Examining the legal options for the Maximum Security jockey who was suspended after the Kentucky Derby's controversial finish.

By Michael McCann
May 13, 2019

The legal fallout of the controversial finish to the 2019 Kentucky Derby expanded on Monday when, on behalf of the Kentucky Horse Racing Commission (KHRC), the race’s three stewards suspended Maximum Security jockey Luis Saez for 15 racing days. The suspension follows Saez’s attorney, Ann Oldfather, offering a seven-minute video rebuttal last Friday in hopes of dissuading the stewards from imposing a suspension.

The stewards, who decided to disqualify Maximum Security 22 minutes after the race was held on Saturday, May 4, were not convinced.

According to a one-paragraph decision authored by chief steward Barbara Borden and associate stewards Brooks “Butch” Becraft and Tyler Picklesimer, Saez violated Sections 12 and 13 of the Kentucky administrative regulation titled “Running of the Race.” This regulation is crucial for determining whether a jockey committed a foul.

Taken together, Sections 12 and 13 instruct that the stewards have the legal right to assess if a jockey has committed a foul when striking another horse or jockey. Section 12 prohibits a horse from swerving or being ridden “so as to interfere with, intimidate, or impede any other horse or jockey.” Section 13, for its part, details how the stewards should assess whether an interference foul occurred. It places emphasis on whether the jockey made his or her “best effort” to control the horse in such a way so as to not cause a foul. Section 13 makes clear that if the jockey neglected to make his or her best efforts to control the horse, then “whether intentionally or through carelessness or incompetence, the jockey may be penalized at the discretion of the stewards.”

Notice how the language of the regulation affords the stewards with substantial discretion. The regulation doesn’t require a finding that Saez intended to commit a foul or that he knowingly took a massive risk in his control of Maximum Security. It only requires that he was at least momentarily careless or incompetent, and that he deserted a legal obligation to use his best efforts to avoid causing interference.

According the three stewards’ opinion, Saez failed to adequately control Maximum Security and neglected “to make the proper effort to maintain a straight course thereby causing interference with several rivals that resulted in the disqualification of [Maximum Security].”

The stewards were not compelled to suspend Saez upon a finding that he committed a foul. Under Kentucky administrative regulations, potential punishments ranged from revocation of a license, suspension, a fine of no more than $50,000 and imposition of required education courses. The regulations urge the stewards to weigh the seriousness of the violation when calculating a punishment.

Oldfather has signaled that her client will appeal to the KHRC and that if an appeal proves unsuccessful, Saez might file a lawsuit. Saez has 10 days to file an appeal and request a hearing before the KHRC.

Saez’s strategy on appeal

Kentucky administrative regulations suggest that Seaz faces an upward climb in waging a successful appeal.

For one, the regulations give the stewards a high-degree of interpretative authority. Stated differently, the regulations are written so as to discourage appeals. Jockeys know that stewards enjoy substantial discretion, meaning that a successful appeal must show that, in spite of such latitude, the stewards failed to follow the rules.

Second, the boundaries for an appeal are limited. Saez can contest whether he committed a foul and whether it warranted a suspension, but he can’t contest the stewards’ findings of fact that occurred during the race. In other words, the stewards’ observations of what took place are not directly subject to appeal. Given how the regulations allow the stewards wide discretion in determining whether a foul occurred, it could prove difficult for Saez to argue that he did not commit a foul.

Yet Saez could still prevail. Attorney Patricia Morris, an animal law expert who practices in Massachusetts, New Hampshire and Vermont, tells Sports Illustrated that Saez has several viable arguments for an appeal.

First, Morris believes that the stewards have ignored the appropriate legal standard for issuing a punishment. She acknowledges that Maximum Security, while under the direction of Saez, clearly changed lanes and drifted into other horses. Therefore, the stewards can rightfully find that Saez erred.

However, Morris regards the infraction as more along the lines of an accident than a carless maneuver or reckless act—particularly since other horses and their jockeys might deserve some of the blame. To that point, Morris notes that seconds prior to Maximum Security’s drift, War of Will bumped into other horses and made contact with Maximum Security’s right hind. Whether that contact in turn caused Maximum Security to commit a foul and whether War of Will’s jockey, Tyler Gaffalione, should share in any of the blame is unknown. However, the ambiguity clouds a finding that Saez was careless.

To underscore that contention, Morris stresses that the stewards have only argued that Saez failed to control his mount and make a best effort—they have not, at least in writing, claimed that Saez acted intentionally or recklessly. Morris contends that the stewards have “failed to allege Saez violated the law” since they have not used verbiage consistent with a finding of an intentional or carless act.

Second, the length of Saez’s suspension is arguably excessive. Morris observes that 15 days “is five times longer than the usual penalty for riding infractions.” Also, while 15 days might not sound like a draconian punishment—after all, it’s only two weeks plus a day—“15 days in ‘jockey time’ is very significant,” Morris charges, given how it denies a jockey an opportunity to compete in races. Indeed, since the Kentucky Derby was held on May 4, Seaz has run several winning rides at Belmont Park in New York. If the 15-day suspension holds, it will deny Saez a chance to run the May 18 Preakness Stakes on any mount.

In an appeal, Saez and his attorneys would seek to compel the stewards to turn over interview notes, videos and any texts and emails that pertain to the stewards’ reasoning. To that end, Saez would seek to force the stewards to explain how exactly they reached their conclusion, which factors they considered and how the stewards weighed those factors. He might also provide sworn statements from other jockeys to bolster an argument that Maximum Security’s interference was a mere accident and thus an insufficient act to justify a suspension. Even if Saez can’t convince the KHRC to vacate the suspension, he could insist that it should be reduced to a standard punishment.

The courts could become involved

If an appeal before the KHRC fails, Saez could then file a lawsuit. If Saez files a lawsuit before the appeal is heard, a Judge would probably be reluctant to hear it. Along those lines, the dispute does not appear “ripe” for judicial review. As noted in the accompanying SI legal story on the possibility of Maximum Security’s owner, Gary West, suing the KHRC, courts generally will refuse to hear a legal controversy until all of the relevant facts have been realized and all of the internal appeals have been exhausted.

That said, if Saez’s appeal is not resolved by the date of the Preakness (May 18), it’s possible that Saez could seek a stay “postponement” of the suspension until after his appeal is heard. Saez would argue that his career as a jockey would suffer irreparable harm if he is unable to participate in the Preakness—one of the three races that constitute the “Triple Crown” of thoroughbred racing in the United States.

In a lawsuit, Saez would likely argue that he was denied sufficient due process. He would stress that the stewards have not given him a credible opportunity to defend himself given that they have not explained why they believe he acted recklessly or carelessly. Similarly, he would maintain that any interference by Maximum Security reflected an accident or a response to other horses that made or may have made contact. In law, a failure by an administrative agency to adequately notify someone of why they face sanction is a rational argument for challenging that agency in court. We’ll see if either Saez or West attempts to make such an argument.

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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