Tom Noonan

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.