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A Runner Claims Hardrock’s Lottery Is Illegal. The Race Is Pushing Back. The famous "hardrock," which finishers kiss in lieu of crossing a line. Photo by Paul Cuno-Booth

A Runner Claims Hardrock’s Lottery Is Illegal. The Race Is Pushing Back.

A Hardrock finisher has alleged illegality and misconduct, which the race strongly denies. Here's a look at his claims.

David Roche December 8th, 2016

A former finisher of the Hardrock 100 Mile Endurance Run is publicly and vociferously attacking the race’s “lottery” system for determining entrants. The charges could have major implications for the future of the race and its application process—if they prove true, which is far from clear.

On Monday, December 5, an attorney and ultrarunner from Colorado named Aaron Denberg—who has finished the race multiple times, including a 10th-place finish in 2009—published a 13,000-word blog post laying out allegations that Hardrock’s lottery system violates a number of state and federal laws, along with other claims of impropriety.

The ostensible goal, as stated by Denberg, is “to get the Hardrock 100 to adopt a fair and transparent lottery system so that this public race on public land will truly be open to all, and not just the select few.”

On Wednesday, Hardrock responded in a sternly worded public statement that Denberg’s “posting is riddled with factually wrong statements.”

The statement went on to say that “Mr. Denberg has offered neither honest inquiry nor constructive criticism and has crossed the line into deliberate and intentional misstatements and personal insult. We have attempted to explain to him the falsity of what he believes but he has chosen to ignore us. At this point we will no longer respond to Mr. Denberg and he will be blocked from further contact with Hardrock.”

(Full disclosure: Trail Runner was a media sponsor of the Hardrock 100 in 2016.)

No lawsuit has been filed. Instead, Denberg seems to be seeking support for his allegations, including a poll on the right column of his blog asking, “Is the Hardrock 100 Cheating?”

The Hardrock 100, a rugged 100-mile loop in Colorado’s San Juan Mountains and one of the country’s classic trail races, is highly sought after by ultrarunners. Its lottery involves a rather convoluted system of allocating its small number of entries to a large number of aspirants—145 spots for 1,966 applicants in 2016.

Basically, the lottery provides good odds for “Veterans”—those who have run Hardrock five or more times—bad odds for “Never Starters,” and O.K. odds for “Everyone Else,” or those with one to four Hardrock starts.

Through this year, Hardock has charged “a non-refundable application fee of $10+$1.75 processing fee” to every applicant, though on Wednesday, the race announced that the fee would be discontinued and refunds from the last three years would be made available.

Denberg—who did not respond to a set of questions sent to him by email—has published a voluminous list of allegations that mixes personal attacks with legal arguments with alleged ethical violations. So what are his claims, do they have merit and what are the implications for Hardrock?

Here’s a look at what we do and don’t know.

 

The Less Significant

Alleged Violation of the Equal Protection Clause

Denberg claims that Hardrock’s lottery violates the Equal Protection Clause of the U.S. Constitution.

It is unclear whether the actions of Hardrock (a private nonprofit receiving a permit from a public agency) even fall under the Equal Protection Clause, which only applies to state actions. Even if it did, lottery entrants to a trail race are not a protected class—such as gender or race—meaning there is not a very high legal bar to clear.

Tax Returns

Denberg says he did not receive the tax returns of the nonprofit entity Hardrock Endurance Runs for 2015 despite requesting them (he did receive those for 2013 and 2014).

Most nonprofits are required to make tax returns available to individuals who request them at the time of filing, but this is unlikely to be an issue that amounts to much. (According to Denberg, the tax returns were made available at a July public meeting in Silverton, Colorado, where the race is based, just not to him).

Trail Work

Denberg alleges that “a bunch of untrained yahoos [went] trundling on an unstable slope” while doing trail work in 2011, in violation of a Forest Service permit. He provides no evidence for this.

The Possibly More Significant

Here’s where things get more complex. Denberg alleges fraudulent behavior due to “fake” lottery picks, conducting an illegal raffle pursuant to state and federal law gaming law, breach of contract with applicants who acted in reliance on the lottery, false advertising and, finally, an allegation that the race director’s son was allowed to enter the lottery without qualifying.

Basically, evaluating these claims hinges on two questions:

(1) Is the lottery, as currently constructed, allowed in the first place?

(2) Is it fraud to conduct the Hardrock 100 lottery in a way that might not always comply with every procedure outlined on the website?

Both questions are tricky and would require a lawyer specializing in these areas of law, which I am not. (I work in environmental law.) What follows is my initial, non-expert analysis.

The “Illegal Lottery” Issue

In general, for something to be a lottery as defined by law, it needs to have three elements: consideration (here, a non-refundable fee), chance (random drawings) and a prize (the opportunity to race). To be legal, lotteries usually require licenses, which vary by state. However, there are intricacies to determining what satisfies each of those elements.

The seemingly strongest argument is that charging a $10 fee to register for the drawing made the Hardrock system a lottery that would require a gaming license.

Lawsuits have been brought against endurance events on similar grounds. In September, New York Road Runners settled a class-action lawsuit alleging that its $11 non-refundable lottery application fee and complicated lottery procedures amounted to unfair and deceptive practices.

And in 2015, Ironman settled with the Department of Justice for nearly $3 million for conducting an allegedly illegal lottery. (That case was slightly different because entrants could pay more to have a better chance at getting in, among other things.)

But Hardrock’s system may be seen differently, given the low amount of money received and the fact that some of it went to charity. In any case, Hardrock’s decision to stop charging a fee and provide an optional refund from the past three years seems to deflate that argument.

Notably, Denberg’s post described correspondence between him and Hardrock over an extended time about the legality of the lottery fee.

The “Deceptive Practices” Issue

In addition to the fee, there may be an argument that the procedures of the lottery need to be followed or changed to avoid being classified as deceptive or unfair—which involves an area of law too complex to delve into here—though this would depend on whether the facts asserted by Denberg prove true.

A further complication could involve the public-lands permits that allow Hardrock to occur; if they indicate that the lottery would be conducted in a certain manner or for a certain purpose, it could mean increased scrutiny for the “fairness” of the lottery.

Essentially, we’re in “he said, she said” territory, which involves evaluating the credibility of Denberg and the truthfulness of the facts he asserts. For its part, Hardrock says in its statement, “Most of his accusations are too ludicrous to address, most are patently untrue.”

What Happens Next?

Speaking as an armchair lawyer watching from a distance, the issue is too complicated to say for sure what additional changes might need to be made to the lottery, if any.

The blog post adds up to lots of bluster, some claims that are probably frivolous and some potentially actionable claims—and Hardrock already addressed the most significant claim by eliminating the fee.

If everything Denberg claims is true, then Hardrock could potentially find itself having to change its lottery system further, which is the remedy Denberg requests.

In a less likely scenario, if this went to court through a class-action suit or Justice Department action, Hardrock could have to distribute some of the lottery fees for years prior to 2015 in some manner (this seems exceedingly unlikely) and/or change the lottery system in a more robust way.

And, in the worst-case scenario for the trail-running community, there is a very small chance that land-use permits could be denied if Denberg successfully convinces federal agencies that Hardrock acted in a way not in accordance with the permits or public-lands regulations.

In general, it seems unlikely that the remaining allegations would hold up in court (now that Hardrock has eliminated the lottery fee). But then again, it seems unlikely that we would be talking about a 13,000-word blog post on Hardrock’s entry procedures in the first place. So it will take more than an armchair lawyer to know for sure.

David Roche is an attorney with the Environmental Law Institute and a graduate of Duke Law School. He also runs sometimes.

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