The New York Gaming Commission finally released its report on allegations against trainer Steve Asmussen. People for the Ethical Treatment of Animals requested an investigation on March 18 2014. On November 23, 2015, the Commission released its report along with recommendations and also levied a $10,000 fine against the trainer. The Commission’s report was as shoddy as it was tardy.
Both the report and the Commission’s behavior indicates that the real purpose was chest-thumping about how serious they are, while at the same time not actually taking meaningful action.
Asmussen had unwittingly hired an undercover PETA investigator who worked at his barns at Churchill Downs and Saratoga in 2013. During her employment, she secretly recorded numerous conversations with Asmussen’s top assistant, Scott Blasi, veterinarians and several not associated with Asmussen who attended a dinner at a private home. PETA converted eight hours of videotape into a nine-minute video. In addition to the video going viral, The New York Times ran a major piece on it just before the 2014 Kentucky Derby. It was also featured in an edition of HBO’s Real Sports with Bryant Gumbel.
The essence of the video was that Asmussen and those who worked for him were engaged in cruelty to horses. There were frequent scenes of injections, horses with seemingly serious medical conditions and even dead horses. While lurid, there was little – if any – actual evidence of wrongdoing. The lack of evidence, however, did not prevent the predictable outcry against Asmussen and racing in general.
New York’s Gaming Commission is the primary government agency regulating and overseeing all forms of legal gambling, including horse racing, in the state. In the report, written by staff of the Commission and presented at a meeting of the full Commission on November 23, Asmussen was exonerated on all but three of PETA’s allegations. Those had to do with the administration of thyroxine to horses in his Saratoga barn.
Thyroxine is a synthetic hormone that is a permissible drug under the Commission’s regulations provided it is not administered within 48 hours before a race. The purpose of the medication is to treat hyperthyroidism. It gained a measure of notoriety in 2012 following the sudden and unexplained deaths of seven horses in Bob Baffert’s California barn. Baffert acknowledged that thyroxine was being added to feed tubs by stable employees even though he did not even understand the purpose of the medication. He stopped using it and the fatalities ceased.
The Gaming Commission concluded that 58 of the 66 horses that ran at Saratoga in 2013 from the Asmussen barn had been prescribed thyroxine. The Commission’s press release announced that it had imposed a $10,000 fine on Asmussen for violating its regulation by administering the drug within 48 hours of a race. The Commission further proposed new regulations, including one that would prohibit thyroxine from being administered within 30 days of a race.
While these steps could be viewed as significant, the reality leads to a different conclusion. Both the report and the Commission’s actions – or lack thereof – have significant deficiencies.
In its 23-minute meeting on November 23, the Gaming Commission did not actually take any action on the staff report. The $10,000 fine was not even mentioned, although the Commission did discuss a $300 fine to a jockey who used his goggles to urge a horse after losing his crop. Indeed, the longest discussion at the meeting was on scheduling the next one.
I asked the Commission’s spokesperson why a $10,000 fine did not warrant a mention, let alone a discussion or a vote. His curt response was “Staff report. Fines for racing violations are issued by staff.” What is curious about this is that the Commission’s regulations do not give Commission staff the authority to issue fines. The regulations do give that authority to the stewards.
More surprising, however, is that the “Staff report” did not assess a fine. It merely recommended that Asmussen show cause why a fine should not be imposed. One can only surmise why the staff recommendation was overruled on this point – again without any discussion by the Commissioners at their meeting. The suspicion here is that “higher ups” intervened because the Commission had to appear as if were doing something, notwithstanding the reality.
The amount of the fine is an additional curiosity. The staff report stated the “Commission has imposed previously a minimum fine of $500 for similar administrations within time limitations of a non-prohibited hormone.” (My emphasis.) My math indicates that the minimum fine would then be $29,000. The staff credits Asmussen with openly admitting the violations, further observing that he thought he was in compliance with the Commission’s rules. That explanation is akin to what he said on the Real Sports segment where he explained his 28 drug violations – at that time – on inconsistent state regulations.
While $10,000 might seem like a lot of money to you and me, my hunch is that Asmussen views it as a mere slap on the wrist, and that he is thankful for the volume discount and being able to get out of Dodge without a serious penalty. The Commission’s regulations provide a penalty for drug violations of the loss of purse money. In 2013, Asmussen earned $1,042,668 in purses at the Spa. So far this year, his total purse earnings stand at more than $10 million.
The other aspect of the Gaming Commission’s investigation were proposed regulations – or, as the press release touted, “sweeping new regulations.” I suspect that it is a violation of the code on press releases to announce proposed regulations without characterizing them as “sweeping,” but, as with the Asmussen fine, it is an overstatement.
Several of the proposed regulations are welcome even if they simply repeat the ethical rules of the American Veterinary Medical Association. Thus, drugs should be administered only when needed to address a diagnosed medical need, and only when consistent with the professional judgment of the prescribing veterinarian. Of course, no regulation is going to be meaningful unless compliance with it is monitored and violations enforced.
The proposed regulations would also increase the permissible time between administering of thyroxine (and other drugs regulating metabolism) from 2 days to 30. Now, I do not know if this extension is either good or warranted. One reason I do not know (aside from not being a veterinarian) is that there is nothing in the staff report justifying this regulation.
Not only that, but the staff report appears to excuse Asmussen’s administration of thyroxine just one day from the race, concluding that it “was very unlikely to have affected the health or racing ability of the horses.” So, why is it necessary to increase the permitted administration to 30 days?
Also, if thyroxine constitutes such a significant risk, why did the Commission wait 17 months to issue this recommendation when it could have done so back in early 2014? It did not need to adjudicate any culpability by Asmussen to take a step that would benefit all horses.
The Commission also had an opportunity to investigate whether thyroxine played a role in the sudden deaths of three horses at Saratoga in 2014. In the report released by the Commission on November 9, 2015, there was no mention of whether thyroxine was a factor, or, for that matter, whether the Commission even considered the possibility. Coming soon after the national exposure given the sudden deaths in the Baffert barn, this is a baffling failure. (Thyroxine was also administered by Asmussen to a horse that suffered a fatal heart attack and that was discussed in the Real Sports segment that aired in early 2014.) The Gaming Commission did not respond to my question regarding an explanation for this shortcoming.
If the regulations being touted by the Gaming Commission are indeed as sweeping as they claim, and, according to the press release, “will uphold New York’s status as the leading equine drug regulator in the country,” there is simply no reason they had to wait 17 months to announce them. Adopting regulations is rarely a quick process because of legal requirements – notice of proposed changes, consideration of comments, and then publication of final regulations – but the Gaming Commission is delaying even further. Instead of putting the regulations – which are already drafted – in to the legal process, the Commission is circulating them within the industry for comments. They could have done this 17 months ago, since disposition of the Asmussen complaints has little to do with the merits of the policy changes.
Steve Asmussen – for whom I have no truck – is not the issue here. Rather, it is the failure of a state regulatory authority to take seriously its responsibilities. If federal oversight of racing is to be avoided, state agencies must step up to demonstrate they are capable of self-regulation. The New York Gaming Commission did nothing here to warrant that confidence.
Tom Noonan 