§ 1013 — Binding arbitration

* § 1013. Binding arbitration. 1. Whenever under this article a\nwritten agreement is required to be obtained from a sending regional\ntrack or tracks located within simulcast district one or two for the\npurpose of simulcasting, and it is claimed by the applicant for such\nlicense for simulcasting that such written agreement has been\nunreasonably refused, declined or denied, or offered for consideration\nthat is unreasonable within parameters established by market conditions,\ngeographical location or historical experience, the terms and conditions\nand consideration to be paid for such proposed simulcasting shall be\ndetermined by binding arbitration in accordance with the procedures set\nforth herein and by regulations promulgated by the commission. Failure\nto agree to such binding arbitration by the sending track to simulcast\nwithin the simulcast district shall be deemed as authorization for such\nlicensee or proposed licensee to enter into an agreement to receive such\nsimulcast signal from another track or tracks within this state,\nnotwithstanding the provisions of section five hundred twenty-three of\nthis chapter.\n (a) The applicant seeking to obtain an agreement to receive such\nsimulcast signal shall submit a single written request setting forth the\nterms, conditions and circumstances required under this article for the\nrights to receive such simulcasting, which shall be delivered to the\nsending track by certified mail, return receipt requested.\n (b) Within thirty days after receipt thereof, the track from whom such\nsimulcasting is requested may either decline or refuse such terms in\nwriting or submit a written proposal setting forth its terms, conditions\nand consideration upon which it would sell or otherwise make available\nsuch simulcast signal. The failure to respond to the proposal of the\napplicant within the time limit shall be deemed to constitute a denial\nor refusal to enter into any agreement. Any such response shall be\ndelivered to the applicant by certified mail, return receipt requested.\n (c) Where the applicant for simulcasting thereafter maintains that the\nagreement sought has been unreasonably refused or denied or that the\nproposal of the party or parties from whom the agreement is required is\nunreasonable or not economically feasible so as to permit the conduct of\nsimulcasting, the applicant shall notify the commission, which, within\nfifteen days thereafter, shall notify the track that binding arbitration\nprocedures will be initiated. Such notification shall be delivered to\nthe track by certified mail, return receipt requested. (i) The\ncommission shall arbitrate all disputes arbitrable pursuant to this\nsection unless either party objects, in such event the commission shall\nprovide and designate to the parties a list of three or more independent\narbitrators from a panel of such arbitrators maintained by it, having\nexperience in dispute resolution and the economics of the pari-mutuel\nracing industry. In order to sustain the continuity of the simulcast\nprograms during the period of such arbitration, the terms and conditions\nof any current or pre-existing agreement shall remain in full force and\neffect during the period of such arbitration. (ii) Within thirty days of\nsuch notification, the track may refuse to enter into any such\narbitration procedures by notifying the commission. Upon such\nnotification, the commission shall authorize the applicant to enter into\nan agreement to receive a simulcast signal from another track within the\nstate, notwithstanding any other provision of law to the contrary.\n (d) The provisions for binding arbitration contained in this section\nshall be applicable to any proposed agreement with such other regional\ntrack. In the event a simulcast agreement has been refused by such other\nregional track, notwithstanding the provisions of section five hundred\ntwenty-three of this chapter, the commission shall authorize the\napplicant to enter into an agreement to receive a simulcast signal for\npurposes of pari-mutuel wagering from any other track within this state\nconducting the same type of racing that was refused by the regional\ntracks.\n (e) Unless such regional track has refused such arbitration, each\nparty shall alternately strike from the list described in paragraph (c)\nof this subdivision one of the designated names, with the order of\nstriking determined by lot until the remaining one person shall be\ndesignated as arbitrator.\n (f) Within forty-five days thereafter each party shall submit to the\narbitrator a final and last proposal setting forth all of the terms,\nconditions and consideration to be paid, if any, for the granting of\nsuch consent or a final last written proposal or statement supporting\nany contention that such consent should not be granted, along with any\nrecords, data, statistics in support of its position.\n (g) The arbitrator shall hold hearings on all matters related to the\ndispute. The parties may be heard either in person, by counsel, or by\nother representatives, as they may respectively designate. The parties\nmay present, either orally or in writing, or both, statements of fact,\nsupporting witnesses and other evidence, and argument of their\nrespective positions with respect to the issues. The arbitrator shall\nhave authority to require the production of such additional evidence,\neither oral or written as it may desire from the parties and shall\nprovide at the request of any party that a full and complete record be\nkept of any such hearings, the cost of such record to be shared equally\nby the parties.\n (h) The arbitrator shall also specify the basis for the determination\nmade and in arriving at such determination take into consideration, in\naddition to any other relevant factors, the following:\n (1) the interest and welfare of the public;\n (2) economic factors and conditions of the respective parties;\n (3) economic factors and conditions of the pari-mutuel racing and\nwagering industry of the state;\n (4) the economic impact of the determination on the parties, the\npari-mutuel, racing and wagering industry of the state and pari-mutuel\ntax revenues of the state;\n (5) the impact of the determination on racing and employment\nopportunities;\n (6) the impact of such determination on track profitability;\n (7) the impact of such determination on purse levels of the sending or\nreceiving track, as the case may be;\n (8) the impact of the determination on current operations or markets\nof race tracks and regional off-track betting corporations;\n (9) the reasonableness of the compensation to be paid for such consent\nor whether compensation should be made;\n (10) the overall feasibility and reasonableness of each last offer\nproposal made by the parties.\n (i) The arbitrator shall, within sixty days after such hearing, unless\nthe time is extended by consent, adopt in its entirety one of the final\nand last written proposals made which shall be rendered in the form of\nan award.\n (j) The arbitrator, if not the commission, shall notify the commission\nof its final award which shall be enforced by the commission pursuant to\nthis chapter.\n (k) The award shall be final and binding on all the parties for the\nperiod prescribed by the arbitrator. If not contained in the proposal\nadopted, such period shall not exceed one year from the date of service\nthereof by the arbitrator.\n 2. No arbitrator shall have the authority to direct the placement of a\nsimulcast facility within ten miles of a track located in district one\nor thirty miles of a track located in districts two through five.\n 3. Except as expressly provided herein to the contrary, the provisions\nof article seventy-five of the civil practice law and rules shall govern\nsuch arbitration.\n 4. Nothing herein shall be construed to dispense with any approval\nrequired for the licensing of simulcasting by the commission under this\narticle as any other provision of law.\n 5. Nothing herein shall preclude all the parties to any such dispute\nfrom entering into a written agreement providing for the submission and\nresolution of any such dispute by any other form of final and binding\narbitration, under any agreed upon procedure, to any arbitration panel,\nforum or arbitrator within thirty days after notice of the designation\nof the list of arbitrators herein by the commission.\n 6. Nothing herein shall preclude all of the parties to such binding\narbitration provided for herein from entering into an agreement\nmodifying any award after the rendition thereof.\n 7. The arbitrator appointed pursuant to subdivision one of this\nsection shall be entitled to receive a fee for his or her services to be\npaid equally by the parties. In no event shall the commission charge a\nfee to arbitrate disputes.\n * NB Repealed July 1, 2026\n