Chris Kay is not what ails NYRA

Posted by noonante on March 19, 2019
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , . 1 Comment

The New York Racing Association announced the sudden resignation of its President and CEO, Chris Kay, on January 23.  Six weeks later, one of the government agencies responsible for monitoring NYRA had a brief discussion of the matter.  It left more questions unanswered than addressed.

Neither NYRA nor either of two government bodies charged with oversight, the Franchise Oversight Board and the State Gaming Commission, have stated why Kay’s unanticipated resignation was compelled.  David Grening of the Daily Racing Form reported that “according to multiple sources,” NYRA’s Board “asked for Kay’s resignation after it learned that Kay had used NYRA employees to do private work for him at the house he owns in Saratoga, considered a breach of company policy.”

I have never seen any denial or refutation of Grening’s reporting.  At the March 7 meeting of the Oversight Board there was implicit confirmation of this being a reason for Kay’s termination.  A NYRA executive also stated there were two additional disciplinary actions, including one of an unidentified Senior Vice President.

The approach of the Oversight Board appeared to have less to do with any meaningful oversight, but rather to get this matter behind them as quickly as possible with the hope that people would simply forget about it.  When NYRA’s General Counsel was asked what caused this, he could not answer because he did not know the motivation of Kay “and others.”  He added there was a “culture” at NYRA “where people were reluctant to report bad things.”

Kay’s motivation was obvious and, frankly, not all that important.  He was getting stuff for free.  And if there was such a culture at NYRA, it does not distinguish it from any other work place. It is also not a reason why the CEO would act with seeming impunity.

The real culture that caused this is the one that enabled Kay.  There were theoretical checks on his conduct:  he reported to a Board of Directors, and was answerable to two government oversight agencies, the Oversight Board and the Gaming Commission.  But the sad history of these supposedly independent bodies is that only one individual in the six years of Kay’s tenure ever stood up to him.  And that person resigned in the early part of 2017.

The NYRA Board of Directors became subject to the public records law and open meeting law once Andrew Cuomo seized control of it in 2012 and turned it over to government control  –  mostly, his own.  I observed every public meeting of the Board until it was supposedly returned to private control in 2017.  With two exceptions, the meetings of the Board were a joke.  For the most part, they consisted of Chris Kay slide shows in which he discussed either matters already reported in the media, or a summary of his accomplishments.  The Board, at that time, had audit and internal control functions.

It was clear from the public meetings that the Board was either doing nothing or conducting its real business behind closed doors.  There are, of course, legitimate (and limited) reasons for meeting in private, but much of what was being done  –  if anything was being done  –  did not fall into that category.  When I complained to New York’s Committee on Open Government, they agreed and ordered the Board to comply with the law.  They ignored that directive.

The Gaming Commission is another government agency charged with, among other things, oversight of NYRA.  It also adjudicates disciplinary matters and issues regulations.  It makes NYRA’s former public meetings look like the Lincoln-Douglas debates.  There is rarely a discussion of any substance, nor do they feel any obligation to explain publicly their reasons for anything.

The Franchise Oversight Board has been the one body that cannot be dismissed summarily as a check on either NYRA or its CEO.  (Although it is not a high bar to clear when the meetings of the other two can be described as a joke.)  There was one member in particular, Steven Newman, an accountant experienced in the operations of government agencies, who took oversight seriously.

Newman questioned the claims of NYRA and Kay that they had started operating as a profitable entity.  He thought that reconfiguring the financial books to move certain expenses off the operating ledger was not an indicator of profitability.  He questioned why NYRA would not allow its independent auditor to appear at a meeting of the Oversight Board.  He questioned why Kay’s performance standards and annual evaluations were not available to the Board.  He raised significant, meaningful questions to which Kay often responded angrily or defensively.  Newman resigned in the first half of 2017.

Other Oversight Board members were less rigorous.  One incident that stands out was the time Kay was being questioned about his request for increased funding for the Saratoga “Walk of Fame,” a vanity project for which only he saw the need.  The Board Member assured Kay he did not have to discuss it if he did not want to.  This same Board Member once offered to assist Kay in his desire to be “unshackled” from the NYRA Board  –  as if they were an impediment to Kay getting his way on everything.

At its March 7 meeting, Board members expressed their concern that “something as dumb as” the Kay scandal would affect what they believed to be the progress they made since Cuomo took control of NYRA in 2012.  You know what is said of karma, and hubris only makes it worse.

The 2012 Cuomo coup was facilitated by compliant state actors and a flaccid NYRA Board.  They trumped up charges of malfeasance by the then-CEO and the General Counsel, firing both of them.  They challenged the integrity of Board members, threatening to rescind the licenses they needed to race their horses.  A review by the Governor’s own Inspector General, however, concluded that the NYRA CEO did nothing wrong, and that a mistake that resulted in a short-changing of bettors was actually the result of poor legal advice.

The media went along with the Cuomo narrative, talking about the need to restore integrity to NYRA.  They ignored the juggling of financial books to turn a deficit into a profit.  They further reported the falsified Saratoga attendance figures fed to them by NYRA.  Regrettably, the demands of deadlines prevent most reporters from delving too deeply into NYRA’s press releases.

That is not an impediment, however, for government agencies charged with oversight.  The Franchise Oversight Board, in particular, only has such responsibility for NYRA.  But the issues that were supposedly at the fore in 2012 were no longer in play when now it was Cuomo’s appointees in charge.

One Board member back then  –  who is still on the Board  –  questioned why settlements were paid to the terminated CEO and General Counsel.  (The answer is that the payments were required by contracts.)  This time around, the CEO was a Cuomo pick, and there was no such question.  That is in spite of the fact that in 2012 there was no allegation of personal impropriety and this year there clearly is.

This represents just another example of that “culture” in which NYRA operates.  The “culture” is not that a groundskeeper is “reluctant to report bad things.”  The culture is one where established professionals and business people are so beholden to a Governor that they will not stand up for what is right.

At the March 7 Oversight Board meeting, NYRA officials said they were revising an ethics policy and doing more training.  Right.  The problem is not that a CEO with several senior positions in major organizations did not know that using a company’s employees to cut his grass would be an issue.  The problem is not that a carpenter needs ethics training or whistleblower protection.  The problem  –  as it so frequently is  –  is that the entitled feel entitled.  And that members of the Oversight Board and Gaming Commission are entitled persons who think other entitled persons should get a free pass.

But for those on the Oversight Board and NYRA management who think a satisfactory response is providing a mutuel clerk with more training and whistleblower protection, here are some basic questions that must be addressed and answered publicly:

  • What were all of the reasons leading to the termination of Kay’s employment?
  • Did NYRA conduct a review of the allegations and, if so, what did it conclude?
  • Did NYRA’s Internal Control function, assuming it still has one, conduct a review and, if so, what were its conclusions?
  • Did either the Franchise Oversight Board or the State Gaming Commission conduct an independent review and, if so, what were their conclusions?
  • Has the Governor’s Inspector General, who conducted a review in 2012, done so this time and, if so, what were her conclusions?
  • Has there been a review, by any entity, of financial transactions authorized by Kay, including his expense accounts?
  • Is NYRA going to seek damages from Kay, as one Franchise Oversight Board member suggested in 2012?
  • Has a review been conducted of whether shortcomings within NYRA leading to these issues implicates their retention of the franchise, as was done in 2012?

These are all basic questions that would be asked by any organization when confronted with the unethical conduct of its CEO.  My fear is that there is a considerable desire to sweep all of this under the rug, and move on to planning for the Belmont Stakes.

A comparison between the terminations of NYRA’s CEO in 2012 and 2019 is instructive.  As I wrote about regularly in 2012, the Cuomo takeover of NYRA was purely a political power play using a manufactured scandal and intimidation, including threats against NYRA Board members. The threats were conveyed in a letter by Cuomo’s Budget Director, who served as Chair of the Franchise Oversight Board, and the head of the Racing and Wagering Board (now the Gaming Commission), who prepared a report alleging malfeasance without interviewing anyone or reviewing all relevant documents.

There was never an allegation of personal impropriety by the CEO.  The Governor’s own Inspector General conducted a review in which she actually interviewed numerous individuals and examined documents.  She issued a lengthy report that dispelled none of my statements in this or the preceding paragraph.

By contrast, the 2019 termination of Chris Kay was for personal impropriety according to a published report that has not been disputed.  In contrast to 2012 when the Cuomo staff were actively publicizing their “investigations” and opinions, there has been none of that this time.  The difference?  I’ll take a wild guess and suggest that it is purely political.

Political motivations are, of course, a similarity between the two years.  Another similarity is the avoidance of those in positions of responsibility to accept accountability.  Ironically it is only the 2012 CEO who acknowledged an error  –  and took immediate steps to rectify it even before it became a political football.

But no one else, in either instance, who served in a position with oversight responsibility has stepped forward to acknowledge responsibility  –  whether it be a NYRA Board member or a member of the Franchise Oversight Board or the Gaming Commission.

And that is the “culture” desperately in need of change.

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Gaming Commission meeting consistent with past performances

Posted by noonante on January 29, 2019
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , . Leave a comment

The Monday meeting of the New York State Gaming Commission did not disappoint if you wondered whether they would adhere to their past performances.

There were two items of interest to thoroughbred racing participants and fans that could be discussed.  One was a proposed regulation that sought to weaken the existing rule that was adopted following an increase in racing fatalities at Aqueduct in late 2011 to early 2012.  The other was the Commission’s response to the sudden and unexpected resignation of Chris Kay as President and CEO of the New York Racing Association.

As usual, the Commission tried to start the meeting about 40 minutes after the scheduled start, but then spent an additional 10 minutes working out audio and video transmission issues.

The regulation under consideration concerned the “purse-to-price ratio” in claiming races that I wrote about here and here.  I also submitted the only public comment on the proposal.  Because the Gaming Commission had already approved the rule for adoption prior to the expiration of the legally-required public comment, and prior to submission of my comment, they had to “consider” my comment at the Monday meeting.

If you are interested in the Commission’s “discussion” of my comment, you can replay it on the Commission’s website.  Don’t worry, it will not take long.  It begins at the 1:20 mark of the meeting and ends about four minutes later.  The “discussion” is a reading of a prepared statement by the Commission’s chairperson that is simply incoherent.

It addresses none of the issues I raised, including that it was based on a secret memo by Dr. Scott Palmer that the Commission will not release, as well as unidentified supporters of the rule change, and their reason for changing it.  Nor was there any recognition of the fact that the regulatory change is contrary to the report of a Task Force Report on the Aqueduct fatalities, as well as Governor Cuomo’s order in 2012 to implement a stricter version of the regulation.

At least that part of the agenda lasted for more than four minutes.  There was no mention of the fact that the head of NYRA was apparently suddenly forced out of his position by NYRA’s Board of Directors.  I say “apparently” because there has been no official explanation for the “resignation” of Kay that the Board accepted “effective immediately.”

David Grening of The Daily Racing Form has reported that the resignation was made because Kay had been using NYRA employees to do work at his private residence in Saratoga Springs.  I have seen nothing that disputes Grening’s report.

But the Gaming Commission is one of two government agencies in New York that has legal oversight responsibility for the actions of NYRA.  They are seemingly content to blithely ignore what is corruption in New York’s premier thoroughbred operation.

Even if Grening’s report is accurate, and cites the real  –  and only  – reason for the termination of Kay’s employment, there are more questions that need to be addressed.  For starters, how does an entity such as NYRA that has a history of prior internal control issues allow such behavior to occur?  Were any other management officials complicit in this?  The employees had to report to someone who approved their time slips.

Unfortunately, the Gaming Commission has a history in which transparency and accountability are rarely present, as exemplified by these two matters,

Bad day for NYRA

Posted by noonante on January 27, 2019
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , . 1 Comment

This past Wednesday was not the best of days for the New York Racing Association.

Gabby Gaudet, a NYRA television commentator for a couple of years, decided to take her talents to TVG.  She is an engaging and personable expert  –  adjectives rarely used to describe her remaining counterpart, Andy Serling.  For a sport in desperate need of expanding its fan base to bring in a younger demographic (and more women), Gaudet is a real asset.  Her departure will not help NYRA’s efforts to popularize its own broadcast efforts.

Then there was the sudden “resignation” of Chris Kay, President and CEO of the organization.  When NYRA”s Board of Directors accepted the resignation “effective immediately,” we can assume that it was either resign or be fired.  NYRA’s press release did not offer a reason for the unexpected action.

David Grening of the Daily Racing Form reported, however, that according to “multiple sources … the board asked for Kay’s resignation after it learned that Kay had used NYRA employees to do private work for him at the house he owns in Saratoga.”

By the standards of the Cuomo Administration, of course, this is a small-bore scandal, although certainly one worthy of being terminated from employment.  And let’s not kid ourselves about NYRA now being in private control.  The Board’s membership did not change when it was supposedly “reprivatized” from government control.  The majority of the Board consisted of either Cuomo appointees, including Kay himself, or Cuomo loyalists.

It is no longer surprising when entitled people engage in remarkably stupid behavior and exhibit serious errors in judgment.  Kay, according to the most recent public information, was pulling in more than $500,000 annually and could be expected to pay someone to mow his lawn.

What is surprising, however, is that earlier this month The BloodHorse reported that Kay and his wife made a “personal donation of $100,000” towards the New York Race Track Chaplaincy of America’s efforts to build a multi-purpose building at Belmont Park to serve track workers.  That’s a serious chunk of change, and seemingly not the conduct of someone engaging in nickel-and-dime corruption.

Kay has been a controversial figure.  (I suspect, however, that that would be true of any person serving in the job given the opinionated, sometimes dyspeptic, nature of racing fans.)  He acknowledged knowing nothing about the sport when he arrived in 2013  –  he once characterized the condition book that lists upcoming races as if he discovered the Holy Grail even though all tracks have a version.   But he developed a fluency and knowledge as he went on.

Under his leadership, improvements have been made, although some may have been initiated before he arrived.  There are the changes to the living conditions of backstretch workers  –  Board member Michael Dubb was a major champion.  He developed a new arrangement at Saratoga at the top of the stretch that changed frequently empty seating sections to something that could attract new fans and revenue.  Saratoga is also building a new structure at the other end of the grandstand that will cater to those who had been going to the temporary modular units.

Some of his “improvements” have come at the expense of the “regular Joe and Jane” race trackers who, for example, may like to go to the paddock without being crowded out by picnic tables for sale or tents serving as pop-up bars.   Then there is the monument to his ego  – a new building outside the grandstand that serves as a museum to those awarded a “Red Jacket,” a lame idea that he thinks will become his contribution to Saratoga tradition.

On balance, was he a positive force?  His selling point was that he excelled at customer service  –  or, as he called us, guests.  But he touted the Belmont Park festival, portrayed as a three-day extravaganza of great horse racing.  The best races were all moved to Saturday, with lesser stakes running the preceding days.  My memory of going on the Friday two years ago is of a “crowd” that could easily fit in my high school’s gym, and not being able to get a hot dog  – the day before the Belmont Stakes.

Is Saratoga a better experience?  I like to treat company to what I call the “full Saratoga.”  It’s the training tracks in the morning with breakfast there.  Races in the afternoon and, of course, downtown in the evening.  While the grandstand improvements are a welcome change, one cannot escape the notion that it is primarily those with large amounts of disposable income that are the real “guests.”

Whatever his shortcomings may be, however, Kay is not what ails New York racing or prevents it from improving.  NYRA does have two governmental oversight bodies  –  the Gaming Commission and the Franchise Oversight Board.  Both are dominated by appointees of Andrew Cuomo  –  just as NYRA is.

When Governor Cuomo seized control of NYRA early in his administration, he did it by trumping up charges against NYRA’s leadership and ordering reviews of alleged malfeasance at the organization.  While the results of those reviews were clearly politically motivated and phony, Cuomo got what he wanted  –  control of NYRA and removal of those who preferred to act independently and not kowtow to his whims.

Now we can see how determined the Governor is to ensure integrity at one of the nation’s premier racing jurisdictions.  If David Grening’s sources are correct, there is clearly a significant problem within NYRA.  Back in the day when NYRA conducted public meetings, there were reports from Board members with internal audit and financial control responsibilities.  Those reports were public.  As part of his effort to seize control in 2012, Cuomo has the Gaming Commission’s predecessor, the Racing and Wagering Board, issue a public report.  The Governor’s Inspector General also issued a public report.

That, however, was back before the Governor was responsible for NYRA.  While he may still try to disclaim responsibility under the “reprivatization” charade, he is responsible for the Gaming Commission and Franchise Oversight Board.

The Gaming Commission has a public meeting Monday at 1:00 at which the NYRA situation may be discussed.  They will also be discussing a weakening of an equine safety rule that I discussed here and here.  It will be broadcast on their web site, but don’t hold your breath waiting for any serious discussion.

 

 

 

New York weakens rule that protected horses – echoes from the 2012 crisis

Posted by noonante on January 2, 2019
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , . Leave a comment

As a result of comments I received on my last post, I took another look at the 2012 report of the New York Task Force on Racehorse Health and Safety.  The Task Force was comprised of widely-respected racing professionals and chaired by New York’s current Equine Medical Director Dr. Scott Palmer.

The Task Force looked at the many factors that may have contributed to the 21 fatalities that occurred during racing at the Aqueduct meet of late 2011 and early 2012, with a view to identifying common elements that could be addressed by changing policies.

The Task Force looked at the “purse-to-claiming price ratio” that is the subject of a recent regulatory change approved by New York’s Gaming Commission and the topic for a hearing tomorrow.  As was stated in the earlier post, the Task Force determined that an existing ratio of 2.0 was too high to advance safety, and recommended adoption of a 1.6 standard approved by the American Association of Equine Practitioners.  Despite that recommendation, the 2.0 rule remained in effect.  The purpose of the new regulation is to allow ratios that exceed 2.0.

The Report identified the ratios that were in effect for 17 of the races in which there were fatalities.  (Nineteen of twenty-one fatalities were in claiming races.)  In only two of those 17 races did the “purse-to-claiming price ratio” fall at or below the 1.6 standard.  In ten races, the ratio exceeded the 2.0 requirement of the regulation that is being revised.  The Task Force concluded:

“All of the horses raced during a period of extraordinary claiming activity with elevated purses disproportionate to the value of the horses.”

Among the concerns raised in my prior post about the revised regulation is that the proponents of it  –  “various interested parties” according to the Commission’s General Counsel  –  have not been identified.  One suspects that NYRA’s Racing Office might be one.

During the 2012 crisis over fatalities, the Racing Office was identified as a possible culprit because, at that time, it could ignore a decision by a veterinarian that a horse should be scratched.  The Task Force concluded that the Racing Office’s goal of increasing field size “establishes a potentially critical conflict of interest.”  It went on to add that “field size, or the economic impact of a scratch, must never be a consideration when … [assessing] a horse’s suitability to race.”  (Emphasis in Report.)

The Gaming Commission is operating secretively, so we do not even know the proponents of this change or what their motivation is.  There is nothing in the public record to suggest that New York is not returning to the mistakes identified in 2012.  If economic considerations are paramount  –  as suggested by Dr. Palmer  –  and driven by field size, as we can only speculate, the outlook is not good for equine safety.

But the public has an opportunity to see the government agency charged with equine safety and integrity in operation tomorrow at the public meeting of the Gaming Commission.  There will supposedly be a discussion of comments I submitted on the proposed regulation change.  It can be viewed on their website on Thursday at 11:00.

 

New York weakens rule that protected horses

Posted by noonante on January 1, 2019
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , . 3 Comments

Update:  After completing this post, the Gaming Commission announced it would hold a meeting to discuss policy issues I had raised in comments to the regulation.  Their meeting is scheduled for Thursday, January 3 at 11:00 a.m. and can be seen on the Commission’s website.

The New York State Gaming Commission has weakened a rule they enacted to protect horses from fatal racing injuries.  The policy was adopted in April, 2012, in response to a rise in the number of catastrophic breakdowns that occurred in late 2011 and early 2012 at Aqueduct Racetrack.

The regulation established the minimum claiming price for which a horse could be entered in a race.  “Claiming races” are one of the most inscrutable parts of racing for the uninitiated.  A claiming race is one in which a horse can be bought for a specified amount before the race is run.  It is the lifeblood of racing, and the purpose of setting a claiming price is to attract horses of comparable ability.

Aqueduct experienced a sudden influx of cash for purses when the revenues from Video Lottery Terminals started coming in.  This resulted in significant increases in purses, including for claiming races.  As an example, a horse valued at $7,500 that had been running in a race with a total purse of $15,000 might now be entered in one where the total purse was $30,000.  (The winner generally gets 60 percent of the purse, second gets 20 percent and so on.)

The Gaming Commission’s predecessor adopted an emergency regulation in April, 2012, requiring that the claiming price be at least 50 percent of the race’s purse for a “purse-to-claim price ratio of 2.0.”  In the example from above, a horse could not be entered in a race with a $30,000 purse unless its claiming price was at least $15,000.

The crisis in fatalities resulted in the appointment of the New York Task Force on Racehorse Health and Safety.  It was a panel of widely-respected racing figures chaired by Dr. Scott Palmer, now the Equine Medical Director for the Gaming Commission.

The Task Force investigated the possible causes of the fatalities and made a number of recommendations. Their Report was universally praised, and has been considered a model of steps to improve the safety of the equine and human athletes participating in the sport.  New York implemented a number of the recommendations and has now seen a reduction in racing fatalities at its tracks.

The “purse-to-claim price ratio” was one of the factors examined. The Task Force concluded that the policy of entering a horse for a claiming price significantly below the purse value was an “imbalance contribut[ing] to perceptions that horses were being entered in claiming races beyond their level of competition and forced to perform to the point of serious injury or death.”

The Task Force did not consider the April, 2012 regulation of a “2.0” ratio adequate protection for the horse, and instead recommended the more stringent standard advocated by the American Association of Equine Practitioners:

“Accordingly, the Task Force believes that the purse to claim price ratio should be no greater than 1.6, in which the value of the horse is approximately equal to the winner’s share of the purse, and that the Rule should be amended accordingly.”

Governor Cuomo agreed with the Task Force’s determination on the 1.6 ratio, explicitly citing it when he issued a statement ordering implementation of the Report’s recommendations in September that year.  Despite the Governor’s order, Dr. Palmer seemed to have a change of heart and wrote a memo three days later in which he decided that the 2.0 ratio was sufficient, citing economic considerations that might put New York at a disadvantage with competing racing jurisdictions. The 2.0 ratio was not changed.

Dr. Palmer is now of the view that even a 2.0 ratio could be higher.  He wrote a memo outlining steps New York has taken to enhance equine (and human) safety.  He convinced the Gaming Commissioners that the 2.0 rule could be relaxed if a track has implemented increased safety measures.  Even though the weakened rule was put out for public comment and has now been approved as a permanent regulation, the Gaming Commission has refused to release the Palmer memo that was a key factor in the Commissioners’ deliberation.

Dr. Palmer acknowledges that there are no magic solutions that will eliminate all risk for thoroughbreds in training or racing. His 2012 memo references “degrees of risk aversion.” This appears to be a central theme in his approach to the regulatory change proposed in 2018.

In his remarks at the Gaming Commission meeting in September at which the proposed rule was approved for public comment, he recognizes that changing the rule will increase the risk for horses. At one point he stated:

“I always thought that if we were going to take away one protective factor, what do we have to take the place? What are we going to put back in that is going to protect these horses?”  (Transcript by Commission.)

What Dr. Palmer stated at this meeting is that a program of “Out of Competition Scrutiny” – not to be confused with Out of Competition Testing – would identify certain horses whose record might indicate an increased risk of injury. It is a worthwhile effort, relying on factors that have been identified as increasing the risk of racing.  The notion of a “profile” to identify at-risk horses has become widely accepted  –  it was one of the topics in the 2012 Report of the Task Force.

The new Regulation requires that a relaxation of the “2.0 ratio” can only happen if a race track requests an exception:

“The commission shall not approve such a request unless [the track] has implemented increased measures to ensure close examination of the competitiveness, soundness and safety of each horse entered in such a race.”  (Emphasis is mine.)

The regulation is clear.  “Each horse” in a race must under scrutiny if an exception to the 2.0 rule is to be made.  But that is not how Dr. Palmer described the change to the Commissioners at their September, 2018 meeting.

This is the colloquy between a Commissioner and Palmer from the Commission’s Transcript:

Commissioner:  “[s]omeone will be taking clinical history of each horse for each claiming horse?’

Dr. Palmer:  “No.…”

Commissioner:  “Is it before each claiming race?”

Dr. Palmer:  “No, it is one time….”

Dr. Palmer is the expert upon whom the Commissioners rely.  He has said he is responsible for monitoring the effect of the revised regulation.  But he has also said that he will not be adhering to the explicit language of the regulation.

This approach by Dr. Palmer appears to be “trading” one program to reduce risk for another that increases risk.  This implies that there is a certain level of risk that is acceptable. While I think most people realize that risk is an element of horse racing that cannot be eliminated completely, I question whether there would be widespread approval of a transactional approach that balances a track’s economic considerations with equine and human safety.

At their September 24 meeting, the Commissioners focused exclusively on the increase in risk and the ability to bring a halt to the new regulation if equine fatalities approached an “unacceptable” level.  While Dr. Palmer said there would be requirements on the tracks seeking an exception to the 2.0 ratio, he did not provide any examples of what those standards might be.

Just as troubling, however, is that this is a change, according to the Commission, being advocated by persons who were not identified, and neither testified before the Commission nor submitted public comments in support of the rule.  In his September 13, 2018 memo to the Commissioners, the Commission’s General Counsel stated that “[v]arious interested parties have requested the Commission to consider adding flexibility to the existing rule….”  Similarly, the Commission’s Executive Director referred to “[v]arious interested parties” having requested a rule change at the September 24 meeting.

There was a time when the “purse-to-claim” ratio was viewed as an important safeguard for protecting horses. The Task Force rejected the notion that a 2.0 ratio was adequate, instead insisting on a 1.6.  Governor Cuomo considered this to be such a significant step that he explicitly ordered adoption of a 1.6 ratio when he released the Task Force’s findings in 2012.

Now, however, “various interested parties” who are not identified have recommended a weakening of that safeguard.  The Commission has refused to release the memo that supposedly supports the change.  The apparent rationale are tradeoffs intended to mitigate the increased risk even though the standards that will be utilized have not been specified.  And it appears the Commission will not even be complying with the revised regulation.

This is a secretive process and not the way an accountable and transparent government operates.  More significantly, however, it is certainly not a way to bring about changes that will affect the safety of racing’s equine and human athletes.

 

Court ruling exposes hypocrisy of NY Gaming Commission

Posted by noonante on December 7, 2018
Posted in: Horse Racing, Political/Social commentary. Tagged: , , , , , , . 1 Comment

Following a decision by New York’s highest court last week, the rank hypocrisy and arbitrariness of the state’s Gaming Commission was exposed fully.

The case involved penalties imposed by the Commission against Luis Pena, a trainer of harness horses.  The Commission determined that Pena had committed 1,717 violations of its drug regulations between January, 2010 and April, 2012.  Let me repeat that and write it out so there is no misunderstanding.  Pena was determined to have illegally administered medications on horses one thousand, seven hundred and seventeen times in a little more than two years.  The Commission’s penalty, upheld by the Court, was a suspension of his license for three years and a fine of $2,000 per violation.

The Court did not compare this with other discipline, but about the same time the Commission was imposing this sanction, they were imposing penalties against a thoroughbred trainer.  For one violation of a post-race drug overage and one violation for possession of syringes containing a permitted medication in late 2010, the trainer was suspended for 10 years and fined $25,000 for each violation.  That trainer is Rick Dutrow, who has already served more than twice the penalty imposed on Pena.

At the risk of overstating the obvious, such disparate treatment raises questions, if not suspicions.  No two cases are alike, so I went through the public records of the Gaming Commission with respect to both men, as well as a trove of other data from Dutrow’s case.  (I wrote about the Dutrow case here, here and here.)  For the record, I have never met either Pena or Dutrow.

In neither case were the drugs “illegal” in the sense they lacked recognized therapeutic value for the animal.  Rather, the violations by both trainers involved medications that were permitted if administered outside the window specified in the regulations.  A medication would be permissible, for example, if administered more than 96 hours before a race, but not if administered within that time frame.  (The medication in the syringes possessed by Dutrow was a permissible one, but the regulations prohibit a trainer from having syringes and such drugs.)

If the nature of the drugs was not a determinative factor, perhaps the records of the trainers were.  The only thing I know about Pena is from the press release issued by the Commission when they announced the imposed penalties. In their self-congratulatory statement, they boasted about the sanction.  My thought was:  they are bragging about a sanction of a practice in which one person can commit an average of two drug violations per day, instead of being profoundly embarrassed it went on for so long?

Pena’s history of violations according to the Gaming Commission database is unremarkable.  From December, 2009 through February, 2012, he was disciplined nine times.  While that may appear to be significant, it was for the type of minor infractions that are inevitable in a strictly regulated environment  –  an owner not being licensed, Lasix being administered too close to race time, or similar lesser violations of the rules.

By contrast, Dutrow has been a controversial figure, in large part because of a personality that some describe as colorful and others, undoubtedly, as obnoxious.   He has multiple rules violations going back to at least 2000, but many are for the same sort of minor infractions committed by Pena.  There have also been significant penalties imposed in both New York and other jurisdictions.  For the three-year period ending with the 2010 issues, however, Dutrow had only paperwork violations in New York and minor drug overages in Florida and Kentucky.  New York renewed his license to continue training in 2011.

What seems to be undisputed is that Dutrow has a stellar reputation as a horseman.  Witnesses at his suspension hearing  –  including those appearing on behalf of the state  –  attested to it.  Evidence presented that I have not seen contradicted is that he a horse trained by him did not suffer a fatal breakdown in a race over an 11-year span.  A petition supporting his reinstatement last year gathered more than 2,000 signatures from those who would know him best  –  other horse people.

If we cannot discern what the Commission may have been thinking as they imposed wildly disproportionate penalties, what other comparisons may exist?  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, performance-enhancing, not therapeutic 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.

Then there is the case of Steve Asmussen.  The Gaming Commission determined in 2015 that Asmussen trained horses that competed at the 2013 Saratoga meet with thyroxine having been administered within the illegal time frame of its regulations.  The Commission fined him $10,000.

The Asmussen decision was three sentences long.  The decision did not mention that 58 of 66 horses run by Asmussen during the 40-day meet had been administered the drug illegally.  It also did not mention that Asmussen horses earned more than $1 million during the meet.  Nor did it mention that Commission staffers stated that the typical fine was a minimum of $500 per violation, an amount that would be at least $29,000.  Nor did the decision mention 28 prior drug violations by Asmussen that he discussed on a nationally televised broadcast, blaming them on inconsistent state regulations.

The penalties imposed on Asmussen, Sedlacek and Pena stand in stark contrast to the severity of Dutrow’s.  I constructed a time line of the cases, but added what may appear to be a completely unrelated factor.  That would be the effort by Governor Andrew Cuomo to seize control of the New York Racing Association.  Recognizing the risk of appearing to be a crazed conspiracist, it does offer what may be a significant factor, particularly given that the Gaming Commissioners are mostly Cuomo appointees.

Cuomo assumed office in January, 2011.  The Dutrow violations occurred in the preceding November.  The New York stewards issued their decision on the violations on February 16, 2011, determining that Dutrow should be suspended for 90 days.  A day later, the President of the Association of Racing Commissioners International sent a letter to John Sabini who, at the time, was the chair of the predecessor state agency to the Gaming Commission.  That was followed by a communication that a United States Senator from New Mexico was concerned that Dutrow be punished severely.  Two weeks later, Dutrow received an order to “Show Cause” why his training license should not be revoked permanently.

Following a three-day hearing, the Board adopted the decision of the hearing officer but reduced the penalty from a permanent revocation to a 10-year suspension on October 12, 2011.  The end of 2011 also marked the beginning of what would become Governor Cuomo’s successful effort to seize control of NYRA and replace an independent body with one controlled by him.

While divining the true motivations of the Governor in any context are close to impossible, it is no secret that he harbored animosity towards NYRA leadership, had  –  and has  – no interest in racing, and will resort to any means, regardless of how unscrupulous, to achieve his secret agenda.

The NYRA takeover featured threats, intimidation and bogus “reports” purportedly justifying the need for state control of what the Governor’s appointees portrayed as a  discredited institution.  The Dutrow case presented a perfect opportunity to put a face on the problems with NYRA racing.  The Pena case, by contrast, did not further the anti-NYRA narrative.  It was harness racing, not NYRA’s thoroughbred product, that was discredited.  Pena’s violations are so much more dramatic than Dutrow’s that the public’s focus would more likely focus on either racing as a whole, or the incompetence of a government agency controlled by Cuomo.  It therefore seemed important that Dutrow be connected with NYRA instead of having other salient problems addressed.

All of this may be coincidental and is, admittedly, conjecture on my part.  Nonetheless, the fact remains that the penalties imposed on Dutrow, Pena, Asmussen and Sedlacek are impossible to reconcile in any logical, legal or moral sense.

There is a way, however, for the seeming hypocrisy and arbitrariness to be addressed.  That would be for the Gaming Commission to explain its decision-making.  It is a government agency that, by law, is supposed to be an independent and impartial adjudicatory body.  It should be answerable to the public as well as the horsemen and horsewomen it serves.  But it has consistently demonstrated that it is neither transparent nor accountable.

The Commission has had ample opportunity to explain publicly its rationale for its treatment of Dutrow.  His attorneys have been petitioning them for years to reconsider its penalty  –  not to relitigate the underlying violations, but to address the severity of a 10-year ban on someone performing his livelihood.

At its July 16, 2018 public meeting, the Commission announced that it had met in secret and voted 4-2 to not reconsider its penalty.  There was neither a discussion nor an explanation.  It later released a memo attempting to justify that decision.  But the memo was written after the meeting, did not address the issues raised by Dutrow’s attorneys and is nothing more than an attempt to put lipstick on a pig.

What is at stake here is nothing less than the integrity of racing in New York.  I follow the sport closely and cannot comprehend the differences in the discipline described above  When Hall of Fame trainer Steve Asmussen gets a slap on the wrist for 29 drug violations at the state’s premier race meet, and another loses his livelihood for two comparable violations in a three-year period, one can only ask why. When a trainer who averages two violations per day gets a suspension less than one-third of one with two violations over three years, one gets suspicious.

If we expect the racing community and the public to have trust in the sport, this behavior by regulatory bodies must stop.  No one in the public or the racing community is going to trust that the sport is honest when the body charged with enforcing standards of conduct is irrational, arbitrary and hypocritical.

The Gaming Commission did not respond to my request for an explanation of the discrepancies between the Dutrow and Pena penalties.

 

Rick Violette

Posted by noonante on October 22, 2018
Posted in: Horse Racing. Tagged: , , , . Leave a comment

Rick Violette passed away on Sunday from cancer.  He was a long-time trainer in New England and New York, and a recent president of the New York Thoroughbred Horsemen’s Association.

He trained some top-notch horses  –  most recently Diversify  –  but his impact reached far beyond his activities at the barn.  He was a passionate advocate for the trainers and owners both nationally and in New York.

I attended many of the meetings of the New York Racing Association’s Board (back in the day when they were open).  Rick was a unique and  –  too often  –  solitary voice who was committed to the trainers and owners as well as New York racing.  He was smart, knowledgeable about recent history in the state, tough and practical.  He was approachable, funny and someone who fully gave of his time even with all his other responsibilities.

Trainers and owners may have been his “official constituency,” but he also chaired the Jockey Injury Compensation Fund.  Under his leadership at the Horsemen’s Association, programs for the aftercare of thoroughbreds were created.  NYTHA also funded programs for backstretch grooms and hot walkers who were not in the limelight, but essential to the health of the horse and the industry.

We too often fail to express our thoughts about someone while they are alive.  Rick is the very embodiment of all that is good about the people in the racing industry.  I do not think I can say it any better than Charles Hayward, former President of NYRA, expressed it here.