A colt owner once sued their way into the Kentucky Derby. The 'house' doesn't always win.

The last time someone took Churchill Downs to Court to try to get their horse in the Kentucky Derby I was a second-year law student at U of L in 1974 (50 years ago!), I had an extraordinarily gifted law professor named David J. Leibson who taught us the Uniform Commercial Code, a dry, boring course about financial transactions that professor Leibson was so charismatic he almost made this lifeless subject interesting. On the first day, Leibson told us right up front that “in every UCC case, just remember one thing—the bank always wins.”

So, too, in equine regulatory law, in any case involving the goliath Churchill Downs, even lay people should always remember one thing — “the house always wins” — an expensive lesson Amr Zedan just learned in his unsuccessful quest to sue his way into next week's Kentucky Derby."

But, proving there’s an exception to every rule, in 1981, the “house” (Churchill Downs) did not win when hauled into court and, ultimately, judges would rule that two “excluded” colts had to be allowed to start in the 107th Kentucky Derby. With no stand-out favorite for the 1981 Run for the Roses, 23 eligible horses were entered in the Derby on Thursday morning, April 30. After the debacle of the 23-horse 7th Cavalry charge in the 100th Derby in 1974, a roughly-run race that many turf historians believe cost the fifth-place horse, Little Current, a Triple Crown (the Darby Dan Farm colt went on to win the Preakness and Belmont by open lengths), Churchill had changed the rules for its signature race. Future Derbies would be limited to 20 horses based on purse earnings. Simple arithmetic that morning by the racing office eliminated Flying Nashua ($79,250), Law Me ($77,029) and Mythical Ruler ($71,180.) Something told 31-year-old assistant racing secretary Bernie Hettel not to throw away the entry forms for those horses, so he simply put them in a desk drawer.

Later that night, “I was at the Churchill Downs press party at the Galt House,” Hettel recalls, “when [track president] Lynn Stone and [racing secretary] Lou Dolan rushed up to me and Mr. Stone said ‘We have a [major] problem—do you still have those entries?’” He had indeed saved them and, together, the trio laid rubber back to the racing office to retrieve them.

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At 10:00 p.m. that night, after being told earlier in the day by the track judges (the stewards) that Flying Nashua’s entry would be rejected, that colt’s co-owner, Ulf K. Jensen, brought a lawsuit challenging the exclusion to the home of Jefferson Circuit Court Clerk Paulie Miller. Thus began a dramatic clash between two titans of the legal profession: Edward “Ned” Bonnie, a Louisville lawyer who practically invented the specialty of equine regulatory law and who represented Flying Nashua’s owners, and Bert T. Combs, yes THAT Bert Combs, former Kentucky governor and state and federal appellate judge, who represented Churchill Downs. Over the ensuing (so to speak) 48 hours, these two giants waged a spirited fight over the meaning of a single sentence in Kentucky’s rules of racing: That no entry of two horses with “common ownership” could run in a race to the “exclusion” of a single horse. Two such “entries” had been entered in the Derby (a total of four horses) that had eliminated the three “excluded” horses.

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That rule, everyone said (but it wasn’t explicitly stated), did not apply to the Derby. Circuit Court Judge Charles M. Leibson, only slightly more brilliant than his cousin who taught me UCC law, saw it differently. After a hearing on Friday morning, May 1, he decided that the rule applied to all horse races in Kentucky and thus the excluded horses had to be let in. While “Judge” Combs raced to the Court of Appeals, Mythical Ruler’s owners, Louisvillians Paxton Price and Albert Risen, intervened in the Flying Nashua case and asked Judge Leibson to let them in, too, which His Honor readily agreed. (The connections of the third eliminated horse, the ironically-named Law Me, had already shipped their horse back to the farm.)

After a brief hearing, Court of Appeals Judge Michael McDonald upheld Judge Leibson’s orders which had the ancillary effect of cancelling all early betting on the Derby and the trashing of 50,000 pre-printed programs. Churchill abandoned a last-minute appeal to Kentucky’s Supreme Court.

In the end, 21 horses raced under the Twin Spires on May 2 with Pleasant Colony winning over a fast-closing Woodchopper. Flying Nashua, as the chart footnote said, “did not threaten” and came in 8th; Mythical Ruler finished a well-beaten 17th—so much for the home team. As usual, the lawyers got blamed for the controversy. “There’s too many injunctions and too many lawyers in this game,” complained Woodchopper’s trainer, John Gaver, in a column by CJ Sports Editor Billy Reed. Unless, that is, you want to run in the world’s greatest horse race, the Kentucky Derby, and then there aren’t enough injunctions and the lawyers to file them especially if you believe you’re right and the “house” is wrong, right Mr. Zedan?

Bob Heleringer is an attorney and the author of the legal textbook, “Equine Regulatory Law.” He can be reached at helringr@bellsouth.net.

This article originally appeared on Louisville Courier Journal: Churchill Downs didn't always win. 1981 owner sued into Kentucky Derby