Dr. Scott Palmer

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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.

 

 

 

 

New York is oblivious to the efforts to protect horses

Posted by noonante on August 5, 2019
Posted in: Horse Racing, Political/Social commentary, Saratoga thoughts, Uncategorized. Tagged: , , , . Leave a comment

A horse was euthanized on the racetrack at Saratoga on Sunday after it collapsed during the running of the sixth race.  The race was for $25,000 claimers in which the purse had been increased as a result of the New York Gaming Commission’s weakening of a rule intended to protect the safety of horses (and riders).

The rule in question is referred to as the “purse-to-price ratio.”  It refers to the purse value of a claiming race in comparison to the claiming price for a horse in that race. In a race for $25,000 claimers, a 1.8 ratio means that the purse could not be greater than $45,000.  The purse in this race, however, was $52,000.

While this may appear to be an esoteric matter of little consequence, it became a major matter in 2012 when Aqueduct experienced a significant increase in fatalities.  The deaths resulted in a Task Force being appointed to investigate the causes and make recommendations. A potential cause of fatalities identified by the Task Force’s Report was horses being entered in claiming races in which the total purse value of a race far exceeded the claiming price assigned to the horse. The Task Force concluded that

“this imbalance contributed to perceptions that horses were being entered in claiming races beyond their level of competition and forced to perform to the point of serious injury or death….  Accordingly, the Task Force believes that the purse to claim price ratio should be no greater than 1.6, in which the value of the horse is approximately equal to the winner’s share of the purse, and that the Rule should be amended accordingly.”

Governor Cuomo agreed with the Task Force’s determination on the 1.6 ratio, explicitly citing it when he issued a statement ordering implementation of the Report’s recommendations in September, 2012.

Dr. Scott Palmer, DVM, who chaired the Task Force, however, had a different perspective. Three days after the Governor’s order, he wrote a memo to justify supporting a higher ratio of 2.0.  His statement at that time is indicative of his thinking – both then and now – on the relative balance between equine safety and the economic considerations for racetracks, stating that “the Task Force did not consider the business model of Aqueduct in a competitive environment for racehorses.”

The ratio remained at 2.0 until this year when the Gaming Commission  –  at the urging of Dr. Palmer, now New York’s Equine Medical Director  –  weakened the rule and permitted ratios greater than 2.0.  They did this even though Dr. Palmer said at a Commission meeting in July:

“… there’s some very good research that’s shown that there’s 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….”

Despite what he recognized as an increased risk to horses and jockeys, Palmer believed his proposed rule change would cause more horsemen to remain in New York rather than ship to a mid-Atlantic track, thereby increasing field size  –  for the economic benefit of the track.  That this justification is identical to the one rejected by the Task Force, however, apparently did not factor into Palmer’s advocacy for the change in the ratio.

I am not suggesting that the increase in the purse for this race is what caused the horse’s death  –  even if the rule had not been relaxed, he could have run for a $50,000 purse.  But a fatal breakdown in an event with an increased purse level was inevitable from the moment the Gaming Commission approved the weakening of the rule.

At a time when racing is facing increased scrutiny following the rise in fatalities at Santa Anita, a change that increases the risk to horses and jockeys is not only short-sighted but foolhardy.  I am not the one who connected increased risk to purse levels.  It was Dr. Palmer who despite saying it was a “very sound piece of scientific evidence” nonetheless advocated forcefully for a change he believed would inure to the economic benefit of a racetrack.

Dr. Rick Arthur, California’s Equine Medical Director, was interviewed on NPR during the Santa Anita crisis and said,  “if we don’t make racing safer, I don’t think the public’s going to allow us to continue the sport.”  New York’s Gaming Commission and its Equine Medical Director have shown they are oblivious to the worsening perception of the sport and placed horses and jockey at greater risk.

 

 

 

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.

 

 

 

 

Gaming Commission meeting consistent with past performances

Posted by noonante on January 29, 2019
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , . Leave a comment

The Monday meeting of the New York State Gaming Commission did not disappoint if you wondered whether they would adhere to their past performances.

There were two items of interest to thoroughbred racing participants and fans that could be discussed.  One was a proposed regulation that sought to weaken the existing rule that was adopted following an increase in racing fatalities at Aqueduct in late 2011 to early 2012.  The other was the Commission’s response to the sudden and unexpected resignation of Chris Kay as President and CEO of the New York Racing Association.

As usual, the Commission tried to start the meeting about 40 minutes after the scheduled start, but then spent an additional 10 minutes working out audio and video transmission issues.

The regulation under consideration concerned the “purse-to-price ratio” in claiming races that I wrote about here and here.  I also submitted the only public comment on the proposal.  Because the Gaming Commission had already approved the rule for adoption prior to the expiration of the legally-required public comment, and prior to submission of my comment, they had to “consider” my comment at the Monday meeting.

If you are interested in the Commission’s “discussion” of my comment, you can replay it on the Commission’s website.  Don’t worry, it will not take long.  It begins at the 1:20 mark of the meeting and ends about four minutes later.  The “discussion” is a reading of a prepared statement by the Commission’s chairperson that is simply incoherent.

It addresses none of the issues I raised, including that it was based on a secret memo by Dr. Scott Palmer that the Commission will not release, as well as unidentified supporters of the rule change, and their reason for changing it.  Nor was there any recognition of the fact that the regulatory change is contrary to the report of a Task Force Report on the Aqueduct fatalities, as well as Governor Cuomo’s order in 2012 to implement a stricter version of the regulation.

At least that part of the agenda lasted for more than four minutes.  There was no mention of the fact that the head of NYRA was apparently suddenly forced out of his position by NYRA’s Board of Directors.  I say “apparently” because there has been no official explanation for the “resignation” of Kay that the Board accepted “effective immediately.”

David Grening of The Daily Racing Form has reported that the resignation was made because Kay had been using NYRA employees to do work at his private residence in Saratoga Springs.  I have seen nothing that disputes Grening’s report.

But the Gaming Commission is one of two government agencies in New York that has legal oversight responsibility for the actions of NYRA.  They are seemingly content to blithely ignore what is corruption in New York’s premier thoroughbred operation.

Even if Grening’s report is accurate, and cites the real  –  and only  – reason for the termination of Kay’s employment, there are more questions that need to be addressed.  For starters, how does an entity such as NYRA that has a history of prior internal control issues allow such behavior to occur?  Were any other management officials complicit in this?  The employees had to report to someone who approved their time slips.

Unfortunately, the Gaming Commission has a history in which transparency and accountability are rarely present, as exemplified by these two matters,

New York weakens rule that protected horses

Posted by noonante on January 1, 2019
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , . 3 Comments

Update:  After completing this post, the Gaming Commission announced it would hold a meeting to discuss policy issues I had raised in comments to the regulation.  Their meeting is scheduled for Thursday, January 3 at 11:00 a.m. and can be seen on the Commission’s website.

The New York State Gaming Commission has weakened a rule they enacted to protect horses from fatal racing injuries.  The policy was adopted in April, 2012, in response to a rise in the number of catastrophic breakdowns that occurred in late 2011 and early 2012 at Aqueduct Racetrack.

The regulation established the minimum claiming price for which a horse could be entered in a race.  “Claiming races” are one of the most inscrutable parts of racing for the uninitiated.  A claiming race is one in which a horse can be bought for a specified amount before the race is run.  It is the lifeblood of racing, and the purpose of setting a claiming price is to attract horses of comparable ability.

Aqueduct experienced a sudden influx of cash for purses when the revenues from Video Lottery Terminals started coming in.  This resulted in significant increases in purses, including for claiming races.  As an example, a horse valued at $7,500 that had been running in a race with a total purse of $15,000 might now be entered in one where the total purse was $30,000.  (The winner generally gets 60 percent of the purse, second gets 20 percent and so on.)

The Gaming Commission’s predecessor adopted an emergency regulation in April, 2012, requiring that the claiming price be at least 50 percent of the race’s purse for a “purse-to-claim price ratio of 2.0.”  In the example from above, a horse could not be entered in a race with a $30,000 purse unless its claiming price was at least $15,000.

The crisis in fatalities resulted in the appointment of the New York Task Force on Racehorse Health and Safety.  It was a panel of widely-respected racing figures chaired by Dr. Scott Palmer, now the Equine Medical Director for the Gaming Commission.

The Task Force investigated the possible causes of the fatalities and made a number of recommendations. Their Report was universally praised, and has been considered a model of steps to improve the safety of the equine and human athletes participating in the sport.  New York implemented a number of the recommendations and has now seen a reduction in racing fatalities at its tracks.

The “purse-to-claim price ratio” was one of the factors examined. The Task Force concluded that the policy of entering a horse for a claiming price significantly below the purse value was an “imbalance contribut[ing] to perceptions that horses were being entered in claiming races beyond their level of competition and forced to perform to the point of serious injury or death.”

The Task Force did not consider the April, 2012 regulation of a “2.0” ratio adequate protection for the horse, and instead recommended the more stringent standard advocated by the American Association of Equine Practitioners:

“Accordingly, the Task Force believes that the purse to claim price ratio should be no greater than 1.6, in which the value of the horse is approximately equal to the winner’s share of the purse, and that the Rule should be amended accordingly.”

Governor Cuomo agreed with the Task Force’s determination on the 1.6 ratio, explicitly citing it when he issued a statement ordering implementation of the Report’s recommendations in September that year.  Despite the Governor’s order, Dr. Palmer seemed to have a change of heart and wrote a memo three days later in which he decided that the 2.0 ratio was sufficient, citing economic considerations that might put New York at a disadvantage with competing racing jurisdictions. The 2.0 ratio was not changed.

Dr. Palmer is now of the view that even a 2.0 ratio could be higher.  He wrote a memo outlining steps New York has taken to enhance equine (and human) safety.  He convinced the Gaming Commissioners that the 2.0 rule could be relaxed if a track has implemented increased safety measures.  Even though the weakened rule was put out for public comment and has now been approved as a permanent regulation, the Gaming Commission has refused to release the Palmer memo that was a key factor in the Commissioners’ deliberation.

Dr. Palmer acknowledges that there are no magic solutions that will eliminate all risk for thoroughbreds in training or racing. His 2012 memo references “degrees of risk aversion.” This appears to be a central theme in his approach to the regulatory change proposed in 2018.

In his remarks at the Gaming Commission meeting in September at which the proposed rule was approved for public comment, he recognizes that changing the rule will increase the risk for horses. At one point he stated:

“I always thought that if we were going to take away one protective factor, what do we have to take the place? What are we going to put back in that is going to protect these horses?”  (Transcript by Commission.)

What Dr. Palmer stated at this meeting is that a program of “Out of Competition Scrutiny” – not to be confused with Out of Competition Testing – would identify certain horses whose record might indicate an increased risk of injury. It is a worthwhile effort, relying on factors that have been identified as increasing the risk of racing.  The notion of a “profile” to identify at-risk horses has become widely accepted  –  it was one of the topics in the 2012 Report of the Task Force.

The new Regulation requires that a relaxation of the “2.0 ratio” can only happen if a race track requests an exception:

“The commission shall not approve such a request unless [the track] has implemented increased measures to ensure close examination of the competitiveness, soundness and safety of each horse entered in such a race.”  (Emphasis is mine.)

The regulation is clear.  “Each horse” in a race must under scrutiny if an exception to the 2.0 rule is to be made.  But that is not how Dr. Palmer described the change to the Commissioners at their September, 2018 meeting.

This is the colloquy between a Commissioner and Palmer from the Commission’s Transcript:

Commissioner:  “[s]omeone will be taking clinical history of each horse for each claiming horse?’

Dr. Palmer:  “No.…”

Commissioner:  “Is it before each claiming race?”

Dr. Palmer:  “No, it is one time….”

Dr. Palmer is the expert upon whom the Commissioners rely.  He has said he is responsible for monitoring the effect of the revised regulation.  But he has also said that he will not be adhering to the explicit language of the regulation.

This approach by Dr. Palmer appears to be “trading” one program to reduce risk for another that increases risk.  This implies that there is a certain level of risk that is acceptable. While I think most people realize that risk is an element of horse racing that cannot be eliminated completely, I question whether there would be widespread approval of a transactional approach that balances a track’s economic considerations with equine and human safety.

At their September 24 meeting, the Commissioners focused exclusively on the increase in risk and the ability to bring a halt to the new regulation if equine fatalities approached an “unacceptable” level.  While Dr. Palmer said there would be requirements on the tracks seeking an exception to the 2.0 ratio, he did not provide any examples of what those standards might be.

Just as troubling, however, is that this is a change, according to the Commission, being advocated by persons who were not identified, and neither testified before the Commission nor submitted public comments in support of the rule.  In his September 13, 2018 memo to the Commissioners, the Commission’s General Counsel stated that “[v]arious interested parties have requested the Commission to consider adding flexibility to the existing rule….”  Similarly, the Commission’s Executive Director referred to “[v]arious interested parties” having requested a rule change at the September 24 meeting.

There was a time when the “purse-to-claim” ratio was viewed as an important safeguard for protecting horses. The Task Force rejected the notion that a 2.0 ratio was adequate, instead insisting on a 1.6.  Governor Cuomo considered this to be such a significant step that he explicitly ordered adoption of a 1.6 ratio when he released the Task Force’s findings in 2012.

Now, however, “various interested parties” who are not identified have recommended a weakening of that safeguard.  The Commission has refused to release the memo that supposedly supports the change.  The apparent rationale are tradeoffs intended to mitigate the increased risk even though the standards that will be utilized have not been specified.  And it appears the Commission will not even be complying with the revised regulation.

This is a secretive process and not the way an accountable and transparent government operates.  More significantly, however, it is certainly not a way to bring about changes that will affect the safety of racing’s equine and human athletes.

 

NYRA backtracks on equine safety – an update

Posted by noonante on August 21, 2015
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , . Leave a comment

The following article is based on one I posted on August 15.  Following its publication, I received a communication from the spokesperson for New York’s Gaming Commission who provided me with a letter from Dr. Scott Palmer, D.V.M., Chair of the Task Force, who had determined it was not immediately necessary to change the ratio of purse levels to the claiming price.  While I had requested documents under the New York public records law, this letter apparently was not in the possession of the Gaming Commission.  This post discusses that letter as well as other factual material not included in the original post.

The New York Racing Association is running claiming races contrary to a key standard of the 2012 Task Force on Racehorse Health and Safety.  The Task Force stated that the ratio of the purse amount to the claiming price “should be no greater than 1.6.”  Over the first 23 days of the Saratoga meet, NYRA has carded races that exceed that ratio 34 times.

The Task Force was created in 2012 following a significant increase in equine fatalities on Aqueduct’s inner track.  It was composed of widely-respected racing figures and chaired by Dr. Scott Palmer, D.V.M. It was charged with investigating the causes of the breakdowns and making recommendations.  One focus of their work was the infusion of revenues from Video Lottery Terminals that went to NYRA purses, especially in lower-level claiming races.  The Task Force concluded that the existing regulation

“contained no provision to address a potential imbalance between the value of the horse and the purse of the race, as occurred during the Aqueduct meet.  This imbalance contributed to perceptions that horses were being entered in claiming races beyond their level of competition and forced to perform to the point of serious injury or death.”

The agency regulating racing adopted a rule limiting the purse to claim ration to 2.0, but the Task Force found this inadequate to protect equine safety:  “… the Task Force believes that the purse to claim price ratio should be no greater than 1.6, in which the value of the horse is approximately equal to the winner’s share of the purse, and that the Rule should be amended accordingly.”  The Task Force conclusion is consistent with that of the American Association of Equine Practitioners which, in 2009, stated that the ratio should not be greater than 1.5.

Governor Andrew Cuomo agreed.  When he released the Task Force report on September 28, he directed the regulatory agency to amend the “claiming rule to allow a purse-to-claim ratio no greater than 1.6 to 1.”

In an interesting development, Dr. Palmer retreated from the Task Force’s recommendation three days later.  He cited the unintended economic consequence that might put New York at a competitive disadvantage with neighboring states that also had casino-fueled purse increases.  While one would conclude from reading the Task Force Report that equine and rider safety were paramount, Palmer was now weighing the economic considerations:

“The Task Force believes that [the 1.6 ratio] is a defensible ration from a pure safety-goal oriented perspective, but recognizes that in this situation there are degrees of risk aversion that may be effective, even if they are not absolute.”

(Emphasis mine.)

He further determined that the existing 2.0 rule

“may have already achieved the desired effect by providing a more appropriate ratio that has diminished the incentive to race horses at an undervalued price….  The existing rule change may well have established a balance between equine safety and economic viability, particularly when taken in the context of the implementation of the other recommendations of the Task Force.”

What is puzzling about this rationale is that the “other recommendations” of the Task Force could not have been implemented since the Palmer letter came only three days after the Report’s release.  Also, the existing 2.0 rule had yet to be in effect at the time of the Aqueduct meet.  It was adopted at the end of the spring 2012 meet, and had yet to be tested at the track that is the focus of so much attention regarding racing fatalities.

Since the 2012 crisis, Aqueduct has had two more occasions when fatalities provoked concern by New York’s racing officials.  The catastrophic injuries early in the 2012-2013 Aqueduct meeting caused David Skorton, then the Chair of the NYRA Board to raise the possibility that racing at the Big A should be cancelled altogether.  A member of the Franchise Oversight Board referred to the “killing fields” of Aqueduct.  In the 2014-2015 meet, fatalities resulted in NYRA adopting several hastily-conceived steps intended to address the problem.

In 2015, there were 10 fatal breakdowns at Aqueduct, including three on the main track.  Two of the seven inner track fatalities were in races where the purse-to-claiming ratio exceeded 1.6, albeit by minor amounts.  Two of three main track fatalities came in races where the ratio exceeded 1.6.

The Equibase chart for one of those main tracks fatalities was particularly poignant in light of the comment from the Task Force Report that “horses were being entered in claiming races beyond their level of competition and forced to perform to the point of serious injury or death.”  The chart for the first race on April 16 reported “ZENSTONE pressured on the pace inside by SONG BROOK early on and then PATRIA QUERIDA, got set down spinning just off the inside for home, inched away to the eighth pole, dug in under growing threat inside the final sixteenth, was caught in the last jumps while safe for the place honors, then was vanned off after the finish.”  The filly later died.

Was the $40,000 purse for a $20,000 claiming price the reason Zenstone did not survive her final game effort?  Since catastrophic injuries can have several possible reasons, it would be foolish to make that conclusion.  Are the four Aqueduct fatalities in ten races statistically significant?  No, given the small sample size.  (Saratoga’s 34 races exceeding the 1.6 standard mercifully have not resulted in any fatalities reported on the Gaming Commission web site.)

When Dr. Palmer wrote his October 1, 2012 letter, he recommended against an emergency change in the regulations to drop from 2.0 to 1.6, instead saying that the 2.0 rule should “be kept in place until such time that a deliberate analysis of  the potential unintended consequences that a proposed change in the ratio to 1.6 may be determined.”  While such a discrete analysis has not been done, the spokesperson for the Gaming Commission assured me that Dr. Palmer maintains that ratios greater than 2.0 are still inappropriate.

It’s a curious way to conduct the people’s business.  A well-regarded panel of experts prepared a lengthy report explicitly rejecting the 2.0 ratio and replacing it with a 1.6 ratio.  That ratio is consistent with the recommendation of the national veterinary group.  The Governor endorsed that proposal and directed the regulatory body (now the Gaming Commission) to change its regulations.  The chair of the Task Force reconsidered and sent a letter three days later, but it never made it to the regulatory body.  Since they did not have the letter, it is not clear if not amending the rule was the result of bureaucratic inertia or communications for which there is no written record.

What is clear, however, is that it is time to conduct the analysis recommended by Dr. Palmer.  New York racing does not need another winter of negative publicity concerning safety at Aqueduct.  Taking the claiming ratio off the table as an outstanding issue would be a step in the right direction.