Appeal-ing Pace victory for Charlie May

But don’t put it in the books just yet.

by Debbie Little

On Friday (Feb. 10), a judge declared Charlie May the winner of the 2021 Meadowlands Pace and although it was a great victory for owner Don Tiger and his team, the case is far from over.

In a 15-page decision, New Jersey Administrative Law Judge (ALJ), Andrew M. Baron, said, in part, “I hereby ORDER that the determination of the track side judges which was sustained by the Racing Commission must be REVERSED, as it was arbitrary, capricious and unjust, and violated petitioner’s fundamental due process rights, and the rights of the wagering public, whose interests the track side judges, and the Racing Commission are supposed to protect as well. I FURTHER ORDER that Charlie May should be reinstated as the winner of the Meadowlands Pace which was held on July 17, 2021.”

Baron’s decision is now on file with the New Jersey Racing Commission (NJRC) to either be accepted, rejected or modified and their next meeting is scheduled for Wednesday, March 22 at The Meadowlands, but no agenda is currently available.

“There’s still a long way to go, but we’re in a good spot,” Tiger said.

It’s been nearly 19 months since Tiger appealed the disqualification of his homebred Charlie May’s victory in the Pace.

At that time, a large motivating factor was the hope of being able to race in the Little Brown Jug, which as the Pace winner, he would be eligible to do.

“I wouldn’t say that was the only premise, but it was a big part of it,” Tiger said. “Because when I tried to adjudicate it, I just wanted to get in the Jug because, obviously, the horse is an Ohio bred. Hometown race, hometown trainer and I thought if we could get the proper ruling, we could get into the Jug.”

Tiger has always seen his fight as one for the little guy — David versus Goliath, if you will — but also for doing what is right and holding people accountable.

Tiger has never faltered in his belief that Southwind Gendry — not Charlie May — was responsible for causing the chain reaction, and yet, Southwind Gendry was not investigated by the judges.

“It was just a huge, egregious error from top to bottom,” Tiger said. “The judges missed the interference on [Southwind Gendry] and then they didn’t do their due diligence.

“That’s why Judge Baron ruled in our favor I’m pretty sure, because the facts are the facts. We got no due process and they didn’t do their job that day.”

What can be gained from reading the entire decision is that Baron found Tiger’s expert witness to be credible and the NJRC’s to be “uncomfortable” and, at times, “evasive.”

Attorney Howard Taylor was not part of this case and did not witness the proceedings, but he is an expert on administrative law cases.

“You can ask the [New Jersey Racing] Commission, I try more of these than everybody else combined or as many as everybody else combined,” Taylor said. “And in this particular case this judge seems to — in his opinion — have gone to great lengths to assess the credibility of the witnesses more so than any opinion I ever remember reading.

“Usually, a judge doesn’t want to insult somebody by attacking their credibility. This judge, in this opinion, didn’t seem to mind. I’ve rarely seen that.”

Regardless of how strongly the ALJ worded his decision, based on Taylor’s previous experiences in New Jersey, he believes the NJRC will reject it.

“If I was a betting man,” Taylor said with a laugh. “I would expect that the Commission will overturn [the ALJ’s decision] and reinstate the [racetrack] judges’ decision. And I will tell you without fear of contradiction, I can’t remember a case — I’m sure there’s been, but none come to mind — where the racetrack judges’ decision was overturned and it wasn’t reinstated by the Commission.

“I’ve had [administrative law] judges come to me — I’d say three or four, but more than two — and say they don’t like hearing racing cases because they feel like their opinion doesn’t matter because whatever they say is irrelevant and gets overturned.”

Taylor has tried horse racing cases in at least eight different states — Delaware, Florida, Illinois, Indiana, New Jersey, New York, Ohio and Pennsylvania — and has never had the commission overturn the ALJ’s decision until New Jersey where he’s done more of these cases than in other states.

“And I’ve never had a case where they didn’t reinstate the initial decision in Jersey,” Taylor said. “It’s a complete perversion of the system. And it’s only the racing commission, it’s not the State of New Jersey. Only the racing commission routinely ignores what the ALJ says.”

Should the NJRC reject the ALJ’s decision, as Taylor believes they will, the next step is for Tiger’s team to file an appeal to the appellate division of the New Jersey superior court, buy and review the transcript and prepare a brief, which will once again have Tiger reaching for his checkbook.

Tiger has already incurred substantial legal fees in this fight, which in an interview on the Harness Racing Alumni Show, he said are “pushing up on six figures,” but regardless of that he is committed to seeing this case through to what he hopes will be a win for the integrity of harness racing.

“Their bylaws say to adjudicate racing and exhaust any and all measures to do that,” Tiger said. “They didn’t do that that day. That’s the whole premise here. And they just made a rush to judgement. All they did is see a horse that broke stride and the guys up in the booth said ‘Yeah, he broke stride, let’s take him down, let’s move on.’

“In a race of that magnitude, they should have made a call and said to Brett Miller, ‘What happened out there?’ That’s all it would have taken. Because they acknowledged that they never investigated [Southwind Gendry] in their testimony. That was huge. So, they basically are on record as saying that they didn’t do their job.”

Just as other professional sports — baseball, basketball, football, hockey — have embraced technology such as instant replay to try and get calls right, Tiger hopes harness racing will continue to do the same. There may be an occasional missed call, but by following the rules it won’t be arbitrary and capricious because they will have exhausted any and all measures.

“No judges want to talk to drivers per se but they have to talk to drivers because you have to get a complete depiction of what happened and then still make your judgement call,” Tiger said. “But that’s where they erred again. You just have to talk to people and they didn’t do it.

“All you’re trying to do is piece everything together. You’re trying on a rainy night, on an off track, to get a complete depiction of what happened. That’s all. If they would have called Brett Miller the first thing he would have said is ‘Dude, I was going to get into an accident if I didn’t pull the right line.’”

Should the NJRC indeed reinstate the original racetrack judges’ decision, Taylor feels confident that Tiger’s chances are excellent with the appellate court thanks to the thorough work of ALJ Baron.

“My opinion is that they would take that into heavy consideration,” Taylor said. “So, I think Tiger would have a good chance of winning at the appellate level because the judge went out of his way to give his opinion as to the credibility of these witnesses. And I think the appellate division will take note of that and give extra consideration for that.”

For Tiger, now it’s just about waiting to see what the NJRC does.

“We’re not going to stop,” Tiger said. “We’ll keep going especially due to how strong the opinion was of Judge Andrew Baron. We’ll take it to the appellate level and the state supreme court and the national supreme court, if needed. We’ll keep going.”

For any that think Tiger’s motivation could be purse driven with the opportunity to recoup some of his considerable legal fees, that is not the case. From day one he has said it’s not about the money and should he be given the rightful Pace purse, he will donate it.

“Thankfully, Charlie’s made some nice money and we’re able to afford this,” Tiger said. “And I think it’s going to help someone else down the road. I really do.

“This case isn’t surrounding whether a horse interfered with another horse or whether judges made a call right or wrong. It’s about due process and fundamental fairness and it wasn’t administered that day and it wasn’t administered in the weeks after.”

One thing lost in all the recent discussions about this case is how this decision affects Lawless Shadow, who was elevated to the Pace win with the disqualification of Charlie May.

According to Taylor, the connections of Lawless Shadow should have been invited to be part of the proceedings by the NJRC since they had a vested interest. But according to Lawless Shadow’s co-owner/trainer Dr. Ian Moore, they were never asked.

“I didn’t even know anything was going on, actually, to tell you the truth until I read it the other day,” said Moore. “Really, we’re basically just a casual observer in this whole thing because it wasn’t like he ran into us. Which would be a totally different situation. We just happened to be there and be in the race and you know the story. So, I don’t know what that means either.”