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Court throws out ticket broker's case over alleged Kentucky Derby ticketing scam

By Kelly McWilliams

A circuit court in Kentucky has dismissed a lawsuit in which a ticket broker claimed he was cheated out of several thousand dollars by a University of Louisville assistant basketball coach.

In May of 2010, Scott Davis, owner of DerbyDeals.com and a Kentucky county magistrate, filed a complaint against Steve Masiello, assistant men's basketball coach at the University of Louisville. The complaint alleges that Masiello had entered into an agreement with Davis to procure certain specified ticket packages for the Kentucky Derby this year, with Masiello claiming 50 percent of the profit for all sales.

Davis claims to have provided a total of $70,000 to Masiello over five separate payments, but he states that Masiello produced only $10,000 in tickets and gave back another $10,000, leaving DerbyDeals.com allegedly out $50,000 and without tickets promised to irate customers.

In his decision to dismiss the case, which he issued earlier this month, Jefferson Circuit Judge Charles Cunningham Jr. upheld Kentucky's anti-scalping law in his refusal to hear the case, emphasizing his own need to adhere to state law in his ruling. In Kentucky, it is illegal to resell tickets above face value, but in Indiana, where DerbyDeals.com operates, resale above face value is legal.

This in particular has left Davis and his attorney, Garry Adams, enraged. "I can tell you that we were shocked," Adams recently told TicketNews. "Sua sponte decision (i.e., a judge basing a ruling on his or her own concerns as opposed to responding to stated concerns of the litigants) is very unusual in that this court just made a decision on its own to throw the case out. What he is trying to do is to reach across the river to another jurisdiction where it is legal to sell tickets at a premium over face value. Just because he may find it repugnant to do so does not make it illegal."

Masiello has denied agreeing to take 50 percent of any profits, and denied accepting any offers of payment from Davis. In June, he passed a police polygraph test, and there are no charges pending against him. Masiello has asserted that he worked only as an intermediary between Davis and Steve Netherton, whom he describes as a ticket broker helping to secure the Derby tickets. Netherton's checkered past includes a recent indictment on charges of accepting $125,000 for 2008 Ryder Cup tickets that were never produced, and a 2007 guilty plea on charges of bilking 14 investors and other interests out of $250,000. Masiello has claimed that he had no awareness of Netherton's past charges when he set out to do business with him.

Currently, Davis faces his own charges of attempted theft and other violations which primarily stem from his subsequent failure to provide the tickets promised to a number of Derby fans. However, Davis claims that all customers were provided with refunds or replacement tickets, and he is confident that his charges will be dismissed. A trial date is set for January 11, but assistant prosecutor Jacob Elder has agreed to delay the start date of the case.

On December 16, Attorney Adams filed a Motion to Vacate Cunningham's judgment, stating that a number of Cunningham's assertions contradicted the facts of the case. As Adams explains, "The ruling assumes facts not in evidence, so [Judge Cunningham's] not citing to the record. When he did his legal analysis, it was flawed because he did not consult the record."

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