New York continues its vendetta against Rick Dutrow

Posted by noonante on August 22, 2018
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , . Leave a comment

The New York State Gaming Commission issued a report on August 8 purportedly explaining its reasons for not reconsidering its decision to suspend trainer Richard Dutrow for 10 years.  Dutrow’s attorneys asked the Commission to reconsider only the penalty provision and shorten the suspension to “time served,” which at this point is more than five and one-half years.

The August 8 report, however, is nothing more than a post hoc rationale justifying what I earlier described as a “bag job” by the Commission to target Dutrow.  (That post explains the background of the proceeding which will not be repeated here.)

The report  –  given that it is dated August 8  –  was not discussed at the secret July 16 meeting where the commissioners decided against reconsideration by a 4-2 vote.  At the public meeting that followed, the vote was announced, but there was neither a discussion nor an explanation.  The report not only misstates the positions advocated by Dutrow’s attorneys, but also some of the evidence.  It is merely a continuation of disgraceful behavior by a government agency that has deprived someone of his livelihood.

The motion by Dutrow’s attorneys clearly states that they were not seeking to relitigate the underlying violations for which New York’s stewards imposed a 90-day suspension, but only for the “limited purpose of reviewing and modifying” the 10-year suspension subsequently imposed by the Commission.

The Commission’s regulations permit a reopening based on “newly discovered evidence” or for “other compelling reasons.”  While Dutrow’s motion cited newly discovered evidence regarding a key Commission witness, it stated that “the most compelling reason to reopen this proceeding is that to do so will serve the interest of justice.”

The Commission basically ignored the arguments on fairness, and instead repeatedly claimed that Dutrow was trying to relitigate the underlying issues.  It spent most of its 16-page report defending its original decision and the litigation upholding that decision, even though there was no contention by Dutrow’s attorneys that the Commission’s decision was wrong, or that they lacked the authority to impose the sanction they did.

Dutrow’s request for fairness is predicated upon the disproportionate penalties imposed when compared with “like or similar circumstances.”  His attorneys claimed they were the “most severe ever imposed on a trainer in American racing at any of the leading racetrack venues” going back to 2005.

But the Commission’s report did not address the questions of “fairness” or “justice.”  And there are undoubtedly people who think Dutrow is getting his just desserts and clemency is not warranted.  That’s fine.  But the Commission owes it to the citizens of New York as well as the hundreds of professional horse people supporting Dutrow’s reinstatement to explain why they think so.

I tend to be wary when a decision-maker is setting up straw men to knock down, as the Commission report does by focusing on the merits of the underlying violations  – again, not arguments being raised by Dutrow.  The thrust of his petition is the regulatory language permitting a reconsideration based on “other compelling reasons.”  There is no better way to describe this fraudulent report than to quote the entirety of the Commission’s “explanation” on this issue:

“Finally, the Commission considers whether there are other compelling reasons for reopening the proceeding as to penalty.

Having considered all of these questions, the Commission concludes, in its sound discretion, that Dutrow has shown none of the circumstances that would be required for us to exercise our discretion to reopen this proceeding.”

Seriously.  That’s it.  Dutrow’s petition exhaustively cited numerous other cases in other jurisdictions in which the penalty imposed was less severe  –  or justifiably equally or more severe  –  and the Commission dismisses it in a single sentence with no explanation.  Kind of like the way they announced their decision to not reopen the case.

One example cited by Dutrow’s attorneys concerned the Commission’s suspension of trainer Roy Sedlacek, who admitted administering opiates to two horses on race day.  The drugs were illegal, not therapeutic, performance-enhancing and compounded in such a way as to avoid detection by a testing laboratory.  For violations of anti-doping rules more severe than anything for which Dutrow was ever accused, the penalty was a five-year suspension  –  or less than what Dutrow has already served.

The Commission’s report detailing Dutrow’s “history of violations” is unable to cite anything of significance in the seven years preceding this case.  There have been overages of legal medications, including one of the violations here  –  as there are with numerous trainers  –  but not one for an illegal drug.

I will not go into the Commission inaccurately recounting two factual matters that are contrary to statements in the Hearing Officer’s report imposing the severe penalties.  Suffice it to say that it is more emblematic of an attorney’s spin on the facts.  It is why many people distrust lawyers, but this is an adjudicatory body that has an obligation to dispassionately review evidence and make conclusions based on objective and independent analysis.

The Commission’s August 8 report is a shoddy attempt to cover up a decision they were apparently embarrassed to explain in a public hearing.  That would be understandable given that they are unable to provide a coherent explanation as to why Dutrow was treated more severely than someone such as Roy Sedlacek.

My suspicion is that this is a political decision emanating from the second floor of Albany’s State Capitol.  There was the communications from Ed Martin, head of the Association of Racing Commissioners International, urging a more severe sanction after the stewards imposed “only” a 90-day suspension.  It was accompanied by a statement that a United States Senator from New Mexico had expressed his concern about the penalty.  That would be the same Ed Martin who once chaired the Commission’s predecessor Racing and Waging Board that continued to license Dutrow.  He is now the head of a national organization that continually rails against the evils of a national body telling a state agency what to do.

Regrettably, however, it is a risk-averse Governor running for reelection who is not looking for “independent” agencies in the Executive Branch to exercise any independence.  The Gaming Commission is mostly comprised of Andrew Cuomo’s appointees.  Reinstating Rick Dutrow would be a controversial decision even if it is the correct one.  It is unfortunate that we cannot expect this state government to make the right decision if it could adversely affect the Governor, even at the expense of another’s ability to make a living.

 

Does New York care about horses being doped?

Posted by noonante on August 8, 2018
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , . Leave a comment

 

 

“[Without an out-of-competition testing program with teeth, you won’t have a real anti-doping program]”

—  Dr. Rick Arthur, Equine Medical Director for California

There can be little doubt that the wide-spread perception of drugging racehorses is the biggest challenge facing the sport.  The New York State Gaming Commission has apparently decided it is not going to do anything to correct that impression.

I have obtained records from the Commission  –  the government agency responsible for ensuring compliance with anti-doping regulations  –  going back to January 1, 2014.  According to the records given to me, there has never been a thoroughbred horse that tested positive under the state’s out-of-competition testing “program.”  In four and one-half years during which tens of thousands of thoroughbreds raced in New York, not a single one had a positive test.

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, OOCT 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 post-race testing is inadequate. Surprise is an essential component of an effective program since it makes it more difficult for cheaters to hide their conduct.

There are numerous industry leaders  –  usually the heads of organizations representing horsemen and horsewomen  –  who cite the statistics on post-race positive tests as proof that there is not a doping problem in racing.  That testing yields a positive rate of less than one per cent.  If that is the only thing looked at, they would be correct that drugging horses is not an issue.

But I have rarely met anyone not paid by a racing organization who believes that significant drugging is not a serious concern.  That includes trainers, professional horse people, owners, bettors and fans.  A survey of those knowledgeable about the sport would quickly produce a list of trainers on any racing circuit who are suspected of illegally drugging their horses.  Suspicions are meaningless, of course, unless there is supportive evidence.

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 the 2016 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.”  McKinsey is returning to this year’s Round Table and, if I were a betting man, I would not think there will be a drop in those numbers.

The perception of doping is never a good thing for any sport.  While baseball has made significant strides  –  as a result of out-of-competiton testing  –  it is still feeling the effects of the “steroid era” when the annual Hall of Fame balloting sparks yet another discussion of whether those who drugged should be denied admission.

The United States Anti-Doping Agency (USADA) has significantly cleaned up the drug abuse in cycling, American track and field, and other sports.  This would be the same USADA that some racing leaders think does not have the capability to bring horse racing to a comparable level of respect.

While the United States is a leader in the testing of human athletes, it is woefully behind the rest of the major horse racing jurisdictions in the world according to Joe Gorajc, writing in thoroughbredracing.com.  In the United Kingdom, France and Hong Kong, out-of-competition testing represents between ten and fifteen per cent of all testing. The comparable figure in the United States is two per cent.

New York is but a portion of that two percent, but nonetheless is aware fully of the importance of out-of-competition testing in identifying illegal drugs that may not show up in post-race testing.  In explaining its reason for adopting OOCT regulations in 2012, 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.”

But, New York’s record on OOCT is nothing short of abysmal.  I have twice been provided with records in response to requests for public records going back to 2014.   A total of 10 harness horses tested positive.  There were no positive tests for thoroughbreds.

That, of course, would be a remarkable record for a sport in cleaning up illegal use of medications.  But we do not know how many horses were tested.  The Gaming Commission’s Director of Communications informed me that New York does not maintain records on the number of horses that were tested and the number of negative tests. So the agency responsible for ensuring the integrity of racing does not keep track of its own performance in reducing illegal doping.

This is particularly disturbing since it did have such records as recently as 2016. In that year, there were “approximately” 1,100 samples taken, of which 21 came back positive.  (I had requested records going back to January 1, 2014.  In October, 2016, the Commission gave me records of six positives, all occurring in March of that year and all for harness horses.  I assume the discrepancy between 21 and 6 can be explained by positives detected after the response to my request for records.)

It is not clear why the Gaming Commission would abandon the collection of data that would be essential information in assessing the success of its efforts in reducing illegal doping.  That is, of course, if they are truly doing anything significant, about which I have serious doubts.

One aspect of their program is that they test horses that are entered in Grade I races with a purse of $1 million or more.  Of course, everyone knows that they purport to conduct OOCT for such races, so only a complete fool would not plan around what may take place.  An essential component of an effective program is the element of surprise, which the Gaming Commission has effectively eliminated for those races.

In my first request for public records, the Commission denied statistical information because records need not be disclosed if “compiled for law enforcement purposes and which, if disclosed, would … reveal criminal investigative techniques or procedures….”

The reasoning underlying this exemption to the public records law is solid: drug cheaters “could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel.”

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 more than four 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.

For reasons that seem to be inexplicable, OOCT is a topic fraught with controversy.  Several years ago, I heard complaints in New York about constitutional protections, as if horses were covered by the 5th and 14th Amendments.  The California Horse Racing Board recently had a heated meeting in which organizations representing owners and trainers spewed vitriol against California’s Medical Director, Dr. Rick Arthur.  While I have never met Arthur, his reputation is that of one of the most reputable and knowledgeable figures in the sport.

Arthur was frustrated by the lengthy delays in enacting regulations in California.  Even third-party Lasix administration  –  a seemingly uncontroversial issue  –  took over a year to enact.  He explained his rationale for an effective program of OOCT:

“Everyone also knows when we are going to test the horses  –  right after the race.  That is pretty easy to plan around if you are bent on cheating.  Many of the most effective [Performance Enhancing Drugs] are gone well before race day when horses are tested but the performance enhancing effects are still present.  The effects of many drugs can last well past the time the drug is still present, or present at detectable levels.”

But If there was ever a more compelling argument for stricter drug enforcement, it was unwittingly made by the Vice-President of the North American Association of Racetrack Veterinarians who cautioned against the California OOTC proposal because of unanticipated “costs,” according to a piece by Jeremy Balan in BloodHorse Daily:

“There’s the potential loss of owners  –  people are already worried about that …. There’s potential loss of horses.  If these horses are put on the vet’s list for six months, because of anabolic steroids, then that takes them effectively out of the population, and that’s a big issue right now.

There’s going to be a cost and a loss of integrity.  We’re going to have positive tests.  It’s inevitable.”

Uhh … seriously?  Owners will not be coming in if they cannot administer illegal drugs to their horses?  And that’s a negative?

But a loss of integrity does not come from a positive drug test.  It comes from not caring whether horses are being illegally doped.  When a minor league baseball player is assessed a lengthy suspension for testing positive for PED’s, that enhances the integrity of the sport, not diminish it.

New York’s lackadaisical attitude towards OOCT is particularly disturbing for a number of reasons:

  • It typically takes in 20 per cent of the national betting handle, meaning that bettors cannot be confident they are getting an honest product;
  • Transparency is always a beneficial characteristic, but even more so in a business where suspicions and rumors tend to be rampant;
  • Disclosing the identities of trainers and horses who have been tested would be a benefit to all, but particularly to those who are the subject of the “knowing whispers;”
  • Publicizing data on testing is the most effective deterrent there can be.

My fear, however, is that New York’s program  – to the extent it even exists  –  is nothing more than a sham.  How can it be that not a single thoroughbred tested positive over a period of more than four years?  Even the positive tests on harness horses are minimal and come at suspicious intervals.  In 2016, the six positives were in one month.  The positives in 2017 were within two weeks and only for horses entered in that sport’s Sire Stakes.

And if New York cared about illegal doping, it would not have abandoned the collection of data that recorded the number of tests and results.  At a time when the Governor is making a big deal about paying for a license for a child’s lemonade stand, one would hope that those in charge of racing integrity could make the minimal effort needed to track their progress or  –  more likely  –  the lack of progress in curbing doping.

At the Jockey Club’s 2016 Round Table Conference, Jeff Novitzky, the Executive Director of the Ultimate Fighting Championship, relayed his experiences in combatting drug abuse by human athletes.  When he asked athletes why they cheated, the most common responses were that they neither trusted their competitors to be clean, nor did they trust their sport’s oversight body to enforce a level playing field.

Unfortunately for those playing by the rules in New York, as well as for those wagering on its product, there can be no confidence that New York is serious about a racing program with integrity.

There is excellent reporting on OOTC by The Thoroughbred Racing Commentary, including articles by Charles Hayward and Joe Gorajec, as well as The Paulick Report.

 

 

 

 

New York’s treatment of Rick Dutrow is a disgrace

Posted by noonante on July 30, 2018
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , . 1 Comment

I was initially skeptical of the effort to reinstate Richard Dutrow’s training license, even writing this post.  I have since reviewed many of the documents filed in the case with the New York Gaming Commission, including the transcript before the Commission’s hearing officer.  I now think Dutrow may well be the victim of a bag job orchestrated by the Commission and its bureaucratic predecessor, the Racing and Wagering Board.

In the latest development in the case, the Gaming Commission had one of its typical meetings  –  started late, lasted 20 minutes and had no substantive discussion about anything.  The effort by Dutrow’s attorneys to reopen the case to reconsider his 10-year suspension was discussed prior to the meeting and rejected on a 4 – 2 vote.  It was neither discussed nor explained in the public meeting.

Dutrow has been a controversial figure. He achieved national attention in 2008 when he trained Big Brown to win the Kentucky Derby and Preakness. He did not shy from the media spotlight, displaying an exuberant personality.  He also had a reputation for illegally drugging horses.  When he admitted to using steroids on his horses  –  a legal medication at that time –  it created additional controversy.

In 2010, a search of his office at an Aqueduct barn uncovered three hypodermic syringes filled with xyzaline, a medication used to alleviate lameness and calm a nervous horse. Seventeen days later, a horse trained by Dutrow tested positive for the medication butorphanol in a post-race urinalysis.

The stewards at Aqueduct issued a 30-day suspension for possessing hypodermic needles, and 60 days for the post-race positive in early 2011.  The Racing and Wagering Board then issued an Order to Show Cause why Dutrow’s license should not be suspended or revoked.

The case went to a hearing officer who found against Dutrow on all counts on September 22, 2011. He recommended $50,000 in fines and a permanent revocation of his trainer’s license. The Commission upheld the report of the Hearing Officer in all respects, but reduced the permanent revocation to a 10-year ban.  The ban went into effect in January, 2013, following the completion of litigation.

After Dutrow served three years of the suspension, his attorneys filed a motion with the Commission to modify the penalty to “time served.”  Dutrow was not seeking to relitigate the case, but rather to shorten the penalty in the interests of fairness and justice and based upon newly discovered evidence.

The penalties ordered by the stewards  –  suspensions of 60 and 90 days  –  are significant ones.  It should be noted that both medications are legal therapeutic medications.  Indeed, his attorneys have pointed out that the amount of butorphanol from the post-race test is well within the limits permitted today.  Nonetheless, it was an overage at the time, and both the syringes and medications contained in them are permitted only for veterinarians and not for trainers.

According to the Hearing Officer, it is Dutrow’s “past history,” including “numerous” drug violations and a “consistent inability to abide by regulatory rules” that warranted his permanent expulsion from the racing industry.  In deciding whether Dutrow should be allowed to regain his license, it is necessary to examine that past history.

In the field of employer-employee relations, a cardinal tenet is that termination of employment is the “industrial equivalent of capital punishment.”  While Dutrow is not an employee, the Hearing Officer and the Gaming Commission have deprived someone who has spent his entire career in training horses of the very means to support himself.

So let’s take a look at those “numerous” drug violations.

I reviewed the disciplinary record of Dutrow in New York going back to 2000.  In 2005, he was suspended for 60 days and fined $5,000 for three violations.  In early 2007, he was fined and suspended again for ignoring that earlier Commission order to suspend training.  There was also a Bute positive for which he was suspended and fined.  Since those sanctions in early ’07, he had no violations for medication overages or drug violations in New York until the ones in late 2010.

He also had a record of minor violations in Florida and one in Kentucky for overages of Bute going back to 2007.  There was, however, a suspension and $5,000 fine in New Jersey in November, 2007 for unspecified “conduct detrimental to racing.”  None of the drug violations were for a substance that is not a permitted therapeutic medication.

Between that penalty in November, 2007, and the violations in November, 2010 at Aqueduct, Dutrow had no drug infractions in New York, four in Florida for which he was fined a total of $1,750, and a suspension in Kentucky for a Bute overage.  He did have a number of minor rules violations such as not having necessary paper work on file, and “failure to attend to business in a proper manner, necessitating a late scratch.”

There is a good reason for the rules of racing, and an equally good reason for strict enforcement of them.  That applies with particular force to those pertaining to the use of medications. And I do not question that Richard Dutrow had  –  at one time, anyhow  –  either a cavalier or careless attitude towards those rules.  He is also not the only trainer who has made medication errors or been less than adroit in handling the routine aspects of running the business that is a training stable.

But, his recent record of adherence to the rules is more that of someone who has made considerable improvement in his performance, and not that of someone who is a persistent scofflaw.

Sometimes when reading a recitation of facts in a case, one can jump out as curious.  In the Hearing Officer’s report, it was the way the syringes were found.  The Commission’s Director of Investigations, Joel Leveson, was training staff from NYRA on conducting a back stretch investigation.  They happened to pick Dutrow’s barn, and happened to find syringes filled with medications.  This is curious, of course, because Dutrow is obviously not a favored figure by regulators, and it turned out to be a quite “successful” training exercise.

Three years after the beginning of Dutrow’s suspension, his attorneys received documents pursuant to a “long outstanding” request for public records.  One of the documents was particularly revealing.  John McDonnell was an investigator for NYRA being trained by Leveson on the day of the search of Dutrow’s barn.  McDonnell was a 22-year employee of the New York State Police, finishing his career as a criminal investigator.

This document from the Queens District Attorney became available because McDonnell learned that Leveson had identified him in a court hearing as the person who selected Dutrow’s barn for the search.  McDonnell told the detectives it was not his idea and “he wanted to clear his name.”  He further told them that the entire search of the barn took 10 minutes and that he was “uncomfortable with the sudden discovery of the items.”

In Leveson’s testimony before the Hearing Officer, he denied having selected Dutrow’s barn and “believed” it was McDonnell who picked it.  He also said the entire barn search took 90 minutes.

Given McDonnell’s long service in law enforcement, it is difficult to believe that he would become queasy over  –  shall we say  –  ambivalent testimony.  He was bothered enough by the events that he would only speak with outside law enforcement to express his concerns.

So why is it that a severe sanction handed down by stewards became the basis to start a process that deprived Richard Dutrow of his livelihood?  The same Gaming Commission that rendered this decision is also the one that decided in 2011 to relicense him as fit to be a trainer in New York.  And that was with full knowledge of his supposed notoriety, something that was widely known in the racing industry.

Two months after the stewards’ decision was rendered, the President of the Association of Racing Commissioners International, wrote to John Sabini, Chair of New York’s Racing and Wagering Board, urging him to revoke Dutrow’s license.  That same day, according to Dutrow’s attorneys, the ARCI President also forwarded an email from U.S. Senator Tom Udall criticizing the “light penalty given this trainer’s past doping violations.”  Two weeks later, the Board issued the “Show Cause” notice to Dutrow compelling him to defend his ability to remain as a trainer.

This was also at a time when New York Governor Andrew Cuomo’s administration was gearing up the effort to take control of the New York Racing Association.  The same John Sabini who chaired the Racing and Wagering Board that imposed the ban on Dutrow was also in charge of the effort to discredit the leadership of NYRA based on bogus charges accompanied by threats and intimidation.  (I wrote extensively about this at the time.)

So whether there was a political motive underlying the sanction against Dutrow we may never know.  It is, of course, curious that a Senator from New Mexico had a vested interest in a disciplinary action in New York.  But ARCI’s leadership has been adamantly opposed to federal legislation that would place racing under a national body to attack illegal drugging.  And the Cuomo Administration will use any tactics, no matter how discredited, to further its goals on racing  –  although no one knows what the real goals are.

But Dutrow’s personality, coupled with his widely publicized remarks about anabolic steroids, made him a flashpoint for those with ulterior motives.  One of the curious exchanges between Dutrow and the Commission’s counsel concerned his comments on steroids.  The attorney asked him several times about the publicity his comments generated, including a reference to the “firestorm of adverse publicity for horse racing.”

The use of steroids at that time was legal, and Dutrow honestly answered a question about them.  But honesty is rarely a valued commodity, even when his comments may well have been the catalyst for a ban on the drugs as a typical treatment.

Aside from possible political interference, what we do know, based on the record and statements from Dutrow’s attorneys that have not been contradicted by the Gaming Commission, is the following:

  • Dutrow did not have a serious violation of any rule between 2007 and November, 2010;
  • He was never accused of using any drug that was not a permitted therapeutic medication;
  • Dutrow had a solid reputation as a horseman who took excellent care of his horses  –  even the Commission’s own witnesses at the hearing acknowledged this;
  • Despite the perception that Dutrow was a significant violator of medication rules, not a single horse trained by him experienced a fatal injury in racing or training over an 11-year period;
  • Over 2,000 horsemen and horsewomen have signed a petition supporting his reinstatement, including many of the leading, and most reputable, trainers in the sport;
  • There is a significant discrepancy between the testimony of the Commission’s Director of Investigations and an experienced law enforcement figure who was present during the search that discovered the syringes with medications;
  • While the Hearing Officer’s decision to permanently revoke Dutrow’s license was predicated on his “past history” of rule violations, that portion of the decision consisted of a mere five sentences and did not cite a violation in the preceding three years;
  • The Commission determined Dutrow was fit to be issued a trainer’s license in 2011.

I do not know Mr. Dutrow and have never met him.  This is a record, however, that is strongly suggestive of a determined effort to “get” Richard Dutrow regardless of the merits.  I am well aware of all the buzz concerning him.  But depriving a person of his livelihood requires more than rumor and innuendo.

The Gaming Commission’s behavior at its recent meeting is a disgrace to not only the taxpayers and residents of New York but to the racing industry.  The petition before them was to reopen consideration of the 10-year ban.  That they would neither discuss this in public nor offer an explanation is a slap in the face to the entire racing industry, of which many reputable figures support Dutrow’s reinstatement.

The Gaming Commission is a public entity, the members of which are mostly appointed by the Governor.  The Dutrow matter is of public import, particularly since the Commission heralded its penalties against him in a press release.  A public airing of Dutrow’s petition could only foster a sense of transparency in government and a perception that integrity in racing is a prime concern.  And it was an opportunity to educate a distrustful public of efforts to combat unwarranted drugs in racing.

Unfortunately, the callous attitude of the Gaming Commission is all-too-typical of an Administration that believes it serves interests other than the public’s.  Their failure to discuss the matter only heightens a sense that there is something to hide, including their conduct in a matter that is now seven years old.

“An attack on our country”

Posted by noonante on April 10, 2018
Posted in: Uncategorized. 1 Comment

President Donald Trump on April 9, 2018:

“It’s an attack on our country….It’s an attack on what we all stand for.”

Trump is talking about:

a)  A hostile nation interfering in the 2016 election for President;  or

b)  A search warrant approved by a federal judge allowing law enforcement to continue an investigation into possible criminal conduct by a member of Trump’s inner circle?

L’etat c’est moi.

Dutrow petition doesn’t tell the whole story

Posted by noonante on April 5, 2018
Posted in: Horse Racing. Tagged: , , . Leave a comment

Trainer Richard Dutrow is the subject of a petition drive to persuade the New York State Gaming Commission to reduce his 10-year ban.  Dutrow was suspended in 2013 following the Commission’s determination that he had violated drug regulations and that his continued participation was “inconsistent with the public interest … and the best interests of racing generally.”

Fellow trainer Dale Romans is behind the petition, arguing that the Commission’s predecessor, the Racing and Wagering Board, “imposed a punishment of unprecedented severity  –  they revoked Rick’s training license for 10 years and fined him $50,000” even though the stewards had imposed only a 90-day suspension for two “alleged infractions.”  Romans further stated that Dutrow “has never run afoul of the rules of racing concerning any prohibited substance.”

Dutrow has been a controversial figure.  He achieved national attention in 2008 when his horse Big Brown won the Kentucky Derby and Preakness.  He did not shy from the media spotlight, displaying an exuberant personality.  But his record of numerous drug violations came to the fore, and Dutrow acknowledged using anabolic steroids on his horses.  At the time, the steroids were not a prohibited drug.

The matters that were the subject of the disciplinary action occurred in 2010.  On November 3, a search of his office at an Aqueduct barn uncovered three hypodermic syringes filled with xyzaline, a medication used to alleviate lameness and calm a nervous horse.  Seventeen days later, a horse trained by Dutrow tested positive for the medication butorphanol in a post-race urinalysis.

The stewards at Aqueduct issued a 30-day suspension for possessing hypodermic needles, and 60 days for the post-race positive.  The penalties were stayed because of an appeal filed by Dutrow’s attorney.  The Gaming Commission then issued an Order to Show Cause why Dutrow’s license should not be suspended or revoked, and fines of $25,000 for each violation should not be assessed.

The case went to a hearing officer who conducted three days of hearing, and found against Dutrow on all counts.  He recommended $50,000 in fines and a permanent revocation of Dutrow’s license.  Following two years of litigation in the courts, the Commission upheld the report of the Hearing Officer in all respects, but reduced the permanent revocation to a 10-year ban.

For the record, I do not know Rick Dutrow and have never met him.  I was aware of the buzz regarding drug violations, but do not take at face value such allegations without evidence.  (I have also never met Dale Romans, but did have some excellent meals at a “pop-up” restaurant his family once ran several years ago during the Saratoga meet.)

I looked at all the records of Dutrow’s violations on the web site of the Gaming Commission going back to 2000.  There were more than 20, but most of them were for minor violations, many of the “paper work” variety.

Some were not minor. In 2005, he rolled up three violations and was fined $5,000 and suspended for 60 days, including a post-race test for Mepivacaine.  He was later fined $25,000 and suspended for 14 days for what I surmise (given the timing) was ignoring this earlier suspension by the Commission.  In 2007, there was a $1000 fine and 7-day suspension for a post-race Bute positive.  From 2007 to the events in 2010, he had one violation and a $250 fine.

The Dutrow record in New York presents an arguable case for leniency, particularly after serving half of the 10-day year suspension.  But the report of the Hearing Officer that was the basis for the lengthy penalty presents important context:

“Since 2003, Dutrow has been fined and/or suspended for numerous drug violations.  He has had his license suspended for more than 10 days on three separate occasions;  in 2003 for a mepivacine violation …;  in 2004 for a clenbuterol violation …;  and, in 2008 for a clenbuterol violation in Kentucky (15 days).  In addition to those violations that warranted suspension, there are numerous other drug violations in Florida for the use of phenylbutazone….  Furthermore his New York State racing application history report and RCI comprehensive ruling report … reveals a consistent inability to abide by regulatory rules including a lack of truthfulness in statements to regulators (the RCI records indicate he has falsified license applications in California [1979], Kentucky [1995], and Delaware [2000]).”

I do not think Dale Romans is helping his case by eliding important facts.  When he says Dutrow never ran afoul of the rules concerning “prohibited substances,” he ignores the reality that a therapeutic drug can be permissible if properly administered.  When it shows up in a horse at race time, it is now “prohibited.”

He also blames the admittedly severe penalty because “people didn’t like him,” as reported by Bill Finley at Thoroughbred Daily News.  That opinion is undercut, however, by the testimony of state witnesses that they like Dutrow, finding him to be a “fine gentleman” and someone “who takes tremendous care of his horses.”

But his worse miscalculation may be the argument advanced to Finley that the syringes containing xyzaline found in Dutrow’s desk were “planted.”  It is an assertion that is too convenient, and not one that Dutrow even advanced in his hearing.

And it could only have been planted by someone seeking to do Dutrow harm  –  either a private individual or, implicitly, the Gaming Commission that Romans has already accused of bias.

I obviously do not know if a private individual did it.  But in my experience with those associated with the Gaming Commission, I have never had reason to question their integrity.

If the Dutrow camp is going to continue denying any fault, and seeking to accuse the licensing agency of dishonesty, they may as well wait to seek a license when the 10-year penalty is up in 2023.

Racing leaders continue to ignore drug problems

Posted by noonante on March 13, 2018
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , . 1 Comment

The aversion of racing’s leaders to meaningful uniform anti-doping initiatives continues.  Most recently, the CEO of the National Horsemen’s Benevolent and Protective Agency, Eric Hamelback, once again opposed federal legislation that would place racing under the authority of a national agency.  Unfortunately, Hamelback’s opposition was premised on a false statement of the content of the bill pending in Congress.

Writing in the Thoroughbred Daily News, Hamelback stated that the legislation “does not seek to place our industry into the hands of anti-doping experts with the ability to make common-sense distinctions between performance-enhancing drugs and those that aren’t.”  That is because, he says, the appointed members of the oversight Board “have nothing to do with our industry.”

The Horseracing Integrity Act of 2017 would create a national board to establish and enforce uniform anti-drugging policies.  It is, of course, highly controversial.  One of the foremost arguments against it by opponents has been that the United States Anti-Drugging Agency (USADA) is not equipped to expand its jurisdiction from human athletes to equine ones.

Hamelback continues to perpetrate this myth, but the actual language from the Congressional bill contradicts his assertion.  The bill creates a governing Board consisting of the USADA CEO, six additional members of the USADA board and the following members:

  • at least one with “expertise in equine anti-doping and medication control regulation;”
  • at least one with “significant experience as an owner” or with “expertise in the breeding of race horses;”
  • at least one “formerly employed as an executive with a racetrack;”
  • at least one vet with “expertise in equine veterinary practice with regard to race horses or expertise in veterinary research in matters affecting race horses;”
  • at least one with “expertise in training;” and,
  • at least one jockey.

The proposed law further requires USADA to solicit candidates from a “cross-section of equine industry representatives.”  Simply put, the proposed Board would have plenty of representation of experienced and knowledgeable racing professionals.

Hamelback cites what he views as the injustices perpetrated recently on trainers he believes to be above approach such as Rusty Arnold, Joe Sharp and Bill Mott, claiming that a federal oversight agency would not prevent the abuses.  The irony, however, is that he favors leaving in place the morass of some three dozen regulatory agencies that are the perpetrators of the injustices he cites.

Instead he advocates those who are outraged by inappropriate and unfair decisions to “get involved”  –  go to meetings, write letters, etc.  Of course, in order to make informed arguments, one needs facts.  I have no reason to question the integrity or innocence of any of the trainers cited in Hamelback’s piece.  But saying “Rusty Arnold is a good guy” is not a sufficient reason  –  nor should it be  –  to overturn a drug positive.  (The lab making the initial determination later discovered an error.)

The case with which I have the most familiarity is that of Bill Mott.  He was penalized for a positive, but New York, unlike many jurisdictions, not only does not require a split sample but apparently routinely destroys them.  Mott reportedly is now into six figures in legal fees and has taken his case to court after not getting redress before the Gaming Commission, the state’s regulatory body  –  the entity Hamelback seeks to retain.

I find the Mott case as I understand it to be an outrageous injustice because of New York’s continuing failure to remediate it.  But Hamelback’s inaccurate assessment that a new federal agency would lack knowledgeable representatives of the industry actually does apply to New York’s Gaming Commission.  I attended a public seminar conducted by the Commission on Lasix a couple of summers ago.  It was abundantly clear that the commissioners who bothered to attend had no familiarity with the issue.  That’s understandable given that the Commission has a broader jurisdiction than racing.  But there are also none of the experience requirements that Hamelback thinks are so essential  –  and that are contained in the Horseracing Integrity Act.

The lackadaisical attitude of Hamelback’s organization, the NHBPA, for meaningful medication reform could not be better exemplified than the agenda for their national convention now underway in New Orleans. Although it is a five-day conference, only two agenda items can be considered to be remotely connected to addressing racing drug issues.

On Thursday, there is a 25-minute (sic) session on the “Trainer All Insurer Rule.”  The next day, a two-hour session is entitled “Environmental Transfer, Cause for Concern in Racehorses:  Inadvertent Exposure to Recreational and Prescription Medications.”

I doubt that I am going too far out on the ledge to predict that both sessions will again repeat the tiresome nonsense that racing is overwhelmingly drug free as shown by the low rate of post-race positives.  Leaders such as Hamelback are among the few people involved with racing I have encountered who believe there is no problem worth a serious discussion.