Tom Noonan

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.