The most recent controversial topic in New York racing is just one more indication that the State Gaming Commission is both an embarrassment to racing and further proof that this regulatory body has outlived its usefulness.

If you were caught up in holiday events and do not follow closely racing media, you may have missed the outrage over a disqualification decision in the ninth race at Aqueduct this past Saturday. The horse who crossed the finish line second, Brick Ambush, was disqualified and placed last following an incident that occurred at the quarter-pole near the end of a New York Stallion Series stake. Three horses were involved in bumping, including the first-place finisher Antonio of Venice. What has provoked the outrage is that Brick Ambush was not one of the three involved contestants.

The decision to DQ Brick Ambush has been described by experienced journalists as “baffling” or a “call that defies explanation.” I have watched the replay from multiple angles several times and it is indeed inexplicable. (For the record, I had no financial interest in the race.)

The connections of Brick Ambush, as well as that of the fourth-place horse, filed appeals. The Gaming Commission denied the appeals, asserting that decisions by the stewards are judgment calls based on questions of fact that are not appealable under Gaming Commission regulations.

There are three stewards for New York racing: one appointed by the Gaming Commission, one by NYRA, and one by The Jockey Club. I have read that the Gaming Commission steward is the head of the panel, and, according to Attorney Drew Mollica, the other two are merely advisory. While the Gaming Commission’s interpretation of the regulation may be correct, that does not end the inquiry.

This is not the first time in recent weeks that a decision - or non-decision - has provoked head-scratching controversy. There were two such races at Saratoga. The one that sticks out in my mind (perhaps because this time I did have a wagering interest) involved a non-DQ. A horse moved out from the rail. impeding my selection. This resulted in the two being so close that the impeded horse actually had his front legs under the other one. Setting aside the impact on the race outcome, it was an extremely dangerous circumstance that could have resulted in a spill affecting the safety of two horses and their jockeys. The horses finished first and second, but the Stewards found no basis to disqualify the winner.

If it were only bad calls by the Stewards, there might be no reason to be concerned since the Gaming Commission should replace their person on the panel. They have demonstrated no reluctance in levying significant fines against employees of NYRA who make a mistake. But it is also the conduct of the Commissioners themselves that raise more disturbing concerns. 

The most recent example is their handling of a drug positive from Saratoga’s Hopeful Stakes in 2022 [sic} won by Forte and trained by Todd Pletcher It was not until this month that a meeting of the Gaming Commissioners took up the matter of the drug positive from last year.

Forte was the Juvenile Champion of 2022 and was the morning-line favorite for the 2023 Kentucky Derby but scratched by a veterinarian because of a foot injury. Drug positives of Kentucky Derby horses has been in the racing news recently because Justify (trained by Bob Baffert) was eligible for the Derby only because the California Horse Racing Board found that it was a contaminant that caused the positive. Of course there is the drug positive of Medina Spirit, also trained by Baffert, who was disqualified from the 2021 Derby, and the racing infraction in the 2019 event disqualifying Maximum Security, trained by incarcerated felon Jason Servis.

So, it was going to be interesting to hear what the Gaming Commissioners said about their decision at the December 3 meeting. And … we are still waiting. The Commission approved the decision by the Hearing Officer upholding a disqualification of the colt and a $1,000 fine and 10-day suspension for trainer Pletcher. There was no discussion of the matter. 

But it is a Commissioner’s personal behavior that drew the attention of the Albany Times Union and reporter Emilie Munson in a September article portraying a potential conflict-of-interest. Marissa Shorenstein was appointed to the Gaming Commission in May 2022 and “for over a year” voted on matters affecting the New York Racing Association while employed by a public relations firm that did work for NYRA. The Commission, NYRA, Shorenstein and her employer all denied there was any impropriety, and the Munson article did not identify any troublesome actions. But when given the opportunity to identify external sources, Shorenstein, according to the TU “declined to say if she sought counsel or approval from the state agency or the state ethics commission” regarding her work and her employer’s relationship with NYRA.

One would expect a Commissioner to be particularly sensitive to issues of personal conduct and answer a straightforward question to put a matter to rest. That same Times Union has twice written extensive articles about the conduct of Gaming Commission employees, most recently an August article by Munson. In that piece, she asserted that numerous Gaming Commission employees have complained about a “toxic workplace for years, including allegations of sexual harassment, racial discrimination, bullying, drug use and political favoritism.”

A Commission spokesperson dismissed the report saying “that these years-old allegations were either unsubstantiated or already addressed long before your story.” But according to the reporter, she received additional supporting accounts after the story was reported initially. In addition, a troubling development is that when the position of the Commission’s internal inspector general was transferred to an external agency, complaints about the Commission “have surged.”

The Chairman of the Gaming Commission, Brian O’Dwyer, similarly attempted to blunt the impact of the allegations by stating that the TU “aired complaints designed to paint our agency in a bad light.” Should the position of Captain Obvious become vacant, O’Dwyer has firmly established his credentials to become the replacement.

The Commission’s conduct - perhaps I should say “non-conduct” - has also been raised in Documented, a publication dealing with immigration issues. In a September article it identified numerous instances of back stretch employees in New York being subject to wage theft from being underpaid or made to pay their own costs for employer obligations. Some of the sports highest-profile trainers have been found to cheat employees on wages and been assessed substantial penalties by the United States Department of Labor.

Chad Brown was ordered to pay $1.4 million to 236 workers in 2019. Steve Assmussen was ordered to pay $563,000 to 170 workers a year later. Asmussen seems to be a repeat offender. In August, Thoroughbred Daily News reported that he was again ordered to pay employees and fined for a total of $205,000. According to the DOL announcement, this was his fourth such assessment “in recent years.”

Documented identified the Gaming Commission as the entity that permits such scofflaws to race their horses through its licensing authority. Spokesperson Brad Maione told the publication that no trainer ever had his or her license suspended or revoked for a wage violation, but “declined to comment further” as to why that had not happened.

But Chairman O’Dwyer assured the October 3 meeting of the Commissioners that when “we learned of trainers not paying workers we hold them accountable.” Apparently “accountability” to O’Dwyer means not identifying them, even though Asmussen’s multiple transgressions have been reported in both racing media and Documented. O’Dwyer said he directed Gaming Commission staff to report on the trainer’s employment practices and were reviewing a response submitted by Asmussen. That was October 3, and at the December meeting there was no further word. O’Dwyer appears to have a pattern of talking tough and doing nothing. 

While we began with an account of a Stewards’ decision in a state-bred race, I do not think I have ever witnessed the torrent of criticism for a decision that was not in the Kentucky Derby or a Breeders’ Cup race. Some of the critiques have been thoughtful (John Pricci) while others are half-baked (Mike Repole).

I do not think the language of the regulation cited by the Commission in dismissing appeals of the Brick Ambush appeal is that compelling, but I have not read any of the cases cited by the Commission. This is, however, a matter much bigger than this one case. The Gaming Commission now has a long history of negligence and malfeasance that no longer deserves support from the public. 

Governor Kathy Hochul, who is responsible for selecting the Commissioners and the Chair, should be attentive to the language of New York law establishing the Commission:

“… it is essential to maintain the public confidence and trust in the credibility and integrity of legalized gaming activities. To ensure such public confidence and trust, this article provides that the regulation of such gaming is to be conducted in the most efficient, transparent and effective manner possible…. The goal of this article is that all gaming activity conducted in this state will be of the highest integrity, credibility and quality and that the best interests of the public, both gaming and non-gaming will be served….”

It has become impossible to assert that this Gaming Commission and its Commissioners have achieved this purpose. It is time for the Commissioners to be replaced.