N.Y. Racing, Pari-Mutuel Wagering and Breeding Law § 1013: Binding arbitration

* § 1013. Binding arbitration. 1. Whenever under this article a

written agreement is required to be obtained from a sending regional

track or tracks located within simulcast district one or two for the

purpose of simulcasting, and it is claimed by the applicant for such

license for simulcasting that such written agreement has been

unreasonably refused, declined or denied, or offered for consideration

that is unreasonable within parameters established by market conditions,

geographical location or historical experience, the terms and conditions

and consideration to be paid for such proposed simulcasting shall be

determined by binding arbitration in accordance with the procedures set

forth herein and by regulations promulgated by the commission. Failure

to agree to such binding arbitration by the sending track to simulcast

within the simulcast district shall be deemed as authorization for such

licensee or proposed licensee to enter into an agreement to receive such

simulcast signal from another track or tracks within this state,

notwithstanding the provisions of section five hundred twenty-three of

this chapter.

(a) The applicant seeking to obtain an agreement to receive such

simulcast signal shall submit a single written request setting forth the

terms, conditions and circumstances required under this article for the

rights to receive such simulcasting, which shall be delivered to the

sending track by certified mail, return receipt requested.

(b) Within thirty days after receipt thereof, the track from whom such

simulcasting is requested may either decline or refuse such terms in

writing or submit a written proposal setting forth its terms, conditions

and consideration upon which it would sell or otherwise make available

such simulcast signal. The failure to respond to the proposal of the

applicant within the time limit shall be deemed to constitute a denial

or refusal to enter into any agreement. Any such response shall be

delivered to the applicant by certified mail, return receipt requested.

(c) Where the applicant for simulcasting thereafter maintains that the

agreement sought has been unreasonably refused or denied or that the

proposal of the party or parties from whom the agreement is required is

unreasonable or not economically feasible so as to permit the conduct of

simulcasting, the applicant shall notify the commission, which, within

fifteen days thereafter, shall notify the track that binding arbitration

procedures will be initiated. Such notification shall be delivered to

the track by certified mail, return receipt requested. (i) The

commission shall arbitrate all disputes arbitrable pursuant to this

section unless either party objects, in such event the commission shall

provide and designate to the parties a list of three or more independent

arbitrators from a panel of such arbitrators maintained by it, having

experience in dispute resolution and the economics of the pari-mutuel

racing industry. In order to sustain the continuity of the simulcast

programs during the period of such arbitration, the terms and conditions

of any current or pre-existing agreement shall remain in full force and

effect during the period of such arbitration. (ii) Within thirty days of

such notification, the track may refuse to enter into any such

arbitration procedures by notifying the commission. Upon such

notification, the commission shall authorize the applicant to enter into

an agreement to receive a simulcast signal from another track within the

state, notwithstanding any other provision of law to the contrary.

(d) The provisions for binding arbitration contained in this section

shall be applicable to any proposed agreement with such other regional

track. In the event a simulcast agreement has been refused by such other

regional track, notwithstanding the provisions of section five hundred

twenty-three of this chapter, the commission shall authorize the

applicant to enter into an agreement to receive a simulcast signal for

purposes of pari-mutuel wagering from any other track within this state

conducting the same type of racing that was refused by the regional

tracks.

(e) Unless such regional track has refused such arbitration, each

party shall alternately strike from the list described in paragraph (c)

of this subdivision one of the designated names, with the order of

striking determined by lot until the remaining one person shall be

designated as arbitrator.

(f) Within forty-five days thereafter each party shall submit to the

arbitrator a final and last proposal setting forth all of the terms,

conditions and consideration to be paid, if any, for the granting of

such consent or a final last written proposal or statement supporting

any contention that such consent should not be granted, along with any

records, data, statistics in support of its position.

(g) The arbitrator shall hold hearings on all matters related to the

dispute. The parties may be heard either in person, by counsel, or by

other representatives, as they may respectively designate. The parties

may present, either orally or in writing, or both, statements of fact,

supporting witnesses and other evidence, and argument of their

respective positions with respect to the issues. The arbitrator shall

have authority to require the production of such additional evidence,

either oral or written as it may desire from the parties and shall

provide at the request of any party that a full and complete record be

kept of any such hearings, the cost of such record to be shared equally

by the parties.

(h) The arbitrator shall also specify the basis for the determination

made and in arriving at such determination take into consideration, in

addition to any other relevant factors, the following:

(1) the interest and welfare of the public;

(2) economic factors and conditions of the respective parties;

(3) economic factors and conditions of the pari-mutuel racing and

wagering industry of the state;

(4) the economic impact of the determination on the parties, the

pari-mutuel, racing and wagering industry of the state and pari-mutuel

tax revenues of the state;

(5) the impact of the determination on racing and employment

opportunities;

(6) the impact of such determination on track profitability;

(7) the impact of such determination on purse levels of the sending or

receiving track, as the case may be;

(8) the impact of the determination on current operations or markets

of race tracks and regional off-track betting corporations;

(9) the reasonableness of the compensation to be paid for such consent

or whether compensation should be made;

(10) the overall feasibility and reasonableness of each last offer

proposal made by the parties.

(i) The arbitrator shall, within sixty days after such hearing, unless

the time is extended by consent, adopt in its entirety one of the final

and last written proposals made which shall be rendered in the form of

an award.

(j) The arbitrator, if not the commission, shall notify the commission

of its final award which shall be enforced by the commission pursuant to

this chapter.

(k) The award shall be final and binding on all the parties for the

period prescribed by the arbitrator. If not contained in the proposal

adopted, such period shall not exceed one year from the date of service

thereof by the arbitrator.

2. No arbitrator shall have the authority to direct the placement of a

simulcast facility within ten miles of a track located in district one

or thirty miles of a track located in districts two through five.

3. Except as expressly provided herein to the contrary, the provisions

of article seventy-five of the civil practice law and rules shall govern

such arbitration.

4. Nothing herein shall be construed to dispense with any approval

required for the licensing of simulcasting by the commission under this

article as any other provision of law.

5. Nothing herein shall preclude all the parties to any such dispute

from entering into a written agreement providing for the submission and

resolution of any such dispute by any other form of final and binding

arbitration, under any agreed upon procedure, to any arbitration panel,

forum or arbitrator within thirty days after notice of the designation

of the list of arbitrators herein by the commission.

6. Nothing herein shall preclude all of the parties to such binding

arbitration provided for herein from entering into an agreement

modifying any award after the rendition thereof.

7. The arbitrator appointed pursuant to subdivision one of this

section shall be entitled to receive a fee for his or her services to be

paid equally by the parties. In no event shall the commission charge a

fee to arbitrate disputes.

* NB Repealed July 1, 2027