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‘Just Tragic’: Death Of Maiden In His First Start Since 2016 Could Spur Change In Ohio

The death of Mox Nix, an 8-year-old maiden gelding in the eighth race at Belterra Park in Cincinnati on Sept. 28, could result in new regulations in Ohio racing, according to the new executive director of the state commission.

Mox Nix failed to finish in the maiden claiming contest, where he was in for a $7,500 tag for owner/trainer Robert C. Bennett. He was pulled up between the quarter and half mile poles in the six-furlong contest and euthanized by commission veterinarians due to a fracture in his left hind leg.

The race was his first in nearly five years, as the gelding had been off track since finishing ninth in a maiden special weight at Mahoning Valley in Youngstown, Ohio, on Oct. 31, 2016.

The gelded son of Zanjero was more than 30 lengths off the winner in that race, and was subsequently put on the veterinarian's list in Ohio for a bowed tendon on his right front leg. He remained on the list despite a long period of inactivity, and per commission regulations was required to perform a workout of at least four furlongs in under 52 seconds before a commission veterinarian. According to Chris Dragone, who recently assumed the role of executive director at the Ohio State Racing Commission, that work was completed and duly observed by a veterinarian, and the horse passed an examination following the workout.

There was a gap in Mox Nix's workouts leading into the late September race. He posted a four-furlong breeze at Belterra in :51.71 on July 9, a :50.90 breeze on July 26, and a five-furlong breeze in 1:05.01 on Aug. 3. Then, he didn't work again until Sept. 10, when he went four furlongs in :50.35.

A commission vet also gave the horse an extra look in the paddock ahead of his Sept. 28 race. Dragone noted that the fatal injury was not in the leg that had sustained the bow back in 2016.

Bennett did not respond to multiple interview requests for this story.

The guidelines for how and whether a horse may race after a long layoff, or at what age the horse may race, vary from place to place. Those guidelines are sometimes part of a commission's regulations, but racetracks may also impose their own restrictions on whether they will take an entry. While each race has its own conditions for recent finish position and racing class, race meetings may also have minimum performance requirements for horses to stable or race on the property. This may include achieving a minimum placing within a period of time, or may exclude horses that have failed to achieve a placing above a particular claiming level in a specified period. Those requirements would be listed in the introductory pages in the physical copy of a track's condition book.

(The Paulick Report looked at minimum performance requirements set out by racetracks in this 2016 piece about claiming racing.)

Typically, tracks that run cheaper races have lower minimum performance requirements or higher ceilings for maximum age of a runner. Dragone said he was aware that there were minimum performance requirements in place at Mahoning Valley and JACK Thistledown Racino, but was not certain if Belterra had similar policies.

Bill Couch, racing secretary at Belterra, did not return calls seeking comment.

Dragone said last week that the commission had launched an investigation into the death of Mox Nix, but that early indications were that Bennett had not violated any state regulations in entering and running the horse.

Currently, the only restrictions the Ohio commission places on runners is that they must be serviceably sound, cannot be wearing a trachea tube, cannot have undergone a nerving surgery, and cannot have impaired sight in both eyes. There are no further regulations about maximum age, maximum layoff time, or performance.

Dragone said he expects that to change.

“An eight-year-old maiden on a five-year layoff – just tragic,” said Dragone. “We're in discussions at the commission about drafting a rule because we don't have anything on the books right now that would have prevented this. Tragic, but [Bennett] did not break any rules and all the procedures were followed that we could tell, but that doesn't solve the problem, so I think we're going to need a rule to make sure this doesn't happen again.

“We're investigating it. We're taking it very seriously and it will not happen again.”

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Judge Won’t Dismiss Ohio HBPA’s Suit Over $2.7M in Disputed VLT Money

A federal judge on Thursday denied a motion to dismiss a lawsuit filed by the Ohio Horsemen's Benevolent and Protective Association (OHBPA) against the present and former owners of Belterra Park that involves the OHBPA trying to recoup more than $2.7 in gaming revenues that the horsemen's group alleges the track wrongfully withheld between 2014 and 2018.

Back on Dec. 18, 2020, the OHBPA's suit contended that Belterra never made good on a four-year difference between a placeholder rate first established for video lottery terminal (VLT) gaming and the eventually revised rate, which it claimed totals $2,769,652. “The OHBPA has been deprived of these funds, which go directly toward the benefit of horse breeding and horse racing in Ohio,” the lawsuit stated.

On Feb. 16, 2021, Belterra had asked the United States District Court for the Southern District of Ohio (Eastern Division) to dismiss the OHBPA's suit, alleging that “OHBPA's cleverly labeled claims are nothing more than an attempt to plead around the fact that there is no private right of action under the relevant Ohio statute or regulation.”

On Sept. 30, Chief U.S. District Judge Algenon Marbley wrote in a 17-page court order that the defendants who owned and/or operated Belterra during that time frame (Boyd Gaming Corporation. Pinnacle Entertainment, Inc., and Penn National Gaming, Inc.) did not present a strong enough case to get the lawsuit thrown out of court.

“On May 1, 2014, the day that Belterra Park reopened, no rate agreement had been reached
with OHBPA,” the court order stated. “Belterra therefore entered into an Escrow Agreement with the Racing Commission on that same day, which would terminate once the Racing Commission set the final rate by rule. Plaintiff states that the Escrow Agreement set aside 9% of Belterra's VLT commission, which OHBPA began receiving on May 1, 2014.

“By November 2014, six months after Belterra Park reopened, the Racing Commission had
not set the percentage of Belterra's VLT commission owed to OHBPA. OHBPA and Belterra tried to reach an agreement on the percentage but failed to do so. In fact, the Racing Commission would not set its rate for about four years, allegedly due to various delay tactics employed by Defendants. OHBPA maintains that Belterra's capital expenditure submissions were unrealistic and overly aggressive attempts to persuade the authorities that it was entitled to the lowest statutory rate; this caused delays in the determination by the Racing Commission.

The order continued: “OHBPA had no access to Belterra's records of purported capital expenditures and no way to expedite the rate-setting process. By Plaintiff's account, OHBPA and Belterra each understood that, pursuant to the statute, the actual rate was to be set by the Racing Commission, and that Belterra would need to make a 'catch-up' payment to OHBPA for any difference between the 9% placeholder rate in the Escrow Agreement and the actual rate so set. Plaintiff contends that the delay in setting the statutory rate was due to Belterra's years of stalling before providing to the State a reasonable submission of capital expenditures incurred.

“On June 27, 2018, the Racing Commission passed Resolution No. 2018-05. This resolution set the VLT commission percentage at 9.95%. As of July 1, 2018, Belterra began paying, and OHBPA began receiving, the 9.95%. As Defendants emphasize, the resolution does not contain any express language making the higher rate retroactive to May 1, 2014.”

The judge wrote in the order that, “From OHBPA's standpoint, Chapter 3769 gives them a right without a remedy. The law entitles OHBPA to payments but does not provide the procedure or framework by which OHBPA can secure them. The legislature cannot have intended such an outcome, and this Court will not compel it…

“On the consistency question, the Court determines that a private remedy would be consistent with the legislative scheme. The clear motivation for Section 3769.087(C), appearing directly in the text, is to direct resources 'for the benefit of breeding and racing in this state.' OHBPA seeks here to recover funds withheld in derogation of that purpose.”

Regarding retroactivity, the order stated that, “Defendants correctly observe that the statute, regulation, and resolution do not specify catch-up payments. But nor do they grant Defendants leave to pay the statutory minimum while the Racing Commission determined the actual rate—especially under circumstances where Defendants are alleged to have engaged in bad-faith delay.

“The statute and regulation refer to only one percentage rate, falling between 9% and 11% as determined by the Racing Commission. They do not provide any method for changing the percentage so determined, which suggests that the rate is intended to be fixed—even if it could not be known to a certainty until the State had reviewed the capital expenditure reports.”

The order continued: “Moreover, as to wrongfulness, OHBPA has alleged bad faith in Defendants' multi-year delay, using unrealistic and overly aggressive capital expenditures in an apparent effort to persuade authorities that it was entitled to pay a lower final rate. Without the report, the Racing Commission could not determine its final rate, which allowed Defendants to continue setting aside only the statutory minimum (9%) per the Escrow Agreement. This too supports a finding of wrongful conduct, satisfying the second element…

“For all of these reasons, OHBPA has established a plausible entitlement to catch-up
payments under Section 3769.087(C). To support Defendants' contrary position, the Court would
need to read a clause into the statute allowing for different rates before and after the Racing
Commission's determination, into the Escrow Agreement to state that the 9% set-aside is in full
satisfaction, and into the resolution to set an effective date of July 1, 2018. By Defendants' own
cited authority, none of this is permissible.”

The order summed up: “Across the finish, it's Plaintiff. For the reasons set forth above, Defendants' Motion to Dismiss is denied.”

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Red-Hot Charlie Appleby Talks Arc, Breeders’ Cup On Writers’ Room

It takes a lot for a European trainer to become the biggest story in North American racing, but that's exactly what Charlie Appleby has accomplished, among many other things, this year. Capturing three of the four Grade I races at Woodbine plus the Jockey Club Derby at Belmont last weekend to follow up several other successful raids of top-level events in the U.S. this summer, Appleby has quite simply taken the racing world by storm at just 46 years old. Wednesday, during a short break from shopping the Goffs Orby Sale in Ireland, Appleby joined the TDN Writers' Room presented by Keeneland to talk about his whirlwind year, his contenders for the G1 Prix de l'Arc de Triomphe and Breeders' Cup and all the history he is still trying to make.

Asked about this weekend's Arc, where he has two of the top contenders in standout 3-year-olds Adayar (Ire) (Frankel {GB}) and Hurricane Lane (Ire) (Frankel {GB}), Appleby, calling in via Zoom as the Green Group Guest of the Week said, “Adayar won the [Epsom] Derby and went on to win the King George, the first horse since Galileo to do so. We met with a minor setback in preparation for a trial [for the Arc], which was always annoying, you don't want to have a setback at any stage, but I told myself during that point, no horse has actually won the Arc trial and gone on to win an Arc, so I took it as a positive that someone was telling me not to go. Subsequently since then, he's not missed a beat and he couldn't afford to miss a beat either. So he looks great, and he's the best horse in the race. Hurricane Lane is a rock-solid horse, he's won an Irish Derby, a Grand Prix de Paris and a St. Leger. No horse has won a St. Leger and gone on to win an Arc. So along with the excitement of running in the 100th Arc, there's the potential to create history with Hurricane Lane. We don't look back on history, we try to make history. So we'll have a crack at it.”

Appleby also discussed his upbringing in racing and the wealth of experience he accrued that has allowed for his unprecedented success in recent years, saying, “I was brought up in the west country of England. You become more hands-on down there in dealing with the horses. From there, I moved up the country and went to my first stable in Newmarket with [11-time British champion jockey] Lester Piggott. In terms of racing knowledge, I don't think I could have been in better hands. I spent a lot of time watching racing with Lester and the great [trainer] Barney Curley. I learned how to read a race out there and understand the styles of racing and the pace of a race. Then I went on to David Loder's yard, which was a force to be reckoned with in the '90s and 2000s, where I learned a lot about 2-year-olds, how far to push them and what we needed to achieve to get them to Group 1 status. Then I joined Godolphin at the age of 19 or 20 and from then on have been very lucky. I've had a management position throughout my whole career in Godolphin. It allowed me to travel worldwide and go overseas. I spent a lot of time at Arlington and Belmont. It allows you to meet people out there who I never normally would have met in the racing world. You see these entrepreneurs and they influence you, you get a buzz, and you learn how they strive for success. It gets instilled in you in a way. So 'can't' isn't in our vocabulary. We strive to achieve, and if it doesn't happen, we take the positives out of it and move on. The negatives are brushed aside.”

Elsewhere on the show, which is also sponsored by Spendthrift Farm, West Point Thoroughbreds and Legacy Bloodstock, the writers reacted to the news of Arlington Park's official sale to the Chicago Bears, lamented the case of a horse who shouldn't have been allowed to race at Belterra Park and looked forward to a massive weekend of racing on both sides of the Atlantic. Click here to watch the podcast; click here for the audio-only version or find it on Apple Podcasts or Spotify.

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Belterra Park Stewards DQ Horse From Win, Alleging ‘Invalid/Fraudulent’ Eligibility Documentation

First-time starter Easily Influenced has been disqualified from an Aug. 17 victory at Belterra Park in Cincinnati, Ohio, after the board of stewards ruled that the horse's owner had “submitted invalid/fraudulent documentation determining eligibility for entry.”

Easily Influenced recorded a series of breezes for his owner, Marc Ricker, at the Ashwood Training Center in Paris, Ky., a facility Ricker operates and is recognized by Equibase as an official training center for recording workouts. Testimony at an Aug. 27 stewards hearing from Bud Bundy, who had served as the starter at Ashwood, indicated that he did not issue the approved pre-race starting gate card dated Aug. 4 used by trainer Sherman Mitchell for Easily Influenced's eligibility to enter the Aug. 17 race.

“In mitigation,” the stewards ruling states, “trainer Sherman Mitchell obtained the gate card from the owner of record for Easily Influenced. Further, this owner Marc Ricker, dba/Ashwood Training Center submitted invalid/fraudulent documentation determining eligibility for entry.”

Stewards ordered the $9,300 purse for the $7,500 maiden claiming race to be redistributed. Easily Influenced was disqualified and declared unplaced.

That same day, Aug. 17, stewards at Indiana Grand in Shelbyville, Ind., scratched first-time starter Delta Nine from a race after determining his gate card had not been issued by Ashwood's starter. Delta Nine was also trained by Mitchell and based at Ashwood. The Indiana Horse Racing Commission has not issued a ruling on the matter.

Ricker said he's done nothing wrong and is appealing the Ohio disqualification.

“It wasn't a fraudulent card,” Ricker said. “It's since been cleared up, as far as I'm concerned. The starter works for me. I own the training center. I've got signed affidavits from six people. The starter said (Easily Influenced) was OK, but he was out of gate cards to fill out. I printed more for him, but he wasn't going to be back in time.”

Ricker said he wasn't happy with Bundy's testimony before the Belterra Park stewards.

“He's since been fired,” Ricker said of Bundy. “I'm filing a complaint against him (with the Kentucky Horse Racing Commission).”

Bundy could not be reached for comment.

Ricker said Ashwood's new starter is Barry Wilson.

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