GAMING LAW REVIEW AND ECONOMICS Volume 20, Number 6, 2016 Ó Mary Ann Liebert, Inc. DOI: 10.1089/glre.2016.2066 Teach Me How to Derby: The Need for Standardized Regulations in Horse Racing Amanda L. Busch t the horse races, spectators expect to see fore the racing season in 2014 so that it would qualify A stunningly strong horses, enthusiastic wagering, for the Breeders’ Cup to be held in November 2017.8 colorful jockeys, and fancy hats; however, they do The turf track at Del Mar was refurbished during not expect to see a horse euthanized on the track. the winter and early spring to be ready by opening During the summer of 2014, however, equine death day in 2014; however, there were many delays due was a rather common reality at the Del Mar Thor- to the high water table.9 The delays may have oughbred Club in Del Mar, California. Between resulted in a track that was too fast and firm, and opening day on July 17 and August 28, sixteen the rush to open on time seems to have led to less horses dropped dead while racing at the Del Mar testing, which may have adversely impacted the Racetrack. It is no surprise that horse racing is a bru- safety of the track. The president and chief execu- tal sport, but the number of deaths has raised many tive officer (CEO) of Del Mar said that he did not red flags. It has caused many people to question believe the delay in construction of the refurbished the priority given to the horses’ safety, as well as track was a factor causing the firm and fast condi- the testing performed on the safety of the track.1 tions of the track.10 Horse racing was once the most watched spectator sport, and it is one of the few sports in the United States that allows for legal betting.2 Since gambling is permitted at the event, it is also one of the most reg- 1See generally Jeff Nahill, Cause Im a Bigshot 16th to Die at ulated sports.3 Its public perception has been tarnished, Del Mar, UT San Diego (Aug. 28, 2014), available at however, because of the appearance that there is a lack <http://www.utsandiego.com/news/2014/aug/28/im-a-bigshot- 4 dies/>. of concern for the health and safety of the horses. 2Harry M. Hoffheimer, Some Horse-Racing Tips for Lawyers, While the gambling aspects are highly regulated, the 50 A.B.A. J. 250, 250 (1964), available at <HeinOnline.org>. 3 safety of the horses does not seem to be a priority to Luke P. Breslin, Reclaiming the Glory in the ‘‘Sport of 5 Kings’’—Uniformity is the Answer,20Seton Hall J. Sports officials. Some of the aspects of horse racing that af- and Ent. L. 297, 314 (2010), available at <HeinOnline.org>. fect the safety of the horses are: the type of track ma- 4Id. at 317. terials, maintenance of tracks, and regulations on the 5Id. at 317. 6CA Horse Racing Bd., 44th Annual Report of the use of drugs to enhance the horses’ performance. California Horse Racing Board 22 (2013–2014), avail- There are three types of horse racing tracks: dirt, able at <http://www.chrb.ca.gov/annual_reports/2014_annual_ turf, and synthetic (also referred to as Polytrack or report.pdf>. 7 cushion track).6 In 2014, the Breeders’ Cup an- The Breeders’ Cup is the world championship for international thoroughbred horse racing each year. It takes place in late Oc- nounced a three-year host site, which would require tober to early November, and the track that the races are held on tracks to meet certain criteria to qualify to host the changes each year. For more information, see Press Release, Breeders’ Cup.7 Del Mar refurbished its turf track be- Breeders’ Cup, Breeders’ Cup Announces Del Mar as the Host of the 2017 Breeders’ Cup World Championship (June 24, 2014), available at <http://www.breederscup.com/media- center/press-releases/2014-06-24-0>. Amanda L. Busch graduated from the University of Georgia in 8Ed Zieralski, Horse Deaths Force Del Mar to Close Turf Course, December 2012 with a Bachelors of Arts in Criminal Justice. UT San Diego (July 26, 2014), available at <http://m. She completed her Juris Doctorate and graduated Cum Laude utsandiego.com/news/2014/jul/26/del-mar-turf-course-deaths/>. at the University of Mississippi School of Law in May 2016, 9Id. with a certificate in Criminal Law. 10Id. 516 TEACH ME HOW TO DERBY 517 Most of the fatalities at the track in the 2014 season which can lead to irregular maintenance sched- happened on the refurbished turf track, which forced ules.30 Synthetic track material holds in the heat, Del Mar to close the turf track to perform mainte- and in places where the temperatures get into the nance.11 Even with all the deaths, Del Mar’s presi- 100s, this can be a serious issue.31 Synthetic tracks dent and CEO stated that he felt the track was safe are also stickier than a dirt or turf track.32 This can and that other issues led to the deaths.12 One of the lead to broken legs, because if a horse changes di- piece of evidence that Del Mar gave in favor of the rection or takes an awkward turn, its hooves could safety of the course was that the jockeys enjoyed rac- stick to the track, and the momentum of the horse’s ing on it, and they felt it was a firm and fast track, but body could cause it to fall.33 The maintenance of a not unsafe.13 There was no scientific proof, however, synthetic track requires it to be watered down each offered to demonstrate the safety of the track. day, and getting the right amount of water can be Despite officials saying that the track was safe, the tricky; however, there is research being done on au- rails were moved out farther to give the horses new tomatic watering systems, much like those used in turf to run on, and Del Mar aerated the entire track farming.34 to make it slower and give it more bounce.14 The The way to make races more enjoyable and safer Polytrack also underwent some changes mid-season, for the riders and horses is to make the tracks con- after all the deaths.15 This included wax being coated sistent for every race, at every track.35 The same onto the track to bind the sand particles together, be- cause when track material is more tightly bound, there is less kickback, which slows the horses down.16 All of these techniques should, and did, 11Turf Races Moved to Polytrack for Remainder of Week, Del lead to a decline in injuries.17 Mar Media News (July 31, 2014), available at <https:// www.dmtc.com/media/news/turf-races-moved-to-polytrack-for- Despite Del Mar’s denial of responsibility for the remainder-of-week-184>. deaths, the turf course underwent major changes in 12Zieralski, Horse Deaths, supra note 8. 18 13Id. the off-season. Some areas of track were widened, 14 19 Id. and all the grass was replaced. The California 15 Ed Zieralski, Del Mar Takes Steps for Safer Racing, UT San Horse Racing Board (CHRB) investigated the Diego (July 29, 2014), available at <http://www.utsandiego deaths and inspected both the synthetic track and .com/news/2014/jul/29/horse-racing-del-mar-safe/2/?#article- turf tracks.20 The CHRB never officially determined copy>. 16Id. that the turf course was the reason so many horses 17Zieralski, Horse Deaths, supra note 8. were injured; regardless, it requested that Del Mar 18CA Horse Racing Bd., 44th Annual Report, supra note make improvements.21 The improvements included 6, at 3. 19Id. allowing the grass to get taller, more water, and aer- 20Id. 22 ation. During the Fall Meet at Del Mar, there were 21Id. no fatalities, which was a huge improvement, but it 22Id. 23Id. raised suspicion about the previous condition of the 24CA Horse Racing Bd th Annual Report of the 23 ., 36 track during the summer of 2014. California Horse Racing Board, at 3 (2005–2006), avail- On May 25, 2006, California’s Horse Racing able at <http://www.chrb.ca.gov/annual_reports/2006_annual_ Board mandated that by the end of 2007, all dirt tracks report.pdf>. 25Id. at 3–4. would have to be switched over to synthetic track be- 26Id. at 3–4. cause it believed that this would reduce injuries.24 27Daniel Ross, Scratching the Surface: US Racing Looks to Hollywood Park was the first to convert.25 It opened Track Conditions to Lower Injury Rates, Guardian (New York) (Sept. 23, 2014), available at <http://www.theguardian its new track in September 2006 and hosted the first .com/sport/2014/sep/23/racing-racetrack-surfaces-horse-deaths . 26 > race on November 1. California was not the only 28Id. state to start using synthetic tracks; Keeneland in 29Lance Pugmire, Concerns Still Surface Over Del Mar Track, L.A. Times Kentucky installed a synthetic track as well.27 (Sept. 4, 2008), available at <http://articles .latimes.com/2008/sep/04/sports/sp-horse4>. While the number of injuries and deaths dropped, 30Id. not everyone liked the idea of the synthetic track.28 31Ross, supra note 27. 32Id. Synthetic tracks can lead to slower race times, 33 29 Id. which frustrates both owners and riders. Further- 34Id. more, the weather often influences synthetic tracks, 35Id.