New York Gaming Commission

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NY’s out-of-competition drug testing is abysmal

Posted by noonante on February 9, 2017
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , , , , . 2 Comments

“Honest people have a hard time making money.”

—  A backstretch veteran

If you want to curtail the use of illegal drugs in racing, you need an effective program of out-of-competition testing (OCT).  While New York State has regulations authorizing OCT, it appears that it does almost no testing.

In response to a request for records going back to 2014, New York’s Gaming Commission cited six examples of OCT for Standardbreds racing at two of the state’s harness tracks.  The records for Thoroughbreds showed the only testing may have been in the three days preceding $1 million Grade I races.

Out-of-competition testing is not to be confused with the standard post-race testing that occurs following every race for some of the entrants.  Rather, it is done at random, at tracks and off-track facilities, to identify illegal drugs that may not show up in the post-race test, or for which existing testing is inadequate.  Surprise is an essential component of an effective program since it makes it more difficult for cheaters to hide their conduct.

By contrast to the experience of the New York regulatory agencies, Jeff Gural, who owns two harness tracks in New York in addition to New Jersey’s Meadowlands, takes the program seriously and has a full-time investigator who administers tests. Gural doesn’t rely on the government agencies and pays for the testing out of his own pocket.

Gural is a welcome iconoclast in the world of racing who is outspoken on many matters, but none more so than in stopping the use of illegal medications.  He does not hesitate to ban abusers from his tracks, relying extensively on out-of-competition testing.  As he explained in the November 16, 2016, issue of ThoroughbredDailyNews, “without out-of-competition testing, you cannot solve the problem.”  It’s not just the perception of a sport by outsiders that is important, but protecting those who are playing by the rules from unfair competition.

Gural and his investigator discovered the abuse of Cobalt in 2013, before it achieved the international notoriety it now possesses.  Cobalt is a medication with serious  –  potentially fatal  –  side effects.   No state regulatory bodies uncovered the use of Cobalt, but Gural’s investigator did.

Other sports have been dragged into drug testing after much resistance.  Major League Baseball winked at the widely-acknowledged use of performance-enhancing-drugs until it became impossible to ignore.

Perhaps no sport, however, has been as widely exposed as international bicycling.  Lance Armstrong was an American hero with his seven Tour de France wins even amid rumors of his doping.  He denied the claims, citing the fact that he had never tested positive.  Because of the wide-spread complaints about Armstrong’s drug use, the United States Anti-Doping Agency (USADA) investigated, succeeding in obtaining incriminating statements from several teammates.

The USADA report is an indictment of both Armstrong the person and the cyclist.  One of the more revealing episodes demonstrated not only Armstrong’s duplicity, but the extent to which those committed to cheating will go.  Blood doping was a common tool used by Armstrong and his team.  Knowing the duration between doping and the time for the evidence to dissipate, Armstrong once stopped the team bus between the end of one race stage and the hotel where they were likely to be tested.  Intra-venous bags were hung from the overhead racks and the entire team doped, explaining the delay in reaching the hotel by saying the bus had a breakdown.

This past summer, Jeff Novitzky was a featured speaker at The Jockey Club’s annual Round Table Conference.  When I saw that the Executive Director of the UFC was to speak, I did a double-take since the only UFC of which I was aware was the Ultimate Fighting Championship.  The head of that group was speaking to the assembled elite of the Sport of Kings?

But The Jockey Club has become the leading institutional proponent of enhancing the integrity of racing by eliminating medications, both illegal and ones permitted on race-day.  The head of USADA, Travis Tygart, and Edwin Moses, one of the world’s all-time greatest athletes, have spoken in recent conferences.  Novitzky fit right in, describing his use of out-of-competition testing to clean up his sport.

Novitzky has an investigatory career that included Armstrong, Roger Clemens and BALCO of Barry Bonds fame.  He would ask the athletes who were caught why they cheated.  The most common responses were that the athlete did not trust teammates or competitors to be clean.  Most disturbing, however, they did not trust the oversight body for their sport to enforce a level playing field.

Horse racing is not oblivious to the importance of out-of-competition testing.  Joe Gorajec has spent his adult life in the racing business.  For 25 years he served as the Executive Director of the Indiana Horse Racing Commission when Indiana became the first state to adopt the model rule on use of anabolic steroids, the first to regulate Cobalt and one of the first to adopt OCT.

Gorajec spoke at this year’s Saratoga Institute, sponsored by Albany Law School, where he compared the frequency of OCT at important international jurisdictions with the United States.  In the UK, the rate of testing is 12%;  it’s 11% in Hong Kong and 10% in France.  It is one percent (1%) in the US.

New York is a miniscule portion of that one percent, but nonetheless is aware fully of the importance of out-of-competition testing.  In explaining its reason for adopting OCT regulations, the state cited the significance of the rule for enhancing the integrity of racing and the safety of horses:

“Doping agents with these traits are posing a great threat to racing integrity. They threaten the integrity of athletic competitions by having an affect [sic] on race performance that cannot be forecast by the betting public, and that gains an unfair advantage over other horsemen and owners.… When used by healthy competitors, they have the capacity to create dangerous and unfair abilities to perform.”

Yet New York appears to have done practically nothing to achieve those goals.

I received records from the Gaming Commission in response to a public records request covering the period going back to January 1, 2014.  In that period, only six Standardbred horses were identified as testing positive as a result of out-of-competition testing.  No Thoroughbreds tested positive  –  as in, none.

All six Standardbreds tested positive for Cobalt.  Five of the six had previously tested positive for Cobalt in a post-race test.  One can certainly wonder about the acumen of those who continued to administer a prohibited drug after a positive test, but they are rather obviously not in the group adept at cheating.

Among the records I requested were those for the number of tests conducted by the State of New York for a period going back almost three years, as well as the identities of the trainers whose horses were tested, and why they were tested.  While the Gaming Commission provided me with records of the six positives, and the New York Racing Association gave me a generic policy, both denied my request for the other information.

The public records law presumes that records maintained by government agencies such as the Gaming Commission and the NYRA Board are public.  There are limited exceptions, including the one used by the Commission and NYRA in denying significant portions of my requests.  For example, records need not be disclosed if “compiled for law enforcement purposes and which, if disclosed, would … reveal criminal investigative techniques or procedures….”

Both the Gaming Commission and NYRA explained their reasoning supporting this exemption:  Drug cheaters “could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel.”

And I do not quarrel with either agency’s decision to withhold records that would assist the drug cheaters in evading detection.  But that is not the bulk of what I was asking for.

Statistical records concerning the number of tests, the trainers and horses tested, and the results do not allow cheaters to evade detection.  The only way it does assist cheaters is if the number of random and surprise testing is negligible over a period of almost three years.  Then the cheaters would know that New York does not have a serious program of out-of-competition testing.  Of course, they already know that.

One of the more laughable aspects of the “program” regarding Thoroughbreds is that the only evidence of possible testing is for entrants in the Grade I stakes with a purse of at least $1 million.  Both the Commission and NYRA make a big deal of their “integrity protocols” in advance of such races.  One of the protocols is that horses must be on the grounds three days before the race and are subject to out-of-competition testing.  Of course, that belies their stated rationale that informing drug cheaters of their procedures enables them to evade detection.  More significantly, however, is that many of the most troublesome illegal drugs are not going to be administered within that time period.

The Gaming Commission’s refusal to provide access to the OCT records – or even to identify the records at issue – is a remarkable position for a government agency that frequently states its goal of enhancing the safety of its athletes and promoting public confidence in the integrity of the sport.  Providing statistical information and the names of trainers whose horses were tested would greatly enhance public confidence that the sport is doing what it can to make the sport clean.  Of course, if the answer is that New York is not testing in any meaningful way, the perception of integrity in racing plummets even further.

There is also a suspicion that New York’s lack of enthusiasm in out-of-competition testing may be to keep the high profile barns with large stables in New York.  New York recently confronted an analogous situation in which equine safety took a back seat to the need to increase field size.  The NYRA Racing Office at one time had the say on whether veterinarians could scratch horses following a race-day exam.  A spike in fatalities at Aqueduct in 2012 lead to an investigation in which he Racing Office’s role was stopped.

Within the racing community itself, there is considerable controversy over the extent of illegal use of drugs. Those opposing federal legislation that would bring racing under the jurisdiction of the United States Anti-Doping Agency cite the infinitesimal level of positives that are detected by standard post-race testing.  Of course, Lance Armstrong never tested positive either.

The 2011 Jockey Club Round Table featured a report from McKinsey & Company that highlighted the significant negative impression of the sport by both the general public and even racing fans. According to the report, only “22% of the general public has a positive impression of Thoroughbred racing.” Perhaps even more disturbing is that among racing fans, “just 46% … would recommend their friends” follow the sport.

At this year’s Round Table, a slide presentation referenced a survey in which 69 per cent of respondents identified “drugs” as a “very important” issue and 66 per cent cited “integrity issues.”

While the public records law clearly requires the disclosure of many of the records I requested, the Gaming Commission should stand by its frequent statements that the safety of both equine and human athletes is a priority to it, and that enhancing the public’s perception of integrity in racing is a paramount concern.  Hiding behind bogus legal arguments protects only its seeming incompetence and the cheaters who are out there.

When I received decisions from attorneys for the Gaming Commission and NYRA denying access to most of the records I requested, I asked that they reconsider on the basis that statistical records could not possibly “reveal criminal investigative techniques and procedures” permitting the cheaters to evade detection.  The Gaming Commission attorney basically said, “Sue me.”  NYRA’s attorney did not respond.

While I doubt that anyone who follows New York government will be surprised at the arrogance and secrecy of these two agencies, the victims here are not only the public that has a right to know what its government is doing.  More importantly, it is the human and equine athletes who could benefit from a little sunshine.

Transparency would also assist those who do play by the rules to have confidence that the cheaters are being pursued.  It all goes back to what the UFC’s Jeff Novitzky said in his speech last summer.  Cheaters do what they do because they do not trust competitors to play fairly, nor do they trust the sport’s governing bodies to even care if cheating is going on.

 

 

 

Gaming Commission rubber stamps Cuomo on another casino

Posted by noonante on March 24, 2015
Posted in: Political/Social commentary, Politics. Tagged: , , . 1 Comment

After the board charged with evaluating proposals for casinos made their recommendations in December, Governor Andrew Cuomo stepped in and decided the board was wrong, and that an additional casino should be sited.  Yesterday, New York’s Gaming Commission went along with the Governor, approving his “recommendation” in two minutes.

Discussions on government procurements are ones that cause eyes to glaze over, and I have contributed to that soporific effect with this overly-wonky piece.  Yet, the issue of casinos and the power exerted by this Governor are significant ones that should be discussed.

When New York voters approved locating up to four non-Indian casinos in upstate, they activated legislation that specified how the decisions were to be made.  The Gaming Commission has the ultimate decision on what licenses to award, but they designated a separate Facility Location Board to review competing proposals and make a recommendation.  The Board did that in December, deciding on one casino in each of three regions, but declining to award a fourth.  The Board issued its full report in February.

When the Gaming Commission first discussed making a fourth award at its meeting on February 23, the members decided they wanted to first review the report of the Facility Location Board before deciding on whether a fourth casino was appropriate.  With the report now available (on-line here), the Commission did not hesitate in approving a new request for applications (RFA).

The report is 1700 pages long.  Most of it, however, is the sort of filler reminiscent of the delusional college student who thinks the professor will ignore the lack of insight in favor of bulk.  For example, the entire RFA is included.  We even have the instructions on fingerprinting.

There is, however, a curious omission.  The December 17 recommendation of the Facility Location Board, in which they announced their choices, is not included.  In that report, they stated:

The Board has declined to select a fourth Applicant in the belief that a second competing new gaming facility in any of the regions would make it significantly more difficult for any gaming facility to succeed in that region.

You don’t have to be an expert in the economics of the gaming industry to realize there is an increasing saturation of the market that will only be exacerbated with the opening of three casinos in Massachusetts, and a proposal to open one at New Jersey’s Meadowlands.

Yet the Facility Location Board ignored its own conclusion in approving the Governor’s proposal to add a fourth site, and the Gaming Commission meekly went along, with no debate  –  let alone an acknowledgement of the Facility Location Board’s initial reticence that raised a legitimate policy question.

Most of the Gaming Commission members are appointed by the Governor;  the Commission appointed the members of the Facility Location Board.  Despite their resumes, however, they appear to be no more than compliant pawns in Andrew Cuomo’s micromanaging of every detail in his Administration.  What is particularly surprising is that none of them are paid, so it’s not as though they will be out of a job should they take an independent stance.  Of course, given the way things work in Albany, there may well be other financial considerations in play.

When the Gaming Commission set up the original RFA process, it established rigorous rules designed to ensure a decision free of unwarranted influence.  Since then, however, the Facility Location Board created a secret evaluation criterion that was used to effectively disqualify six bidders in Orange County.  Now it has reversed its own decision on awarding a fourth casino with no explanation justifying its new position.  The Gaming Commission’s two-minute consideration of this consequential matter does not exactly calm fears that this is merely a political process.

The Governor and the Commission hope that a new procurement will not just have the discredited proposal from a prior bidder, but well-financed bids from major players in the casino industry.  After the shallow and shoddy initial decision of the Facility Location Board, good luck getting the deep pocket gaming interests to have any confidence in the integrity of this process.

Casino Board promptly rolls over on Cuomo command

Posted by noonante on January 14, 2015
Posted in: Political/Social commentary, Politics. Tagged: , , , . Leave a comment

I once lived with a cat who would roll over on command.  But even he would have been embarrassed by the alacrity with which the Facility Location Board acceded to Governor Andrew Cuomo’s request to conduct a procurement for an additional casino in the so-called Southern Tier.

The Board was appointed by the state’s Gaming Commission to solicit competitive bids, and then evaluate the bids and recommend up to four proposals for gaming licenses.  The Board’s recommendations were to then go to the Gaming Commission which had the final say in awarding contracts.  The casino law divided upstate New York into three regions, one of which, the Southern Tier, looked like a legislative gerrymandered district.  It stretched from the Finger Lakes to the Binghamton area.

The Board announced its recommendations on December 17 and, surprisingly, did not recommend four licenses but only three.  Their choice for the Southern Tier was the Lago proposal near the Finger Lakes.  This provoked an outcry from those closer to Binghamton, particularly since on the same day, Cuomo announced that the state would not allow hydrofracking in the area.

The most vociferous opponent was Jeff Gural who was a bidder and the owner of Tioga Downs, a harness track that also has a racino.  Gural is a very interesting character for a number of reasons, not the least of which is the lack of any hesitancy in expressing his opinions on a wide range of matters.  His immediate complaint was that he had spent $800,000 to promote the constitutional amendment ballot question that would permit non-Indian casinos in New York.  He said that he embarked on that expenditure at the request of one Andrew Cuomo.

Given his out-front advocacy on the Governor’s behalf (according to Gural and I have no reason to doubt him), it was widely assumed that his proposal was a lock to get one of the four licenses.  (If you would like a thorough look at the entire casino discussion, go to Alan Mann’s blog Left at the Gate.  No media outlet is as comprehensive and informative on the topic, and witty to boot.)

The Facility Location Board’s announcement of its recommendations, along with the ensuing Q&A, left the impression that their work was the result of thoughtful deliberation.  They explicitly considered the saturation of the Northeast casino market in deciding to make only three awards and not the permitted four.  With respect to the Southern Tier proposals, they could not have been more explicit  –  they were not saying “three at this time  –  it was Lago or nothing.”

That resolve, as well as any sense that this is actually an independent body, dissipated when the Governor asked the Board to do another procurement  –  and do it quickly.  The Board met last night for all of 15 minutes, and unanimously agreed to the Governor’s “request.”  There was the expected bleating by each member as to how this did not mean they would actually make another award or that Gural would be the choice.

Right.  I am sure there are deep-pocketed casino interests who are going to expend lots of time and money after seeing how politicized this process has become.

There were two interesting sidelights from the meeting.  The meeting went into an executive session after the public portion to discuss “litigation.”  Hmmmm.  A casino procurement process that ends in litigation?

The other was a comment by Board member Bill Thompson who joked that the Board’s salary should be doubled if they are going to continue their work.  While I think those who volunteer their time to do government work deserve credit, I was also thinking that they’ll be compensated in other ways, and I do not mean in the hereafter.  Unbeknownst to me at the time, the Governor had actually appointed Thompson to two government positions that same day.  That should salve the pain of uncompensated work.

What happened to the integrity of New York’s casino selection process?

Posted by noonante on January 13, 2015
Posted in: Political/Social commentary, Politics. Tagged: , , , , . Leave a comment

Because of the potential for undue influence being exerted on government procurements, there are generally accepted standards to ensure that contract awards are beyond reproach.  While the New York casino awards seemed to be on a course to instill public confidence, recent events suggest that political influence has worked its way into the process.

The New York casino law authorized awarding up to four licenses in three “upstate” regions of the state, with “upstate” beginning just north of New York City.  The State’s Gaming Commission is responsible for making the contract awards, after it receives recommendations from the Facility Location Board that was appointed by the Commission.

The Facility Location Board evaluated 16 competing proposals and announced its recommendations on December 17, choosing one proposal from each of the three regions.  They stated they would make a detailed report of its reasoning in about 30 days.

Even though no decision has actually been made, Governor Andrew Cuomo embarked on a victory tour celebrating the Board’s recommendations as if the Gaming Commission’s role in the process was a mere formality.  Since Cuomo appointed most of the Commission’s members, one can assume they got the message from their boss.

I suspect that the Governor just cannot help inserting himself into every decision despite a rather obvious perception that he is interfering in a public procurement.  So it should come as no surprise that on December 26, he again stepped into the process.  This time he “requested” that a new procurement be held in the Southern Tier.  He was rebuking a Board that essentially are his appointees, and ignoring the Board’s decision to award only one contract in the Southern Tier for what appeared to be sound reasons.  And Cuomo was acting without seeing the detailed reasoning of the Board or awaiting an actual decision by the Gaming Commission.  The Board is meeting tonight, and I think we all know what their decision will be.

As troubling as the Governor’s behavior is, it may not be the first instance of outside influence on the process.  When the Facility Location Board announced its recommendations, it also revealed for the first time that it had added an evaluation criterion to the ones set forth in the law.  While the law authorized the Board to develop additional criteria, the Board did so without any notice to the public, let alone a public discussion of whether it was appropriate.

The Board’s new criterion was to “consider which proposals best fulfill the intent of the Act in regard to providing economic assistance to disadvantaged areas of the State while enhancing Upstate New York’s tourism industry.”  What makes the Board’s decision curious is that nowhere in the law is it stated that its intent is to provide economic assistance to disadvantaged localities.  We’re talking about a law that is 111 pages long, and that specified 20 distinct criteria the Board had to use.  If the Legislature and the Governor wrote such a detailed law, it is odd they would have neglected to mention the intent of the bill, if indeed that was the intent.

The notion that this was the intent of the law was put forth by various figures who had a vested interest in making it the intent even if the law was silent on the point, including competing bidders as well as political figures.  When Genting, the behemoth Malaysian gambling company proposed a casino in Orange County, those hoping for ones located in the less-affluent Catskills started raising the illusory intent of the law.  Of course, if the intent of the law was not to site a casino in Orange County, the Governor and Legislature could have excluded it from eligibility as they did with other downstate counties.

Governor Cuomo’s letter “requesting” a new procurement introduced yet another “intent” of the casino law that is not only not in the law, but contrary to it.  The law created three upstate regions, one of which is called the “Southern Tier.”  When the Facility Location Board recommended a proposal near the Finger Lakes, those near Tioga squawked that the Finger Lakes region was not in the “true” Southern Tier.  The Governor who signed the law  –  and presumably was in large part responsible for writing it  –  now says the Finger Lakes site is “well north of the actual Southern Tier.”  (Emphasis mine.)

The chair of the Assembly’s Racing and Wagering Committee, Gary Pretlow, concurred:  “And that’s the Southern Tier that when we fashioned this bill we were thinking about, definitely not in the Rochester area,” as quoted by Gannett.  It’s as though neither he nor the Governor had any responsibility for writing legislation that reflected their intent.

New York has had recent experience with a flawed procurement process involving gambling contracts.  Prior to Genting being given the rights to operate a racino at Aqueduct, there was a decision to make the award to an entity known as AEG.  That process was so defective that the only surprising aspect of it is that no one was indicted.  I am not suggesting that this process is even remotely comparable to that one.  But one of the reasons that government procurements are so tightly structured is to avoid even the appearance of impropriety or undue influence.  The Gaming Commission and the Facility Location Board appeared to be on a track to a process that would be unimpeachable, but we now have the following developments:

  • A secret evaluation criterion announced at the last minute;
  • That criterion being thinly supported  –  if at all  –  by the law;
  • The Governor visiting the communities of “winning” bidders even though no actual decisions have been made;
  • The Governor “recommending” that a new procurement be conducted even though the actual decision with supporting documentation has not been made;
  • The Governor’s rationale for the procurement being based not on the law, but contrary to it.

In what has to be one of the most foreseeable results of the Governor’s efforts to award a fourth contract, we now have people from Orange County arguing they they too should have the opportunity for a new procurement.  What is also foreseeable is that we are about to embark on a prolonged period of second-guessing, innuendo and controversy in a process that started out as appearing to be beyond reproach.  A cardinal rule of fair and open procurements is that the rules are known to all parties from the start.  If you want to change them as you go along without any public notice or input, you should be prepared for the inevitable charges that the process was neither fair nor open.

 

 

New York learned nothing from PETA video

Posted by noonante on April 8, 2014
Posted in: Horse Racing, Political/Social commentary. Tagged: , , , , . 2 Comments

The New York Racing Association and the state’s Gaming Commission make a big deal of what they call “enhanced security protocols” for four stakes during the year, including Saturday’s Wood Memorial.  The protocols require horses entered in the race to be on the grounds three days before and subject to 24-hour surveillance cameras, as well as other provisions.

One of the requirements is a treatment log to be completed by the veterinarian, which the Gaming Commission then posts on its web site in advance of the race.  The protocols require a “full daily veterinarian’s record of all medications and treatments.”  Both the Commission and NYRA seem content to have an incomplete form submitted unless you consider “pre-race” or “routine” to be an adequate diagnosis warranting the administration of medications.

What is particularly troubling about their lax attitude is that the issue of administering drugs to race horses because you can, and not because it is necessary to treat a condition, is a major issue confronting the sport.  It came up in the now famous PETA video where one veterinarian was quoted as saying all horses in Steve Asmussen’s barn were treated with Lasix because it is a performance-enhancer, and not because it was necessary to treat pulmonary bleeding.  A California investigation into seven sudden deaths in Bob Baffert’s barn found that Baffert had thyroxine administered to all his horses, although he did not even know what the purpose of the medication was.

In a six-part series in Thoroughbred Daily News last summer, the final segment was entitled “Race Horse is Not a Diagnosis.”  Yet we have NYRA and the Gaming Commission not questioning “pre-race” or “routine” as an adequate explanation for their enhanced security protocols.  Even those phrases, however, are a mite more adequate than the vet who simply left the diagnosis part of the state-mandated form blank.  That vet, by the way, is the one featured in PETA’s video describing Lasix as a performance-enhancer.

In the press release announcing the protocols, New York’s top racing officials spouted the expected pablum about their concern for safety and integrity.  There was no explanation for why these steps were taken for only four of the 2,294 races NYRA ran last year.  NYRA CEO Chris Kay said the Wood would be “conducted in the safest and most transparent manner.”

That transparency, however, only serves to demonstrate that NYRA and the Gaming Commission are tone-deaf to the forces buffeting the industry.  If you are going to boast about publicizing vet records, you should think that people may actually look at them.  And if your haphazard acceptance of records that do not even meet your own standards becomes the next subject for PETA or Joe Drape, don’t blame the messenger.

This is an issue about more than how vets fill out a form.  For NYRA and the Gaming Commission, it is about what role they will play  –  if any  –  in bringing changes to racing.  One of those changes must be  adherence to a cardinal principle that drugs can only be administered to a horse to address a specific medical need, and that medical need is documented in the records of the veterinarian.

I realize that when you are trying to attract top horses to one of your signature races it is tempting to let some things slide.  But don’t go around boasting about your commitment to safety when you are willing to accept “pre-race” or “routine” as justification for administering drugs.

Yet another wake-up call for racing

Posted by noonante on March 25, 2014
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , , , , . 4 Comments

Racing at Saratoga brings many of the nation’s best horses, trainers and jockeys to the Spa for a 40-day meet in a resort atmosphere.  It also brings industry leaders who participate in the several seminars that take place.  Last year the unifying theme may well have been drugs and the public’s perception of widespread abuse.

At one such session last year, trainer John Kimmel lambasted those who thought that mistreatment of horses was a problem, blaming it on  –  wait for it  –  the media.  He challenged them to go to the backstretch to observe how well the horses are cared for.  Little did he know that as he was speaking, someone was doing just that, armed with a video camera.  This week, the work of the undercover investigator for PETA (People for the Ethical Treatment of Animals) became public courtesy of Joe Drape of The New York Times and PETA’s web site.

According to Drape’s piece, the investigator worked in Steve Asmussen’s barn at Churchill Downs and Saratoga for four months.  It is clear no one was aware they were being recorded.  PETA has filed complaints with ten federal and state agencies based on the investigation, but it is a nine-minute video that has the racing world abuzz.  Among PETA’s allegations are the mistreatment of horses, the use of batteries to shock horses, administration of Lasix as a performance-enhancing drug, and numerous violations of employment laws.

Not surprisingly, given PETA’s orientation, the video is disturbing.  The horses featured are either dead, being injected with something, or subjected to a painful examination.  While any of those occurrences is a daily reality at a track somewhere, it is the words emanating from the humans that are most damning.

Scott Blasi, Asmussen’s long-time assistant trainer, is the star, if you will, of the production,  in large part because of his seeming inability to complete a sentence without using a common seven-letter expletive.  He is observed examining what appears to be the dreadful condition of 2011 Kentucky Derby runner-up Nehro’s feet, describing the pain caused by extracorporeal shock wave therapy, joking about the use of a “battery” by one of the barn’s jockeys, explaining the mechanics of hiring undocumented workers, and identifying one of the stable’s owners as a double expletive.  Interestingly, Asmussen’s lone speaking part in the film is a barely audible off-camera sentence about hiring undocumented workers.  Blasi has been “relieved of his duties pending a review” according to bloodhorse.com.

The reaction to the video has been predictable  –  ranging from outrage to condemnation of PETA as a biased source.  Indeed, the video was edited to less than 10 minutes from several hours of recordings, and there are portions that seem to have little purpose other than portraying horse racing in the most unflattering light possible.  For example, Wayne Lukas and Gary Stevens are depicted laughing about the use of batteries, including an admission by Stevens that he once used one.  It is not clear when he did, but the Lukas comment was obviously from a time over 30 years ago with no acknowledgement that he participated in it.

Similarly, Nehro’s death from colic is implicitly linked to what is portrayed as the continuous training of an injured horse, although there is no evidence that was the cause.  I unfortunately know from personal experience that colic is a common, and sometimes fatal, condition that has a number of possible causes.

My initial reaction to the video was one of disgust.  Then I watched it another half-dozen times and realized that while it is an artful piece of anti-racing propaganda, the actual evidence of wrongdoing is pretty thin.  The most serious allegations are those dealing with the employment law violations.  Then there is Blasi explaining how he will mask an injured horse by applying a covering gel the next time the state vet comes by before a race.  Stevens, who is one of the most public faces of racing from his acting and roles as a commentator on broadcasts, clearly doesn’t help.  Then there is the veterinarian describing Lasix as a performance-enhancing medication.

The video describes Lasix as a controversial medication and, of course, it is.  It is also the only race-day medication permitted in every state.  The frequent depiction of horses being injected is emotive, but there are a number of medications that can be administered legally to a race horse.  The video does not claim that any of the numerous injections are illegal, although that assertion is made in some of the written complaints.

But supporters of racing are deluding themselves if they think portraying PETA as biased makes the problem go away.  Let’s be honest.  We know horses are often given numerous medications and injections, and we also know that, at least in some instances, there is no medical justification for the drugs.  One of PETA’s allegations is that Asmussen’s staff gave Thyroxine to most, if not all, of the horses in the barn without need.  If that name sounds familiar, it’s because it is the same drug that Bob Baffert admitted giving to all his horses when California investigated the seven sudden and unexplained deaths of horses trained by him.  Baffert, who often had the medication given by barn staff and not a veterinarian, did not even understand the effect of the drug.

We also know that an investigation into a spike in fatalities at Aqueduct in 2012 led to a report by a Task Force that made numerous and significant recommendations on the practice of veterinary medicine at race tracks and the tightening of standards for administering drugs.  We know from a report in The New York Times that the nation’s leading trainer, Todd Pletcher, had one of his horses given 14 doses of drugs in the week before his fatal breakdown at Aqueduct.  Pletcher acknowledged to the Task Force that this “pre-race medication program … was standard practice for all of the horses in his stable.”

The video is lurid, even if lacking in specifics.  The ten complaints filed by PETA, however, provide more detail even if they do not create the same level of outrage.  Six complaints deal with the wage and hour violations.  The remaining complaints  –  with the possible exception of those relating to Nehro  –  may prove to be much more troubling for the industry as a whole.

PETA’s complaint to New York’s Gaming Commission makes two allegations.  One had to do with Blasi’s knowledge that a jockey used by Asmussen’s stable used an electric shock device or “machine,” although PETA explicitly states it had no knowledge of when such a device was used.

The second part of the complaint concerns the administration of Lasix.  PETA alleges that Lasix was given to all of Asmussen’s horses when they were scheduled to work or race, regardless of whether there was a need for the drug based on the horse having previously bled.  One veterinarian was quoted as saying the drug was given because it is a “performance enhancer.”  Additionally, there is an accusation that vets working for Asmussen would sign blank forms required by the state prior to administering Lasix.  The complaint alleges that barn staff would then fill in the horse’s name prior to a work or race.

In addition to the complaint filed with the Gaming Commission, PETA also filed with the New York board that licenses veterinarians, claiming that two vets used by Asmussen improperly administered drugs without medical justification, including Lasix, Sucralfate and Thyroxine.

Whether or not Asmussen’s staff or veterinarians violated the Lasix regulations is a much less consequential question than whether either of the New York regulatory agencies  –  or their counterpart in Kentucky  –  uses its authority to conduct a more sweeping probe.  It strains credulity to think that these practices are unique to Asmussen’s operation.   Saturday’s card at Aqueduct had 76 horses entered by 48 trainers.  How many of those 76 were to run with Lasix?  All but two  –  both first time starters.  Are we to assume that each of the 74 has a documented history by a veterinarian that it had bled during a race or workout  –  as required by New York’s regulations?  I doubt there are many knowledgeable race trackers who would take a short price on that proposition.

An investigation into whether drugs are being administered as part of a therapeutic regimen to treat a specific condition, rather than to enhance performance, could go a long way in dispelling the impressions left by the PETA video.  It would also bolster the arguments of some racing proponents that ours is an industry capable of self-regulation.

The racing industry is actually filled with numerous committed, knowledgeable and thoughtful people who truly care about the sport and the well-being of its equine and human participants.  I got a chance to meet a number of them at those seminars in Saratoga last summer and was quite impressed.  Unfortunately, the same cannot be said about those who actually control the racing at major tracks.  New York is run by inept political appointees, Churchill Downs seems preoccupied by how much money they can extract from the Kentucky Derby, and Santa Anita and Gulfstream are owned by Frank Stronach.  When a NYRA Board meeting is obsessed by the quality of the service at the Aqueduct restaurant instead of a serious issue, it is clearly a group that simply does not get it.

The NYRA Board members always nod in unison when someone observes that the public’s perception of racing is ruined by the one bad apple using drugs illegally.  Yet, we have Hall of Fame trainer Baffert acknowledging ignorance of the effects of a drug he gave to all his horses, and certain Hall of Fame trainer Pletcher administering a cornucopia of medications to a horse who then suffers a catastrophic breakdown.  And Asmussen was on this year’s Hall of Fame ballot until the PETA story broke and the Hall removed his name from nomination.

The question for the racing industry, of course, is where do we go from here?  Unfortunately, there seems to be two likely possibilities, although they are not mutually exclusive.  One is that the continuing cascade of negative media attention will further erode the sport’s popularity.  That one appears to be inevitable without some significant action.  When The Atlantic runs with the PETA story  –  in a compelling piece by Andrew Cohen  – you should know you are in trouble.

The other is that the PETA video, despite its obvious flaws, will become a powerful incentive for governmental action.  There’s a reason for the old saw, “a picture is worth a thousand words.”  Already there is legislation in Congress to place the United States Anti-Doping Agency in an oversight role for racing.  Federal prosecutors in Pennsylvania have brought criminal wire fraud charges against three trainers for either illegally administering drugs or simply possessing syringes and impermissible drugs.  And now, ten government agencies will be investigating the actions of Asmussen, Blasi and their veterinarians.

Perhaps the most common proposal is for a national organization with a commissioner akin to what we have in other major sports.  Charles Hayward, former head of NYRA and now the President of the new on-line publication Thoroughbred Racing Commentary, seems prescient in addressing this issue just over a week ago.  For reasons that are distressingly compelling, he cites the major impediments to that happening here.  Yet he does provide a possible solution in the experience in Britain with their racing authority.

I think Hayward is correct in saying that an all-encompassing organization that controls everything from marketing to licensing rights to drug regulations is too much to hope for right now.  But a necessary and useful first step would be a consensus on medication policies with a national drug czar, even if his or her authority is limited initially to operating from a bully pulpit.  If it is not one selected by the racing industry, it could well be one picked by the federal government.