SBJ/November 17 - 23, 2003/Labor Agents

NTRA tries to find jockey-ad solutions

While a group of top jockeys is challenging a state racing commission's legal right to regulate advertising on their apparel, the National Thoroughbred Racing Association is continuing to work on a business solution to growing concerns about the athletes' ability to engage in ambush marketing.

The NTRA is in talks with potential new sponsors about including jockeys in their advertising as part of their overall sponsorship of the sport, said Greg Avioli, NTRA deputy commissioner.

In addition, the NTRA is in talks with "leading jockeys" about working together on sponsorships, Avioli said.

"As a practical matter, the sport needs to address this in a coordinated fashion in the same way that other sports do," he said. "The NTRA is not opposed to all jockey advertising. We are opposed to advertising in the nature of ambush marketing that would damage the new and growing list of NTRA and Breeders' Cup sponsors."

Thirteen prominent jockeys, including Gary Stevens, Alex Solis and Edgar Prado, filed a lawsuit in Jefferson County, Ky., circuit court on Nov. 6, claiming that a Kentucky Racing Commission rule prohibiting them from wearing advertising, symbols or wording on their breeches violates their First Amendment rights.

It is just the latest skirmish between the jockeys and racing authorities. Earlier this year, Visa publicly objected when three prominent jockeys wore ads for Wrangler or Budweiser on their pants during the Belmont Stakes. And the NTRA won a temporary restraining order just weeks before the Breeders' Cup prohibiting Jockeys International Management Group (JMG) from soliciting advertising for jockeys to wear at the Oct. 25 Breeders' Cup World Championships at Santa Anita.

In the lawsuit filed Nov. 6, 13 jockeys who wore the emblem of the Jockeys' Guild on their pants during the Kentucky Derby also are challenging $500 fines they each received, saying that a Kentucky Racing Commission rule prohibiting logos is overly broad and unconstitutional.

Bruce Miller, attorney for the Kentucky Racing Commission, said the case pits free speech rights against constitutional guarantees of states rights. In Kentucky, the racing commission has the ultimate authority to govern horse racing.

Right now, just the state racing commission and the individual jockeys are part of the suit, but Miller said more industry groups and companies could join. "If this isn't resolved, I can't believe there would not be a collection of lawyers in it because there are too many oxen in this corral that stand to get gored if they don't participate," he said.

The racing commission's position is that advertising on jockeys' pants could make it difficult for stewards to evaluate racing infractions in the case of inquiries.

"When you look at those films of jockeys going 45 miles an hour, you have to be able to distinguish the jockey's hand, and if it's all cluttered up like a NASCAR driver, the steward has a more difficult decision," Miller said.

Lawrence Mentz, attorney for the jockeys, said the jockeys wore Guild patches in other states, including at the Preakness Stakes in Maryland, and were not punished for it.

Mentz said he does not know if the case might result in allowing jockeys to wear commercial advertising on their pants. He said it is possible the court could find the rule unconstitutional but still permit restrictions on commercial advertising.

JMG chief executive R.J. Kors sees a potential for the lawsuit to affect the 100 jockeys he says he represents.

"I am not involved [in the suit], but my counsel tells me I am involved because we are in the business of representing athletes," Kors said. "How can you suppress the jockey's rights, when in the same state you have golfers, tennis players and other independently contracted athletes and they are allowed to have sponsors when they compete? You can't do that."

Even if the jockeys win their suit, the result likely won't affect professional team sports, said Howard Ganz, a partner at law firm Proskauer Rose, who represents the NBA and Major League Baseball in labor issues.

Athletes' rights to endorse products while competing in the four major leagues are governed by the league's collective-bargaining agreement or by contracts between players and their teams, Ganz said.

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