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The Kentucky Derby is known as the fastest two minutes in sports. But—in federal court at least—the 2019 contest galloped on until last week.

Last Friday (8 days before this year’s oddly timed 146th Derby), the Sixth Circuit provided apparent closure to the 2019 race’s controversial result by affirming the district court’s dismissal of a suit challenging a horse’s disqualification. The court (Bush, J. op.; Batchelder, Larsen, JJ. joining) made clear its desire to avoid second-guessing sports officials, notwithstanding the Supreme Court’s oft-used metaphor of “calling balls and strikes.”

“[W]e are not game officials in the literal sense, and we are ill-equipped to determine the outcome of sporting contests,” the Sixth Circuit expounded.

It is the second referee-related case to reach the circuit from sports-mad Kentucky in the past year alone.

The present case pitted Gary and Mary West, owners of the Kentucky-bred Maximum Security, against a state agency charged with overseeing horseracing. In 2019, Maximum Security had pulled off an apparent Derby win, only to be denied victory subsequently for allegedly impeding the progress of a fellow horse, which in turn impeded that of two others. It was the first time in the 145 years of the Kentucky Derby that the first horse to cross the finish line had been disqualified for misconduct during the race.

The Wests sued in federal court, contending that, per Kentucky law, the officials’ decision should be subject to judicial review. Furthermore, the Wests argued that the disqualification—which had been issued without a formal hearing or opportunity to appeal—violated their Fourteenth Amendment right to procedural due process.

The Sixth Circuit held, however, that the Wests had not shown deprivation of “life, liberty, or property.” No constitutionally protected liberty interest, the court elaborated, could be derived from a state agency’s purported failure to follow its own rules. Moreover, the court held, a property interest could not be conjured from a particular method of officiating sport contests. Maximum Security’s trophy win had thus not been taken from the Wests; it had never been theirs to begin with. Although the court acknowledged that a prevailing custom within a sport could hypothetically form the basis of a property interest, it pointed out that the Wests “knew about and agreed to be governed by” the Kentucky rules, which approximated those of other racing jurisdictions.

The Sixth Circuit found the Wests’ arguments about state law to be similarly unpersuasive. Per Kentucky law, racing officials’ decisions are not appealable, but a “final order[] of an agency” can be subject to judicial review. The Wests contended that the penalty on Maximum Security constituted such a “final order.” The Sixth Circuit answered, however, that such a classification would be at odds with both Kentucky’s definition of “final order”—which refers to an administrative hearing as well as the involvement of an agency head—and state-court precedent.

Ultimately, the Sixth Circuit saddled onto a theme of institutional competence. On-the-ground umpires, the court reasoned, are better prepared to call fouls than courthouse judges, given the former’s “rigorous training and experience” in its domain.

“Perhaps only a racehorse itself could tell us whether it was fouled during a race,” the court wrote. “But horses can’t speak, so the Commonwealth of Kentucky, similar to many other racing jurisdictions, has designated racing experts—the stewards, not the appointed members of the Commission or judges—to determine when a foul occurs in a horse race.”

Despite its defeat in court, not all is lost for Maximum Security and its owners. The bay colt has won three races this year, most recently the Pacific Classic on August 22. (Those victories have netted the Wests some $10.4 million in earnings.)

This post arrives (along with many more) thanks to Zach Young, a Cincinnati native and rising 2L at Stanford Law School, where he studies as a Knight-Hennessy Scholar

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