Times Union

All posts tagged Times Union

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.

     

Times Union thinks ethnic slurs are OK on state property

Posted by noonante on September 23, 2013
Posted in: Horse Racing, Political/Social commentary, Politics, Saratoga thoughts. Tagged: , , . 1 Comment

In a remarkable editorial by Albany’s Times Union, the prominent newspaper in New York’s capital pushed the administration of Governor Andrew Cuomo to allow a food truck with an offensive name onto the grounds of the Empire State Plaza.  The truck, named Wandering Dago, had been approved for a spot this summer at Saratoga Race Course by the New York Racing Association.  When NYRA informed the truck’s owners after the first day of racing that it had to be removed, litigation ensued.

The truck’s owners had also applied for a permit to operate on the Empire State Plaza earlier this year and were denied in part, according to the Times Union, because of the name.  The litigation raises a challenge based on the First Amendment’s protection against the government infringing on the right to freedom of speech.  According to the truck’s owners, who claim to be of Italian heritage, the name is derived from the phrase used for Italian immigrants a century ago who wished to be paid on a daily basis  –  or, as the “day goes.”

In a federal court hearing last week, it was revealed that Cuomo’s Deputy Secretary for Gaming and Racing had emailed NYRA CEO Chris Kay shortly after the fourth race had been run that the name was a “problem waiting to blow up.”  According to the suit by the truck’s owners, it was this email that prompted their eviction.

Here is the Times Union‘s take on NYRA’s action:

Indeed, NYRA might have found itself hearing complaints from Italian-Americans upset by what many view as an ethnic slur.  But the time to have a discussion about that was in the months that preceded the approval. Not on opening day, and not with an ultimatum to change the business’ name in less than 24 hours to save the state and NYRA any potential discomfort.

The Times Union got at least one thing right  –  NYRA should have rejected the application based on the name upon receipt.  Is there some doubt, however, that it is an ethnic slur?  A useful test for anyone thinking a particular term is acceptable is to go up to a friend and refer to him by that name.

Second, why is it only “Italian-Americans” who might be upset?  I would like to think that in a nation that thrives on diversity and inclusiveness, an insult to one is an insult to all.

And yes, removing the truck may have saved “the state and NYRA any potential discomfort,” but what about all the rest of us who find the name offensive and contrary to the ideals a state government should be promoting?

The interests of fairness may require a cash settlement to the truck owners because they relied upon NYRA’s approval to their financial detriment, but not because there is a First Amendment right for a commercial enterprise to say whatever they want while making money on state property.  That does not mean, however, that the state should allow the truck on the Empire State Plaza as recommended by the Times Union editorial.  While that particular ethnic slur may be one that is acceptable to the Times Union, it is not to many fair-minded people  –  and not just those with Italian heritage.  And let’s not forget what message is sent to all visitors to the Plaza who are not familiar with the litigation background and the sophistry of the Times Union.

Is the honeymoon with the “new” NYRA over?

Posted by noonante on May 20, 2013
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , . 1 Comment

In a sign that the honeymoon with the Reorganization Board of the New York Racing Association is over, we have seen recent media attention paid to a fiscal issue between NYRA and the Thoroughbred Breeding and Development Fund.  The Fund is a public benefit corporation that distributes incentives to promote “breeding, raising, and racing of quality thoroughbred horses in New York State.”  It derives its revenues not from taxes, but from New York’s thoroughbred tracks as well as a growing portion from Video Lottery Terminal revenues generated by the state’s racinos.  NYRA is the entity now controlled by state government that runs New York’s quality horse racing programs at Saratoga, Belmont and Aqueduct.  NYRA paid more than its correct share to the Fund between 2008 and 2012 to the tune of $1.2 million and is now seeking repayment.

Local media, including Albany’s Time Union newspaper and the NPR affiliate WAMC have paid attention to the story but, as typical of their other forays into New York’s racing, have shed considerably more heat than light on the issue.  The TU “broke” the story on May 13, but “broke” is a relative term since the issue is one that has been publicly known for some time.  According to The Saratogian, NYRA demanded a repayment on March 15.  The Saratogian also quoted a member of NYRA’s Board as saying it was a matter that “had not come up in our board room,” even though he was present at the April 11 meeting when it was raised as an outstanding matter, and it was also reported in the minutes for the meeting.  The manner in which it was raised at the meeting also made it clear that it had been an outstanding issue known to the Board members.  WAMC’s contribution to the fog was a discussion on their daily Roundtable program where they described NYRA as seeking reimbursement of the over payment from the state.  The Times Union published an editorial Sunday in which they decried the “tiresome games” played by NYRA’s Reorganization Board in distinguishing between the “new” NYRA and the “old” NYRA, adding, “[s]o it’s the new NYRA when it has its hand out for money from the state.”

Both WAMC and the Times Union also conveniently conflated moneys owed by NYRA to New York State that were discharged in a bankruptcy proceeding with what they each describe as a new demand for money “from the state.”  I have always operated under the assumption that bankruptcy proceedings are designed to both protect creditors and allow an entity to get back on its feet, and debts that are discharged  –  and must be approved by a federal court  –  are, you know, “discharged.”  It doesn’t mean that the bankrupt entity continues to owe an obligation.  More significantly, however, is the Thoroughbred Breeding and Development Fund may be a state-created entity, but it is not the “state” in the sense that the taxpayers are responsible for its obligations.  While that is not exactly a subtle point, it is one that both the capital’s “paper-of-record” and NPR station are willing to overlook in order to keep going what they see as a controversial story.

(Not so incidentally, the Thoroughbred Breeding and Development Fund has been twice cited by New York’s Comptroller, most recently on November 14, 2012, for failing to perform tests to prove they were getting the proper commissions.  The Comptroller’s report said they were getting the proper commissions, but it is not clear that was a result of the Comptroller actually doing his own testing.)

This is not intended to excuse NYRA for making improper payments, but I see this as more of an accounting issue than a significant matter warranting the attention being paid to it by influential media outlets.  I think NYRA deserves considerable scrutiny, particularly since it is now controlled by state government.  But what I found so disturbing about Governor Cuomo’s seizure of New York’s racing a year ago remains true today.  We are being poorly served by a media that seems more intent on the cheap sound bite than actually doing even a minimum level of actual reporting and digging to ascertain what is truly going on.  The Times Union also pulled out the tired trope that NYRA “was in the headlines too often for its corrupt behavior.”  They do not specify what that “corrupt” behavior was, but are instead apparently relying on a public willing to accept it on faith.  Of course, if they did any actual reporting on these issues there could be an informed discussion on the good and bad of NYRA.