While talks of a settlement apparently are going on behind the scenes, attorneys for the New Jersey thoroughbred horsemen and five major pro sports organizations have been sniping at each other in court documents for the past month.
The volume amped up on Dec. 20 when Jeremy Mishkin, representing the NCAA, NFL, MLB, NBA, and NHL, sought from the horsemen “an immediate withdrawal” of all of the “numerous, harassing discovery requests and notices” regarding the horsemen seeking information for their $150 million lawsuit against the leagues and the NCAA.
At issue is whether league executives acted in “bad faith” in sworn depositions in 2012, when the leagues first sued Governor Chris Christie — with the horsemen soon coming aboard on the side of Christie — to stop them from offering legal sports betting at Monmouth Park.
Mishkin added that if the requests weren’t withdrawn within three days, “the Leagues will seek all appropriate relief, including recovery of attorneys’ fees.”
Ron Riccio, attorney for the horsemen, replied that “the tone of your letter is disconcerting” and that rather than imposing a quick deadline, “A phone call would have been a better way to proceed.” He added that objection to the horsemen’s desire to hold fresh depositions of league executives “rings hollow” and that “a more civil approach” would be a joint letter filed to a federal judge.
On Dec. 27, Mishkin replied to Riccio with a variety of disputes, then writing: “Even more troubling is [the horsemen’s] continued mischaracterizations of the Leagues’ legal positions — in particular, the absurd notion that the Leagues somehow have admitted that the excess damages claim is sufficient as a matter of law.”
The crux of the matter
That’s an important point because the leagues posted a $3.4 million bond in 2014, but that only covered a four-week period when Monmouth Park couldn’t offer sports betting pending a judge’s ruling. It wasn’t until more than three years later that the U.S. Supreme Court opened the door for that Oceanport racetrack to start taking bets.
The unresolved legal question is, how long of a time frame should be involved to determine compensation for those horsemen, given that they were prevented from making money off sports betting until June 2018?
“Respectfully, although there was nothing remotely ‘uncivil’ about your prior letter, your purported concerns about the ‘tenor’ of our communications fall particularly flat in light of the foregoing misstatement,” Mishkin added on behalf of league executives.
On Dec. 30, Riccio noted that the above letter was sent to him “late Friday evening” three days earlier and that “You unilaterally fixed [Dec. 30] as the deadline for my reply, notwithstanding I advised you that I was on a family vacation.” Riccio also refused to meet the suggested deadline.
Last week, Riccio objected to Mishkin’s intention to seek fuller details on how much of the $3.4 million bond should be turned over to the horsemen in the wake of the vacated U.S. District Court decision. All that’s left is a day for oral argument before a final ruling, Riccio asserted.
Meanwhile, the horsemen are now seeking unredacted versions of 2012 depositions by the late NBA Commissioner David Stern, former MLB Commissioner Bud Selig, and other top sports executives. On top of that, the horsemen want to depose similarly highly placed current executives beginning next month.
In that same Jan. 9 letter, Riccio claimed that “the Leagues did not — because they cannot — dispute the fact … that the Leagues’ top executives and in-house counsel repeatedly falsely swore under oath that the spread of sports gambling would cause the Leagues to suffer immediate irreparable injury.”
That speculative “injury” was the basis for a permanent injunction that was issued by U.S. District Court Judge Michael Shipp (whose brother, Marcel Shipp, is a former running back for the Arizona Cardinals) in 2014. It was a curious decision given that gambling already had been legal in Nevada for more than 60 years, to no excessive harm to the plaintiffs.
Now, not only New Jersey but a dozen other states have legal sportsbooks, and the “injury” the leagues claimed was sure to follow has not panned out.
That said, the leagues were not about to let the horsemen’s claim of lying under oath go unchallenged.
In a letter to Shipp and U.S. Magistrate Court Judge Lois Goodman — who is now overseeing the case — Mishkin said that the depositions reflected “expression of the concern about the risk to which the Leagues would be increasingly exposed if state-sponsored gambling were spread in violation of [a now vacated federal ban on most sports betting].”
Mishkin said the concerns were justified given the results of “congressionally funded studies, consumer studies, as well as by common sense.”
In fact, Mishkin said, the horsemen’s claim of deliberate falsehoods is “utterly bizarre and troubling.”
The repeated jabs by each side — only a handful of which are quoted here — might make it seem difficult to imagine that a handshake, much less a settlement, could be around the corner.
But there are plenty of reasons for each side to get this case over with, so don’t bet the house against an agreement coming soon.
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