attorney Patricia Morris, an animal law expert who practices in Massachusetts, New Hampshire and Vermont. In a recent SI legal story, Morris highlighted instances where the stewards omitted essential explanations for their findings.

The Wests also charge that the KHRC—a government entity—denied them due process. The 14th Amendment to the U.S. Constitution prohibits government entities from depriving citizens of “life, liberty, or property” unless due process of law is provided. The Wests clearly had a property interest in the outcome of the race given that they owned Maximum Security. They insist that (a) the disqualification was based on lack of evidence; (b) they were denied a sufficient explanation for the disqualification; and (d) they were rebuffed a meaningful opportunity to contest the disqualification. In effect, the Wests contend that the government, through the KHRC, acted more like an arm of a totalitarian state than one attached to a government of the people, by the people and for the people.

Another count featured in the complaint argues that the stewards unlawfully abused their discretion in disqualifying Maximum Security. The Wests charge that even if Maximum Security had committed a foul that altered the finish of the Derby, such a finding did not warrant a disqualification.

To bolster that conclusion, the Wests underscore that no winning horse in the Derby’s 144-year history had ever experienced a disqualification penalty upon a finding of a foul. The penalty, in other words, defies nearly a century and a half of Derby precedent—and that kind of dramatic shift warrants a thorough explanation rather than a cursory description.

The Wests also maintain that such a severe penalty was unjustified given the “sloppy track” and rainy conditions—a point raised by President Donald Trump in his criticism of the stewards—that led to several horses drifting out and being crowded.

Further, the Wests contend that Tyler Gaffalione, the jockey for War of Will, “adversely impacted” Maximum Security. In a passage highly critical of Gaffalione, the complaint claims his alleged misconduct included: “bulling his way through from behind Maximum Security”; “bumping Long Range Toddy and striking Maximum Security while Maximum Security stayed in his lane”; “engaging in an unsuccessful and highly risky effort to get out from behind horses and go through an anticipated opening that was not there and never materialized”; “interfering with Maximum Security’s progress”; and “causing Maximum Security to sustain cuts and bruises on his hindquarters.”

With such damning commentary in mind, the Wests believe the Stewards held the wrong horse at fault and thus “failed to take into account the equitable maxim that where there is no harm there is no foul.”

The KHRC will answer the complaint and argue it is frivolous

In response to the Wests’ complaint, the KHRC will file an answer. The answer will, among other things, deny that the Wests have been treated unlawfully. Likely working in favor of the KHRC is that courts are generally deferential to decision-making by administrative agencies. This is true in Kentucky and true of the relevant statute, KRS 13B.150.

In 2017, the Court of Appeals of Kentucky rendered a decision in Kentucky v. St. Joseph Health System. The case centered partly on KRS 13B.150. Writing for the court, Judge Sara Walter Combs noted that courts have a limited purview in which to reject the decision of a Kentucky administrative agency. To that end, an agency “is afforded great latitude in its evaluation of the evidence heard and the credibility of witnesses, including its findings and conclusions of fact.” This standard means that Judge Caldwell will almost certainly accept the stewards’ findings and defer to their judgment. That said, judges can review issues of law—such as how the agency heard the West’s appeal—on a de novo basis, meaning “anew” and without deference.

The KHRC is also bolstered by the fact that courts seldom reverse sports outcomes. This is not a case about a horse or jockey suspended for taking a prohibited substance. This is a case, fundamentally, about which horse should have won the Derby. As Alan Milstein, a sports law attorney who previously represented jockeys in a case against their union, recently told SI, judges usually find that sports outcomes “are best left on the playing field.” Judges do not want to open the floodgates to judicial reviews of who won and who lost.

None of that is to say the Wests can’t prevail. While their case is fundamentally about which horse should have won the derby, the answer to that question—the Wests’ attorneys would argue—is clearly a legal one. And one that raises important questions about state law and the U.S. Constitution.

To that point, even if the Wests fail to change the outcome of the Derby, they might take satisfaction in knowing that the lawsuit could force the stewards to testify and answer questions under oath—and thus provide a lot more insight than they offered in a terse 107-word statement.

SI will keep you updated on the litigation.

Michael McCann is SI’s legal analyst. He is also an attorney and founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law.

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