Ruling Favors Historical Racing Graphics

Judge rejects challenge to way in which race outcomes displayed on machines.

A Kentucky judge has ruled that the manner in which a race result is depicted on historical racing machines to determine if a player has won or lost is not a factor in whether the electronic form of gaming is legal.

In a July 29 ruling, Franklin Circuit Judge Thomas Wingate rejected a motion from the Family Foundation of Kentucky that contended a type of historical game in use at Kentucky Downs is not in compliance with rules promulgated by the Kentucky Horse Racing Commission because the depiction of the race on the screen is an animated re-enactment of the race finish rather than a video replay of the final seconds of the race.

“Whether the racing associations choose to use gaming machines that display a live action recording of the horse race or a computer generated graphical representation of the horse race does not affect the operation of the wager,” Wingate said in his opinion.

Historical racing gaming are electronic games based on previously run horse races and are modeled after Instant Racing, which was conceived at Oaklawn Park. The Family Foundation has challenged the legality of historical racing on the basis that they do not constitute legalized pari-mutuel wagering, which, under the Kentucky statutes, is the only form of legalized gaming.

There are two types of historical racing machines in use at Kentucky tracks. Wingate’s ruling addressed those manufactured by Encore Racing Based Games, which recently changed its name to Exacta Systems, and were introduced at Kentucky Downs last year. The first track in the state to begin offering historical racing, Kentucky Downs had previously used machines made by RaceTech that display a small window on the screen showing a video replay of the last several seconds of the race upon which the game’s outcome is determined.

Wingate is hearing the case after it was sent back to Franklin Circuit Court by the state Supreme Court to permit the Family Foundation to use discovery in their effort to prove historical racing is not pari-mutuel in nature.

“We believe, absent their being a video replay (of the race), that it cannot fall under the exception to the prohibition of gambling under the Kentucky penal code,” said Family Foundation attorney Stan Cave during a hearing before Wingate last week. “It is not horse racing, it is not a video of horse racing, it is not a video replay of horse racing. It's a cartoon."

Bill Hoskins, representing Kentucky Downs in the hearing before Wingate, said how the race outcome is depicted should not be an issue.

“This isn’t about the video replay,” Hoskins said. “This is about the wager and whether it is on a horse racing, about the outcome and whether it is dependent upon a horse race, and the payment of the outcome and whether that payment is from the pari-mutuel pool.”

Wingate agreed.

“Whether the gaming systems constitute a pari-mutuel form of wagering concerns the pooling of money and whether the wageror is betting against the house or other players,” Wingate wrote. “Pari-mutuel wagering is not about the presentation of the historical horse race on the gaming system. Addressing any other issue distracts from the order of the Kentucky Supreme Court when it remanded the matter to this court.”

Wingate also agreed to give Family Foundation attorneys more time to respond to a motion by Kentucky Downs, Ellis Park, and the Red Mile for a summary judgment finding that the Encore games are pari-mutuel.