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This entry was published on 2021-04-23
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SECTION 1013
Binding arbitration
Racing, Pari-Mutuel Wagering and Breeding Law (PML) CHAPTER 47-A, ARTICLE 10
* § 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, 2022