Justice scales wobble in Forever Unbridled case

Before the tide of history rises to wash away stories of late June that failed to grab the imagination, indulge this reporter in turning briefly to the case of Charles Fipke and his appeal of a ruling made by the Del Mar stewards last year during the week of the Breeders’ Cup.

To review, Fipke, owner of Forever Unbridled, directed trainer Dallas Stewart to replace Joel Rosario with John Velazquez aboard the 5-yearold mare for her date in the $2 million Breeders’ Cup Distaff on Nov. 3, 2017. Stewart had originally entered Forever Unbridled with Rosario named to ride. Stewart then acceded to Fipke’s wishes and changed the rider to Velazquez prior to the official draw of the Distaff, after which Ron Anderson, Rosario’s agent, lodged a protest with the stewards.

After conversations with Stewart, Anderson, and Fipke, the stewards ruled that in addition to compensating Velazquez in the traditional manner, Fipke also would have to pay Joel Rosario a full jockey’s fee based on whatever Forever Unbridled earned in the Distaff. The amount could have been anywhere from a maximum of $110,000 for winning the race to a simple mount fee of $150 if the filly finished out of the purse placings. She won. The following week, presumably still in the excited rush of Forever Unbridled’s victory, Fipke appealed the ruling of the stewards. As these things go, the case lumbered along for months before it was finally revealed last week that the California Horse Racing Board accepted the recommendation of hearing officer Patrick Kane that Fipke’s appeal should be denied, and that Rosario should be paid the $110,000 fee.

Darrell Vienna, Fipke’s attorney, said Friday that his client would appeal the CHRB’s adoption of Kane’s decision to Los Angeles Superior Court. Vienna’s contention all along was that Fipke did not receive the due process of a formal hearing into his replacement of Rosario before entries were drawn for the race, and that the resulting $110,000 double mount fee exceeds the $100,000 CHRB limit on fines.

For those who like to wade deep into semantics, the $110,000 can be interpreted as a fine for some kind of violation, or as an award made upon the settlement of a contract dispute. Vienna correctly points out that Fipke never was charged with a violation, and that in the real world contract disputes should be settled in civil court.

At this point eyes are glazing over and the cry from the back of the room is a mix of “who cares?” and “hang all lawyers,” which sounds great until you need one.

The issue of a jockey being spun by an owner at the last minute is not unprecedented, but more often than not it is an owner or trainer who complains to stewards that a jockey has backed out of a call in favor of another horse.

“In those cases, the jockey or his agent are fined at most $500,” Vienna noted. “How is it that an owner can be fined as much at $110,000 for essentially the same kind of situation?”

But because there was no specific rule or guidelines to the awarding what is called “double jockey fees” beyond the discretionary power of stewards, the Fipke case stands as yet another example of horse racing just making things up as it goes along. And every once in a while an owner with pockets deeper than the average backstretch Joe will bull forward to make a point.

“Mr. Fipke considers this a matter of principle,” Vienna said.

There are echoes from past experiences, when racing’s medieval standards of adjudicating violations were dragged into the modern era. In the 1940’s, trainer Noble Threewitt and several notable owners were dragged through a dubious prosecution for caffeine positives that resulted in more strict testing regimens. Influential owners like Allen Paulson and Jess Jackson have famously done legal battle with trainers and agents over land and bloodstock purchases. Hall of Fame trainer Richard Mandella and others sustained arduous appeals of scopolamine positives that were eventually traced to contamination.

Such squabbles are messy, lengthy, and eventually tiring to those who are impatient with the legal process. But in the end they are necessary to preserve the rights of those who someday might become ensnared in tangles beyond quick repair.

According to Vienna, Fipke offered to donate the $110,000 in limbo to a suitable jockey welfare organization. Anderson correctly countered that, according to the stewards ruling, the amount was not really Fipke’s to donate. Asked if Fipke would have even appealed the ruling in the first place if Forever Unbridled had finished deeper in the purse placings, Vienna replied, “I don’t know.”

In carrying Fipke’s case forward, Vienna’s main point of contention is that the Del Mar board of stewards did not provide his client a formal hearing at which either Fipke or his representative could have confronted opposing testimony. Hearing officer Kane held that Fipke got his chance in the subsequent appeal process.

But here’s the rub. At a stewards hearing, the burden of proof would have been on agent Anderson and Rosario. In an appeal of the ruling by the stewards, the burden of proof fell upon Fipke, the appellant. And for those who do not think there is a significant difference, there are several episodes of “Law & Order” I can recommend.