On Tuesday, Feb. 26, attorneys for embattled trainer Richard Dutrow, Jr. filed suit in United Stakes District Court for the Eastern District of New York against the New York State Gaming Commission, the Racing and Wagering Board ("the Board"), the Association of Racing Commissioner International ("ARCI"), New York Commissioners John Sabini, Daniel Hogan and Charles Diamond, as well as against a host of John and Jane Does, for damages and injunction relief.
You can find a link to the complaint as filed in the District Court at the Paulick Report.
Dutrow's complaint alleges three causes of action for relief:
1) Compensatory damages in the amount not less than $10 million for violation of Dutrow's due process rights under 42 U.S.C 1983 and the Fourteenth Amendment;
2) An injunction to prevent Dutrow's suspension and 10-year ban based on the violation of his due process right; and
3) "Special damages" in the amount of not less than $10 million (along with other damages) under the theory of prima facie tort.
For the non-lawyers out there, "prima facie tort" is "a lawful act performed maliciously and with the intent of causing harm to a plantiff". (Porter v. Crawford & Co., 611 S.W.2d 265 (1980)). In other words: if you did something you can legally do but because you did it with the intent to cause harm, you're liable for damages. However, if the defendant's action has a motive other than intent to cause harm, then recovery is denied. The sole motivation of the defendant must be to harm the plaintiff. (see Smith v. Meridian Tech., Inc., 86 AD3d 557 (2011))
Dutrow's complaint and allegations involves New York commissioner John Sabin and the ARCI and that they conspired against him to revoke his training license. The complaint describes the ARCI in the following manner:
"Defendant ARCI is an association of legally constituted state governmental racing boards, racing commissions, racing regulation agencies, and private, non-governmental organizations with the legal authority to regulate the racing industry within a governmental jurisdiction, by its acting members, be they commissioners, board members and/or state regulators." Complaint, pg 4
"ARCI's purported purpose is to coordinate activities and licensing standards in the various states, and to otherwise promote thoroughbred racing." Complaint, pg. 5
Much of Dutrow's complaint centers on the unfairness of the decision against him and the influence the ARCI held over the outcome in New York. These are essentially the same arguments he raised and lost during his appeals at the state level.
The complaint continues:
"19. On February 16, 2011, following an accusation against Dutrow for possessing syringes, purportedly discovered in Dutrow's Barn, and administering a legal drug to a racing horse - accusations which Dutrow denied - the stewards of the RWB imposed a 90-day suspension against Dutrow." Complaint, pg. 6
I found this section interesting for a couple of different reasons. First, Dutrow possessing syringes is, on its own, a violation of the rules of racing - trainers are not allowed to possess syringes. Second, including the clause "administering a legal drug to a race horse" is, in my opinion, ambivalent since a legal drug becomes illegal depending on the time of administration prior to a race. And finally, the incident in question went hand-in-hand with the failed drug test of Fastus Cactus at Aqueduct, as noted by the Supreme Court, Appellate Division, in their ruling back on July 19, 2012 (Dutrow NY Decision):
"Respondent prohibits licensed horse trainers, such as petitioner, from possessing hypodermic needles at race tracks (see 9 NYCRR 4012.1 [a]) and, during a November 2010 search, investigators found three syringes in petitioner's desk at the Aqueduct Racetrack. Although the administration of the drug butorphanol to horses within 96 hours of racing is also prohibited (see 9 NYCRR 4043.2 [g]), Fastus Cactus, a horse that was trained by petitioner, tested positive for the drug after racing at Aqueduct. Petitioner was found, by the state racing steward, to have violated both rules and his license was suspended for a total of 90 days, prompting his administrative appeal to respondent." (emphasis added)
Dutrow's complaint leaves out Fastus Cactus and his failed test which, under previous rulings, is at least part of what set this whole thing in motion. (see also, New York State Racing and Wagering Board rulings AQ 25-2011 and AQ 26-2011). Dutrow's complaint only tells half the story and it's the half that paints him in the best light possible (which, of course, what he's paying his lawyers to do in the first place). The other side of the issue has been problem for him during this whole case and it will be a problem going forward: the record in New York is clear as to why he was initially suspended but he fails to fully and accurately describe that in his complaint.
Continuing, the complaint then seeks to prove the overall bias by noting the later ruling in Kentucky:
38. Consistent with ARCI's objective, in or about April 2011, KHRC subjected Dutrow to the extraordinary act of having to attend a hearing to determine if it should issue a Kentucky training license even before he applied.
39. On April 13, 2011, the same day Dutrow applied for a Kentucky license, and the KHRC conducted its hearing, it denied Dutrow's application for a license in Kentucky.
41. On information and belief, other persons and/or entities, as yet unknown to Plaintiff, but associated with ARCI, RWB and KHRC, also discussed, communicated, coordinated and determined to have Dutrow's license revoked in both New York and Kentucky.
Complaint, pg. 9
Now we get to a point that I feel does Dutrow little to no good at all. In his attempt to prove the bias he points to the hearing and denial of his license in Kentucky as further proof of "ARCI's objective". This is going to be a tough road to travel when the record in Kentucky is clear that A) Dutrow omitted and falsified key facts on his license application, and B) then stood before the hearing officer in Kentucky and admitted to rules violations. (Dutrow KY Decision)
It's certainly Dutrow's prerogative to argue the entire process was biased against him and that he was the victim of a "witch hunt". But those arguments are difficult to prove with actual, repeated rules violations on his part.
"48. But for the malicious and wanton acts of ARCI, in concert with Sabini, and the decisions made therein, RWB would not have initiated proceedings to revoke Dutrow's license and he would only have a ninety day suspension." Complaint, pg. 10
This is really the crux of the argument from Dutrow's point of view: if outside forces hadn't brought Dutrow's history to the attention of state regulators and boards, New York (and other states) would have let him go right on training and simply continued to hand out 30, 60 and 90-day suspensions. But because the ARCI, a group that Dutrow's own complaint admits is "an association of legally constituted state governmental racing boards ... [whose] purpose is to coordinate activities and licensing standards in the various states, and to otherwise promote thoroughbred racing (emphasis added), decided to raise the issue publicly, the rulings against him were biased and he was irreparably harmed.
An implicit argument underneath many of the allegations is the idea that racing jurisdictions had been fine with his conduct in the past and that only now, after the ARCI began to raise the issue, did a severe punishment become a possibility. The problem with Dutrow's argument in this case, and in all the prior cases, is the wide latitude racing boards are given in determining the approval or denial of a racing license. Again, referring back to the New York Supreme Court Appellate Division decision last summer:
"Further, while respondent previously renewed petitioner's license despite his prior disciplinary history, it properly relied upon that history in tandem with the instant violations to determine that petitioner engaged in conduct that was improper and inconsistent with the public interest and best interests of racing (see 9 NYCRR 4002.9, 4003.46)."
And, diving into the relevant New York racing rules:
"The board may refuse to issue or renew a license, or may suspend or revoke a license if, in its opinion, the refusal to issue or renew a license or the suspension or revocation of a license is necessary to protect the public health, safety or welfare." 9 NYCRR 4002.9(a)
"No person ... whose conduct at a race track in New York or elsewhere is or has been improper, obnoxious, unbecoming or detrimental to the best interests of racing, shall enter or remain upon the premises of any licensed association conducting a race meeting under the jurisdiction of the board; and all such persons shall upon discovery or recognition be forthwith ejected." 9 NYCRR 4003.46
As a side note, when the New York ruling banning Dutrow first came down many people focused on the Board's use of the term of "obnoxious" as a sign that they were biased against the trainer, when in fact that is simply the language from the relevant rule in the state.
(Dutrow unsuccessfully raised the issue of statutory vagueness at the state level.)
Dutrow will need to go further than simply proving that the ARCI simply didn't like him and thought that he shouldn't be training. He needs to show -- in the form of emails, letters, testimonial, and whatever else -- the grand conspiracy that he alleges. That he didn't receive a fair hearing, his due process rights were violated, and his ban was the sole result of the Board and the ARCI to do him harm.
The problem for Richard Dutrow is that at the end of the day, he still has multiple rules violations, suspensions, fines, and training applications with omitted or falsified information. And that will be a tough hill to climb.