11/09/2010 8:19PM

Castellano's appeal of ban denied but judge rules he may ride

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Javier Castellano's appeal of his six-day suspension for careless riding in last Friday's Breeders' Cup Marathon was denied by the Kentucky Horse Racing Commission, but the jockey received a stay of that denial by a Franklin County Circuit Court Judge on Tuesday afternoon that will enable him to ride in Sunday's Queen Elizabeth Commemorative Cup in Japan.

Castellano was suspended six days for his ride in the Breeders' Cup Marathon, in which he allowed his mount, Prince Will I Am, to come off the rail and interfere with Romp, nearly unseating jockey Martin Garcia. In turn, Romp bothered A.U. Miner and Calvin Borel, who would later seek out and get into a fistfight with Castellano in the Churchill Downs winner's circle.

WATCH REPLAY: Breeders' Cup Marathon

It is unclear exactly why the racing commission denied Castellano's appeal, although in the last 18 months the commission has attempted to put a stop to what it believes are frivolous appeals.

The primary reason Castellano appealed the suspension was to ride Ave in Sunday's $2.2 million Commemorative Cup in Japan. Castellano has a signed contract to with the Japanese Racing Association to participate in that race, according to his agent, Matt Muzikar.

Following the commission's denial of the appeal, Castellano retained the services of Kentucky attorney Joel Turner, who sought and received a temporary injunction and stay from Judge Phillip Shepherd in Franklin County Circuit Court in Frankfort, Ky., that denies the racing commission from enforcing the suspension.

In his four-page ruling, Shepherd concluded that it is unfair for Castellano to have to serve six days without a hearing.

"The Petitioner's injury from the Commission's attempt to immediately impose the penalty [a six-day suspension] before the final adjudication of his administrative appeal is real, immediate, and irreparable," Shepherd wrote. "By virtue of reciprocity laws, the Petitioner's ability to earn living as a jockey in other states and countries, will be immediately terminated for the days in question, if a stay of the Commission's suspension is not issued."

"As far as we know, the KHRC has never denied a jockey a stay pending due process right to an appeal," Mindy Coleman, counsel for the Jockey's Guild, said in a press release. "In effect, the KHRC is making Javier serve his penalty before the matter is adjudicated. Only once in the past four years has a suspension of more than three days been handed out to a jockey in Kentucky.

"On March 17, 2010, the KHRC changed the regulation regarding appeals of rulings to include what constitutes a frivolous appeal and additional penalties for such," Coleman added. "Since that time, the Guild has asked on numerous occasions that the KHRC consider allowing jockeys to be able to ride a designated race during a rider's suspension, as it is done in other major racing jurisdictions. There is yet to be consideration of that request by the Rules Committee or the Racing Commission, not to mention a number of other issues we wanted to discuss with them."