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The owners of Funny Cide, along with the jockey who rode the thoroughbred to victory in the 2003 Kentucky Derby, have filed a defamation suit against the Miami Herald for its May 2003 article suggesting that the jockey held an illegal object in his hand during the race. The article, which was based on a photo of jockey Jose Santos riding the horse, created a cloud of controversy around Funny Cide’s Derby victory. But an investigation by the Kentucky Racing Commission and Churchill Downs stewards found that Santos had nothing in his hand but his whip. The Herald published a correction in November 2003, two weeks after Santos’ attorneys asked for one and after the original story had circulated around the world. The horse’s owners, Sackatoga Stables and Funny Cide Ventures, and Santos, a Hollywood, Fla., resident, filed the defamation and injurious falsehood complaint against the Herald and its parent company, San Jose, Calif.-based Knight Ridder, in Broward Circuit Court on May 9. The suit, pending before Judge Leroy H. Moe, alleges that the Herald engaged in “reckless disregard” for the truth and failed to retract the allegations in a timely manner. The plaintiffs originally filed a defamation suit against the newspaper and its parent in U.S. District Court in Kentucky last May. But the federal judge found that Kentucky was not the appropriate venue for the case and dismissed it in December. The plaintiffs, who are represented by Fort Lauderdale attorney Bruce Rogow, allege that the Herald article injured Santos’ reputation, subjected him to an unwarranted investigation and caused him emotional distress. Sackatoga Stable and Funny Cide Ventures allege that the article cost them potential business because of the allegations of underhanded racing tactics. “It spread all around the world,” Rogow said in an interview. “To a jockey, especially one with Santos’ sterling reputation, this was the worst thing that could ever be said about him.” Herald executive editor Tom Fiedler did not return a call seeking comment. The Herald‘s general counsel said the paper intends to fight the suit. “We think the grounds are baseless, and we will mount a vigorous defense,” said attorney Robert Beatty. He declined to elaborate. In an interview with Miami New Timespublished May 29, 2003, Fiedler was reluctant to place blame on his staff. The executive editor had not been in town the night the story was edited. “Given the information that people had at the time and the efforts that had gone into the news gathering, I don’t believe their decision was something I would challenge,” Fiedler told New Times. MISUNDERSTOOD JOCKEY The article that started the controversy was published May 10, 2003, one week after Funny Cide’s Derby victory. Herald freelance reporter Frank Carlson and staff reporter Clark Spencer wrote the piece based on a photo of Santos during the race. The photo, by Getty Images, shows Santos riding the horse, with a dark area between Santos’ hand and his whip. The Herald reporters showed the photo to two Kentucky Derby stewards, who reportedly called the image “suspicious.” Carlson then called Santos, a Chilean native who speaks heavily accented English, and queried the jockey about the dark spot in the photo. Carlson reported that the jockey admitted to having something in his hand and that Santos described it as “a cue ring to call the outriders.” Outriders are riders on ponies who are responsible for leading racehorses onto and off the track. The article quoted a jockey, a steward and a jockey’s agent as saying that they had no idea what a “cue ring” was. Then, Carlson and Spencer reported that “some jockeys have been known to use illegal battery-operated devices.” According to the article, such electric prods can be used to spur a horse into running faster. But the “cue ring” turned out to be a Q-Ray, an ionized bracelet Santos’ wife had given the jockey to help with his arthritis. In his interview with the New Times, Fiedler attributed the problem to a language barrier between Carlson and Santos. Santos’ attorneys sent a demand for a retraction to the Herald on Oct. 17, 2003. On Nov. 1, 2003, the Herald published two paragraphs on Page A3 under the heading “Correction & Clarification.” The correction stated that Carlson had misunderstood Santos when questioning him about the dark spot in the photo and acknowledged that Santos never admitted to holding anything in his hand. TOO LITTLE, TOO LATE But for Santos, that was too little, too late. “A newspaper has the obligation to stand up to the plate and admit when it’s wrong,” Rogow said in an interview. “What has offended the Sackatoga people and Santos is the mealymouthed clarification and correction.” Under libel and defamation case law in Florida, a newspaper can avoid punitive damages by publishing a retraction within a 10-day period. The Herald responded to the retraction demand outside of the 10-day window. Rogow argues that the Herald should have clearly retracted and apologized for the erroneous allegations in the story, but instead published only a narrowly worded correction. “If your child apologized like that, you’d ground them for another week,” Rogow said of the Herald‘s correction. Rogow contends that the jurisdictional issues that got the case dismissed in federal court Kentucky have been remedied by filing in circuit court in Broward, where Santos lives and the Herald is distributed. The newspaper also has news operations in the county. Rogow said that since Santos is arguably a public figure, a key issue is whether the Herald published the story with a reckless and malicious disregard for the truth, which is a high standard to meet. Alan Fein, a partner at Stearns Weaver Miller Weissler Alhadeff & Sitterson in Miami, is not involved in the Santos case but has handled libel and defamation cases both for plaintiffs and defendants. He believes Santos’ status as a public figure could sink the case. “It seems to me that [the plaintiffs] have a long row to hoe in showing that [the Herald] had actual malice,” Fein said. He said actual malice can be found in one of two ways: if the Herald knew the story was false or if it harbored serious concerns about the truthfulness of the story prior to publication. But Rogow argues that the editors should have noticed serious deficiencies in the article before it hit the press. Examples of recklessness in the reporting cited by Rogow were that no one had ever heard of a “cue ring” before and the failure to fully investigate the photo before running the story “I think the Herald was in a hurry to make news with this,” Rogow said. Both Carlson and Santos have continued their respective career paths. Carlson still writes horse-racing articles for the Herald. Santos is scheduled to ride Hal’s Image in the Preakness Stakes in Baltimore this weekend.

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