The Week in Review: Derby Litigation Circus Could be a Long Ride

Regardless of whether or not you believe Maximum Security (New Year's Day) should have been disqualified from the GI Kentucky Derby, how long did it take before you realized the controversy had “lawsuit” stamped all over it, with the potential to be tied up in the courts for years to come?

For me, it was the 15-minute mark of the prolonged 22-minute foul claim adjudication. Considering what was at stake and that the entire spectacle was unfolding live on national TV, that was the tipping point when it dawned on me that it didn't matter which side lost the Churchill Downs stewards' decision–either way, litigation was likely to follow.

Gary West, who co-owns Maximum Security with his wife, Mary, initially took the high road in describing the post-race sting of his Derby DQ. In particular, when I read that West told Daily Racing Form, “We'll get up tomorrow morning, the sun will come up, and everything will be fine,” I thought such level-headed commentary was likely to propel him to a Sportsman of the Year award for grace and humility in the face an emotionally painful defeat.

More importantly, West's diplomacy had the potential to spare our industry yet another high-profile crisis in a year that has already been overburdened by them.

But by the time the sun did rise May 5, West apparently changed his mind.

The day after the Derby, West began talking about challenging the decision in court, and he appeared on a national TV show first thing Monday morning to vent his displeasure with the DQ. A Monday appeal to the Kentucky Horse Racing Commission (KHRC) was rejected by the agency almost immediately, on the grounds that stewards' decisions about in-race fouls are “final and not subject to appeal.”

As West and his attorneys mulled a course of action–no lawsuit has been filed as of deadline for this column–the various press interviews he gave yielded a motley assortment of circumstantial excuses that pinned blame for the far-turn crowding everywhere but on Maximum Security and jockey Luis Saez.

West said on the “Today Show” that the “greedy organization” known as Churchill Downs was partly at fault for allowing 20 horses to enter the Derby, which allegedly contributed to the chaos. Puddles and depressions on the wet racing surface also reportedly played a role. West later told The Blood-Horse he would “bet a million dollars” that what appears to be a photographer standing near the quarter pole was “an unauthorized person” who could have spooked the Derby field as it charged for home.

For good measure, why not blame an apparent victim too? By the end of last week, West had accomplished this by claiming it was War of Will (War Front) who actually hit Maximum Security multiple times from behind. This alleged recklessness, West said, triggered the chain-reaction bumping involving Long Range Toddy (Take Charge Indy) and, to a lesser degree, winner-by-DQ Country House (Lookin At Lucky).

Rival jockeys and trainers began to verbally hit back at West's assertions, largely denying his claims. West told the Paulick Report he had a frame-by-frame video of the Derby that would provide “indisputable evidence” to exonerate his horse.

And in keeping with the technological spirit of the times, jockey Saez allegedly baited the Churchill stewards with a critical post-DQ Twitter comment, then deleted it from his account.

Racing has always yearned for increased mainstream exposure. This is about as lowest-common-denominator as it gets in the American news cycle. The threat of a federal lawsuit? Check. Public officials (KHRC stewards) who refuse to explain their actions in detail? Check. Inflammatory TV talk show sound bites? Check. Victim-blaming? Check. Social media sniping? Check. The only sensational item missing right now is an elaborate conspiracy theory, but it's too early in the process for that. Juicy conspiracies tend to evolve and mutate over time–give it a few years.

And yes, “years” is the operative term. When Peter Fuller, the owner of Dancer's Image, sued (unsuccessfully) over the disputed DQ of his horse from the 1968 Derby because of a post-race drug positive, the case was batted about in the courts until 1973.

Maybe the spate of recent controversies in the sport has dulled our senses. But let's not forget that it's now been back-to-back Triple Crown races in which a horse owned by West has been involved some sort of in-race brouhaha.

Last June, with the Triple Crown on the line in the GI Belmont S., the West-owned long shot Restoring Hope (Giant's Causeway), an uncoupled stablemate of Justify (Scat Daddy), was sent for speed while taken very wide into the first turn before abruptly cutting down to secure a position to the outside of Justify's flank.

It appeared to some observers that Restoring Hope was acting as a “wing man” or “blocker” to escort the on-the-lead Justify. Rival horse owner Mike Repole implored the New York Racing Association (NYRA) stewards to investigate possible jockeys' collusion based on the rider of his own horse, Noble Indy (Take Charge Indy), not following instructions to vie for the lead in conjunction with Restoring Hope acting more like “an offensive lineman than a racehorse trying to win the Belmont.”

The NYRA stewards never launched an investigation, and no jockeys or horses from that Belmont S. were sanctioned for race-riding violations (West, at the time, expressed dismay with Restoring Hope's tactics, and said he had “no earthly idea” what jockey Florent Geroux was attempting with such an unorthodox strategy).

But this is the key point that shouldn't get lost in the shuffle: The NYRA stewards faced criticism for their non-investigation in the 2018 Belmont S. on the basis that they officiated a Triple Crown race differently than, say, an ordinary Thursday winter race at Aqueduct. And now, here we are nearly a year later, and the juxtaposition is that the Churchill stewards are themselves drawing criticism because they did, in fact, make a perceived “by the book” DQ when they took down Maximum Security's number. In their post-race statement, stewards Barbara Borden, Butch Becraft and Tyler Picklesimer referred to their unprecedented Derby decision as being a product of “our typical procedure.”

So the question is, what do we want from stewards who adjudicate important American races? Flexibility in making decisions based on the gravity of the situation? Or zero-tolerance standardization that makes no distinction between a Triple Crown race and a nondescript maiden-claimer?

Some legal sports bookmakers who took bets on the Derby made an attempt to please disgruntled customers by either refunding bets on Maximum Security as a “push,” or paying off on his first-across-the-line status as if he had been the official winner. Even TwinSpires, Churchill Downs' own online wagering platform, gave $10 win wager refunds as part of its weekly “Bad Luck Board” promotion that attempts to console players for tough beats.

And in anticipation of the looming legal court battle, the website Sports Betting Dime has reported that one bet-taker has posted proposition odds on “Will Maximum Security win his appeal and be declared Kentucky Derby champion?”

That money line has “No” as the overwhelming favorite (bet $1,200 to win $100), with “Yes” the decided underdog (bet $100 to win $600).

Whichever side you're inclined to bet in the Derby lawsuit, be prepared for it to take a good long while before that wager gets inked in the history books as official.