SARATOGA SPRINGS, N.Y. – Exclusions by racetracks are likely to become extremely rare due to the advent of the Horseracing Integrity and Safety Authority and the lessons learned from the still-running Bob Baffert case involving the 2021 Kentucky Derby, officials at the Racing and Gaming Conference said on Tuesday afternoon at the Saratoga Hilton. Exclusion is the already rare decision by a racetrack to ban a licensee from its grounds. The legal issues either justifying or restricting such a decision have been tested over the past two years in real-time through the Baffert case, which stemmed from the positive test from Kentucky Derby winner Medina Spirit for a regulated medication. Elements of that case have played out in multiple states and in multiple venues, most particularly Kentucky and New York, where Churchill Downs Inc. and the New York Racing Association both enacted bans of the trainer. Those rulings and other issues related to exclusion were discussed during the Tuesday panel by Bennett Liebman, one of the most respected legal authorities in racing; Alan Foreman, a longtime lawyer who has worked on racing legal issues for more than 40 years; Louis Trombetta, the executive director of the Florida Gaming Control Board; and John Donnelly, a New Jersey lawyer who has been general counsel for a number of Atlantic City casinos. :: Bet the races with a $250 First Deposit Match + $10 Free Bet and FREE Formulator PPs! Join DRF Bets. The panelists agreed that the Baffert legal cases regarding exclusion played out with fairly predictable results. But several panelists also made the point that the number of rulings related to the legal principles surrounding exclusion had put a finer edge on the issue, giving industry participants and attorneys a better understanding of the limits of the practice. As a result, the panelists said, racetracks are only likely to proceed with an exclusion when there is a firm legal basis for the decision. Liebman pointed out that after NYRA lost an initial case in the Baffert ordeal, the association adopted guidelines for dealing with due-process concerns, which it then applied in the case, a process that withstood legal scrutiny. Still, two years later, NYRA had the opportunity to issue another ban of a trainer, in this case, Saffie Joseph Jr., who had been excluded by Churchill Downs just prior to this year’s Derby after two horses suffered sudden deaths on the racetrack grounds. Instead, NYRA declined to follow Churchill, Liebman said, because the guidelines it had adopted “just made it so time-consuming.” In other words, NYRA had learned to reserve the decision to truly extraordinary cases. Foreman noted that racetracks have issued exclusions in the past mostly for “political purposes,” rather than clear violations of laws or policies. “Most of them were reactions to media coverage, public interest, and the image of the industry, so tracks would act out,” Foreman said. “They didn’t feel like the rest of the industry was taking it seriously enough.” But that may change with the advent of HISA, Foreman said. HISA began enforcing rules on racetrack safety last year and rules on medication and drug abuse this year, using a much broader range of regulations than currently in place in most racing jurisdictions. The authority also has the power to enforce the penalties nationally. That means, Foreman said, that many racetracks may “look to HISA to provide political cover” to punish bad actors with penalties that might prove more meaningful to critics, at least when compared to the state-by-state regulatory era that preceded the implementation of the new rules. That will reduce the number of cases that might lead a track to consider issuing an exclusion. :: Get Daily Racing Form Past Performances – the exclusive home of Beyer Speed Figures In addition, tracks may now be legally constrained from issuing an exclusion except in cases in which HISA does not have jurisdiction, Foreman said. Considering the breadth of HISA’s rules, that would seem to restrict the areas that could lead a track to issue a ban, according to Foreman. Foreman also agreed that the Baffert case, which resulted in dozens of courtroom and regulatory hearings over the past two years, had limited the scenarios in which a controversial exclusion case might arise again in racing. The players now know what they can do and when, he said. “It’s unlikely we’re going to see something like this again,” Foreman said. :: Want to learn more about handicapping and wagering? Check out DRF's Handicapping 101 and Wagering 101 pages.