In a decision announced Thursday morning, the Kentucky Supreme Court has issued an opinion that some of the historical racing games -- including those used at The Red Mile -- are not legal.

The Red Mile, in partnership with Keeneland, operates at full capacity more than 900 historical racing machines using the Encore system. Although slightly more than half the machines are currently in operation due to the COVID-19 restrictions, more than $40 million in revenue was generated in both July and August at The Red Mile.

The Supreme Court ruling, written by Justice Laurance Van Meter, said that the Encore system “does not create a wagering pool among patrons such that they are wagering among themselves as required for pari-mutuel wagering.”

This reverses a previous ruling by the Franklin Circuit Court that approved the Encore system, and remands the case back to the court “for entry of a judgment consistent herewith.”

In addition to The Red Mile, the Encore machines are used at Kentucky Downs and Ellis Park. Churchill Downs uses different machines at Derby City Gaming and Oak Grove, and it’s unclear what this ruling means for those sites.

The Supreme Court ruling was unanimous, with Justice Michelle M. Keller, writing a separate opinion that stated that while the court had previous ruled the Kentucky Horse Racing Commission could regulate historical racing “if such racing was pari-mutuel, but we lacked a sufficiently developed record to determine whether any specific system was pari-mutuel. ... Ultimately, however I agree with the majority that the operation of the Exacta System is not pari-mutuel as defined by common law.”

(harnessracing.com)