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The famed Blue Ribbon Analysis is up on the Horse Racing page.

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Tom Noonan by Noonante - 2w ago

The Blue Ribbon Derby Analysis is up on the Horse Racing page.

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When the rash of horse fatalities at Santa Anita in the first months of this year led the track’s owner to announce revolutionary steps to improve both safety and the perception of racing, many hoped this would break the logjam of opposition to any meaningful change in the racing industry.  But as New York’s racing regulatory body demonstrated this week, don’t look for them to take a leadership role.

Twenty-three horses died while racing or training during the first three months of the Santa Anita winter meet.  While it has yet to be determined what caused the fatalities, Belinda Stronach, head of The Stronach Group that owns and runs the track, announced sweeping reforms that have upended the national discussion on equine safety. (Although we often use the phrase “equine safety,” we should never lose sight of the fact that when a horse goes down, there is a human on its back who can also suffer a devastating injury.)

The most controversial of her proposed changes are restrictions on the use of the whip, and a ban on Lasix, the diuretic medication that is permitted in all states and is the only drug that can be administered legally on race day.  While many people in the “outside” world are either sickened or surprised to learn that both whips and drugs are commonplace in racing, racing’s insiders will not be surprised to learn that on Kentucky Oaks and Kentucky Derby days  –  two of the sport’s premier events  –  a grand total of three horses in the 27 races will not be on Lasix.

New York, along with Kentucky and California, is one of the country’s premier racing jurisdictions.  Whether it would join the ranks of those realizing that the sport needed a massive overhaul of its perception among the general public, or side with the entrenched interests seeking to obstruct meaningful change, its Gaming Commission meeting on Monday answered, “we’re sticking with the status quo.”

The Commission’s Executive Director ran through a comparison of proposals by The Stronach Group with the situation in New York.  Where TSG called for an increased program of Out-of-Competition Testing, the New York response was, essentially, “we do that also.”  As I have documented in the past, New York’s program is so anemic that in two periods covering several years, it never identified a thoroughbred testing positive for a prohibited substance.

In what is one of the most significant proposals from California, TSG is proposing complete transparency on veterinary records, including the transfer of records to a new barn. New York responded with its policy in which one type of treatment is sent to a barn claiming a horse.  While this has not received the attention I think it deserves, the overuse of legal medications is potentially a major scandal, and one that transparency of vet records would uncover.

Use of the whip?  The Gaming Commission has previously talked about it and is “still studying” possible changes.

The Commission is also going to study its position on race-day Lasix.  The New York Racing Association that conduct racing at the state’s major thoroughbred tracks has signed on with a coalition  that is proposing a significantly watered-down version of TSG’s outright ban (albeit one that will be implemented gradually).  The Coalition is proposing no Lasix in two-year-old races or in higher level stakes races.  For the vast majority of races, there would be no change.

The Coalition proposal is half-baked.  If the reason for permitting Lasix is a concern for equine safety, why would it not be permitted for the more valuable horses – the stakes horses and two-year-olds?  But I doubt the Commission will ever get to approving the change.  The state’s Equine Medical Director, Scott Palmer, DVM, has already thrown cold water on the proposal, and this is a Commission that meekly follows Palmer’s advice.

New York’s Gaming Commission may actually be the best advertisement for the importance of having a national body overseeing medication rules and discipline for violations.  I do not think a single member of the Commission knows anything about horse racing.  That is not hyperbole;  I mean it literally.

My opinion is based on years of observing their meetings.  They almost never discuss anything.  They operate in secrecy.  The total “conversation” comparing California’s proposed changes with New York took all of four minutes (and there was not a single comment).  The Lasix conversation lasted five minutes. By contrast, California’s Horse Racing Board is comprised of knowledgeable individuals who engage in robust discussions.  They even allow members of the public  –  you know, taxpayers  –  to participate.

The simple reality is that the Gaming Commission is not going to be a factor in any national conversation.  The leading figure in New York on reforms to racing is Congressman Paul Tonko, co-author of the Horseracing Integrity Act 0f 2019.  The leadership of the horse racing community has yet to produce its own voice in favor of reform.  It is an embarrassing indictment on the lack of leadership in this state.

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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.

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The New York Racing Association announced the sudden resignation of its President and CEO, Chris Kay, on January 23.  Six weeks later, one of the government agencies responsible for monitoring NYRA had a brief discussion of the matter.  It left more questions unanswered than addressed.

Neither NYRA nor either of two government bodies charged with oversight, the Franchise Oversight Board and the State Gaming Commission, have stated why Kay’s unanticipated resignation was compelled.  David Grening of the Daily Racing Form reported that “according to multiple sources,” NYRA’s Board “asked for Kay’s resignation after it learned that Kay had used NYRA employees to do private work for him at the house he owns in Saratoga, considered a breach of company policy.”

I have never seen any denial or refutation of Grening’s reporting.  At the March 7 meeting of the Oversight Board there was implicit confirmation of this being a reason for Kay’s termination.  A NYRA executive also stated there were two additional disciplinary actions, including one of an unidentified Senior Vice President.

The approach of the Oversight Board appeared to have less to do with any meaningful oversight, but rather to get this matter behind them as quickly as possible with the hope that people would simply forget about it.  When NYRA’s General Counsel was asked what caused this, he could not answer because he did not know the motivation of Kay “and others.”  He added there was a “culture” at NYRA “where people were reluctant to report bad things.”

Kay’s motivation was obvious and, frankly, not all that important.  He was getting stuff for free.  And if there was such a culture at NYRA, it does not distinguish it from any other work place. It is also not a reason why the CEO would act with seeming impunity.

The real culture that caused this is the one that enabled Kay.  There were theoretical checks on his conduct:  he reported to a Board of Directors, and was answerable to two government oversight agencies, the Oversight Board and the Gaming Commission.  But the sad history of these supposedly independent bodies is that only one individual in the six years of Kay’s tenure ever stood up to him.  And that person resigned in the early part of 2017.

The NYRA Board of Directors became subject to the public records law and open meeting law once Andrew Cuomo seized control of it in 2012 and turned it over to government control  –  mostly, his own.  I observed every public meeting of the Board until it was supposedly returned to private control in 2017.  With two exceptions, the meetings of the Board were a joke.  For the most part, they consisted of Chris Kay slide shows in which he discussed either matters already reported in the media, or a summary of his accomplishments.  The Board, at that time, had audit and internal control functions.

It was clear from the public meetings that the Board was either doing nothing or conducting its real business behind closed doors.  There are, of course, legitimate (and limited) reasons for meeting in private, but much of what was being done  –  if anything was being done  –  did not fall into that category.  When I complained to New York’s Committee on Open Government, they agreed and ordered the Board to comply with the law.  They ignored that directive.

The Gaming Commission is another government agency charged with, among other things, oversight of NYRA.  It also adjudicates disciplinary matters and issues regulations.  It makes NYRA’s former public meetings look like the Lincoln-Douglas debates.  There is rarely a discussion of any substance, nor do they feel any obligation to explain publicly their reasons for anything.

The Franchise Oversight Board has been the one body that cannot be dismissed summarily as a check on either NYRA or its CEO.  (Although it is not a high bar to clear when the meetings of the other two can be described as a joke.)  There was one member in particular, Steven Newman, an accountant experienced in the operations of government agencies, who took oversight seriously.

Newman questioned the claims of NYRA and Kay that they had started operating as a profitable entity.  He thought that reconfiguring the financial books to move certain expenses off the operating ledger was not an indicator of profitability.  He questioned why NYRA would not allow its independent auditor to appear at a meeting of the Oversight Board.  He questioned why Kay’s performance standards and annual evaluations were not available to the Board.  He raised significant, meaningful questions to which Kay often responded angrily or defensively.  Newman resigned in the first half of 2017.

Other Oversight Board members were less rigorous.  One incident that stands out was the time Kay was being questioned about his request for increased funding for the Saratoga “Walk of Fame,” a vanity project for which only he saw the need.  The Board Member assured Kay he did not have to discuss it if he did not want to.  This same Board Member once offered to assist Kay in his desire to be “unshackled” from the NYRA Board  –  as if they were an impediment to Kay getting his way on everything.

At its March 7 meeting, Board members expressed their concern that “something as dumb as” the Kay scandal would affect what they believed to be the progress they made since Cuomo took control of NYRA in 2012.  You know what is said of karma, and hubris only makes it worse.

The 2012 Cuomo coup was facilitated by compliant state actors and a flaccid NYRA Board.  They trumped up charges of malfeasance by the then-CEO and the General Counsel, firing both of them.  They challenged the integrity of Board members, threatening to rescind the licenses they needed to race their horses.  A review by the Governor’s own Inspector General, however, concluded that the NYRA CEO did nothing wrong, and that a mistake that resulted in a short-changing of bettors was actually the result of poor legal advice.

The media went along with the Cuomo narrative, talking about the need to restore integrity to NYRA.  They ignored the juggling of financial books to turn a deficit into a profit.  They further reported the falsified Saratoga attendance figures fed to them by NYRA.  Regrettably, the demands of deadlines prevent most reporters from delving too deeply into NYRA’s press releases.

That is not an impediment, however, for government agencies charged with oversight.  The Franchise Oversight Board, in particular, only has such responsibility for NYRA.  But the issues that were supposedly at the fore in 2012 were no longer in play when now it was Cuomo’s appointees in charge.

One Board member back then  –  who is still on the Board  –  questioned why settlements were paid to the terminated CEO and General Counsel.  (The answer is that the payments were required by contracts.)  This time around, the CEO was a Cuomo pick, and there was no such question.  That is in spite of the fact that in 2012 there was no allegation of personal impropriety and this year there clearly is.

This represents just another example of that “culture” in which NYRA operates.  The “culture” is not that a groundskeeper is “reluctant to report bad things.”  The culture is one where established professionals and business people are so beholden to a Governor that they will not stand up for what is right.

At the March 7 Oversight Board meeting, NYRA officials said they were revising an ethics policy and doing more training.  Right.  The problem is not that a CEO with several senior positions in major organizations did not know that using a company’s employees to cut his grass would be an issue.  The problem is not that a carpenter needs ethics training or whistleblower protection.  The problem  –  as it so frequently is  –  is that the entitled feel entitled.  And that members of the Oversight Board and Gaming Commission are entitled persons who think other entitled persons should get a free pass.

But for those on the Oversight Board and NYRA management who think a satisfactory response is providing a mutuel clerk with more training and whistleblower protection, here are some basic questions that must be addressed and answered publicly:

  • What were all of the reasons leading to the termination of Kay’s employment?
  • Did NYRA conduct a review of the allegations and, if so, what did it conclude?
  • Did NYRA’s Internal Control function, assuming it still has one, conduct a review and, if so, what were its conclusions?
  • Did either the Franchise Oversight Board or the State Gaming Commission conduct an independent review and, if so, what were their conclusions?
  • Has the Governor’s Inspector General, who conducted a review in 2012, done so this time and, if so, what were her conclusions?
  • Has there been a review, by any entity, of financial transactions authorized by Kay, including his expense accounts?
  • Is NYRA going to seek damages from Kay, as one Franchise Oversight Board member suggested in 2012?
  • Has a review been conducted of whether shortcomings within NYRA leading to these issues implicates their retention of the franchise, as was done in 2012?

These are all basic questions that would be asked by any organization when confronted with the unethical conduct of its CEO.  My fear is that there is a considerable desire to sweep all of this under the rug, and move on to planning for the Belmont Stakes.

A comparison between the terminations of NYRA’s CEO in 2012 and 2019 is instructive.  As I wrote about regularly in 2012, the Cuomo takeover of NYRA was purely a political power play using a manufactured scandal and intimidation, including threats against NYRA Board members. The threats were conveyed in a letter by Cuomo’s Budget Director, who served as Chair of the Franchise Oversight Board, and the head of the Racing and Wagering Board (now the Gaming Commission), who prepared a report alleging malfeasance without interviewing anyone or reviewing all relevant documents.

There was never an allegation of personal impropriety by the CEO.  The Governor’s own Inspector General conducted a review in which she actually interviewed numerous individuals and examined documents.  She issued a lengthy report that dispelled none of my statements in this or the preceding paragraph.

By contrast, the 2019 termination of Chris Kay was for personal impropriety according to a published report that has not been disputed.  In contrast to 2012 when the Cuomo staff were actively publicizing their “investigations” and opinions, there has been none of that this time.  The difference?  I’ll take a wild guess and suggest that it is purely political.

Political motivations are, of course, a similarity between the two years.  Another similarity is the avoidance of those in positions of responsibility to accept accountability.  Ironically it is only the 2012 CEO who acknowledged an error  –  and took immediate steps to rectify it even before it became a political football.

But no one else, in either instance, who served in a position with oversight responsibility has stepped forward to acknowledge responsibility  –  whether it be a NYRA Board member or a member of the Franchise Oversight Board or the Gaming Commission.

And that is the “culture” desperately in need of change.

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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,

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Tom Noonan by Noonante - 4M ago

This past Wednesday was not the best of days for the New York Racing Association.

Gabby Gaudet, a NYRA television commentator for a couple of years, decided to take her talents to TVG.  She is an engaging and personable expert  –  adjectives rarely used to describe her remaining counterpart, Andy Serling.  For a sport in desperate need of expanding its fan base to bring in a younger demographic (and more women), Gaudet is a real asset.  Her departure will not help NYRA’s efforts to popularize its own broadcast efforts.

Then there was the sudden “resignation” of Chris Kay, President and CEO of the organization.  When NYRA”s Board of Directors accepted the resignation “effective immediately,” we can assume that it was either resign or be fired.  NYRA’s press release did not offer a reason for the unexpected action.

David Grening of the Daily Racing Form reported, however, that according to “multiple sources … the board asked for Kay’s resignation after it learned that Kay had used NYRA employees to do private work for him at the house he owns in Saratoga.”

By the standards of the Cuomo Administration, of course, this is a small-bore scandal, although certainly one worthy of being terminated from employment.  And let’s not kid ourselves about NYRA now being in private control.  The Board’s membership did not change when it was supposedly “reprivatized” from government control.  The majority of the Board consisted of either Cuomo appointees, including Kay himself, or Cuomo loyalists.

It is no longer surprising when entitled people engage in remarkably stupid behavior and exhibit serious errors in judgment.  Kay, according to the most recent public information, was pulling in more than $500,000 annually and could be expected to pay someone to mow his lawn.

What is surprising, however, is that earlier this month The BloodHorse reported that Kay and his wife made a “personal donation of $100,000” towards the New York Race Track Chaplaincy of America’s efforts to build a multi-purpose building at Belmont Park to serve track workers.  That’s a serious chunk of change, and seemingly not the conduct of someone engaging in nickel-and-dime corruption.

Kay has been a controversial figure.  (I suspect, however, that that would be true of any person serving in the job given the opinionated, sometimes dyspeptic, nature of racing fans.)  He acknowledged knowing nothing about the sport when he arrived in 2013  –  he once characterized the condition book that lists upcoming races as if he discovered the Holy Grail even though all tracks have a version.   But he developed a fluency and knowledge as he went on.

Under his leadership, improvements have been made, although some may have been initiated before he arrived.  There are the changes to the living conditions of backstretch workers  –  Board member Michael Dubb was a major champion.  He developed a new arrangement at Saratoga at the top of the stretch that changed frequently empty seating sections to something that could attract new fans and revenue.  Saratoga is also building a new structure at the other end of the grandstand that will cater to those who had been going to the temporary modular units.

Some of his “improvements” have come at the expense of the “regular Joe and Jane” race trackers who, for example, may like to go to the paddock without being crowded out by picnic tables for sale or tents serving as pop-up bars.   Then there is the monument to his ego  – a new building outside the grandstand that serves as a museum to those awarded a “Red Jacket,” a lame idea that he thinks will become his contribution to Saratoga tradition.

On balance, was he a positive force?  His selling point was that he excelled at customer service  –  or, as he called us, guests.  But he touted the Belmont Park festival, portrayed as a three-day extravaganza of great horse racing.  The best races were all moved to Saturday, with lesser stakes running the preceding days.  My memory of going on the Friday two years ago is of a “crowd” that could easily fit in my high school’s gym, and not being able to get a hot dog  – the day before the Belmont Stakes.

Is Saratoga a better experience?  I like to treat company to what I call the “full Saratoga.”  It’s the training tracks in the morning with breakfast there.  Races in the afternoon and, of course, downtown in the evening.  While the grandstand improvements are a welcome change, one cannot escape the notion that it is primarily those with large amounts of disposable income that are the real “guests.”

Whatever his shortcomings may be, however, Kay is not what ails New York racing or prevents it from improving.  NYRA does have two governmental oversight bodies  –  the Gaming Commission and the Franchise Oversight Board.  Both are dominated by appointees of Andrew Cuomo  –  just as NYRA is.

When Governor Cuomo seized control of NYRA early in his administration, he did it by trumping up charges against NYRA’s leadership and ordering reviews of alleged malfeasance at the organization.  While the results of those reviews were clearly politically motivated and phony, Cuomo got what he wanted  –  control of NYRA and removal of those who preferred to act independently and not kowtow to his whims.

Now we can see how determined the Governor is to ensure integrity at one of the nation’s premier racing jurisdictions.  If David Grening’s sources are correct, there is clearly a significant problem within NYRA.  Back in the day when NYRA conducted public meetings, there were reports from Board members with internal audit and financial control responsibilities.  Those reports were public.  As part of his effort to seize control in 2012, Cuomo has the Gaming Commission’s predecessor, the Racing and Wagering Board, issue a public report.  The Governor’s Inspector General also issued a public report.

That, however, was back before the Governor was responsible for NYRA.  While he may still try to disclaim responsibility under the “reprivatization” charade, he is responsible for the Gaming Commission and Franchise Oversight Board.

The Gaming Commission has a public meeting Monday at 1:00 at which the NYRA situation may be discussed.  They will also be discussing a weakening of an equine safety rule that I discussed here and here.  It will be broadcast on their web site, but don’t hold your breath waiting for any serious discussion.

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As a result of comments I received on my last post, I took another look at the 2012 report of the New York Task Force on Racehorse Health and Safety.  The Task Force was comprised of widely-respected racing professionals and chaired by New York’s current Equine Medical Director Dr. Scott Palmer.

The Task Force looked at the many factors that may have contributed to the 21 fatalities that occurred during racing at the Aqueduct meet of late 2011 and early 2012, with a view to identifying common elements that could be addressed by changing policies.

The Task Force looked at the “purse-to-claiming price ratio” that is the subject of a recent regulatory change approved by New York’s Gaming Commission and the topic for a hearing tomorrow.  As was stated in the earlier post, the Task Force determined that an existing ratio of 2.0 was too high to advance safety, and recommended adoption of a 1.6 standard approved by the American Association of Equine Practitioners.  Despite that recommendation, the 2.0 rule remained in effect.  The purpose of the new regulation is to allow ratios that exceed 2.0.

The Report identified the ratios that were in effect for 17 of the races in which there were fatalities.  (Nineteen of twenty-one fatalities were in claiming races.)  In only two of those 17 races did the “purse-to-claiming price ratio” fall at or below the 1.6 standard.  In ten races, the ratio exceeded the 2.0 requirement of the regulation that is being revised.  The Task Force concluded:

“All of the horses raced during a period of extraordinary claiming activity with elevated purses disproportionate to the value of the horses.”

Among the concerns raised in my prior post about the revised regulation is that the proponents of it  –  “various interested parties” according to the Commission’s General Counsel  –  have not been identified.  One suspects that NYRA’s Racing Office might be one.

During the 2012 crisis over fatalities, the Racing Office was identified as a possible culprit because, at that time, it could ignore a decision by a veterinarian that a horse should be scratched.  The Task Force concluded that the Racing Office’s goal of increasing field size “establishes a potentially critical conflict of interest.”  It went on to add that “field size, or the economic impact of a scratch, must never be a consideration when … [assessing] a horse’s suitability to race.”  (Emphasis in Report.)

The Gaming Commission is operating secretively, so we do not even know the proponents of this change or what their motivation is.  There is nothing in the public record to suggest that New York is not returning to the mistakes identified in 2012.  If economic considerations are paramount  –  as suggested by Dr. Palmer  –  and driven by field size, as we can only speculate, the outlook is not good for equine safety.

But the public has an opportunity to see the government agency charged with equine safety and integrity in operation tomorrow at the public meeting of the Gaming Commission.  There will supposedly be a discussion of comments I submitted on the proposed regulation change.  It can be viewed on their website on Thursday at 11:00.

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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.

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Following a decision by New York’s highest court last week, the rank hypocrisy and arbitrariness of the state’s Gaming Commission was exposed fully.

The case involved penalties imposed by the Commission against Luis Pena, a trainer of harness horses.  The Commission determined that Pena had committed 1,717 violations of its drug regulations between January, 2010 and April, 2012.  Let me repeat that and write it out so there is no misunderstanding.  Pena was determined to have illegally administered medications on horses one thousand, seven hundred and seventeen times in a little more than two years.  The Commission’s penalty, upheld by the Court, was a suspension of his license for three years and a fine of $2,000 per violation.

The Court did not compare this with other discipline, but about the same time the Commission was imposing this sanction, they were imposing penalties against a thoroughbred trainer.  For one violation of a post-race drug overage and one violation for possession of syringes containing a permitted medication in late 2010, the trainer was suspended for 10 years and fined $25,000 for each violation.  That trainer is Rick Dutrow, who has already served more than twice the penalty imposed on Pena.

At the risk of overstating the obvious, such disparate treatment raises questions, if not suspicions.  No two cases are alike, so I went through the public records of the Gaming Commission with respect to both men, as well as a trove of other data from Dutrow’s case.  (I wrote about the Dutrow case here, here and here.)  For the record, I have never met either Pena or Dutrow.

In neither case were the drugs “illegal” in the sense they lacked recognized therapeutic value for the animal.  Rather, the violations by both trainers involved medications that were permitted if administered outside the window specified in the regulations.  A medication would be permissible, for example, if administered more than 96 hours before a race, but not if administered within that time frame.  (The medication in the syringes possessed by Dutrow was a permissible one, but the regulations prohibit a trainer from having syringes and such drugs.)

If the nature of the drugs was not a determinative factor, perhaps the records of the trainers were.  The only thing I know about Pena is from the press release issued by the Commission when they announced the imposed penalties. In their self-congratulatory statement, they boasted about the sanction.  My thought was:  they are bragging about a sanction of a practice in which one person can commit an average of two drug violations per day, instead of being profoundly embarrassed it went on for so long?

Pena’s history of violations according to the Gaming Commission database is unremarkable.  From December, 2009 through February, 2012, he was disciplined nine times.  While that may appear to be significant, it was for the type of minor infractions that are inevitable in a strictly regulated environment  –  an owner not being licensed, Lasix being administered too close to race time, or similar lesser violations of the rules.

By contrast, Dutrow has been a controversial figure, in large part because of a personality that some describe as colorful and others, undoubtedly, as obnoxious.   He has multiple rules violations going back to at least 2000, but many are for the same sort of minor infractions committed by Pena.  There have also been significant penalties imposed in both New York and other jurisdictions.  For the three-year period ending with the 2010 issues, however, Dutrow had only paperwork violations in New York and minor drug overages in Florida and Kentucky.  New York renewed his license to continue training in 2011.

What seems to be undisputed is that Dutrow has a stellar reputation as a horseman.  Witnesses at his suspension hearing  –  including those appearing on behalf of the state  –  attested to it.  Evidence presented that I have not seen contradicted is that he a horse trained by him did not suffer a fatal breakdown in a race over an 11-year span.  A petition supporting his reinstatement last year gathered more than 2,000 signatures from those who would know him best  –  other horse people.

If we cannot discern what the Commission may have been thinking as they imposed wildly disproportionate penalties, what other comparisons may exist?  One example cited by Dutrow’s attorneys concerned the Commission’s suspension of trainer Roy Sedlacek who admitted administering opiates to two horses on race day.  The drugs were illegal, performance-enhancing, not therapeutic and compounded in such a way as to avoid detection by a testing laboratory.  For violations of anti-doping rules more severe than anything for which Dutrow was ever accused, the penalty was a five-year suspension  –  or less than what Dutrow has already served.

Then there is the case of Steve Asmussen.  The Gaming Commission determined in 2015 that Asmussen trained horses that competed at the 2013 Saratoga meet with thyroxine having been administered within the illegal time frame of its regulations.  The Commission fined him $10,000.

The Asmussen decision was three sentences long.  The decision did not mention that 58 of 66 horses run by Asmussen during the 40-day meet had been administered the drug illegally.  It also did not mention that Asmussen horses earned more than $1 million during the meet.  Nor did it mention that Commission staffers stated that the typical fine was a minimum of $500 per violation, an amount that would be at least $29,000.  Nor did the decision mention 28 prior drug violations by Asmussen that he discussed on a nationally televised broadcast, blaming them on inconsistent state regulations.

The penalties imposed on Asmussen, Sedlacek and Pena stand in stark contrast to the severity of Dutrow’s.  I constructed a time line of the cases, but added what may appear to be a completely unrelated factor.  That would be the effort by Governor Andrew Cuomo to seize control of the New York Racing Association.  Recognizing the risk of appearing to be a crazed conspiracist, it does offer what may be a significant factor, particularly given that the Gaming Commissioners are mostly Cuomo appointees.

Cuomo assumed office in January, 2011.  The Dutrow violations occurred in the preceding November.  The New York stewards issued their decision on the violations on February 16, 2011, determining that Dutrow should be suspended for 90 days.  A day later, the President of the Association of Racing Commissioners International sent a letter to John Sabini who, at the time, was the chair of the predecessor state agency to the Gaming Commission.  That was followed by a communication that a United States Senator from New Mexico was concerned that Dutrow be punished severely.  Two weeks later, Dutrow received an order to “Show Cause” why his training license should not be revoked permanently.

Following a three-day hearing, the Board adopted the decision of the hearing officer but reduced the penalty from a permanent revocation to a 10-year suspension on October 12, 2011.  The end of 2011 also marked the beginning of what would become Governor Cuomo’s successful effort to seize control of NYRA and replace an independent body with one controlled by him.

While divining the true motivations of the Governor in any context are close to impossible, it is no secret that he harbored animosity towards NYRA leadership, had  –  and has  – no interest in racing, and will resort to any means, regardless of how unscrupulous, to achieve his secret agenda.

The NYRA takeover featured threats, intimidation and bogus “reports” purportedly justifying the need for state control of what the Governor’s appointees portrayed as a  discredited institution.  The Dutrow case presented a perfect opportunity to put a face on the problems with NYRA racing.  The Pena case, by contrast, did not further the anti-NYRA narrative.  It was harness racing, not NYRA’s thoroughbred product, that was discredited.  Pena’s violations are so much more dramatic than Dutrow’s that the public’s focus would more likely focus on either racing as a whole, or the incompetence of a government agency controlled by Cuomo.  It therefore seemed important that Dutrow be connected with NYRA instead of having other salient problems addressed.

All of this may be coincidental and is, admittedly, conjecture on my part.  Nonetheless, the fact remains that the penalties imposed on Dutrow, Pena, Asmussen and Sedlacek are impossible to reconcile in any logical, legal or moral sense.

There is a way, however, for the seeming hypocrisy and arbitrariness to be addressed.  That would be for the Gaming Commission to explain its decision-making.  It is a government agency that, by law, is supposed to be an independent and impartial adjudicatory body.  It should be answerable to the public as well as the horsemen and horsewomen it serves.  But it has consistently demonstrated that it is neither transparent nor accountable.

The Commission has had ample opportunity to explain publicly its rationale for its treatment of Dutrow.  His attorneys have been petitioning them for years to reconsider its penalty  –  not to relitigate the underlying violations, but to address the severity of a 10-year ban on someone performing his livelihood.

At its July 16, 2018 public meeting, the Commission announced that it had met in secret and voted 4-2 to not reconsider its penalty.  There was neither a discussion nor an explanation.  It later released a memo attempting to justify that decision.  But the memo was written after the meeting, did not address the issues raised by Dutrow’s attorneys and is nothing more than an attempt to put lipstick on a pig.

What is at stake here is nothing less than the integrity of racing in New York.  I follow the sport closely and cannot comprehend the differences in the discipline described above  When Hall of Fame trainer Steve Asmussen gets a slap on the wrist for 29 drug violations at the state’s premier race meet, and another loses his livelihood for two comparable violations in a three-year period, one can only ask why. When a trainer who averages two violations per day gets a suspension less than one-third of one with two violations over three years, one gets suspicious.

If we expect the racing community and the public to have trust in the sport, this behavior by regulatory bodies must stop.  No one in the public or the racing community is going to trust that the sport is honest when the body charged with enforcing standards of conduct is irrational, arbitrary and hypocritical.

The Gaming Commission did not respond to my request for an explanation of the discrepancies between the Dutrow and Pena penalties.

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