Maximum Security was disqualified from first place in the Kentucky Derby on May 4 because he interfered with multiple horses on the far turn, just over a quarter of a mile from the finish. While the decision of the stewards has generated considerable controversy and threats of a lawsuit, the disqualification was clearly the correct call.
To understand this, we must begin with the standard for racing interference in Kentucky, which is also essentially the standard in every American racing jurisdiction: "A leading horse, if clear, is entitled to any part of the track. If a leading horse or any other horse in a race swerves or is ridden to either side so as to interfere with, intimidate, or impede any other horse or jockey, or to cause the same result, this action shall be deemed a foul ... . If in the opinion of the stewards a foul alters the finish of a race, an offending horse may be disqualified by the stewards": 810 Ky. Admin. Regs. 1:016, section 12.
Serious racing fans know that there is some interpretive gloss on this standard, much like judicial interpretation of the Constitution or a statute. The language and gloss together establish three basic elements that must be satisfied to warrant a disqualification for racing interference.
- Did the allegedly offending horse significantly deviate from its path? That is derived from this language in the standard: "swerves or is ridden to either side."
- Did the deviation result in any bumping or blocking that forced another horse to change paths or otherwise slow down? That is derived from this language in the standard: "interfere with, intimidate, or impede any other horse."
- Did the bumping or blocking cause any horse to lose a placing? Losing a placing means finishing behind at least one other horse--either the offending horse or another horse in the race--that the interfered-with horse would have defeated but for the interference. That element is derived from this language in the standard: "alters the finish of a race." These three elements can be summarized as 1. improper 2. interference 3. that altered the result.
Two other general points regarding the standard are worth noting.
--It does not matter whether the jockey negligently or intentionally caused the interference. All that matters for purposes of disqualification is whether there was improper interference. To put this in legal terms, the standard for disqualification is strict liability. Note that if improper interference results from negligence or intentional misconduct on the part of the jockey, then the interference can lead to suspension of the jockey for days, weeks, or even months. But prospective jockey suspension is a separate issue from retrospective disqualification of a horse, and is governed by a different rule: 810 Ky. Admin. Regs. 1:016, section 13.
--Upon disqualification, the horse that committed the foul is placed behind the lowest-finishing horse who was interfered with. The stewards do not try to determine what would have happened through the race, top to bottom. That would be impossible. To illustrate how the disqualification rule works, assume horse A won the race but improperly interfered with horses B and C, resulting in B finishing seventh out of 10 horses and C finishing ninth. Horse A would be moved down to position nine and every horse except the last-place finisher would move up one position.
Let's now apply the standard to the 2019 Kentucky Derby. Starting with the second element--interference--there is no question that Maximum Security interfered with multiple horses. Maximum Security moved out directly in front of War of Will, forcing War of Will to bump into Long Range Toddy, who then bumped into and cut off Bodexpress. Bodexpress lost all momentum and nearly went down. Long Range Toddy and War of Will also each lost significant momentum. Thus, the second element is clearly met.
The third element--losing a placing--is also met. Given how War of Will, Long Range Toddy, and Bodexpress were moving just before and after the moment of interference, there is no doubt that at least one of the three horses finished further back than he would have without the interference. And it is extremely likely that all three horses were harmed in this way.
The first element--improper--is the most complicated, and that is why I have saved it for last. Maximum Security moved out at least two paths--meaning two lanes, with a lane being slightly wider than the width of a standard horse. If you look at the video--https://www.youtube.com/watch?reload=9&v=Ci_ychn7ga0--Maximum Security (the horse in front) is quite close to the rail at 2:03. He starts moving away from the rail right as 2:04 turns to 2:05. And by 2:07, you can see a huge gap between Maximum Security and the rail; Maximum Security was in roughly the "four path," the imaginary fourth lane around the track. (Think of the fourth lane painted onto the type of human track used in the Olympics.) That is more than sufficient movement to constitute improper interference. Accordingly, the first element is met as well.
Since all three elements were met, the stewards clearly reached the correct result when they disqualified Maximum Security. Long Range Toddy finished the furthest back of the three horses interfered with. And so, according to the rules, Maximum Security was placed behind Long Range Toddy. Every horse that finished in front of Long Range Toddy was moved up one place, including Country House, who moved from second to first and is now the official winner of the 2019 Kentucky Derby.
Aside from the interference, Maximum Security ran a great race. I am more than convinced that he would have won the Derby absent the interference.
But the standard is not whether Maximum Security would have won anyway. The standard is whether he cost any other horse a place through improper interference. The answer to that question is clearly yes. And so disqualification was the right call.
Joshua M. Silverstein is a Professor of Law at the University of Arkansas at Little Rock, William H. Bowen School of Law and a lifelong fan of thoroughbred horse racing. The opinions in this commentary are his own.
Editorial on 05/12/2019