NY Rac, Pari-Mut Wag & Breeding L § 1013 (2021)
2021 New York Laws PML - Racing, Pari-Mutuel Wagering and Breeding Law Article 10 - Simulcast of Horse Races 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, 2022