Protecting the thoroughbred of athletes

No citation is needed to support the assertion that, pound for pound, thoroughbred racehorse jockeys are the strongest athletes in all of pro sports. Most weighing less than 115 pounds, they are charged with guiding half-ton, highly fractious four legged animals around an oval course at speeds of over 40 miles per hour. They quickly accelerate from a stationary position in a starting gate, their steeds clumped together in packs, often with only inches separating one another. Their trip is no pleasure ride; each is attempting to do whatever is necessary to get their mount to the finish line first, usually taking perilous chances in the process. While fatalities are fortunately rare, the question is not if a jockey will be injured, but when.1

For every one jockey at a racetrack, there are scores of exercise riders. These individuals come in all shapes, sizes and ages. The younger ones dream of being noticed for their performance in morning workouts such that trainers will give them race mounts in the afternoon. Others ride for a paycheck, the opportunity to be jockeys having long eluded them. All exercise riders, however, have two things in common with jockeys. The first is that they will assuredly sustain injuries; the second is that, with few exceptions, riding on the back of horses constitutes their entire education, training and experience. Resultant physical disabilities aside, a career ending injury often leaves the victim with little future prospects for gainful employment.

There are other defining characteristics jockeys and exercise riders share. The first is that almost all jockeys and several exercise riders are freelance independent contractors. The second is that all engage in an activity which is uniformly viewed as being inherently dangerous and, as pro sport professionals, are generally deemed to have assumed the risk of their injuries.2

When Ron Turcotte, the Hall of Fame jockey who guided Triple Crown winner Secretariat to racing immortality, was rendered a paraplegic in a 1978 racing accident at Belmont Park, he sued the track operators, a fellow participant, and the owner of an offending horse. In affirming dismissal of his complaint against the coparticipant and the owner of the horse, and further reversing denial of summary judgment to the racetrack’s operator, the Court of Appeals concluded that:
While a participant’s “consent” to join in a sporting activity is not a waiver of all rules infractions, nonetheless a professional clearly understands the usual incidents of competition resulting from carelessness, particularly those which result from the customarily accepted method of playing the sport, and accepts them. They are within the known, apparent and foreseeable dangers of the sport and not actionable.3 The decision in Turcotte left New York jockeys and exercise riders with no viable economic safety net when they are hurled to the ground from their mounts. In the wake of the decision, both the New York racing industry and state legislature took affirmative steps to protect this special class of individuals.

The New York Racing Association (NYRA) is only one of a handful of track groups nationally that provide catastrophic injury disability insurance to jockeys.4 Assuming a waiver of liability has previously been executed, the policy covers jockeys injured at track facilities, whether competing in a race, exercising horses in the morning, or otherwise. There are floor and ceiling recovery limits ranging in the hundreds of thousands of dollars, the amounts dependant upon a multiple of the jock’s most recent annual earnings. As a disability insurance policy, the claim is not dependant upon a finding of liability or an accumulation of medical bills.

The policy relieves jockeys of the obligation of securing and maintaining individualized catastrophic disability coverage. It is also beneficial given that the Jockey’s Guild, the nationwide association that serves to advance the rights of jockeys, has in the past abruptly and without warning allowed catastrophic health insurance coverage to lapse.5 The three main problems with the policy, however, are that; 1) the jock must exhibit “permanent total disability;” 2) such disability must last for in excess of 12 continuous months before the claim is adjusted; and, 3) the policy only covers the selected class of licensed jockeys, meaning exercise riders are not within the purview of coverage.

In 1990, the legislature formulated a wide-ranging statutory remedy to the problem of injured riders. In that year, Albany created a Not-For-Profit Corporation called the New York Jockey Injury Compensation Fund, Inc. (“the Fund”).6 The Fund is charged with the obligation of securing workers’ compensation insurance coverage on a blanket basis for the benefit of all jockeys, apprentice jockeys and exercise persons licensed by the New York State Racing and Wagering Board.7 In fact, workers’ compensation coverage directly procured by any horse owner or horse trainer for the purpose of satisfying the requirements of the Workers’ Compensation Law with respect to employees of the owner or trainer, statutorily excludes coverage of any jockey, apprentice jockey or exercise person licensed to the extent that such individuals are also covered under coverage procured by the Fund.8

The legislative scheme is unique in that the “employer” of all jockeys, apprentice jockeys and exercise persons is defined under the Workers’ Compensation Law as being simultaneously the Fund and all owners and trainers who are licensed or required to be licensed at a race meet at the time of any occurrence for which benefits are payable with respect to the injury or death of such covered individual.9 By way of example, if in an afternoon a jockey has six mounts for six different sets of owners and trainers, he need not guess which mount is responsible for the severely sprained back he experiences the next morning. In effect, the Fund is an exclusive remedy for this special class of individuals, as all owners and trainers at a race meet are deemed the “employers” of a rider, irrespective of who he actually rides for or his status as an employee or independent contractor.10

In order to pay for the cost of the blanket workers’ compensation policy, the law requires the Fund to ascertain the total annual funding necessary and establish the sums that are to be paid by all owners and trainers on an equitable basis.11 In practice, the Fund accomplishes this by assessing each owner and trainer an annual base premium, plus a percentage of all purses earned. For example, in 2006 the Fund assessed all owners and trainers a base premium of $660.00; owners had 0.75 percent of purse money they earned throughout the year deducted by the horsemen’s bookkeeper at the track; trainers were assessed a $.55 (fifty five cents) per day fee for each horse stall allotted to them by the track; shippers12 were charged $165.00 per each start for a maximum of four starts ($660.00), with shipping owners assessed the same 0.75 percent purse earnings deduction.13

This legislative scheme protecting the riders has been liberally interpreted by the courts. For instance, though the statute establishing the Fund specifically requires covered individuals be licensed by the Racing Board,14 the courts have reasoned that exercise riders with expired licenses are covered as well, inasmuch as they were permitted full access to the racing facility where they were injured based upon such expired licenses.15 Many sports injuries slowly progress as the result of repetitive motion or activity. Racing accidents happen without warning in the mere blink of an eye. When the incident’s fallout involves curtailment or permanent termination of the rider’s livelihood, actions sounding in negligence are for the most part barred against potential defendants by a well established assumption of risk doctrine. It is only through insurance provided by the industry to a class of individuals who for the most part would otherwise be uninsured that economic ruination for the injured and his or her dependants is avoided. When a rider goes out on the track, he risks life and limb. He shouldn’t have to risk a lifetime of financial devastation as well. Unlike several other jurisdictions,16 New York’s government and racing industry have taken proactive steps to ensure that those responsible for the conduct of our state’s world-class Thoroughbred racing are treated with the respect and protection they richly deserve.

Two-time John Hervey award-winning journalist Chris Wittstruck, Esq. practices in the racing and gaming area and coordinates the Racehorse Ownership Institute at Hofstra University. He also coordinates Hofstra’s Paralegal Studies Program.

1. From 1992-2006, there were 26 jockey fatalities and 8 exercise rider fatalities in the entire U.S. racing industry (N.Y.C. excepted). An Overview of Safety and Health for Workers in the Horse-Racing Industry. National Institute for Occupational Safety and Health Publication No. 2009-128; April, 2009. Last read online March 30, 2010 at: http://www.cdc.gov/niosh/ docs/2009-128/default.html
2. See, Turcotte v. Fell, 68 N.Y.2d 432 (1978); See, also, Maddox v. City of New York, 66 N.Y.2d 270 (1985); Verro v. New York Racing Association, Inc., 142 A.D.2d 396 (3d Dept., 1989), leave to appeal denied, 74 N.Y.2d 611 (1989); Joseph v. New York Racing Association, 28 A.D.3d 105 (2nd, Dept., 2006)
3. Turcotte, supra, at 441
4. The major New York Thoroughbred racing circuit known as NYRA (NYRA, Inc.). NYRA conducts year-round racing and maintains training facilities at Aqueduct Racetrack in Ozone Park, Queens; Belmont Park in Elmont; and the Saratoga Race Course in Saratoga Springs.
5. See “Bad-Luck Jockeys,” October 24, 2005, BusinessWeek Online Magazine; last read online March 30, 2010 at: http://www.businessweek.com/magazine/content/05_43/b3956112.htm 6. L 1990, ch 346, § 3; Racing, Pari-Mutuel Wagering and Breeding Law § 221
7. Racing, Pari-Mutuel Wagering and Breeding Law § 221(6)
8. Workers’ Compensation Law § 50(8)
9. Workers’ Compensation Law § 2(3)
10. The liability of an employer prescribed by the Workers’ Compensation law is exclusive and in place of any other liability whatsoever to an employee. O’Rourke v. Long, 41 N.Y.2d 219, 221 (1976); Workers’ Compensation Law §§ 10, 11
11. Racing, Pari-Mutuel Wagering and Breeding Law § 221(7)
12. “Shippers” are owners and trainers not stabled at the track’s facilities but whose horses “ship in” to compete in afternoon races.
13. 2006 periodic Condition Books issued by the New York Racing Association, Inc. (now NYRA, Inc.)
14. Racing, Pari-Mutuel Wagering and Breeding Law § 221(6)
15. Adames v. New York Jockey Injury Compensation Fund, Inc., 15 A.D.3d 696 (3d Dept., 2005); McKenzie v. New York Jockey Injury Compensation Fund et al., 27 A.D.3d 1003 (3d Dept., 2006)
16. The contentious relationship between Churchill Downs, Inc. and Kentucky and Indiana jockeys, previously resulting in walkouts, boycotts, lockouts, failure to make contributions and anti-trust lawsuits, is but one example of the problems facing riders in the insurance realm in other jurisdictions. See, “Guild: Churchill Lawsuit an ‘Attack on All Jockeys,'” March 11, 2005, Bloodhorse.com; last read online March 31, 2010 at: http://www.bloodhorse.com/horse-racing/articles/27039/guild-churchill-lawsuit-an-attack-on-all-jockeys