California Appellate Court Throws Out Double Jockey Fee Imposed on Racehorse Owner

by John M. Simpson

On October 5, 2020, the California Court of Appeal (Second District) reversed a trial court’s decision that had upheld the imposition by race stewards of a double jockey fee upon a racehorse owner who had replaced the jockey the day before the draw for the 2017 Breeder’s Cup Distaff race.  Fipke v. California Horse Racing Board, No. B299810 (Cal. App. Oct. 5, 2020).  The court held that the fee was prohibited by the Horse Racing Law, Cal. Bus. & Prof. Code § 19500.

The horse in question, Forever Unbridled, was entered into the race with the first jockey who therefore received the call.  However, the next morning, before the draw (which is the point at which starting positions and final jockey assignments are determined), the owner replaced the first jockey with the second rider.  The replaced jockey, who could not secure another mount, complained to the race stewards who determined that he should receive a double jockey fee.  Forever Unbridled went on to win the race which carried a purse of $2 million.  The jockey who rode earned a $110,000 riding fee, and the replaced jockey was also entitled to $110,000 pursuant to the double jockey fee decision.  The California Horse Racing Board (CHRB) upheld the race stewards’ decision as did the Superior Court, which denied the owner’s writ petition.

In reversing the lower court’s decision, the Court of Appeal noted that while Section 19500 gave the CHRB (through the race stewards) considerable discretion to determine the circumstances under which a removed jockey is entitled to a riding fee, that authority was limited by the statute to replacements that occur after “scratch time” which is the time designated by the purse agreement when final changes to the racing program must be made.  Here, however, the jockey was replaced before the draw, and the parties agreed that scratch time never occurs before the draw.  According to the Court, “[t]he clear implication of [the condition in the statute] is that the Legislature intended jockeys removed from their mounts prior to scratch time would not be entitled to riding fees.”  Slip op. at 9.

Several CHRB regulatory provisions had been advanced to support the imposition of the double jockey fee in this case, but the Court of Appeal found each to be inapposite.  Whether such rules would independently authorize the fee need not be considered because such a result would conflict with the language of Section 19500, and “an ‘administrative agency may not adopt a regulation that exceeds the scope of, or is inconsistent with, the enabling statute.’”  Id. at 10 (citation omitted).

The Court also rejected the argument that the double jockey fee could be upheld as “penalty” or a “fine,” primarily on the ground that penalties and fines are paid to the state treasury, and the monetary amount here was to be paid to the second jockey as compensation for the lost ride.  Id. at 12-13.  Nor did the race stewards have the authority to impose the fee as a novel form of punishment because “the stewards’ authority to penalize owners is restricted to imposing fines, suspensions and exclusions.  A double jockey fee is none of those.”  Id. at 16.