Maximum Security Derby

Maximum Security crosses the finish line first in the 2019 Kentucky Derby.

LOUISVILLE, Ky. (WDRB) -- The push to overturn the revised results of Kentucky Derby 145 will be an expensive, bruising and fruitless serving of indigestion for the connections of Maximum Security.

Two days after they were told to return the roses they saw their unbeaten colt win at Churchill Downs on Saturday, owners Gary and Mary West as well as trainer Jason Servis have a decision:

  1. Keep screaming and kicking about the unfairness of the stewards’ call that knocked Maximum Security from first to 17th and put Country House in the winner’s circle. Speak up, lawyer up and pursue every avenue to have the results reversed (again) and Maximum Security declared the winner.
  2. Calm down, quiet down and extend a sincere congratulatory hand to the winner’s connections. Tell them you’ll meet them — and beat them — at the Preakness and Belmont. Concentrate on beating Country House on the track, not the courts. Score as many points as possible for sportsmanship at a time when genuine sportsmanship has gone the way of the $2 mint julep.

I wouldn’t have to flip a coin to make that call.

Give me Option No. 2 and the certainty of being remembered as an epic sportsman.

Option No. 1 comes with an equally certain result of dissolving into an ugly, frustrated loser stuck with an appeal will not prevail. The connections appeared to start down this path Monday by filing an appeal with the Kentucky Horse Racing Commission. (Story link.)

“There’s no venue for the owners to appeal to the Kentucky Horse Racing Commission,” attorney Barry Dunn said. “That’s iron-clad.”

Dunn, 35, served as general counsel to the Kentucky Public Protection Cabinet for 2 1/2 years, leaving state government for private practice in 2018. That cabinet included representing the Kentucky Horse Racing Commission.

Dunn said any appeal to the KHRC would be rejected, because the regulations are set up “so the stewards’ rulings are final on race fouls.”

Dunn said there were three primary questions a judge would consider:

1) Was the the law complied with? Did the agency act within its power?

“Yes, the stewards did,” Dunn said.

2) Is the decision supported by evidence?

“We can disagree whether a disqualification should have happened ... but could reasonable minds look at the race and think that horse should have been disqualified? “ Dunn said.

“The answer here unequivocally is, 'Yes.’”

3) Did the agency provide due process to the owners?

“That’s the question that is going to be implicated by this case,” Dunn said.

"If I’m guessing, I think that Maximum Security’s owners will focus on whether they received due process. Did they get the hearing they deserved?

“The difficult road that they have is that nothing was taken away from them. I know the easy response is, well, if he crossed first, he won the race.

“But he didn’t win the race. The race is not official, not over until it goes official.”

Dunn said the courts have already ruled in favor of the KHRC in a similar case about a contested race at Turfway Park in 2012.

“The courts have been clear that the horse didn’t win,” Dunn said. “He crossed first, but he didn’t win.

“Therefore, the owners didn’t have anything taken away from them. I don’t believe there is any due process concern. To the extent there is a concern, the stewards are not making up rules on the fly. They have an established set of rules.

“So I think the chance of Maximum Security being successful in any litigation is very slim."

Let me make one thing perfectly clear: I’m not the one who had the $1.8 million winner’s purse and a spot in horse racing history jerked away 22 minutes after The Derby Dust-up.

I have not invested millions chasing the elusive Derby happy ending.

But everybody I’ve asked around the game, including Dunn, has said this appeal will go nowhere.

Maximum Security will not be declared the Derby winner.

Not by the stewards.

Not by the Kentucky Horse Racing Commission.

Not by the federal courts.

“In my mind, there’s no court that’s going to go down the slippery slope to all the questions being raised over calls that occur in a sporting event,” Dunn said. “Courts have been very clear they are not going to get involved in who should have won a race, who should have won a ball game, who should have won any of those things. All the courts want to look at is: Was the law followed?”

Translation: The Wests and Servis cannot win the race.

The decision by the stewards is final.

The Wests can win public opinion and a favorable spot in history by graciously conceding and getting back to the serious business of proving they have the fastest and most talented 3-year-old in training.

That has not been their strategy since Saturday. They have discussed the possibility of litigation. On Monday, they broadened their criticism to the size of the Derby field.

Gary West has said that that without a chance to win the Triple Crown, he is not interested in bringing Maximum Security back May 18 for the Preakness in Pimlico for another demanding race.

Their horse. Their call. Their legacy.

There is no playbook for how to handle a situation like the one that unfolded Saturday. A million crazy things have gone down in the Derby but never the disqualification of the winner because of a bumping incident.

Without a playbook, the wisest call is to do the right thing. The right thing here is to concede, sincerely congratulate the winners and take a stand for sportsmanship.

There’s still time.

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