Nunn’s Attorney Charges HISA With Hypocrisy In Dealing With Intra-Articular Injections

Attorney Drew Mollica understands that his client trainer Doug Nunn violated Horseracing Integrity and Safety Authority (HISA) Rule 3313, which prohibits trainers from running a horse within 14 days of an intra-articular joint injection or working them within seven days of the injection. What he doesn't understand is why his client has been suspended while at least 15 other trainers have been let off the hook for the same violation.

“This is the height of hypocrisy,” Mollica said. “He has been victimized by a system that is flawed.”

On June 26, HISA announced that it had temporarily suspended full enforcement of its intra-articular joint infection rules and that the rule covering workouts would not go into effect until July 15. According to HISA Chief Executive Lisa Lazarus, between 15 and 20 trainers had breached the rule surrounding intra-articular joint injections prior to a workout. Lazarus said the delay in implementing the rule was needed because there was confusion among trainers regarding the specifics of the rule.

“On the workout side, while it was mentioned in the education process, it seems that a lot of trainers just really didn't understand it, and most of the violations we saw were only off by one day,” she said. She added that the temporary modification of enforcement of the rules was deemed the most “fair and equitable” way to proceed “given the number of violations.”

Alexa Ravit, the director of communications and outreach for the Horseracing Integrity and Welfare Unit (HIWU), confirmed in an email to the TDN that Nunn's penalty was not excused because the injection was too close to a race while the other offenders were too close to a workout.

Monmouth Park Racetrack | Bill Denver/EQUI-PHOTO

According to Mollica, the horse in question, Smithwick's Spice (Frost Giant), was injected 12 days before racing on June 9 in an allowance race at Delaware Park, which the gelding won by three-quarters of a length. That, he argued, is less egregious than working a horse within seven days of an injection.

“The people who made the mistake of working within seven days put more stress on their horses than he did in the 12 days between the injection and racing,” he said. “The racing-versus-the-work argument is not logical because his horse had more time to recover.”

Mollica also said that if HISA had been doing its job the entry of the horse would not have been allowed.

“Doug Nunn's horse had an injection and it was reported on the horse's portal on May 31,” he said. “Everyone knew about it. HISA was supposed to now flag his entry. The horse was supposed to be ineligible to race. But they, maybe because of confusion, didn't do it. Doug Nunn was confused about the rules and didn't talk to his vet and didn't coordinate things properly. He entered the horse. The overnight was out eight days before the race. HISA never said 'Wait a minute, Doug, your horse isn't eligible.' They let him run on June 9. He wins on June 9. There was confusion as to what he was supposed to do. But Doug Nunn, as opposed to, fill in the blanks, the trainers who they let off, was treated differently. Those guys got a pass. That's not America to me.”

Mollica said that if possible confusion about the rules was the reason why trainers who violated the workout provision of the rule weren't suspended then there's no reason why the same argument shouldn't apply to racing a horse in violation of the rule.

“In this situation, there obviously was confusion,” he said. “How do I know? Because HISA themselves dropped the ball. Delaware Park was confused. HISA was confused. Doug was confused. Why is his any confusion any different than their confusion?”

Mollica also wants to know what trainers violated the workout rule. Although any possible suspensions were waived, their horses were ineligible to race within 30 days of the injection, which Mollica, argues, should make the names of those horses a matter of public record. He pointed to the June 29 story in the TDN in which Lazarus implied that the names of those horses would be released.

“When horses are suspended, you'll be able to figure that out,” Lazarus said at the time, pointing to HIWU's “public disclosures” webpage.

However, the names have not been disclosed and a request to HIWU by the TDN to release the names of the horses involved was denied.

Monmouth Park First Turn | Sarah Andrew

“Since the trainers were not Provisionally Suspended and Charge Letters were not issued to them because they only received a warning (as per HISA's notice), HIWU will not be publishing the names of the horses currently facing a 30-day period of Ineligibility due to breezing too soon after an IA injection,” Ravit wrote to the TDN in an e-mail. “For IA-related matters after July 15, the names of both the trainers and the horses will be published once a Charge Letter is issued to the trainer.”

But HISA's own rule 3620 makes it clear that public disclosure is required. It reads: Rule 3620. Public Disclosure
(a) The Agency shall Publicly Disclose the resolution of an alleged violation of the Protocol no later than 20 calendar days after:
(1) the final decision;
(2) a resolution between the Agency and the Covered Person; or
(3) the withdrawal of a charge or a final decision finding of no violation

Why won't HISA/HIWU release the names of the horses that worked within the seven-day period, even though their own rules say they must? Mollica said he didn't want to speculate but he was quick to fault them for a lack of transparency.

“My problem is the lack of transparency and the lack of fairness,” he said. “What's good for the rich and famous trainers should be good for Doug Nunn. The lack of transparency shows because Lisa Lazarus said you'll know the names of those trainers when we publish the names of the suspended horses. Now we understand they are not going to release the names of those horses. Meanwhile, Doug was publicly villainized with his ruling up there on their website, yet we don't even know who these people who were given a pass are. So tell us. Transparency is the greatest disinfectant. We obviously have an infection. Why are we not disinfecting it?”

Nunn's violation can yield a suspension of up to 60 days but Mollica said he has reached an agreement with HISA and HIWU and that his client will receive a 30-day suspension. The situation has left him asking a lot of questions and he doesn't have all the answers, but he believes that Nunn was treated differently because he's a small-time trainer. Based at Monmouth Park, he's won six races this year from 59 starters and has 305 career victories.

“If you are going to start opening up loopholes, you can't open up loopholes for some and not for others,” Mollica said. “Doug Nunn is a victim of being a small guy in a big world. I do think he's being treated differently, like a lot of little guys are. This is stacked against the little guy. They excoriated Nunn and let others off and they won't even tell us who they are.”

The post Nunn’s Attorney Charges HISA With Hypocrisy In Dealing With Intra-Articular Injections appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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NY Gaming Commission Upholds Void of Claim

A hearing officer for the New York Gaming Commission has upheld the voided claim of Battalion (Tiznow) in the fourth race at Belmont Park, May 28. Bella Mia Stables LLC and their trainer Bob Klesaris had entered the horse into the race with a $25,000 claiming tag. When owner Sanford Goldfarb and trainer Robert Atras claimed the horse, no one notified the Klesaris barn and the horse was returned to their barn, rather than the test barn. The New York Stewards decided to void the claim, and Michael De Bella, Bella Mia's owner, and attorney Drew Mollica appealed that decision.

“I conclude that, on this record, the Stewards did not abuse their discretion and, therefore, affirm the decision of the Stewards to void the claim,” wrote Gaming Commission Member Peter J. Moschetti Jr. in his decision. “The horse's prompt presence in the test barn is required to protect the claimant, who may, if circumstances warrant, avail himself of provisions in Commission Rule 4038.5(a)(4) to have the claim deemed void, if a Commission-designated veterinarian determines that the horse is lame pursuant to the standards of such rule. Rule 4038.5(a)(4) provides that the claim of a horse determined to be sufficiently lame by the Commission-designated veterinarian shall be deemed voided unless a representative of the claimant is present in the test barn and, instead, `decides immediately to accept the horse.'”

It was the job of the NYRA Clerk of Scales Jack Welsh to ensure that notice of a claim is given to the groom of the claimed horse, and he admitted that he had failed to do so.

“Appellants did nothing wrong here,” continued Moschetti in his decision. “Battalion's trainer did eventually bring the horse to the test barn when belatedly informed of the claim, but through no fault of Appellants, time had passed already from the end of the race. Claimant did nothing wrong here, either. However, through no fault of Appellants or Claimant, Claimant was deprived of the assurance that the horse was under the observation of Commission staff from the end of the race until delivery to the test barn for examination.”

Because there is no specific Commission rule on how to handle such a situation, Moschetti said, the Stewards have discretionary power to to impose a remedy. Battalion finished last in the race as the 2-1 favorite.

“I need not make any judgment about whether the Stewards' decision was the only plausible one they could have made, or whether their decision may or may not have been the best one. Rather, I conclude that in applying a Rule that empowers the Stewards to make a discretionary decision in unusual circumstances, the Stewards did not abuse that discretion in retuning the ownership of this horse to the status quo ante.”

“Michael De Bella is happy he fought this fight,” said Mollica, “although we obviously disagree with the commissioner's decision. This case brings to light the arbitrary and capricious nature that have recently been handed down in New York Racing. The facts here are clear and while in the final analysis, the hearing officer stated that although the decision might not be the right one, the Stewards' discretion rule carried the day. My client and I remain convinced, however, that the Stewards' discretion in this case was arbitrary and ill-advised at best, and illogical at worst.”

The post NY Gaming Commission Upholds Void of Claim appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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McPeek Frustrated By ‘Nonsensical’ Denial Of Entries At Saratoga, Seeks Hearing

Though the New York Racing Association and the New York State Gaming Commission officially released Saratoga's Barn 86 from quarantine on Aug. 1, trainer Ken McPeek told bloodhorse.com he was frustrated by his inability to enter horses to race on that date. McPeek and his lawyer, Andrew Mollica, filed a request for a hearing with the NYSGC as to why he was unable to enter horses until Sunday, essentially preventing those horses from racing until Aug. 6.

The quarantine began on July 11, when a filly trained by Jorge Abreu, with whom McPeek shares Barn 86, tested positive for equine herpesvirus. The filly was sent to Rood and Riddle Equine Hospital and is currently recovering. No other horses in the barn showed symptoms during the 21-day quarantine.

Multiple press releases and news reports indicated that the quarantine would be released on Aug. 1, provided there were no additional cases of EHV-1, so McPeek and his owners made plans to be able to race their horses from that date. He attempted to enter one horse for Aug. 1, three for Aug. 4, and three for Aug. 5, but since entries for those cards were taken before Aug. 1, NYSGC steward Braulio Baeza Jr. denied the entries.

Essentially, the quarantine was unnecessarily and inexplicably extended by another five days, McPeek argued.

“I am doing this so that the next time this happens, trainers and owners will not have to go through another situation like this where there are an extra three to five days when their horses cannot run because there is no clarity in New York. I don't want to see anyone else go through this,” McPeek told bloodhorse.com. “Officials need to address some standard operating procedures and protocols for everyone that make sense. To keep horses who have cleared quarantine from not running is nonsensical.

“What's the logic here?” he added. “It's been easier for (trainers) Marcus Vitali and Bob Baffert to run at Saratoga than me.”

Read more at bloodhorse.com.

The post McPeek Frustrated By ‘Nonsensical’ Denial Of Entries At Saratoga, Seeks Hearing appeared first on Horse Racing News | Paulick Report.

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