Is Hollendorfer on His Way to Being Reinstated? Legal Expert Drew Mollica Has the Answers

Jockey agent turned lawyer specializing in equine-related issues, Drew Mollica has helped the TDN navigate through the complexities of the Jerry Hollendorfer situation. On Friday, he sat down with the TDN and explained where the case is going, what may happen next and why the granting of preliminary injunction to Hollendorfer, which will allow him to continue racing at Del Mar, was a major victory for the Hall of Famer.

TDN: People may not realize that the legal fight may not be over, that a preliminary injunction only opens up a window for Hollendorfer to race until the case is ultimately decided in the courts. What are the next steps and what should people expect?

DM: By winning the temporary injunction, the judge had to make three findings. One is irreparable harm. Hollendorfer is being irreparably harmed every day because he can't race and he cannot get those days back. He was irreparably harmed. He also had to balance the weighing of the equities. Who is it more fair to, Del Mar or Hollendorfer? It is more fair for Hollendorfer to race because Del Mar is less injured by allowing him to do so. The key thing the judge said when issuing the ruling is that Hollendorfer has a likelihood of winning on the merits. The judge said, “You know what, I'm going to give him this injunction.” Injunctions are not easy to get. It's a high standard in any sort, and not just in racing. It's a high bar. So, he's already cleared an Everest-like hurdle. By winning the temporary injunction, he's far ahead of the game when it comes to ultimately winning the case. At the end of the day, I think it's a big win. Unless Del Mar really wants to fight, they might fold their tent because what are they going to hang their hat on? The guy has a valid license. Unless there's something that no one knows that's so damning and could be used against him…and if there is something so damning, why didn't the state act against him?

TDN: If Del Mar does not fold its tent and fights this, what happens next?

DM: I'm not versed in the arbitration clause of the horsemen's contract. I do believe they have to arbitrate the arbitrary and capricious nature of why Hollendorfer is out and the others are in. Remember, there is a contract in place between the horsemen and Del Mar. I'm not well versed in every aspect of that contract, but I do believe the judge could order them to arbitrate the issue of Hollendorfer's exclusion. That would take place through the normal course of litigation, which is discovery, exposition. I don't see Del Mar doing that. If a judge upholds the temporary restraining order, by the time they have the arbitration the meet will be over. The wheels of justice move very slowly. Time is on Hollendorfer's side.

TDN: What about Santa Anita? With this victory, is Hollendorfer any closer to being reinstated there?

DM: No one has even litigated or even addressed the Santa Anita issue. Do the California horsemen have the same sort of contract there that they have with Del Mar? I'm not sure. If they do, it's a very similar case. The issue that we as horse lawyers have is private exclusion of someone with a valid license. They hang their argument around “we are private actors, we can throw you out.” But that is an end around the facts of a person having a valid license. If you have a New Jersey driver's license, does that mean you can't drive on certain streets? The case law that is against them is that there is a terrible case in the federal courts called “Crissman vs. Dover Downs.” That decision said, after years of litigation, the appellate court of Delaware said there is no connection or nexus between private racetracks and the government. We as private practitioners hate that decision. That decision is flawed and it allows racetracks to make an end around against someone with a valid license. Racetracks are tied at the hip with states and tied together at every level.

TDN: Then doesn't that decision confirm that racetracks have the right as private property owners to throw out anyone they want?

DM: As practitioners we do not believe racetracks are private, that they are an arm of the state. The guy who walks into a restaurant and gets thrown out for a random reason doesn't have a license to be a restaurant eater. If the state had given him the license to be a restaurant eater, that license cannot be taken away without due process and to do so is arbitrary and capricious.

TDN: What case law backs up your point?

DM: Barry vs. Barchi. It is the most important case in the history of racing. The United States Supreme Court said not only do you have a license as a trainer, owner, jockey, but you have a property interest in that license. Property interests cannot be taken from you without due process of law. Racetracks have said you may have a property interest but we are private property and we can exclude you. But if you are the only game in town like Del Mar and you can't run there, your license is useless. You can't do anything with it. Prior to Barry vs. Barchi, your racing license was thought of as a privilege and they said they'll throw you out if we want to. When that case was won it changed the way we do business.

TDN: It seems like the two cases you mention send conflicting messages. So far, whether or not a racetrack can throw someone out without due process, what is the conventional wisdom among legal circles?

DM: It's been answered in a matter that we believe is ill-conceived. If the state has given you a license and says you are allowed to race and are competent to do so there's a matter of anti-trust. Our biggest issue, when you allow private actors to say your license is not worth the piece of plastic it is written on, that's not constitutionally sound because you own an interest in that license and you are owed a hearing. They say they only throw out the bad actors, but that's not true. They could throw you out because they don't like your cologne. Lawyers in my field fight this tooth and nail because we do not believe what racetracks have done is constitutional. We are up against it. When [Meadowlands owner] Jeff Gural threw out [trainer] Lou Pena, he based it on Crissman, and we hate Crissman.

TDN: If, at the of the day, Hollendorfer prevails, how could this be a game changer?

DM: The facts in this case are a little different than they would be in some others because the California trainers have a contract with Del Mar that says they cannot ban a trainer in good standing without a hearing in front of an arbitrator. We in New York, with a very weak horsemen's association, don't have such a thing. Our horsemen's association in New York gives the horsemen no protection. That contract is a game changer for Hollendorfer. We need that here in New York. Between NYTHA and NYRA, there is no protection from keeping this from happening. Remember, NYRA barred him too, and that's a disgrace. NYRA's actions against Jerry Hollendorfer should have been attacked by the New York horsemen from the first moment NYRA said what it was doing.

TDN: Back to Santa Anita. If The Stronach Group digs its heels in and says he cannot race at Santa Anita or Golden Gate, how much harder will it be for him to be reinstated there versus Del Mar?

DM: One step at a time, but if he prevails at Del Mar, he has a big leg up on getting back at Santa Anita. Jerry is such a victim here and it is so patently wrong what they have done to him. His very capable lawyers will deal with this, but their first battle is with Del Mar. A victory here certainly gives them a leg up on a victory there.

TDN: What do you make of Del Mar's argument that they are running a business, Hollendorfer has became a radioactive figure and, God forbid, should one of his horses breakdown during the meet, it would do untold damage to DMTC's reputation, brand and it would have a negative impact on their business?

DM: Jerry has had a bad run of luck and when you couch the question the way you did that is a bad result. But every time a racehorse walks on to the racetrack, every time a jockey accepts a mount, we assume the risk that tragedy can happen. It would be very bad luck if lightning hit that tree again and he had a breakdown at Del Mar, but you have to consider that an act of God. Go for Wand was sound. So was Ruffian. They broke down. It was horrific and terrible. I'm here to say that Jerry Hollendorfer, when he starts running again at Del Mar, will do everything according to Hoyle. Two vets will examine those horses before they go out. That's an argument about optics. But let's talk about reality. Do you really think Jerry Hollendorfer would send a horse out there wanting it to get killed? But due process and a person's life are not about optics. The process here has been thrown out the window because of optics and optics do not carry the day. Does the whole picture of Hollendorfer's career say horse killer? Of course not.