NYRA’s CEO has a sweet deal

Posted by noonante on May 5, 2014
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , . 5 Comments

The New York Racing Association finally provided me its contract with Christopher Kay, its CEO since July, 2013.  I now understand why they fought tooth and nail to deny my access. Among the interesting provisions of the agreement are:

  • The bonus Kay for which Kay is eligible can be higher than the $250,000 NYRA has publicly stated on several occasions;
  • Kay’s “generous” automobile allowance effectively increases his base salary beyond $300,000, again an amount publicly stated on several occasions;
  • An unusual severance agreement would pay Kay $550,000 even if the contract expires at the end of its term;
  • The “Reorganization” Board can extend Kay’s contract beyond its own legally-mandated expiration;
  • Kay is permitted to sell his “concept for an on-line lottery game;”
  • While probably the result of sloppy legal work, Kay has the sole power to amend or terminate the contract.

I first requested the contract with Kay and his performance goals shortly after he was hired by the NYRA Reorganization Board.  NYRA denied my efforts to obtain the contract and Kay’s performance goals.  They even stated they did not have to abide by a decision of the state agency charged with overseeing the public records law.

When NYRA began its search for a new CEO in early 2013, the Board of Directors did not want the unfavorable publicity that would result from paying the new CEO more than the $470,000 reportedly paid the prior one.  The Board was particularly leery because they are now a state agency, with 12 of the 17 members being appointed by government officials, including eight by the Governor.  So they came up with a compensation structure that would consist of a base salary of $300,000 and a bonus of $250,000 attached to achieving performance goals.

While some might say that looks like a public relations move to increase the CEO’s pay by a healthy 17 per cent, David Skorton, the Governor’s appointee to chair the Board, assured us there would be meaningful goals and that he wanted to be “very public” about the process of determining eligibility for the bonus.

In every public comment about the bonus, including a NYRA press release, the bonus amount the CEO would be eligible for was always stated as $250,000.  The contract with Kay, however, identifies this not as the maximum, but as the “target.”  According to the contract terms, NYRA “may at its discretion” pay Kay a bonus “greater than the target.”

When the bonus concept was discussed at the February, 2013 Board meeting, Chairman Skorton assured us this was “not just a sneaky way to give more money.”  He said there would be “actual milestones to be reached,” and that he was a “hard grader.”  The chair of NYRA’s Audit Committee stressed the need to “define very specifically the parameters for the incentive comp to make sure there is no gray area.”

But as I discussed in this earlier post, there are no specifics in the statement of Kay’s performance goals.  It is nothing more than a listing of general categories that could be used to develop milestones against which performance could be measured.  The document is so useless that the one item that Skorton identified as being a milestone  –  the reprivatization of NYRA  –  is not even mentioned.

Then there is the automobile allowance of $1,650 per month.  It is a set amount and not dependent on actual expenses.  I realize that the New York City area is expensive, but yesterday’s Times had an ad for a lease on a 2014 Jaguar F-Type for only $739 per month.  So Kay can get two and still have some pocket money left over. Kay’s salary has been consistently identified by NYRA officials as $300,000, so the excessive automobile allowance should be viewed  –  as Chairman Skorton would say  –  as “just a sneaky way to give more money.”

NYRA’s generosity with its CEO doesn’t end there, however, for there is a somewhat unusual severance agreement. While one would expect a severance provision in the event that NYRA decides to end prematurely their agreement with Kay, this contract provides severance if NYRA and Kay do not reach an agreement to extend the contract beyond its end date of October 17, 2015.  Kind of like the way a baseball teams pays severance to a player who reaches the end of a contract without a new agreement.

A person with whom I consulted who has experience in negotiating employment contracts with executives for a non-profit was dumbstruck by this notion.  If NYRA and Kay are not able to reach agreement on a new contract, Kay would get both the base payment of $300,000 and the full amount of his performance-based bonus less than four months into the year.  It’s nice to start negotiations with a half-million already in your pocket.

Speaking of negotiating a new contract, why is NYRA committing to negotiating a new contract since  –  by law  –  the NYRA Reorganization Board ceases to exist on October 17, 2015?  A successor to this NYRA would then be liable for paying Kay $550,000 even if they decide to hire a new CEO.  And this is a Board that talks about putting NYRA in a solvent position, a goal not advanced by saddling its successor with potentially a half-million dollar loss right off the bat.

In another interesting provision of the contract, NYRA has agreed that Kay can profit from a “concept for an on-line lottery game” that he has developed, apparently even during the term of his contract.  It is not clear how allowing its CEO to profit from licensing competition to horse racing is in the best interests of the sport.

Finally, and I stress that this is probably the result of sloppy legal drafting, the contract can only be amended or terminated by Kay.  It provides that, “No amendment … [or] termination … shall be effective unless the same is signed by” NYRA’s “President” and the “Employee.”  NYRA’s President is Chris Kay and the referenced “Employee” is Chris Kay.

NYRA releases CEO’s performance goals

Posted by noonante on April 15, 2014
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , . 1 Comment

The New York Racing Association has finally released to me the “performance metrics” that will be used to determine whether Chris Kay, NYRA’s CEO, will be paid a $250,000 bonus.

When NYRA began its search for a new CEO in early 2013, the Board of Directors did not want the unfavorable publicity that would result from paying the new CEO more than the $470,000 reportedly paid the prior one.  The Board was particularly leery because they are now a state agency, with 12 of the 17 members being appointed by government officials, including eight by the Governor.

So they came up with a compensation structure that would consist of a base salary of $300,000 and a bonus of $250,000 attached to achieving performance goals.  While some might say that looks like a public relations move to increase the CEO’s pay by a healthy 17 per cent, David Skorton, the Governor’s appointee to chair the Board assured us this were meaningful goals and that he was a “hard grader.”  He further guaranteed us that he wanted to be “very public” about the process of determining eligibility for the bonus.

That supposed desire to be “very public” apparently did not extend to releasing public documents without a prolonged fight.  I first requested the performance goals and Kay’s contract last August.  After NYRA refused my request and then denied my appeal, I obtained an opinion from the state agency charged with monitoring the public records law that NYRA was violating the law.  While NYRA has now released the performance goals, they continue to refuse to provide the contract.

Here is what is in the document identified as the “CEO Performance Metrics:”

“The CEO’s performance will be reviewed annually against the goals set by the NYRA Board.  Examples of items on the balanced scorecard are:

  • Financial:  Revenue, Operating Results versus Prior Year, Management of Capital Expenditures, New Revenue Initiatives
  • Quality:  Return on Marketing Initiatives, On Track Customer Experience, Development and Implementation of New Technologies, Leadership (e.g., Develop strong management team and relationships with external constituencies), Improvements in Equine and Jockey Safety”

One does not need an MBA to realize that these are not exactly measurable standards of the sort that would prevent a perhaps skeptical public from thinking that the fix is in on Kay’s bonus.  The NYRA Board has not set goals against which Kay’s performance may be measured.  That is, unless they did so in a secret meeting which, of course, would violate Skorton’s promise to be “very public.”

There are, however, actual measurable metrics to assess how Kay is doing in meeting these overly broad objectives.  The following is based on data from either NYRA’s web site or that of the New York Gaming Commission, another state agency.

Equine fatalities while training have increased by almost fifty per cent during the first nine months of Kay’s tenure.  Since Kay started in July, 2012,  2013, 31 horses have suffered a catastrophic breakdown while training, compared with 21 in the preceding nine months.  While NYRA has made a big deal about the decline in racing fatalities  –  and they have unquestionably made progress  –  it is interesting that the 18 racing fatalities since Kay started are equal to the number in the previous nine months.

What is particularly troubling about the numbers while training is that the head of NYRA’s Safety Committee frequently says NYRA has accomplished everything recommended by the 2012 Task Force on Race Horse Safety that is within its control.  Yet, I have not heard a word at any Board meeting of a potentially significant problem.  Since horse fatalities were one of the supposed reasons Governor Cuomo took over NYRA in 2012, it will be interesting to how this factors into Kay’s bonus.

Attendance at NYRA’s tracks is down almost five percent in the first six months of Kay’s administration compared with the same six months in 2012.  I assume the phrase “On Track Customer Experience” in the performance metrics means improving it.  The last time I heard Kay talk about an actual metric for measuring customer satisfaction, it was the increase in food and souvenir purchases.  Maybe it’s just me, but fewer people coming to your business is rarely seen as a good sign.  All sources handle, incidentally, is up by about one per cent over the comparable six-month periods.

For the return on marketing initiatives, we have to wait and see if Churchill Downs gets added business from its sponsorship of the Wood Memorial.  It is beyond me why NYRA would allow Churchill’s advance deposit wagering platform to sponsor NYRA’s signature race of the spring.  Yes, I know it is more tasteful than “The Kentucky Derby Presented by Yum!,” but is not NYRA competing ADW Rewards an important vehicle for increasing revenue and fan interest in the its product?

At least there is progress on increasing revenue.  I am not sure that jacking up admission  and ticket prices should have been the go-to option, but this metric will be realized provided there is not a further decline in attendance because of it.  It does, however, run counter to what Kay likes to refer to as the “guest experience,” even if it will help him get the bonus.

The reprivatization effort is not one of Kay’s goals?  It has been almost two years since Governor Cuomo took control of NYRA, supposedly as a temporary step to come up with a plan to return the racing franchise to private control.  The plan to do that is due a year from now.  Yet there has been almost no public discussion of this crucial matter at NYRA’s Board meetings, let alone any sense of specific ideas.

While the above metrics would suggest that Chris Kay needs to show substantial progress in order to achieve his $250,000 bonus, I am not sure a betting person would wager against NYRA’s Board doing a complete whitewash of his performance and awarding it.  There is a reason they refuse to provide his contract.  Their rationale for doing so is contrary to all relevant court decisions and a directive from New York’s Committee on Open Government, and it must be assumed there are some very embarrassing details in it.

Clarification:  This post has been updated to reflect that training fatalities occurred during training hours, not necessarily on separate training tracks.

 

Digging beneath the racetrack surface debate

Posted by noonante on April 9, 2014
Posted in: Horse Racing. Tagged: , , , , , , , . 2 Comments

With last week’s decision by Keeneland to switch from a synthetic surface to dirt coming just two days after The Jockey Club released statistics on the safety of different track surfaces, the health of racehorses is again going to dominate discussions in the sport.  The statistics are from the Equine Injury Database maintained by The Jockey Club, and summarize fatality rates by track surface, age of the horse and distance of a race.

Almost 2 million starts covering the five-year period ending in 2013 were analyzed.  Overall, there were 1.91 racing-related fatalities per 1,000 starts.  On synthetic surfaces the rate was 1.22 while the rate on dirt tracks was 2.08.  The rate on turf courses was 1.63.

While the comparative statistics have been well-known for some time, the decision by Keeneland to revert to dirt coming soon after Del Mar’s decision to do the same, has already fueled controversy about the industry’s concern for the well-being of its athletes, both equine and human.  And it arises just two weeks after the PETA video and accompanying article by Joe Drape in The New York Times.

As with many aspects of racing  –  to say nothing of life in general  –  things are rarely as simple as they may seem at first glance.  Nationally-prominent equine veterinarians say that a dirt surface can be as safe as a synthetic one.  Dr. Scott Palmer, now the Equine Medical Director for New York’s Gaming Commission, said as much during a discussion of track surfaces at the April meeting of the Equine Safety Committee of the New York Racing Association.  Dr. Mary Scollay, Equine Medical Director for Kentucky’s Horse Racing Commission concurs, observing that it is a big mistake to just look at whether a surface is dirt or synthetic.

Then there is Michael “Mick” Peterson, Ph.D., the country’s preeminent expert on racing surfaces.  He is a co-author of a collection of published scientific papers and data that is on The Jockey Club web site entitled, appropriately enough, “Racing Surfaces White Paper.”  The complexity of the topic is evident as one reads through this document, and I do not intend to describe it in any detail.  Suffice it to say that for dirt and turf courses, “moisture is the single most important variable in the maintenance of the surface.”  When it is a synthetic surface, temperature becomes the key variable because of the effect it has on the wax that is a component of such a track.

If you are like me, knowledge of the effect of moisture is watching a track being harrowed and then seeing watering trucks circle the track between races.  I assumed the watering was about as scientific as my using a hose in the garden.  But then I learned from Dr. Peterson what he does for Churchill Downs during Derby weekend.  I do not remember the exact number of points on the track that are tested for moisture content, but it was well in excess of a hundred.  Similarly, the NYRA maintenance staff has a sophisticated method for measuring the moisture content around the entire track.  This permits the scientific application of moisture to provide the safest surface.

One of the benefits of The Jockey Club’s statistical analysis is that it provides a detailed account, by year, of fatalities by surface, age and race distance at specific tracks.  At least it does for those tracks that voluntarily provide such information.  The NYRA tracks did, and so did Frank Stronach’s facilities (Santa Anita, Gulfstream and Pimlico).  By contrast, Churchill Downs did not for its tracks  –  Churchill Downs, Calder and Arlington. That added detail provides some very useful insights.  Keeping in mind that the fatality rate per 1,000 starts on all synthetic surfaces is 1.22, we learn the following:

  • Woodbine in Toronto may be the safest track in North America.  Its rate for each of the five years, including both turf and a synthetic surface, never exceeded 1.19 and the overall rate for the five years was 0.90.
  • Keeneland’s rate on the synthetic surface ranged from a high of 1.39 in 2012 to a low of 0.43 last year.
  • Del Mar’s synthetic also demonstrated a wide range over the five years, exceeding the national average three years, topping out at 2.39 in 2012, but being 0.51 in 2011 and 0.48 in 2013.
  • Pimlico’s dirt exceeded the overall synthetic rate each year and Gulfstream dirt did in four of the five years.
  • Santa Anita, which switched back to dirt near the end of 2010, saw its synthetic rates of 0.90 and 0.57 escalate to 2.94, 2.89 and 2.11 in the subsequent years.
  • Belmont’s dirt rate fell below the synthetic standard in only one of the five years, coming in at 0.88 in 2013.
  • Saratoga experienced a 1.92 in 2010, but bookended that with a 0.00 in 2009 and 0.57 in 2011.  It was 1.23 and 1.29 the last two years.
  • Aqueduct’s two dirt surface showed considerable variety.  The inner track never fell below the rate of 2.08 for all dirt tracks.  If you do not count the aberrant year of 2012 (4.02), the rates hovered in the area of 2.40 with the highest figure of that four-year grouping being 2.47 in 2013.  The main track varied from 0.81 to 3.19.  The rate of 0.81 is from 2013 and is about the same as the 0.87 realized in 2009.

Clearly this more detailed data demonstrates that, as a general proposition, there have been fewer fatalities on a synthetic surface.  It also shows, however, that a dirt track can be as safe.  The overall five-year rate for Woodbine’s synthetic was 0.95;  for the Keeneland poly it was 0.97.  Saratoga’s rate on its dirt surface was 0.99.  Del Mar’s synthetic, by comparison, was 1.45 for the five years.

By chance I was reading a post last week on a completely different subject and came across a quote by H.L. Mencken:  “For every problem, there is a solution that is simple, neat, and wrong.”  While it is easy to criticize the Keeneland decision, the real challenge for racing is to make every surface as safe as possible.  The industry has the wherewithal to accomplish that  –  the only question is whether it has the will.

New York learned nothing from PETA video

Posted by noonante on April 8, 2014
Posted in: Horse Racing, Political/Social commentary. Tagged: , , , , . 2 Comments

The New York Racing Association and the state’s Gaming Commission make a big deal of what they call “enhanced security protocols” for four stakes during the year, including Saturday’s Wood Memorial.  The protocols require horses entered in the race to be on the grounds three days before and subject to 24-hour surveillance cameras, as well as other provisions.

One of the requirements is a treatment log to be completed by the veterinarian, which the Gaming Commission then posts on its web site in advance of the race.  The protocols require a “full daily veterinarian’s record of all medications and treatments.”  Both the Commission and NYRA seem content to have an incomplete form submitted unless you consider “pre-race” or “routine” to be an adequate diagnosis warranting the administration of medications.

What is particularly troubling about their lax attitude is that the issue of administering drugs to race horses because you can, and not because it is necessary to treat a condition, is a major issue confronting the sport.  It came up in the now famous PETA video where one veterinarian was quoted as saying all horses in Steve Asmussen’s barn were treated with Lasix because it is a performance-enhancer, and not because it was necessary to treat pulmonary bleeding.  A California investigation into seven sudden deaths in Bob Baffert’s barn found that Baffert had thyroxine administered to all his horses, although he did not even know what the purpose of the medication was.

In a six-part series in Thoroughbred Daily News last summer, the final segment was entitled “Race Horse is Not a Diagnosis.”  Yet we have NYRA and the Gaming Commission not questioning “pre-race” or “routine” as an adequate explanation for their enhanced security protocols.  Even those phrases, however, are a mite more adequate than the vet who simply left the diagnosis part of the state-mandated form blank.  That vet, by the way, is the one featured in PETA’s video describing Lasix as a performance-enhancer.

In the press release announcing the protocols, New York’s top racing officials spouted the expected pablum about their concern for safety and integrity.  There was no explanation for why these steps were taken for only four of the 2,294 races NYRA ran last year.  NYRA CEO Chris Kay said the Wood would be “conducted in the safest and most transparent manner.”

That transparency, however, only serves to demonstrate that NYRA and the Gaming Commission are tone-deaf to the forces buffeting the industry.  If you are going to boast about publicizing vet records, you should think that people may actually look at them.  And if your haphazard acceptance of records that do not even meet your own standards becomes the next subject for PETA or Joe Drape, don’t blame the messenger.

This is an issue about more than how vets fill out a form.  For NYRA and the Gaming Commission, it is about what role they will play  –  if any  –  in bringing changes to racing.  One of those changes must be  adherence to a cardinal principle that drugs can only be administered to a horse to address a specific medical need, and that medical need is documented in the records of the veterinarian.

I realize that when you are trying to attract top horses to one of your signature races it is tempting to let some things slide.  But don’t go around boasting about your commitment to safety when you are willing to accept “pre-race” or “routine” as justification for administering drugs.

Racing authorities crack down on abuse

Posted by noonante on March 28, 2014
Posted in: Horse Racing, Political/Social commentary. Tagged: , , , , , . 2 Comments

That could have been the headline for Joe Drape’s piece in today’s New York Times, but the Times chose to go with “Seamy Side of a Sport:  Prodding Horses With Shocks.”

In today’s article, Drape writes about the number of battery-related incidents throughout the country in which the authorities have taken disciplinary action:  “since 1974 there have been nearly 300 instances” and “[i]n the 2000s alone, there have been 53 buzzer cases.”  But the real attention-grabber is the allegation that Calvin Borel used a buzzer when working Super Saver before his win in the 2010 Kentucky Derby.  There is no allegation that he used one during the race itself.

For those who may have forgotten, last week brought us a disturbing nine-minute video produced by People for the Ethical Treatment of Animals and Drape’s initial report, all based upon a PETA undercover investigator working in the barn of trainer Steve Asmussen.  Drape recounted a litany of alleged abuses, including that Asmussen and his long-time assistant Scott Blasi employed a jockey, Ricardo Santana Jr., who used a “machine” to shock horses.  A machine is a devise that emits electrical current and is also described as a “battery,” “buzzer,” or if you wish to be bilingual, a “máquina.”

I was aware of the allegations regarding Super Saver last week when I wrote this piece about the PETA claims.  PETA had provided me with a number of documents I requested, and the Super Saver part was in a complaint PETA filed with Louisville Metro Animal Services.  It was not included in the PETA video, unlike clips of Gary Stevens and Wayne Lukas laughing about battery use.  (Stevens has since acknowledged having used one 35 years ago when he was 16.)

But I was not willing to drag another name into this sordid mix based upon what PETA wrote in their complaint, particularly since I had serious reservations about the details.  The copies of the documents PETA provided to me had many names redacted, including that of the rider using the buzzer on Super Saver, although it would not have been much of a stretch to assume it was Borel.

The source of the evidence against Borel was provided by  –  according to Drape  –  two Asmussen employees.  Now I realize that track employees will move from one barn to another, but useful context by Drape would have been to point out that Asmussen did not train Super Saver  –  Todd Pletcher did.

One of the Asmussen employees was quoted in the PETA complaint as saying that Borel (presumably) used a buzzer “more than anybody.”  It may come as a surprise to someone who has never been to a track or the backstretch that hyperbole  –  not to mention inaccurate information  –  is not exactly in short supply.  Nonetheless, it was the evidence of their claim that caused my eyebrows to rise  –  and again, none of this is in the Drape piece but is from the PETA complaint.

Borel would supposedly use the buzzer coming off the final turn to get the horse to run closer to the rail  –  giving, of course, a whole new context to his nickname “Bo-rail.”  If he did this twice during workouts, according to PETA’s complaint, then the horse would be apprehensive when it came to a race and Borel was trying to get the horse to drop down against the rail.  I will leave for those considerably more knowledgeable whether having a scared horse heading for home is a good thing.

Then there is the detail that after the Derby, the witness saw Super Saver and that he had a “perfect strip of hide off his shoulder … [at perfect] rail height  –  straight line down the [expletive] horse.”  Borel’s agent was quoted in Drape’s article denying the allegation, saying, “Why would a guy who’s broken 43 bones in his body run a horse into a fence at 35 miles per hour?”  That certainly seems pretty compelling, but it does not really disprove the allegation.

But when you parse the words of the Asmussen employees, there is no actual allegation that Borel used a battery on Super Saver.  It is the two employees “knowledge” of the jockey’s reputation that passes for evidence Borel used a battery.  And one would think that a missing strip of the horse’s hide would have resulted in an inquiry from Pletcher, Kentucky officials or Pimlico officials.

Drape has apparently had more access to PETA’s materials than anyone else.  One would think that as a journalist he has an obligation to provide an accounting of what that access has been, as well as what he has not been allowed to see.  I am not one to reflexively blame the media for news I do not like, but Drape’s past performances of dropping negative horse racing articles during Derby week does call into question his objectivity.  Even in today’s article he mentions two allegations of battery use that did not bear out upon examination.  PETA, in the interest of full accountability, should be making all of their videos available.  They may, however, be hoping to make a big splash themselves during Derby week which would explain why the Super Saver conversations have yet to be released.

Yet another wake-up call for racing

Posted by noonante on March 25, 2014
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , , , , . 4 Comments

Racing at Saratoga brings many of the nation’s best horses, trainers and jockeys to the Spa for a 40-day meet in a resort atmosphere.  It also brings industry leaders who participate in the several seminars that take place.  Last year the unifying theme may well have been drugs and the public’s perception of widespread abuse.

At one such session last year, trainer John Kimmel lambasted those who thought that mistreatment of horses was a problem, blaming it on  –  wait for it  –  the media.  He challenged them to go to the backstretch to observe how well the horses are cared for.  Little did he know that as he was speaking, someone was doing just that, armed with a video camera.  This week, the work of the undercover investigator for PETA (People for the Ethical Treatment of Animals) became public courtesy of Joe Drape of The New York Times and PETA’s web site.

According to Drape’s piece, the investigator worked in Steve Asmussen’s barn at Churchill Downs and Saratoga for four months.  It is clear no one was aware they were being recorded.  PETA has filed complaints with ten federal and state agencies based on the investigation, but it is a nine-minute video that has the racing world abuzz.  Among PETA’s allegations are the mistreatment of horses, the use of batteries to shock horses, administration of Lasix as a performance-enhancing drug, and numerous violations of employment laws.

Not surprisingly, given PETA’s orientation, the video is disturbing.  The horses featured are either dead, being injected with something, or subjected to a painful examination.  While any of those occurrences is a daily reality at a track somewhere, it is the words emanating from the humans that are most damning.

Scott Blasi, Asmussen’s long-time assistant trainer, is the star, if you will, of the production,  in large part because of his seeming inability to complete a sentence without using a common seven-letter expletive.  He is observed examining what appears to be the dreadful condition of 2011 Kentucky Derby runner-up Nehro’s feet, describing the pain caused by extracorporeal shock wave therapy, joking about the use of a “battery” by one of the barn’s jockeys, explaining the mechanics of hiring undocumented workers, and identifying one of the stable’s owners as a double expletive.  Interestingly, Asmussen’s lone speaking part in the film is a barely audible off-camera sentence about hiring undocumented workers.  Blasi has been “relieved of his duties pending a review” according to bloodhorse.com.

The reaction to the video has been predictable  –  ranging from outrage to condemnation of PETA as a biased source.  Indeed, the video was edited to less than 10 minutes from several hours of recordings, and there are portions that seem to have little purpose other than portraying horse racing in the most unflattering light possible.  For example, Wayne Lukas and Gary Stevens are depicted laughing about the use of batteries, including an admission by Stevens that he once used one.  It is not clear when he did, but the Lukas comment was obviously from a time over 30 years ago with no acknowledgement that he participated in it.

Similarly, Nehro’s death from colic is implicitly linked to what is portrayed as the continuous training of an injured horse, although there is no evidence that was the cause.  I unfortunately know from personal experience that colic is a common, and sometimes fatal, condition that has a number of possible causes.

My initial reaction to the video was one of disgust.  Then I watched it another half-dozen times and realized that while it is an artful piece of anti-racing propaganda, the actual evidence of wrongdoing is pretty thin.  The most serious allegations are those dealing with the employment law violations.  Then there is Blasi explaining how he will mask an injured horse by applying a covering gel the next time the state vet comes by before a race.  Stevens, who is one of the most public faces of racing from his acting and roles as a commentator on broadcasts, clearly doesn’t help.  Then there is the veterinarian describing Lasix as a performance-enhancing medication.

The video describes Lasix as a controversial medication and, of course, it is.  It is also the only race-day medication permitted in every state.  The frequent depiction of horses being injected is emotive, but there are a number of medications that can be administered legally to a race horse.  The video does not claim that any of the numerous injections are illegal, although that assertion is made in some of the written complaints.

But supporters of racing are deluding themselves if they think portraying PETA as biased makes the problem go away.  Let’s be honest.  We know horses are often given numerous medications and injections, and we also know that, at least in some instances, there is no medical justification for the drugs.  One of PETA’s allegations is that Asmussen’s staff gave Thyroxine to most, if not all, of the horses in the barn without need.  If that name sounds familiar, it’s because it is the same drug that Bob Baffert admitted giving to all his horses when California investigated the seven sudden and unexplained deaths of horses trained by him.  Baffert, who often had the medication given by barn staff and not a veterinarian, did not even understand the effect of the drug.

We also know that an investigation into a spike in fatalities at Aqueduct in 2012 led to a report by a Task Force that made numerous and significant recommendations on the practice of veterinary medicine at race tracks and the tightening of standards for administering drugs.  We know from a report in The New York Times that the nation’s leading trainer, Todd Pletcher, had one of his horses given 14 doses of drugs in the week before his fatal breakdown at Aqueduct.  Pletcher acknowledged to the Task Force that this “pre-race medication program … was standard practice for all of the horses in his stable.”

The video is lurid, even if lacking in specifics.  The ten complaints filed by PETA, however, provide more detail even if they do not create the same level of outrage.  Six complaints deal with the wage and hour violations.  The remaining complaints  –  with the possible exception of those relating to Nehro  –  may prove to be much more troubling for the industry as a whole.

PETA’s complaint to New York’s Gaming Commission makes two allegations.  One had to do with Blasi’s knowledge that a jockey used by Asmussen’s stable used an electric shock device or “machine,” although PETA explicitly states it had no knowledge of when such a device was used.

The second part of the complaint concerns the administration of Lasix.  PETA alleges that Lasix was given to all of Asmussen’s horses when they were scheduled to work or race, regardless of whether there was a need for the drug based on the horse having previously bled.  One veterinarian was quoted as saying the drug was given because it is a “performance enhancer.”  Additionally, there is an accusation that vets working for Asmussen would sign blank forms required by the state prior to administering Lasix.  The complaint alleges that barn staff would then fill in the horse’s name prior to a work or race.

In addition to the complaint filed with the Gaming Commission, PETA also filed with the New York board that licenses veterinarians, claiming that two vets used by Asmussen improperly administered drugs without medical justification, including Lasix, Sucralfate and Thyroxine.

Whether or not Asmussen’s staff or veterinarians violated the Lasix regulations is a much less consequential question than whether either of the New York regulatory agencies  –  or their counterpart in Kentucky  –  uses its authority to conduct a more sweeping probe.  It strains credulity to think that these practices are unique to Asmussen’s operation.   Saturday’s card at Aqueduct had 76 horses entered by 48 trainers.  How many of those 76 were to run with Lasix?  All but two  –  both first time starters.  Are we to assume that each of the 74 has a documented history by a veterinarian that it had bled during a race or workout  –  as required by New York’s regulations?  I doubt there are many knowledgeable race trackers who would take a short price on that proposition.

An investigation into whether drugs are being administered as part of a therapeutic regimen to treat a specific condition, rather than to enhance performance, could go a long way in dispelling the impressions left by the PETA video.  It would also bolster the arguments of some racing proponents that ours is an industry capable of self-regulation.

The racing industry is actually filled with numerous committed, knowledgeable and thoughtful people who truly care about the sport and the well-being of its equine and human participants.  I got a chance to meet a number of them at those seminars in Saratoga last summer and was quite impressed.  Unfortunately, the same cannot be said about those who actually control the racing at major tracks.  New York is run by inept political appointees, Churchill Downs seems preoccupied by how much money they can extract from the Kentucky Derby, and Santa Anita and Gulfstream are owned by Frank Stronach.  When a NYRA Board meeting is obsessed by the quality of the service at the Aqueduct restaurant instead of a serious issue, it is clearly a group that simply does not get it.

The NYRA Board members always nod in unison when someone observes that the public’s perception of racing is ruined by the one bad apple using drugs illegally.  Yet, we have Hall of Fame trainer Baffert acknowledging ignorance of the effects of a drug he gave to all his horses, and certain Hall of Fame trainer Pletcher administering a cornucopia of medications to a horse who then suffers a catastrophic breakdown.  And Asmussen was on this year’s Hall of Fame ballot until the PETA story broke and the Hall removed his name from nomination.

The question for the racing industry, of course, is where do we go from here?  Unfortunately, there seems to be two likely possibilities, although they are not mutually exclusive.  One is that the continuing cascade of negative media attention will further erode the sport’s popularity.  That one appears to be inevitable without some significant action.  When The Atlantic runs with the PETA story  –  in a compelling piece by Andrew Cohen  – you should know you are in trouble.

The other is that the PETA video, despite its obvious flaws, will become a powerful incentive for governmental action.  There’s a reason for the old saw, “a picture is worth a thousand words.”  Already there is legislation in Congress to place the United States Anti-Doping Agency in an oversight role for racing.  Federal prosecutors in Pennsylvania have brought criminal wire fraud charges against three trainers for either illegally administering drugs or simply possessing syringes and impermissible drugs.  And now, ten government agencies will be investigating the actions of Asmussen, Blasi and their veterinarians.

Perhaps the most common proposal is for a national organization with a commissioner akin to what we have in other major sports.  Charles Hayward, former head of NYRA and now the President of the new on-line publication Thoroughbred Racing Commentary, seems prescient in addressing this issue just over a week ago.  For reasons that are distressingly compelling, he cites the major impediments to that happening here.  Yet he does provide a possible solution in the experience in Britain with their racing authority.

I think Hayward is correct in saying that an all-encompassing organization that controls everything from marketing to licensing rights to drug regulations is too much to hope for right now.  But a necessary and useful first step would be a consensus on medication policies with a national drug czar, even if his or her authority is limited initially to operating from a bully pulpit.  If it is not one selected by the racing industry, it could well be one picked by the federal government.

“New” NYRA continues to flout law

Posted by noonante on March 17, 2014
Posted in: Horse Racing, Political/Social commentary, Politics, Uncategorized. Tagged: , , , , . 1 Comment

It’s been more than 10 days since the New York Racing Association was found to be in violation of the public records law and directed to provide documents to me “without further delay.”  But NYRA has refused to turn over CEO Chris Kay’s contract and his performance goals that will be used to determine if he is entitled to a $250,000 bonus on top of his $300,000 salary.

I originally requested the two documents in August, was refused by the public records officer, appealed and was denied by the NYRA appeals officer.  I asked the state agency responsible for monitoring the public records law for an opinion.  Their decision rejected every argument NYRA used to deny access.  NYRA’s lawyer is now saying they need more time to “review” a decision that is perfectly clear.

Now it is one thing to have a good faith dispute over the application of the public records law to particular documents.  While I thought NYRA’s reasons for denying access were bogus and not supported by any of the numerous decisions by New York’s Committee on Open Government, I realize that is what lawyers do.  (Full disclosure:  I am a lawyer.)  Now that the Committee has ruled  –  leaving no wiggle room  –  one can only surmise that NYRA has something to hide.

While one expects a government agency  –  which NYRA is  –  to comply with the law, what I find particularly aggravating is the blatant hypocrisy of top government officials in proclaiming their commitment to open government and then ignoring it.

When Governor Andrew Cuomo wrote the law that allowed the state government to seize control of the “old” NYRA, he entitled the legislation the “New York state racing franchise accountability and transparency act of 2012.”  The Chairman of the Board of the “new” NYRA, David Skorton, announced that he wanted to be “very public” about the potential bonus for CEO Kay being tied to serious performance goals.

Cuomo and his allies are never hesitant about criticizing others for the moral lapses that would not taint his administration.  When the Cuomo-appointed Moreland Commission request for documents was resisted by the Legislature, he pontificated:  “This effort is all about restoring the trust, and restoring people’s faith in government, and I think the more information the better….”  The Moreland Commission spokesperson said, “As the old adage goes, if you’ve done nothing wrong, you have nothing to hide.”  (Quotes are from the Times Union.)

Then there is Robert Megna, who is Cuomo’s Budget Director and a member of the new NYRA Board.  He is also a member of the Committee on Open Government (as is Cuomo’s Lieutenant Governor Robert Duffy).  When the Cuomo Administration was working to force out the “old” NYRA  –  which was not a state agency and thus not subject to the public records law  –  Megna was openly critical of that Board’s failure to produce information about the CEO’s contract and other documents.  Here is what Megna wrote to the then-Board Chairman:

This continuing failure to [produce documents] not only casts doubt upon NYRA’s good faith, but it also demonstrates a basic lack of moral character and fitness to fulfill its obligation as the thoroughbred racing franchisee under the [law].

What we are left with, then, is wondering what it is that NYRA is so intent on concealing.  Of course, perhaps it is not just NYRA.  No state agency in New York so much as restocks toilet paper dispensers without getting the approval of the Governor’s office.  We know Andrew Cuomo has sights on 2016, wishing to run up a victory margin to bolster his chances  –  just like Chris Christie did  –  so maybe he also wants to hide embarrassing details about the Kay contract.

NYRA Board continues to spin its wheels

Posted by noonante on March 10, 2014
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , , . 2 Comments

If you were hoping for a vision of the future for New York’s racing  from last week’s NYRA Board meeting, it was just more deja vu all over again.

The Wednesday meeting was the 11th of Governor Andrew Cuomo’s “Reorganization Board” and comes a little over a year before the Board must recommend legislation to remove state government from running New York’s racing.  Given an abbreviated meeting that focused on the filthy conditions at Aqueduct Racetrack, however, you would not know what potentially significant changes may be on the horizon, let alone just off shore.

I am beginning to appreciate what it must be like to teach a junior high school class.  I am not sure any Board member takes notes or can recollect what occurred at a prior meeting.  The main topic for any meeting tends to be what a member just says off the top of his head.  (I use the male pronoun consciously.  Of the 21 Board members, 20 are white men.)  This month the topic du jour was the conditions at Aqueduct.

One would think the conditions have to be deplorable since the Board member who raised the issue  –  Len Riggio  – saw his undefeated colt Samraat prevail in a stirring stretch duel over two others, putting him squarely in the Kentucky Derby picture.  Yet his experience, and that of his guests, was diminished because of an Aqueduct he described as “dirty” and “dangerous.”

I must say I was surprised that the cleanliness of Aqueduct is still an issue since it was also the main topic of conversation at the Board’s initial meeting in December, 2012.  A month later, then-CEO Ellen McClain announced that NYRA had taken over cleaning the facility from Genting, the racino operator that co-locates its Video Lottery Terminals at the Aqueduct facility.

It turns out that NYRA is not yet responsible for the food service and cleaning of the areas where food is served  –  which is where Riggio had his Gotham Stakes experience.  The portion of the facility that NYRA is responsible for?  Check out the photographs from Alan Mann’s blog Left at the Gate.  It may not be the box seats at Saratoga, but it rather obviously is not dirty or shabby.

Yet no one disputed Riggio’s assertion that Aqueduct is “dirty” and “dangerous.”  No one  –  neither another Board member nor any member of the NYRA staff.  And this from a group that never shrinks from proclaiming its commitment to bringing new fans to the sport.  Predictably, the news coverage of the meeting was dominated by the conditions at the track as reported by a single Board member.

This discussion did, however, highlight two major shortcomings of the Board under the leadership of David Skorton, the President of Cornell University.  The first is the lack of a meaningful or useful agenda.  Unless there is a truly insignificant issue  –  for this meeting it was the election of two Board members to a committee  –  each agenda looks like every other one:  CEO’s report, CFO’s report, Chairman’s report, etc., etc.  There is never a specific topic on the agenda that would warrant a Board consisting of successful businessmen and professionals to actually put some thought into an issue prior to discussing it.  Accordingly, the meeting then revolves around whatever random thought a particular Board member may utter, provided he gets it out before any other member raises his pet peeve.

The second problem is the lack of any sense there is a long-term vision, and a total lack of follow-up on any matters that require planning and execution.  The condition of the food services at Aqueduct is a perfect example.  At his first meeting in December, 2012, Skorton directed McClain to prepare a report on the contract with Genting because it was responsible for food services and cleaning the facility.   At Wednesday’s meeting  –  15 months later  –  that same contract was cited as an impediment from NYRA being able to improve the conditions in the dining area of which Riggio complained.

Another example stems from the bizarre reality that you can bet on a horse race in Hauppauge, Hoosick Falls or New Lebanon, but not in Manhattan.  McClain identified the locating of betting terminals in New York City restaurants as a major priority.  Two of current CEO Chris Kay’s top priorities are improving customer service and bringing financial stability to NYRA.  Yet the proposal to expand wagering in New York City  –  an important way to both increase customer service and assist NYRA financially  –  has gone nowhere.

Chairman Skorton does, however, persistently insert, in an almost subliminal way, certain themes.  For this meeting there is his view of the necessity of NYRA operating without the revenues from the VLT terminals.  This has been a constant refrain over recent months.  Then there was the spectre of NYRA having to soon make some “really hard decisions.”  He did not identify what any of those hard decisions might be.  And no one asked him.

Because of the immediacy of making those decisions, Skorton raised the possibility of having more frequent Board meetings  –  the next scheduled one is after Memorial Day  –  and said it should be discussed at the end of the meeting.  There was certainly a sufficient amount of time  –  the scheduled two-hour meeting adjourned in 80 minutes  –  but the subject apparently slipped his mind and no one else raised it

NYRA is facing major issues  –  continuing Aqueduct as a race track, operating without VLT revenues, and the structuring of the next new NYRA which has an expiration date of October, 2015.  When Chairman Skorton raised the possibility of more frequent meetings, it was with the notion of discussing these matters in a public forum.  While open discussions are the way to go for a government agency that controls an industry employing tens of thousands and has such an impact on New York’s economy, I doubt that there really is a desire to have those talks in public.  The deafening silence to his proposal  –  as well as his forgetting about it  –  is sufficient testament to that.  Or perhaps it is another example of the short attention span of the Board.

Skorton did let slip a very revealing comment during the meeting.  In stressing the importance of balancing NYRA’s budget, he said it was to aid those people coming next to run NYRA.  Then he said the next people are “hopefully us.”

That may be his hope, but there are many who think New York has already had enough of Andrew Cuomo’s control of New York racing.  And what can you say about a group that spends fifteen months talking about  –  but not fixing  –  the problem of a dirty restaurant?

State says NYRA Board violates law

Posted by noonante on March 8, 2014
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , . 1 Comment

The state agency that monitors compliance with the public records law has determined that the New York Racing Association Reorganization Board has violated provisions of the law.

I had requested copies of NYRA’s contract with CEO Chris Kay and the performance goals established for him by Board Chairman David Skorton.  NYRA refused to provide the documents, raising several arguments including that Kay had a right to privacy.  The Committee on Open Government rejected all of NYRA’s assertions, concluding NYRA should provide the documents to me “without further delay.”

When NYRA decided to hire a new CEO a year ago, it established the salary for the position at $300,000 with an additional $250,000 to be paid based on satisfying performance goals.  Chairman Skorton referred to these goals as a “balanced score card” and boasted that he was a “hard grader.”  He also said that he wanted to be “very public about this.”

His desire to be public apparently did not extend to letting New York’s citizenry know what a state agency expects from a guy bringing in $5,769.23 per week  –  before the bonus, that is.   In overturning NYRA’s refusal to make the documents public, the Committee on Open Government concluded “that a contract between an agency and an individual … must be disclosed, for it is clearly relevant to the duties, terms and conditions reflective of the responsibilities of the parties.”