Jason Servis

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It’s time to get rid of the Gaming Commissioners in New York

Posted by noonante on December 22, 2023
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , , , , , , , , , , , , , . Leave a comment

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.

     

60 Minutes – the NHBPA doesn’t get it

Posted by noonante on November 26, 2023
Posted in: Horse Racing, Political/Social commentary. Tagged: , , , , , , , , . Leave a comment

For those who watched CBS’ 60 Minutes November 12, there was little that close followers of the sport did not already know. That caused me initially to be disappointed, but I am not in the program’s target audience. In Bill Finley’s article in Thoroughbred Daily News he notes that the show has an audience of some 9 million viewers. It is intended for the vast majority of viewers who know next to nothing about horse racing or whose knowledge is limited to watching the occasional Triple Crown race.

But if I did not “get it” initially, the head of the National Horsemen’s Benevolent Protective Association is completely clueless. Eric Hamelback, CEO of the NHBPA, issued a response to 60 Minutes on November 13 complaining that the program was “not fair to the industry.” What he meant, however, is that it was not fair to Hamelback’s views. I do not know if he was interviewed, but his tiresome rants about the “elites” trying to “shrink horse racing” through such nefarious scenes as regulating the conduct of the sport did not address any of the issues raised by the program. Hamelback’s primary agenda is to criticize HISA, the acronym for the landmark federal legislation to bring uniformity to racing as well as the agency administering it.

Unsurprisingly, CBS focused on racing fatalities, including videos of horses breaking down in the stretch, and the drug convictions of major players including (of course) Jorge Navarro and Jason Servis. Hamelbach’s complaints – even if they had any merit – are not going to cut it when one of the leading trainers in the mid-Atlantic had Crocs with the words “Juice Man” painted on them.

While Hamelbach complains about the inaccuracies in the CBS narrative, his own statement is replete with false statements and inaccuracies. He thanks the “New Jersey Racing Commission, the FBI and others” for bringing down Navarro and Servis. But that is the racing commission that silently watched as those same trainers and their veterinarians drug horses while they rose to the top of the standings. The FBI obviously played a major role in investigating, but “the others” referenced by Hamelback would mean The Jockey Club, an organization that Hamelback and his supporters seek to remove from influence because they are the “elites” out to destroy the sport to further their own interests. But it is The Jockey Club – not the NHBPA nor any state racing commissions – that brought the sport’s problems to the attention of the FBI.

Although Hamelback asserts that The Jockey Club “by no means has the power or authority to speak on behalf of the industry,” the organization he heads claims to have such a mandate. Although stating that “the vast majority of horsemen nationwide … strongly oppose HISA in its current form,” the NHBPA has no basis for saying that. It is not an organization composed of horsemen and horsewomen, but one comprised of “affiliate organizations.” One such member is “New England,” the six-state region that no longer has thoroughbred racing. The tracks of California, New Jersey, Maryland, NYRA and Gulfstream Park are not members, meaning that the vast majority of actual horse people are not represented by the Hamelback group.

Hamelback points out that one Circuit Court of Appeals found that HISA was unconstitutional, but neglects to mention that after the U.S. Congress amended that law, that Court removed its finding of unconstitutionality.

Perhaps his most ingenuous statement is the assertion that drugs have not been shown to cause any of the recent fatalities that were referenced in the 60 Minutes piece. While that may be technically true, it ignores the accepted reality that many legitimate therapeutic medications may also mask symptoms of soreness that can then be a factor in a fatality. One of the significant benefits of a uniform national program of anti-doping and medication control is that the inconsistent state regulations can be harmonized to curb such abuses.

Yes it is true that the 60 Minutes broadcast did not highlight all of the improvements to reform racing in recent years or the efforts of the many honest and hard-working individuals who love horses. But I stopped watching 60 Minutes many years ago when it became apparent that they were not interested in nuanced reporting on what might be mildly complicated events. It is not truly a “news” agenda so much as a “ratings” (i.e., revenue) one.

But our industry is not helped when someone purporting to speak for the sport misstates and misrepresents facts to further his personal agenda. By creating the impression that everything is OK and nothing need be done, it is a grave disservice to all those doing the right thing. It does more harm than good. It may also eventually doom the very industry that he professes to care about.

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.