The two-year-old war of words between attorneys for the New Jersey Thoroughbred Horsemen’s Association (NJTHA) shows no signs of cooling down – not with up to $150 million at stake.
Back-and-forth filings on Wednesday are best summed up by horsemen’s attorney Ron Riccio’s observation that “The Leagues may think they control this litigation, but they don’t.”
Of course, attorney Anthony Dreyer – representing the NFL, NBA, MLB, NHL, and NCAA – is no shrinking violet himself, as the saga continues over both a $3.4 million bond put in escrow by the leagues in 2014 in the sports betting lawsuit that preceded this case, and whether the leagues also owe the horsemen for lost revenue from that year until Monmouth Park was able to handle its first bet for the horsemen in June 2018.
Dreyer responded to what he called a “sudden, unauthorized and improper” motion for summary judgment – a “procedurally defective” one, at that – on the bond and partial judgment on the damages in excess of that one week’s worth of estimated revenue.
Riccio replied that the motion was “none of those things.”
“Contrary to Mr. Dreyer’s letter, NJTHA did not require the Leagues’ permission to file its Motion,” he wrote – contending that the motion was authorized by a favorable ruling for the horsemen last fall at the U.S. Third Circuit Court of Appeals that kicked the case back to the District Court level.
Dreyer also griped that after the horsemen having “devoted three months” seeking to continue the case in spite of various legal issues that eventually included the leagues filing of an appeal to the U.S. Supreme Court, now the horsemen’s “concession” means the top court will go first after all. That is, in terms of a decision by that court whether to take up the case – a bid often characterized by attorneys as roughly a 100-to-1 longshot.
Don’t complain if you get what you want, horsemen say
“It is mystifying that Mr. Dreyer is now apparently complaining,” Riccio fired back, given that the Leagues have gotten their wish regarding a stay – an “about face,” Dreyer called it – until the Supreme Court responds. Riccio added that the Leagues would have known this sooner if they had just asked.
Both attorneys accused the other side of “not bothering” to reach out for most of March, thereby creating headaches that each contend is inconsiderate of Judge Lois Goodman’s time.
As the character of Academy Award-nominated Paul Newman was told in the fabled 1967 movie “Cool Hand Luke” – “What we’ve got here is a failure to communicate.”
The leagues are seeking a teleconference with the judge, and the horsemen replied that they have no objection.
Finally, peace in our time? Well….
Riccio added, “In our view, there is no need for a teleconference as the reasons for the teleconference given by Mr. Dreyer are frivolous.”
Riccio also said that after a conference on March 5, he asked the Leagues’ attorneys what sort of discovery documentation and information they would be seeking. “Uncertain,” was the response, Riccio said, which he said was “reasonable” – at that time.
Delays and more delays
The horsemen have twice consented to delay discovery in the case – which, for their side, may be particularly dramatic because in part they seek unredacted versions of the 2012 depositions of several commissioners and other key league executives.
The leagues at the time did not object to the eventual full release of the transcripts, but they have in the latter years since – as the eight-year-old sports betting lawsuit by the leagues to prevent the state’s racetracks and Atlantic City casinos lasted until the Supreme Court overturned a near-total ban on the gambling in May 2018.
Now the horsemen are trying to get the case into the homestretch, which is why they have not yet consented to the leagues seeking to delay an April 20 deadline for their next filing (although in his filing, Riccio implied that he will).
Dreyer said the horsemen’s motion to collect on the bond is “improper” and regardless has “needless complexity” that “obviously would require an extension of time in the most normal of circumstances, let alone in the current extraordinary and unprecedented circumstances in which we find ourselves.”
Riccio fired back: “If the Leagues want more time to respond to NJTHA’s motion, they should simply ask us, not bother Your Honor with an unnecessary conference call.”
And he went further: “Given the current crisis all of us are confronting, cooperation between and among counsel regarding scheduling matters should predominate over unnecessary encroachments on valuable judicial resources.”
If fails, Riccio added, he recommended having the teleconference call next week – given the religious holidays this week.
All the way to the Supreme Court
That COVID-19 crisis is part of the reason that the leagues also on Wednesday filed a petition to the Supreme Court seeking a two-week delay of its consideration. That would leave the Court considering the leagues’ bid in a conference on May 14 – deliciously, the two-year anniversary of the same court’s vacating of the Professional and Amateur Sports Protection Act of 1992.
The horsemen did consent to a delay – but only of one week.
Leagues attorney Paul Clement – a former U.S. Solicitor General who was a veteran of the New Jersey sports betting case that has birthed this sequel – noted that in his letter, but he added that the horsemen “opposed a two-week delay out of concern that the extra week may prevent this Court from making a decision on the petition this Term” – which ends on June 30. He also wrote that “the Court is still maintaining its ordinary distribution and conference schedule, in which case that should not be a concern.”
Neither side has budged for nearly 24 months – but if the Supreme Court denies the Leagues’ motion, the scales would tilt more toward the horsemen.
It’s a gamble both sides appear willing to make.