Section 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 board. 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, it shall notify the racing and wagering board 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 board
  shall arbitrate all disputes arbitrable pursuant to this section  unless
  either  party  objects,  in  such  event  the  board  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 board. Upon  such  notification,  the  board
  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 board 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 board, shall notify the  board  of  its
  final  award  which  shall  be  enforced  by  the board 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  board  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 board.
    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 board charge a fee to
  arbitrate disputes.
    * NB Repealed July 1, 2010