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HISA opponents: You are not serious people

Posted by noonante on October 11, 2023
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , . 1 Comment

Forgive me for appropriating one of the great lines from the Logan Roy character in Succession. But nothing can encapsulate better the opposition of those opposed to HISA and their chief enabler, the National Horsemen’s Benevolent and Protective Association (NHBPA).

HISA, the acronym for both the law and the agency overseeing it (the Horseracing and Safety Integrity Authority), is implementing uniform national standards governing thoroughbred racing in the country. It is the first time this has been attempted and follows decades of complaints about the lack of uniformity as one moves from state to state.

The law was signed in late 2020. HISA (the Authority) developed and promulgated regulations and established an agency that would oversee and enforce its requirements. Track safety standards were implemented in July 2022 and the Anti-Doping and Medication Control Program took effect in May 2023.

The need for an agency that would be responsible for a national uniform program of health and safety has been controversial since its conception – even though every popular sport in the United States has such uniform oversight. The proponents emphasized concerns about health, safety and integrity. The opponents stressed that those from “outside” – however that may be defined – would not be familiar with the sport and the training of horses

The NHBPA became the most outspoken critic of HISA, including participating in lawsuits to stop the program. Their legal opposition centered on the constitutionality of the HISA law, and they obtained an injunction upheld by the Fifth Circuit Court of Appeals. The law was then amended to remedy what Congress believed to be the legal infirmity. The case is now again before the Fifth Circuit challenging the amendment.

Congressman Clay Higgins, a Republican from Louisiana, recently introduced the Racehorse Health and Safety Act (RHSA) to replace HISA. It has been endorsed by the NHBPA and many of its affiliates across the country. The urgency with which the NHBPA views improving safety and health can best be demonstrated by reviewing the timeline predating the filing of this proposed legislation.

The NHBPA was established in 1940. While it purports to represent “over tens of thousands of horsemen” through its affiliate organizations, it does not have such organizations representing the thoroughbred horsemen and horsewomen in California, New Jersey, Maryland, Delaware, Gulfstream Park and the tracks of the New York Racing Association.

To my knowledge, this is their first effort to support national legislation to reform racing. The filing of this bill last month is more than five years after the legislation that became HISA was introduced and publicly discussed among racing leaders and participants. HISA became federal law almost three years ago. Since that time, the governing authority (HISA) has promulgated proposed regulations, accepting comments to those regulations and finalizing them. It has since implemented the major components the law while simultaneously defending it in multiple court rooms.

I suppose one could commend the NHBPA for its deliberate approach in championing legislation that would address any flaws with the current law and incorporating the input of the many stakeholders in racing, but let’s look at what this proposed legislation would do:

  • Repeal HISA immediately, not replacing it with anything in the interim;
  • Delay the implementation of the bill’s new provisions for a minimum of two years after the effective date of the new law;
  • Allow for the law to never take effect if a sufficient number of states (two) do not sign on to this voluntary program;
  • Allow states to retain the enforcement of the law’s provisions instead of a uniform national system that would do that;
  • Remove the long-standing trainer responsibility principle for medication violations and replace it with a rebuttable presumption; and,
  • For the medication control committee, allow for a majority of members to be appointed by – wait for it! – the NHBPA.

This is legislation that would not result in anything positive for the health and safety of the equine and human athletes in racing but would set us back to a time even worse than what caused the realization that racing needed to reform or face extinction. The rhetoric accompanying the announcement of the bill’s introduction portrayed serious flaws in the agency implementing the federal law, and placed racing on “life support” because of HISA according to the President of the NHBPA.

Not to be outdone, the NHBPA’s long-time accomplice in opposing HISA, the Association of Racing Commissioners International (ARCI) released a report purportedly assessing the results of HISA thus far. To describe it as shallow and shoddy would be charitable. It could not even report accurately the implementation date of HISA’s Anti-Doping and Medication Control Program on May 22, 2023. Instead, it repeatedly said it occurred two months before. While this may seem an insignificant error, it was a date widely reported in the racing world, and perhaps they thought it would add a veneer of credibility to their “analysis” if it covered six months instead of only four. And if there was any part of the racing industry that should know better, it was these same racing commissioners for whom this was a vitally important date.

While the opponents cite a constitutional principle as driving their views, I doubt that even a handful could identify what that principle is. Rather, the opposition is predicated on some of the traditional standbys of those opposing change in their own particular field – protecting one’s turf. The NHBPA appears to exist solely to have their CEO appear at industry conferences and an occasional legislative hearing. The ARCI has a more immediate threat in that the HISA law would subsume many of their own regulatory duties. (Not knowing the correct date of HISA”s medication reforms is perhaps a useful indicator of how well they do those jobs.)

Another complaint, of course, is denigrating their replacements as outsiders who do not know what they are doing. Liza Lazarus, HISA’s CEO, has come under particular criticism for not being knowledgeable about racing. It is harder to direct that criticism against some of her lieutenants such as Mary Scollay or Jennifer Durenberger who have years of background in both racing and management oversight. But all one fair-minded person has to do is listen to any of the numerous sessions that HISA management, particularly Lazarus, has conducted with both racing groups, but more importantly with any of the numerous sessions conducted with on-track personnel. They also regularly contribute up-dates with the industry’s trade publications.

They, first of all, do such sessions, some of which are available on-line. They are knowledgeable, committed, and responsive to concerns. In a most remarkable attribute for those in positions of authority, they acknowledge mistakes and take steps to correct them. Are they perfect? Of course not. But they are willing to listen and make improvements.

But I suspect the true motivating factor behind much of the opposition is drugs, particularly Lasix. Lasix is an approved medication and is still permissible for administration on race day in most races (excepting two-year olds and stakes) in every jurisdiction in the United States. It is not permitted on race day in any other country in the world of which I am aware. Its purpose is to address pulmonary bleeding, although its fervent proponents recommend it as a prophylactic measure. (I have experienced a veterinarian recommending it following a race even though the horse did not bleed.) The HISA law calls for a study on its effectiveness.

While this has been a controversial topic in the past, and often generated spirited debate, the discussion of it has been remarkably muted in this discussion of HISA and its effectiveness. I suspect the reason is that HISA opponents do not view this as a particularly propitious time to be advocating for race day medications. Their place holder argument has become HISA’s preventing veterinarians from practicing medicine in a manner beneficial to horses. Thus we have the President of the NHBPA (and a veterinarian) arguing in an opinion piece, “the answer to cleaning up the industry cannot be to kill the industry entirely with a sledgehammer by eliminating veterinarians’ ability to properly practice through therapeutic medications.”

HISA, of course, does no such thing. But it is easier to raise bogus arguments about the constitution and the purported failings of HISA (both the agency and the law) than publicly admitting you seek a return to the halcyon days of more limited regulation of racehorse doping by the states. We should not forget that one of the prime factors behind the enactment of HISA was the massive (and successful) federal prosecution of numerous trainers and veterinarians that resulted in Jason Servis, Jorge Navarro, and their enabling veterinarians serving time in federal prisons. The favored approach of the NHBPA and ARCI is to restore that era when state racing jurisdictions did nothing to stop the widely perceived cheating and equine fatalities of Servis, Navarro and their accomplices.

“With friends like these….”

Posted by noonante on May 1, 2023
Posted in: Horse Racing, Political/Social commentary. Tagged: , , , , , , , . Leave a comment

The long-awaited national program addressing drugs in horse racing with uniform rules and enforcement was implemented on Monday, March 27. Because of legal action filed by opponents of the new law, an injunction was issued and the federal agency overseeing it suspended it until May 22. While in effect for five days, the world did not come to an end in spite of the fear-mongering and apocalyptic rhetoric of those denying the evident need for reform in racing.

Leading the opposition over the years have been organizations such as the National Horsemen’s Benevolent Protective Association, some individual state HBPA’s and the Association of Racing Commissioners International. While their legal objections focus on the purported unconstitutionality of the Congressional legislation — the Horseracing Integrity and Safety Act — the quarterly publication of the NHBPA I received recently presents different concerns.

An article by Tom Law and Jennie Rees in something called The Horsemen’s Journal has the sub-heading “Overreach of [HISA] permeates the horsemen’s gathering” of the first-ever (!!!) national meeting of the NHBPA and ARCI. It provides a wealth of comments by those opposing the law and none from anyone thinking reform is long overdue. Their opening sentence summarizes the tone of the sessions succinctly, referring to “discussions offering critiques and alternatives to costly federal regulations wreaking havoc throughout the Thoroughbred industry.”

Their so-called “alternatives” are both fanciful and delusional. They do not propose alternatives to the detailed regulations of HISA concerning either track safety or medication protocols, but rather — brace yourself — voluntary interstate compacts. The NHBPA’s General Counsel said such compacts allow for “responsive and quick resolution.”

There was no explanation for why their perceived obvious and meritorious solution had not been achieved in the more than two years since HISA became law, let alone since the NHBPA establishment in 1940 nor ARCI’s creation in 1934. There are, however, two possibilities. One is that neither organization sees the need for change. The other is that neither group truly represents the racing community beyond their own parochial interests.

While the NHBPA has the word “national” in its title, it consists only of “affiliate” organizations throughout the country, but not necessarily representative groups. Among the major racetracks not included are those in California, New Jersey, Maryland, the NYRA tracks and Gulfstream Park. They make no effort to solicit input from individual horse people. Indeed, this publication neither solicits opinion nor publishes views that detract from their party line.

The ARCI consists of racing commissions. While one panelist observed: “The bedrock concept of what curbs regulators is the fact that there’s transparency, there’s accountability. And HISA lacks that.” While that comment is from an attorney, he is not stating “facts,” but rather opinion. He obviously has never witnessed a session of the New York State Gaming Commission whose actions and “public” meetings are neither transparent nor accountable.

The only other state commission I am familiar with is that of California. Their public meetings are indeed public and sometimes lengthy (one lasted seven hours). Following a raft of breakdowns in 2019, Governor Gavin Newsom overhauled the Horse Racing Board that then came up with a number of positive changes improving the safety conditions for horses and humans. They have fully embraced the HISA reforms.

Other comments from the panelists were almost completely devoid of substance. One, from a “pro bono” law firm was almost Zen-like: “Uniformity should exist across jurisdictions, but uniformity should also exist across time.”

And despite all the fake concern about Constitutional standards, the bulk of the criticisms of HISA and the law were based mostly on personal grievances or imaginary issues. When they complain about horse people not being consulted, they mean they were not. The NHBPA CEO Eric Hamelback expressed it: “[W]e want to make sure the right participants are helping to make the decisions. I see it as the right participants are in this room.” In the decades I have been among the horse people they purport to speak for, I have never had my views solicited. Nor can I vote for officers, even though that is something I do in New York’s (unaffiliated) horse persons’ group NYTHA.

The hollowness, indeed, absurdity of the objections of the group were never better highlighted than in an issue of The Paulick Report where the Attorney General of Louisiana opined in an op-ed that “Louisiana horse racing has effectively policed itself for over 200 years” and did not need intervention.

While that comment undoubtedly raised many an eyebrow among horseplayers and observers of Louisiana politics, it ran alongside a report that State Police searching a trainer’s tack room at Delta Downs (in said state of Louisiana) had discovered “59 bottles of injectable medications, 352 hypodermic needles, 256 syringes and 75 packs of Albuterol Sulfate inhalation solution.” These items are considered “contraband,” yet a six-month suspension was stayed by the Louisiana Racing Commission pending appeals.

While AG Greg Landry, the state’s chief law enforcement officer, may cite this as an example of his state’s oversight of racing, we do not know how he would respond to the information that the trainer in question, James Tracy, was licensed by the Racing Commission even though he was under an indefinite suspension by Pennsylvania. As Paulick observed in a subsequent report:  “so much for reciprocity from one racing state to another” — as required under existing requirements. Landry’s piece was featured prominently in this issue of The Horsemen’s Journal.

Landry and another opponent of the new law, Kentucky’s HBPA President Rick Hiles, prefer to raise imaginary problems rather than address substantive ones. A common object of their attacks are the “billionaires” supporting HISA who as Hines stated, are the “powerful and well-financed minority backing HISA [who] opted for class warfare.” Yet Hines cannot even keep straight what his complaint is. While complaining that the NHBPA and ARCI were not “invited to the table” discussing reforms, he boasts that the efforts of those groups have forced HISA “to make substantial improvements.”

Are there issues with HISA? Of course there are. They are attempting to implement a federal law intended to overhaul the conduct of a sport that many of its participants believe is in drastic need to not just improve but survive. The drivel that emanated from this joint conference of self-appointed representatives not only did nothing to move that ball forward, but their distorted view of “success” would jeopardize racing’s future.

Current crisis – will anything change?

Posted by noonante on March 16, 2020
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , , , , , . 1 Comment

Horse racing needed another story in order to attract national attention.  In the past year we had the crisis on fatalities at Santa Anita.  Then there was the story about the 2018 winner of the Kentucky Derby failing a drug test that could have prevented him from even running at Churchill Downs.  So in the past week we read about the FBI arresting 29 racing figures for allegations of illegal drugging.  Oh, one of those arrested was the trainer of the horse that finished first in the 2019 Kentucky Derby.

The arrests are the result of indictments obtained by the Southern District of New York, justifiably feared by society’s miscreants.  The defendants include thoroughbred and harness trainers, veterinarians, and enterprising entrepreneurs aware of the market for illegal drugs in racing.  The most prominent trainers are Jason Servis, trainer of Maximum Security, and Jorge Navarro, trainer of X Y Jet who won the $2.5 million Golden Shaheen last March in Dubai.

The allegations are sickening.  You can read the main indictment here. In addition to  giving Performance Enhancing Drugs (PED’s) to top race horses, the defendants are accused of using and producing drugs that cannot be detected by traditional testing mechanisms.  One defendant accused Navarro of surreptiously killing six horses.  X Y Jet died in January, 2020, of a heart attack according to Navarro.  The indictment does not charge crimes regarding any of the seven fatalities.  (While the drugs are referred to as “performance enhancing,”  it often comes at the cost of making a horse more susceptible to injury, including ones that result in its death.)

The indictments represent the most significant threat to the viability of racing since the Santa Anita fatalities.  As can be expected, the responses from leading industry figures are predictable.

If one were a bettor, the odds-on favorite for making the most tone-deaf and inane comments would be Ed Martin, President and CEO of the Association of Racing Commissioners International, who took the time to pen an op-ed in The Paulick Report.  Martin proclaimed “this is not a negative for the racing industry, but testimony to the fact that the system can and does work….”

That’s right, the system works.  That is, it works if prominent trainers can administer thousands of illegal drug doses over a period of years to horses running in some of the world’s most prestigious races, but are not brought to justice by state racing commissions and regulatory bodies but by federal law enforcement agencies.  (The nonsensical “system works” pap was also pronounced by Joe Appelbaum who heads up the New York organization representing owners and trainers.)

Martin explains how well the system works:

“The severity of the allegations should come as no surprise.  Illegal drug manufacturing and distribution, falsified veterinary records and prescriptions, fraudulent labeling, and illegal doping of horses have all been openly discussed at ARCI meetings in recent years….”

“Openly discussed” in “recent years.”  This is the organization that represents the state agencies responsible for enforcing anti-doping policies who apparently were powerless to combat widespread abuse.  Over those same years that the “enforcers” were fretting about doping, there have been people willing to speak out about the doping abuse in racing.  Martin would disparage those folks as a disservice to the sport, even suggesting they were the real problem.

Martin is also a constant proponent of racing being “clean”  –  indeed, the most drug-free of major sports  –   because less than one per cent of post-race testing indicates a drug overage.  He never says that’s because the testing is limited and cannot identify those illegal drugs that are at the core of the federal indictments.

Martin’s real agenda is to say whatever he needs to in order to prevent what a sizeable chunk of people think is the only real answer to save racing  –  the Horse Racing Integrity Act, sponsored by a bipartisan majority (really!) in the House of Representatives.  As he said, “nobody needed a federal bill to make [the indictments] happen….”  That is, of course, true.  You may agree that two trainers administering thousands of illegal drug dosages over a period of years is an acceptable price to pay for not disturbing the incompetence, inertia and indifference of many of the 38 separate state regulatory bodies.

As with many trade organizations, the ARCI exists to protect the interests of its constituents, and not the broader interests of those affected by the decisions of those members.  And the Horse Racing Integrity Act would do just that.  It would replace the current patchwork of 38 separate state bodies that are responsible for setting drug policies, investigating abuses and meting out discipline to violators.  The United States Anti-Doping Agency (USADA) would oversee an independent body that would assume the drug oversight from the state bodies.

One of the most significant problems confronting racing is that no one is in charge.  In addition to those 38 state agencies, we have the ARCI, RMTC, NTRA, NHBPA (and its state affiliates) and, of recent vintage, the Thoroughbred Safety Coalition.  I seriously think that if you asked a casual observer to name one figure associated with horse racing, the majority would pick Bob Baffert.

Graham Motion, who supports the federal legislation and is one of the sport’s more respected trainers, recently said in Thoroughbred Daily News, “We cannot police our own sport. … we can’t just keep on creating committees.”  Putting USADA in charge of drug policy and enforcement would not mean they were in charge of the whole sport.  But it would mean there would be a national, credible, and independent voice that could address the inevitable future scandals.

And let us make no mistake.  There will be future scandals.  The allegations of the indictments are, in part, based on wiretaps and informants, and now there are reams of documents that will prove to be incriminating.  How would you like to be one of the “customers” of the  ring run by defendants Scott Mangini and Scott Robinson who allegedly sold “millions of dollars worth of … PEDs” between 2011 and 2020?  I doubt that Servis and Navarro were their only customers and I suspect there will be some massive flipping about to occur.

Can the racing industry respond in a meaningful manner?  I seriously doubt it.  The rash of anodyne statements from leading organizational figures (“the health and safety of the horses is paramount, blah, blah”) is no longer going to be sufficient.  Years of inaction on meaningful reform means there is no sensible person  –  either inside or outside the sport  –  who thinks the industry is capable of self-regulating.

It is time to realize that the real decision makers are the general public and their representatives in elected bodies throughout the country.  When The Washington Post editorializes in support of abolishing racing  –  “Horse racing has outlived its time”  –  the bell is definitely tolling.

If those with knowledge, passion and more than rhetorical care for the safety of horses do not martial their forces, the end of racing may very well be near.

Will New York be next in the spotlight?

Posted by noonante on October 3, 2019
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , , , , , , , , , , , , . Leave a comment

“As the racing world holds its collective breath, Santa Anita opened its fall meet  –  leading to the Breeders’ Cup  –  on Friday.  The one certainty is that any equine fatality will become a national media story.  If there is a second, the calls for outlawing the sport will increase.”  I wrote that Saturday morning.  Saturday afternoon, Santa Anita experienced its first racing fatality and the second since training resumed.

Santa Anita is in the national spotlight because there have now been 32 fatalities on its tracks this year, both in racing and training.  While there are several tracks in the state, Del Mar, the only other one that gets national attention, just concluded its recent meet with no deaths.

New York has four thoroughbred tracks, with Saratoga and Belmont being the most prominent.  New York has so far escaped the level of scrutiny that makes for the daily drama at Santa Anita. It is not, however, because the level of fatalities at New York’s tracks is not in the same ballpark.

If we only look at Saratoga and Belmont, there have been 36 total fatalities this year, including both racing and training.  Aqueduct, which races for the six months not covered by that pair, has had four.  Finger Lakes, a track not run by the New York Racing Association, has had 10.

I am not using these numbers to suggest that there is some sort of meaningful comparison that can be made between safety in California and New York.  There are numerous variables that must be considered in making any conclusions based strictly on numbers.  And California still has not stated publicly if it has determined the reason for the spike in fatalities earlier this year.

My point is that there is another high-profile racing jurisdiction that may have dodged the bullet of national scrutiny, but that it is living on borrowed time.   And that borrowed time may also be true for the racing industry as well.

The Stronach Group that runs California has undertaken a number of reforms to address the crisis.  Among the more controversial steps have been restrictions on the use of the whip and a gradual phase-out of the race-day medication Lasix.  It has also increased significantly pre-race veterinary examination protocols and is now requiring advance notice of morning works and pre-work veterinary reviews.  California’s regulatory body, the Horse Racing Board (CHRB), has been extensively involved in discussing and approving safety iniitatives.

While The Stronach Group and the CHRB are addressing both safety concerns and the increasingly negative perception of racing with imaginative and forward looking steps, the same cannot be said of its counterparts in New York.  NYRA is the parallel of The Stronach Group and the New York State Gaming Commission is the regulatory body akin to the CHRB overseeing horse racing.

New York experienced its own high-profile crisis with equine fatalities in the early part of 2012 at Aqueduct Racetrack.  Governor Andrew Cuomo directed an investigation by a panel of experts who came up with a 100-page Report looking at possible causes and recommendations for improvement.

One of the recommendations was that the regulatory agency “should expand its recently enacted out-of-competition testing rule” to include additional medications.  It is a recommendation Governor Cuomo specifically cited when he directed the regulatory agency to adopt it.  (Out-of-competition testing is not to be confused with the standard post-race drug testing that is commonplace.)

Out-of-Competition Testing (OCT) is universally accepted as a necessary component of any program to detect cheating in sports.  It is a tool used by the United States Anti-Doping Agency to catch cheats in cycling and track and field, and by the major team sport leagues in America.  Even the Ultimate Fighting Championship has an effective program.  Dr. Rick Arthur, the Equine Medical Director for the state of California, has said that without an out-of-competition testing program with teeth, you won’t have a real anti-doping program.

So how is New York doing?  I have been submitting public records requests for New York data going back to January 1, 2014.  More than five and one-half years later, New York has never identified a thoroughbred horse that tested positive in an out-of-competition test.  Never.

That may be because they do not conduct the unannounced surprise testing that is an essential component of an effective program.  New York’s Gaming Commission instead announces they will be conducting OCT on horses in the days before a Grade I stake worth a million dollars.  The lone exception to this was a low-profile trainer who had some negative media attention before the horses in his barn were tested.  (The treatment of low-profile trainers in contrast to the “super trainers” is a subject for another article.)

There is another matter that Governor Cuomo directed his regulatory agency to implement from the 2012 Task Force Report.  That would be a regulation governing the purse value in claiming races, or the “purse-to-price ratio” that I have written about several times.  Dr. Scott Palmer, DVM, who chaired the Task Force and is now New York’s Equine Medical Director, said:

 … there’s some very good research that’s shown that there is an increased amount of risk of catastrophic injury for horses in claiming races where the purse to price ratio is greater than 1.8 to one.  This is a very sound piece of scientific information …”

(The ratio compares the purse value to the claiming price.  A 1.8 ratio means that the purse cannot exceed $36,000 in a $20,000 claiming race,).

Palmer’s comment was made in a meeting of the Gaming Commission that caused me to wonder if I was hearing things correctly.  Because he was advocating for increasing the ratio over its then-level of 2.0.  So at a time when the nation’s public attention to racing was largely concerned with fatalities at Santa Anita, we had New York’s Equine Medical Director proposing a rule change contrary to that of his own Task Force (and the Governor’s explicit directive) that would lessen safety protections for horses and jockeys.

Over a five-week period beginning in August, three of the fatalities from racing at Saratoga and Belmont came where the purse-to-claim ratio exceeded Palmer’s standard of 1.8.

One can certainly argue that increasing the purse in a claiming race is not going to cause a catastrophic injury.  One can similarly argue that Lasix was not the cause of the fatalities at Santa Anita.  What would seem to be inarguable, however, is that horse racing has a serious public perception problem, and that the use of race-day medication and the Palmer-backed change is not going to convince a skeptical public that racing is doing everything it can to protect horses and jockeys.

While California has The Stronach Group and the CHRB acutely aware of the need for public support, it also has a Governor and a United States Senator who have already made public comments raising a possibility that horse racing could be abolished.  If New York’s racing leaders think Governor Cuomo will stand with them if the state begins to experience a similar level of controversy, it time for them to stop deluding themselves.

The Thoroughbred Daily News had a recent feature in which it asked prominent racing insiders to comment on a controversial proposal by The Jockey Club to regulate breeding.  A common thread of many responses was that the industry had more important issues, implicitly saying that the sport could only focus on one matter at a time.  Much to my delight, TDN is now asking “what would you do to improve the sport?”

The first respondent identified free past performance data as his top priority.  That’s right.  An industry is confronting a legitimate existential crisis and the most important matter is getting free PP’s into the hands of those who don’t want to spend $4 to get a racing card from The Daily Racing Form.

This is a level of obtuseness that may be the second biggest threat to racing’s survival.  The national racing organizations  –  with the notable exception of The Jockey Club  –  are bereft of ideas and are instead clinging desperately to maintain the status quo, even though that status quo has seen constantly declining metrics on the sport’s perception.

One such group, the National Horsemen’s Benevolent and Protective Association, recently put out a statement advocating the retention of Lasix on race day.  Then there is the Association of Racing Commissioners International  –  possibly in an effort to emphasize their cluelessness  – said that if the horse people who cared so much about their horses could not use Lasix, they would start injecting formaldehyde.  Seriously.

New York could join with California and start implementing safety-oriented steps  –  I would start with a vigorous program of Out-of-Competition Testing.  I candidly doubt that New York will take any meaningful actions.  It is yet another reason that those concerned about the future of the sport should push for adoption of the Horse Racing Integrity Act in the United States Congress.

 

 

 

 

Racing is at a tipping point

Posted by noonante on June 1, 2019
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , , . 2 Comments

Recent media coverage of horse racing is starting to feel like beach erosion.  Once it starts, it doesn’t get any better  –  ever.

The large number of fatalities at Santa Anita Park in the first three months of the year was, understandably, the most dramatic and important story.  There were 23 horses who were fatally injured while racing or training at Santa Anita’s tracks after it opened for its annual winter meet on December 26.

Then there was the controversy over the disqualification of Maximum Security who crossed the finish line first in the Kentucky Derby, but interfered with several other entrants including, most significantly, War of Will.  While the stewards made what, in my opinion, was the correct decision, the sub rosa suspicions did nothing to increase confidence in the integrity of the sport.

When War of Will came back to win the Preakness, the non-racing media’s lead was that of Bodexpress tossing his rider at the gate and continuing to run.  This was a remarkable event only to those who have not seen many races.  That both the Derby interference and a loose horse in the Preakness could have resulted in serious injuries to both horses and riders did not seem to be a factor in the national spotlight.

To top it off there was HBO’s Real Sports segment on horse racing last week.  It is not a program I watch, and have only seen this one and the one they did five years ago following PETA’s complaints about the Steve Asmussen barn.  This look at racing every five years was a sickening and horrific look at what are, undoubtedly, some of racing’s worst moments.

As one who follows closely racing, politics and their intersection, I cannot think of a more perilous time for racing’s survival  – and I am not talking long-term.  The rash of deaths at Santa Anita resulted in leading political figures and the Los Angeles Times calling for the suspension of racing at one of the sport’s most prominent venues.   Santa Anita officials did just that in an effort to determine if they could pinpoint the cause of the fatalities.  They have not yet, and returned with a remarkable period of no catastrophic injuries for six weeks, but now experienced three in a recent nine-day span.

It is disturbing, albeit predictable, that new fatalities have caused both Senator Dianne Feinstein and The Los Angeles Times to renew their calls to suspend racing until the reason for the fatalities has been determined.  California Governor Gavin Newsom recently added his voice in endorsing a number of proposed reforms in the state:  “The recent horse fatalities in California are unacceptable.  We must hold the horse racing industry to account.”

There are not many certainties in politics, and politicians have been known, to put it mildly, to change their positions.  But when an elected official takes a stand on an issue that is emotionally charged, they are less likely to back down and will want to see their concerns addressed.

There is no national voice to counter the assault on the sport’s integrity and value.  There are many respected figures in racing, and there are many organizations.  Unfortunately, no individual can speak for the industry, and the national organizations are not only useless, but often downright embarrassing.

Groups such as the National Thoroughbred Racing Association, the National Horsemen’s Benevolent Protective Association and the Association of Racing Commissioners International continue to respond to negative press with the same tired tropes that are easily disprovable or facially ludicrous.  Despite years of repeating the same responses, it has obviously had no impact.

The first is the low rate of horses testing positive for illegal levels of medications in post-race tests.  The rate is a fraction of less than one percent.  That’s partially because testing is only for a limited amount of drugs because the cost of a more extensive regimen is, according to regulators, prohibitive.  There is also a wide range of drugs for which there is either no test or violators are adept at hiding their traces.

The second is the claim that racing has “one of the most stringent post-race drug testing programs in any professional sport,” as stated by NTRA’s CEO in response to the Real Sports segment.  We literally have to go back 41 years to the drug disqualification of Kentucky Derby winner Dancer’s Image to find a horse of equivalent stature to a Lance Armstrong or Robinson Cano penalized for a drug positive.

The key phrase, however, is “post-race drug testing.”  When racing authorities in the United States get serious about drugs, they will emulate  Europe and Hong Kong and have a meaningful program of Out-of-Competition Testing.  California has promised to strengthen their program.  New York’s program is virtually non-existent for thoroughbreds.

Then we have the “those questioning the devotion of horse people to their equine athletes need only to spend a morning walking barns to have such concerns alleviated” line,  also from NTRA’s CEO.  Well, I have spent hundreds of hours on backstretches and taken thousands of photographs.  I have the utmost respect for the hundreds of devoted horse people I have encountered (many of whom are Latino or Latina) who work long hours, often at low pay, and clearly love horses.  I could swear under oath I have never seen a horse mistreated.

I also have visited banks thousands of times and never seen a robbery or a bank executive committing fraud.  I would swear that under oath as well.  That only means that those committed to wrongdoing will do it out of the public eye.

One of the most remarkable refutations of this “feel good” narrative, however, comes from the Association of Racing Commissioners International.  It’s remarkable because of its tone-deaf inability to see one step ahead, let alone several.  Let’s just quote from the group’s May 6 press release:

“All racing regulatory commissions have been put on notice that the banning of voluntary race day furosemide (Lasix) … is expected to encourage a return to practices deemed cruel, inhumane, or potentially dangerous to the health and welfare of a horse. …

Last Friday, the RCI advised Regulatory Commissions to be on the lookout for horses being given intravenous formaldehyde to combat potential incidents of bleeding. …

The ARCI also advised commissions that it is anticipated that some horsemen will return to a practice … [that] denies a horse food and water for twenty-four to thirty-six hours prior to a race.”

So if you are going to see how well horses are treated, avoid those barns starving horses or injecting formaldehyde.

To complete their superfecta of ridiculous defenses, the national groups and their spokespeople also blame the media and those in the industry who, they portray, as negative voices seeking to harm the sport.  Blaming the messenger is never a long-term strategy, and impugning the integrity of many who have devoted their lives to the sport because they seek improvement is as short-sighted.

There are many positive steps being taken to improve the safety of both the horses and the humans who get on their backs.  The Stronach Group’s Belinda Stronach announced a number of significant reforms to address both possible causes of the fatalities and public perception problems in March, many of which were supported in Gavin Newsom’s statement.  There is also federal legislation that would put a national body in charge of administering anti-drug policies, the United States Anti-Doping Agency.

The most publicized reforms have to do with phasing out race-day Lasix and the use of the whip.  While neither may have caused any of the catastrophic injuries, anyone who has spoken with a non-racing fan realizes that these are important perception issues.  And to be clear, the discussion has gone beyond attracting new fans to the sport.  We need to prevent those non-fans from advocating the abolition of all racing.

The Rip Van Winkles leading the national racing organizations may not wake up in time to realize that their strategies are both useless and counter-productive.  They need to take serious steps to embrace meaningful reform.  Washington Post sports reporter Sally Jenkins recently wrote a devastating piece:

“Thoroughbred racing, more than all other sports, confronts the human participants with their own characters.  In any other game, you’re responsible only for yourself.  But racing is all about the handling of the horses:  At the heart of the contest is the matter of trust, the sacred obligation to do decently and right by reliant creatures.  It is the thinnest of lines between a meaningful pursuit and an abuse.  The minute a horse’s best advocate is a Washington politician is the minute that line has been crossed.”

There is a tipping point at which the impetus to abolish racing becomes an irreversible inevitability.  We are quickly approaching that point.  Maintaining a snail’s pace of progress is no longer going to be sufficient to keep racing going.  The time for urgency is now, and not when it will be too late.

Racing’s latest crisis raises questions about its survival

Posted by noonante on April 25, 2019
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , , , , , , , , , . Leave a comment

Thoroughbred racing is facing its latest crisis as a result of a large number of fatalities at Santa Anita Park.  Since its current meet began on December 26, 23 horses have been fatally injured while racing or training.  The Stronach Group that owns and operates Santa Anita responded with measures that are revolutionary in a business that typically moves with the speed of a slow-moving glacier.  They are adopting “house rules” that will prohibit the use of the whip except when needed as a safety measure, and also gradually ban the race-day medication Lasix.  Other medications that are permissible will be subject to stricter standards.

As significant as these changes are, the real story is whether this crisis is the one that will ultimately end the sport.  It is more than a public relations crisis, and is increasingly being viewed as an existential one.

Some people  –  OK, most people  –  undoubtedly view the prohibition on whipping an animal and administering drugs to that animal so that it can race as no-brainers.  That is, if they are not shocked that both practices are currently allowed in all racing jurisdictions in the United States.

California’s racing leaders are seriously concerned that a ballot initiative could ban racing in the state.  One statistic I saw is that placing a measure on the state-wide ballot requires 600,000 signatures and that PETA, a leader in protests over the fatalities, has 700,000 members in California.  Senator Diane Feinstein and Congressperson Judy Chu (who represents the district including Santa Anita) have both expressed serious reservations about the state of racing.  According to Bill Finley in Thoroughbred Daily News, the Los Angeles Times has called for racing to be suspended until the track determines the causes of the fatalities.

Unfortunately, that same sense of urgency  –  and, I would suggest, reality  –  does not apply to other influential voices in the racing industry.

There are the national and local organizations representing trainers and owners.  When these modern-day Rip Van Winkles finally wake up, there may no longer be a sport of horse racing.  The National Horsemen’s Benevolent and Protective Association (HBPA) held its national convention in mid-March as the crisis at Santa Anita was coming to a head.  If you listened to them, you would think the key to bringing in new fans and increasing handle was not in changing a broad-based negative perception, but in providing free past performance data.  I did not see a single media account of any discussion of the situation in California.

It’s not surprising that this group did not want to discuss the reality of what is going on at Santa Anita.  They are in the forefront of the denialism that racing has a significant perception problem caused by the use of drugs.  In written testimony for a Congressional hearing on proposed federal legislation last June, Eric Hamelback, CEO of the National HBPA, stated:

“The support for [the federal legislation] comes from a well-financed vocal minority of owners and trainers … who claim ‘the fragmented system of medication regulation is not working.’  The implication here is that the result is widespread illegal drug use or ‘cheating.’  However, those who make that claim offer no evidence to support the notion of rampant illegal drug use.  That is no surprise because there is none that I know of….

Any asserted problem is one of misperception caused by recurrent sensationalism in the public media….

Horse racing in the United States has the most comprehensive testing program of any sport in the world and employs the most sophisticated and sensitive equipment found anywhere….

… 99.5% of over 354,000 tests of biological samples taken from thoroughbred race horses were negative for drug use….  these results should be the envy of every other sport that tests athletes for drugs….”

There’s a lot to unpack in that brief excerpt.  For starters, the notion that horse racing has the most sophisticated testing that “should be the envy of every other sport” is downright ludicrous.  When a horse of the stature of a Lance Armstrong, Ben Johnson, Robinson Cano or Julian Edelman is sanctioned for illegal drug use we might give some credence to Hamelback’s hyperbole.

The “99.5 per cent” figure is regularly used by the denialists to prove the sport is clean.  I do not dispute that is an accurate number, but it is so high because there are a number of drugs that cannot be detected by the supposedly “sophisticated” testing of Hamelback’s imagination.

The racing media has been filled recently with articles about bisphosphonate.  I had not heard of this one until a couple of weeks ago when the mid-Atlantic tracks and sales companies started restricting its usage.  According to Dr. Rick Arthur, California’s Equine Medical Director, it does not have a legitimate therapeutic use at a track.  The concern, however, is that it can be used on younger horses going through a sale to hide radiographic evidence of a bone issue.  Nice, right, for an industry seeking to convince folks there is nothing to see here?  While sales companies say a horse testing positive for  bisphosphonates can be returned, there is not yet a reliable test when the drug is administered sufficiently far in advance of the sale.  So I guess there would be a 100% rate of sales horses testing negative for bisphosphonates.

Then there is Hamelback’s argument that the “well-financed” proponents of federal legislation are implying that there is “widespread” and “rampant” cheating.  I am not aware of any responsible person associated with racing saying there is “rampant” cheating.  But I have also never met an owner, trainer, track worker, race track employee or fan who does not believe there is cheating.  The widespread perception that cheating is a regular feature of racing, even if limited, is devastating.

Finally, there are the well-worn tropes that “the media” is responsible for the negative perceptions and that “we need to do a better job of educating the public.”  Ed Martin, President of the Association of Racing Commissioners International laments that all the money spent on, among others, “bloggers” could be better devoted to research.  (I take particular umbrage at that one since I have not seen the largesse.)  The difficulty, however, lies in convincing the public that whipping a horse or giving it drugs so it can race are actions inspired by a love for the animal.

We do not know if the causes of any of the Santa Anita fatalities are related to drugs.  From what I know of Lasix, it would be astonishing if the diuretic was the direct cause of any fatalities, let alone 23 of them.  But The Stronach Group’s announcement of a ban had less to do with a possible cause for the fatalities, and more to do with a perception that race-day medications are harming the sport, if not the horse.

The use of drugs in horse racing is more complicated than whether race-day medications should be permitted.  I think there are three categories into which drugs can be grouped.

The first  –  and easiest to deal with  –  are drugs that have no therapeutic value and are only used because of performance-enhancing aspects or to mask pain in the horse.  Out-of-Competition Testing is intended to identify these substances.  But if a state such as New York doesn’t take it seriously, abuse is likely to be more widespread.  New York doesn’t even track the results of whatever testing it does, and in response to a public records request covering periods of several years, could not identify a single thoroughbred testing positive.  Charles Hayward, who just wrote an excellent piece on the medication issue for Thoroughbred Racing Commentary pointed out that California has no penalties for violations.

The second group consists of Lasix.  It is the only medication approved in every racing jurisdiction in the United States for use on the day of a race, but is illegal in every other country with racing.  Its stated purpose is to prevent Exercise-Induced Pulmonary Hemorrhaging  –  more commonly referred to as “bleeding.”  Regulations typically require that a veterinarian must establish that a horse bled in order for it to be given the medication.  The reality is that it is a rule observed more in its breach than its observance.  I have had a vet recommend Lasix even though there was no indication the horse bled.  And the reality is that approximately 95 per cent of the horses on a given race card are being given the drug.

The other reality is that it is a performance-enhancing drug. It causes a horse to lose some 20 pounds in weight because of its diuretic effect.  If weight is not an important factor in racing, we would not give a weight break to apprentice jockeys, nor have “handicap” races in which horses are assigned different weights based on expected performance.  Even those owners and trainers expressing public opposition to Lasix continue to administer it to their own horses so as not to lose what is widely acknowledged as an “advantage.”

The third category is the one that I think would be much more troubling than the use of Lasix but for the fact there is no data on usage.  These are legal and permissible therapeutic medications.  Racing deals with this category by specifying withdrawal times before a race and levels of concentration during a post-race test below which there is no violation.  Thus, New York prohibits the administration of butorphanol  within 96 hours of a race, and a concentration level below 300 ng/ml in a post-race test carries no penalty.

A horse, of course, can experience any number of ailments for which a medication may be an essential treatment.  Standards of veterinary care require that the ailment be diagnosed and treatment recommended by a vet who has examined the animal.  The problem arises when the “legal” drug continues to be administered even after the need for it no longer exists.  There are two examples in recent years in which this has been abundantly clear.

The New York Gaming Commission publishes three days of veterinary records immediately before Grade I races having a purse of $1 million or more.  In the first year of the Commission making these results available, there was a remarkable situation.  One high-profile trainer who had numerous horses entered in such races administered the same drug, with the same dosage, for every one of his horses every day.  It of course defies common sense that this was the result of a vet examining the horse, finding that each had the same condition, and then prescribing the same medication.  I must not have been the only person noticing this seeming anomaly because in subsequent years the practice stopped.

In the other example, a high-profile trainer’s horse was “featured” in a New York Times article because he was one of the fatalities at Aqueduct in 2011-12 that was their own crisis of equine deaths.  The accompanying article stated the gelding experienced pain and cartilage damage from a degenerative joint disease, and had been injected 13 times in the month before the race to treat that condition, including an injection into a joint five days before the race. Again, this was a “legal” drug administered within “legal” restrictions.  It is, however, a medication that if administered in the described manner meant the horse had no business on a race track.  (New York has since tightened its regulations on joint injections.)

Are there other examples today of similarly horrifying stories?  Of course there are, unless you are a hopeless naïf or the head of an organization such as the National HBPA or ARCI.  Is racing taking steps to improve the situation?  They are.  In the examples just cited, New York required reports that resulted in identifying one problem and took corrective actions following the other.  Is the progress sufficient?  Not if you are a horse or a jockey  –  or a member of the general public.

And there are those whose awareness of racing’s current environment are as clueless as that of Rip Van Winkle upon awakening.  Veterinarian Jeff Blea commented that Santa Anita field sizes have been down in recent weeks because of the crisis:

“Trainers are doing their jobs.  Veterinarians are doing their jobs.  People aren’t wanting to push these horses and take those risks like they did before.”

Blea is Chair of the American Association of Equine Practitioners’ Racing Committee, quoted in Thoroughbred Daily News on April 20.

While one might expect that veterinarians would be in the forefront of safety initiatives, his approach is not dissimilar to that of New York’s Equine Medical Director Scott Palmer, DVM, who recently convinced New York’s Gaming Commission to weaken a safety regulation enacted after New York experienced its own crisis of track fatalities in 2011-12.  Palmer acknowledged the increased risk to the horse (and jockey) but thought it could be offset by other measures.

Fortunately, there are industry figures who do not believe there is an acceptable level of horse deaths that will be acceptable to the public.  The first, of course, is Belinda Stronach taking radical steps to address the negative perceptions heightened by the Santa Anita fatalities.

The reforms announced by The Stronach Group go well beyond the banning of race-day medications.  But the Lasix ban prompted a coalition of other tracks to adopt their own restrictions on the diuretic, banning its use on two-year-olds in 2020 and in many stakes races starting in 2021.  While many have praised this as a good first step, it sends an awkward message for a policy intended to address one of racing’s biggest perception problems:  if race-day medication is not acceptable for stakes horses and babies, why is it permissible on the lesser horses who make up the vast majority of racehorses?

The Jockey Club is the “breed registry” for the U.S. and Canada, and also keeps valuable data bases on what is going on in the sport, as well as funding important health-related research.  In the past month, they published their vision for comprehensive reform, available here, and must-reading for anyone concerned about the future of the sport.

The Jockey Club also supports the Horseracing Integrity Act of 2019, H.R. 1754, the current version of legislation that has been introduced in the last two Congresses.  The bill would create a private and independent anti-doping authority for horse racing that would establish uniform national standards, overseen by the United States Anti-Doping Agency (USADA).  The same industry entities leading the fight to keep Lasix also oppose national legislation to establish uniformity on medication policies within the states.

I think that anyone who wants to see racing survive and thrive should make their views known to their U.S. Senators and Members of Congress.  Even if Santa Anita weathers this current crisis, there will be another, either there or elsewhere.  It is foolhardy to think racing is guaranteed to go on indefinitely.  Either racing can present a unified front on reform, or abolition efforts will take over.  An institution that arrogantly thinks it can escape change is doomed to failure.

 

 

 

 

New York continues its vendetta against Rick Dutrow

Posted by noonante on August 22, 2018
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , . Leave a comment

The New York State Gaming Commission issued a report on August 8 purportedly explaining its reasons for not reconsidering its decision to suspend trainer Richard Dutrow for 10 years.  Dutrow’s attorneys asked the Commission to reconsider only the penalty provision and shorten the suspension to “time served,” which at this point is more than five and one-half years.

The August 8 report, however, is nothing more than a post hoc rationale justifying what I earlier described as a “bag job” by the Commission to target Dutrow.  (That post explains the background of the proceeding which will not be repeated here.)

The report  –  given that it is dated August 8  –  was not discussed at the secret July 16 meeting where the commissioners decided against reconsideration by a 4-2 vote.  At the public meeting that followed, the vote was announced, but there was neither a discussion nor an explanation.  The report not only misstates the positions advocated by Dutrow’s attorneys, but also some of the evidence.  It is merely a continuation of disgraceful behavior by a government agency that has deprived someone of his livelihood.

The motion by Dutrow’s attorneys clearly states that they were not seeking to relitigate the underlying violations for which New York’s stewards imposed a 90-day suspension, but only for the “limited purpose of reviewing and modifying” the 10-year suspension subsequently imposed by the Commission.

The Commission’s regulations permit a reopening based on “newly discovered evidence” or for “other compelling reasons.”  While Dutrow’s motion cited newly discovered evidence regarding a key Commission witness, it stated that “the most compelling reason to reopen this proceeding is that to do so will serve the interest of justice.”

The Commission basically ignored the arguments on fairness, and instead repeatedly claimed that Dutrow was trying to relitigate the underlying issues.  It spent most of its 16-page report defending its original decision and the litigation upholding that decision, even though there was no contention by Dutrow’s attorneys that the Commission’s decision was wrong, or that they lacked the authority to impose the sanction they did.

Dutrow’s request for fairness is predicated upon the disproportionate penalties imposed when compared with “like or similar circumstances.”  His attorneys claimed they were the “most severe ever imposed on a trainer in American racing at any of the leading racetrack venues” going back to 2005.

But the Commission’s report did not address the questions of “fairness” or “justice.”  And there are undoubtedly people who think Dutrow is getting his just desserts and clemency is not warranted.  That’s fine.  But the Commission owes it to the citizens of New York as well as the hundreds of professional horse people supporting Dutrow’s reinstatement to explain why they think so.

I tend to be wary when a decision-maker is setting up straw men to knock down, as the Commission report does by focusing on the merits of the underlying violations  – again, not arguments being raised by Dutrow.  The thrust of his petition is the regulatory language permitting a reconsideration based on “other compelling reasons.”  There is no better way to describe this fraudulent report than to quote the entirety of the Commission’s “explanation” on this issue:

“Finally, the Commission considers whether there are other compelling reasons for reopening the proceeding as to penalty.

Having considered all of these questions, the Commission concludes, in its sound discretion, that Dutrow has shown none of the circumstances that would be required for us to exercise our discretion to reopen this proceeding.”

Seriously.  That’s it.  Dutrow’s petition exhaustively cited numerous other cases in other jurisdictions in which the penalty imposed was less severe  –  or justifiably equally or more severe  –  and the Commission dismisses it in a single sentence with no explanation.  Kind of like the way they announced their decision to not reopen the case.

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, not therapeutic, performance-enhancing 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.

The Commission’s report detailing Dutrow’s “history of violations” is unable to cite anything of significance in the seven years preceding this case.  There have been overages of legal medications, including one of the violations here  –  as there are with numerous trainers  –  but not one for an illegal drug.

I will not go into the Commission inaccurately recounting two factual matters that are contrary to statements in the Hearing Officer’s report imposing the severe penalties.  Suffice it to say that it is more emblematic of an attorney’s spin on the facts.  It is why many people distrust lawyers, but this is an adjudicatory body that has an obligation to dispassionately review evidence and make conclusions based on objective and independent analysis.

The Commission’s August 8 report is a shoddy attempt to cover up a decision they were apparently embarrassed to explain in a public hearing.  That would be understandable given that they are unable to provide a coherent explanation as to why Dutrow was treated more severely than someone such as Roy Sedlacek.

My suspicion is that this is a political decision emanating from the second floor of Albany’s State Capitol.  There was the communications from Ed Martin, head of the Association of Racing Commissioners International, urging a more severe sanction after the stewards imposed “only” a 90-day suspension.  It was accompanied by a statement that a United States Senator from New Mexico had expressed his concern about the penalty.  That would be the same Ed Martin who once chaired the Commission’s predecessor Racing and Waging Board that continued to license Dutrow.  He is now the head of a national organization that continually rails against the evils of a national body telling a state agency what to do.

Regrettably, however, it is a risk-averse Governor running for reelection who is not looking for “independent” agencies in the Executive Branch to exercise any independence.  The Gaming Commission is mostly comprised of Andrew Cuomo’s appointees.  Reinstating Rick Dutrow would be a controversial decision even if it is the correct one.  It is unfortunate that we cannot expect this state government to make the right decision if it could adversely affect the Governor, even at the expense of another’s ability to make a living.

 

New York’s treatment of Rick Dutrow is a disgrace

Posted by noonante on July 30, 2018
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , . 1 Comment

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.