The Week in Review: Betting on Good Karma to Overcome Bad Headlines

Next week at this time, we'll know if the sport is on the cusp of another Triple Crown sweep. Of all the potential excuses for GI Kentucky Derby winner Mage (Good Magic) not emerging victorious from the GI Preakness S., intense media pressure is unlikely to be one of them.

You could make the argument that the diminutive, white-blazed chestnut with the endearing overbite has enjoyed one of the least-scrutinized post-Derby weeks of any winner in recent history. That's not so much because the spotlight on his accomplishment has dimmed. It has to do with overlapping waves of chaos commandeering the game like a searing mint julep hangover that won't go away.

Colleague Bill Finley wrote in this space last week about the seven horse deaths at Churchill Downs that overshadowed Mage's Derby score. That was followed a few days later by proponents and opponents of the Horseracing Integrity and Safety Act (HISA) sparring in federal court, where the highlighting of racing's recent, grim headlines to prove points underscored a nasty turn in a two-year-old lawsuit that has no end in sight.

Additionally, Mage was eclipsed in the news by the colt who was favored to beat him, but had to scratch on the morning of the Derby with a foot bruise. That would be the 2-year-old champ Forte (Violence), who on May 9 was revealed to have failed a drug test at Saratoga last September, with the public kept in the dark the entire eight months afterward until the scoop was leaked to the New York Times.

Two days later, on May 11, Forte was disqualified from the GI Hopeful S. on the basis of a non-steroidal anti-inflammatory medication positive. The case is under appeal, with the only certainty being that it, too, is likely to linger in the courts for a long, long time.

The same day as word of Forte's DQ broke, the connections of last year's underdog Derby upsetter, Rich Strike (Keen Ice), also got dragged into the headlines for a cringe-worthy cameo. The issue had nothing to do with the colt's 0-for-6 record since winning the first leg of the 2022 Triple Crown.

Rather, trainer Eric Reed informed owner Rick Dawson (via text) that he was resigning after the two failed to come to an agreement over–Are you ready for this?–a proposed movie deal. Reed's version of events is that he stepped away after Dawson gave him an ultimatum to either drop the project or get fired. Dawson's take is that he was being kept out of the loop on negotiations and that “things were done behind my back.”

Will “Richie” still be destined for the big screen? Destined for prolonged litigation seems more like it.

And finally, even though it managed not to percolate to the top of the news cycle last week, trainer Bob Baffert and Churchill Downs, Inc., were still trading court filings in Baffert's federal civil rights lawsuit against the gaming company that controls the nation's most important horse race. Yes, Baffert's two-year banishment from the Derby has come and gone, but the lawyering is far from done and the legal fight grinds on.

Separately, we still don't know the outcome of the appeal of Medina Spirit's betamethasone DQ from the 2021 Derby, which is what sparked both Baffert's ruling-off and the lawsuit. That's because the Kentucky Horse Racing Commission still hasn't adjudicated the appeal, 743 days after the test sample was drawn.

Bottom line? All this attention being deflected away from Mage lets him coast into Baltimore further under the radar than most Derby winners. Theoretically, that's great for the colt. For the sport as a whole, it's embarrassing.

The last four Derbies have all been dysfunctional to some degree. An inexplicable 80-1 winner was 2022's oddity. The in-limbo drug DQ appeal of Medina Spirit still clouds the 2021 Derby. The 2020 pandemic necessitated that year's Derby be run in September instead of May. In 2019, it was the DQ of first-across-the-line Maximum Security for in-race interference, the only demotion of a Derby winner for an in-race foul, and it too sparked a failed federal lawsuit.

Mage's trainer, Gustavo Delgado, had a peripheral role in that controversial 2019 Derby. He saddled the 71-1 Bodexpress, who, just like Mage, set sail for Louisville after running second in the GI Florida Derby.

The difference was that Bodexpress went into the Kentucky Derby while still a maiden. Nevertheless, he showed grit by pressing the pace and holding a forward position against far more seasoned horses before tiring and then dramatically checking out of action in the far-turn scrum that resulted in Maximum Security's DQ.

Delgado, who had saddled multiple Classics-level stakes winners in his native Venezuela prior to trying his luck with a stable in America in 2014, wheeled Bodexpress right back two weeks later, giving him his first starter in the Preakness. The colt went off at 20-1, but dislodged jockey John Velazquez at the start and careened around the track riderless before being safely corralled.

Because of his antics, Bodexpress became a social media sensation and something of a fan favorite. After a five-month freshening, he broke his maiden in Florida and subsequently won two allowance races.

In 2020, Bodexpress scored at 11-1 odds in the GI Clark S. at Churchill to cap off his racing career, while giving Delgado his second Grade I winner in the United States. That turn of events signaled better Triple Crown karma might eventually be in Delgado's pipeline.

The trainer's son and assistant, Gustavo Delgado, Jr., told TDN's Katie Petrunyak on Friday that his father initially scoffed at the $290,000 purchase of Mage at EASMAY last spring.

“He didn't like him because he's got parrot mouth,” Delgado, Jr., said. “I remember he looked at me and said, 'The next time you are buying a horse, send me a video first and don't buy a parrot mouth.' But I told him, 'Trust me, this guy can run.'”

Talk about looking a gift horse in the mouth.

Mage fits the profile of a Derby winner who might not be fancied as the favorite in the Preakness, where he'll face a wave of fresh competition. But he's now uncorked big moves on the far turn in two straight Grade I races, and as a light-framed colt, his way of going doesn't seem to impose the type of pounding that would be detrimental to firing right back in two weeks.

On Saturday, we'll find out if Mage can spare the sport a little of his upbeat mojo. Right now the game could use a touch of his no-drama, all-business vibe.

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HISA, FTC Link Grim Headlines to HBPA’s Desire for ‘Status Quo’

In two separate court filings Thursday, the Horseracing Integrity and Safety Act (HISA) Authority and the Federal Trade Commission (FTC) both sharply criticized the National Horsemen's Benevolent and Protective Association (NHBPA)'s decision to seek an injunction that would delay the May 22 implementation of the Anti-Doping and Medication Control (ADMC) program.

What stood out was that neither the HISA Authority nor the FTC shied from trying to link the NHBPA's desire to maintain the “status quo” to the grim headlines that have dominated the sport over the past week.

“Seven horses died in the lead up to last weekend's [GI] Kentucky Derby,” the FTC's opening line in the May 11 filing stated. “Reporters, not mincing words, observed that the accidents 'overwhelmed' the [D]erby with 'the stench of death.' Congress passed HISA in 2020 to protect horses and prevent these kinds of tragedies, but the Horsemen Plaintiffs have repeatedly challenged the statute and the FTC's implementing rules.”

Drawing similarly from recent adverse events, the HISA Authority's response referenced a May 9 New York Times story that broke the news of Forte's failed New York State Gaming Commission drug test that ran under the sub-headline, “Horse racing is again caught up in a controversy.”

The HISA Authority alleged that, “Plaintiffs' request for 'state regulation' to forestall the federal regulatory scheme Congress mandated would plunge the industry back into the 'existential crisis' of inconsistent regulation [and] recent headlines provide fresh reminders…”

United States District Court Judge James Wesley Hendrix of the Northern District of Texas (Lubbock Division) will now have to weigh those assertions against those filed by the NHBPA in its May 5 request for the ADMC injunction.

The lawsuit initiated by the HBPA to try and derail HISA on alleged anti-constitutionality grounds is now past the two-year mark. The thrice-delayed ADMC is on target to begin in 10 days.

On Mar. 15, 2021, the NHBPA and 12 of its affiliates sued the FTC and HISA Authority personnel, seeking to permanently enjoin the defendants from implementing HISA, bringing claims under the private-nondelegation doctrine, public nondelegation doctrine, Appointments Clause, and the Due Process Clause.

Judge Hendrix dismissed that suit on Mar. 31, 2022. But the NHBPA plaintiffs appealed, leading to a Fifth Circuit Court reversal on Nov. 18, 2022, that remanded the case back to the Lubbock Division. In the interim, an amended version of HISA was signed into law Dec. 29, 2022. That fix was designed to make HISA compliant with the constitutional defects the Fifth Circuit had identified.

On May 6, 2023, Hendrix validated the newer version of HISA as constitutional. Now the NHBPA is planning another appeal back to the Fifth Circuit, and it wants the ADMC's rollout stopped while that process plays out.

The May 5 filing by the NHBPA explained the reasoning behind its request:

“An injunction is necessary because the industry cannot endure 'seismic change' in the short term that is undone shortly thereafter. The courts should not put the industry on a roller-coaster where the ADMC rules are in effect from May 22 to [some future date when] they go out of effect again if the Fifth Circuit finds the amended law unconstitutional.”

Hendrix, in a May 8 order, told the HISA Authority and the FTC that they had to reply to the NHBPA's motion for an injunction within 72 hours, signaling that he did not plan to let this decision linger.

“Plaintiffs are neither entitled to that relief nor to any other remedy,” the FTC's May 11 filing stated. “And the equities–both equine and otherwise–point decidedly against Plaintiffs.”

The FTC alleged that it “makes no difference that Plaintiffs previously prevailed on their nondelegation challenge before Congress amended HISA. And they do not argue about their chance of success on any of their other theories…. Because Plaintiffs stand almost no chance of success, their motion for a stay should be denied on that basis alone.”

The HISA Authority's filing put it this way: “Congress, the Executive, and both federal courts [have] come to the same correct conclusion: the Act is now constitutional. The HBPA Plaintiffs nevertheless ask for the extraordinary relief of an emergency nationwide injunction pending appeal…

“While Plaintiffs' speculation about irreparable harm from the ADMC rules is at best conflicted, an injunction of the ADMC rules would inflict certain injury on Defendants and the public interest,” the HISA Authority's filing stated.

“These final two factors weigh heavily against halting a federal regulatory scheme that has long been planned and that enjoyed substantial compliance in its brief initial rollout…”

“Because Plaintiffs have not shown that their appeal has substantial merit (let alone a likelihood of success) and have not demonstrated that the balance of equities tilts in their favor at all (let alone heavily), the Court should deny Plaintiffs' motion for an injunction pending appeal,” the HISA Authority's filing stated.

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Weekly Stewards and Commissions Rulings, Apr. 11-17

Every week, the TDN publishes a roundup of key official rulings from the primary tracks within the four major racing jurisdictions of California, New York, Florida and Kentucky.

Here's a primer on how each of these jurisdictions adjudicates different offenses, what they make public (or not) and where.

With the Horseracing Integrity and Safety Act (HISA) having gone into effect on July 1, 2022, the TDN will also post a roundup of the relevant HISA-related rulings from the same week.

New York

Track: Aqueduct
Date: 04/13/2023
Licensee: Dylan Davis, jockey
Penalty: Three-day suspension
Violation: Careless riding
Explainer: Jockey Mr. Dylan Davis is hereby suspended three (3) NYRA racing days. This for careless riding during the running of the 1st race at Aqueduct racetrack on April 6th 2023 having appealed a stay has been granted.

Track: Aqueduct
Date: 04/14/2023
Licensee: Jaime Torres, apprentice jockey
Penalty: Fourteen-day suspension
Violation: Careless riding
Explainer: For having waived your right to an appeal Jockey Mr. Jaime Torres is hereby suspended 14 NYRA racing days, April 20th, 21st ,22nd , 23rd , 27th, 28th ,29th ,30th 2023 through May 4th, 5th, 6th , 7th , 11th 12th 2023 inclusive. This for careless riding during the running of the second race at Aqueduct Racetrack on April 8th 2023.

Kentucky

Track: Keeneland
Date: 04/08/2023
Licensee: Aveory Faircloth, owner-trainer
Penalty: Sixty-day suspension, 30-days stayed due to good prior record
Violation: Possession of contraband
Explainer: After waiving his right to a formal hearing before the Board of Stewards Aveory Faircloth is hereby suspended 60 days for possession of contraband (needles, syringes and injectable medications) “by a person other than a veterinarian licensed to practice veterinary medicine” and discovered on the association grounds of Three Diamonds Training Center, a location under the jurisdiction of the Kentucky Horse Racing Commission. Due to mitigating circumstances (lack of violations in relation to length of license history), 30 days are to be served from April 11, 2023, through May 10, 2023 (inclusive). The remaining 30 days are stayed on the condition that no similar violation or Class A or Class B medication violation occurs in any racing jurisdiction within 365 days from the date of this ruling. During his suspension Mr. Faircloth is denied the privileges of all facilities under the jurisdiction of the Kentucky Horse Racing Commission. Entry of all horses owned or trained by Aveory Faircloth is denied pending transfer to persons acceptable to the stewards.

Track: Keeneland
Date: 04/12/2023
Licensee: Barbara Riley, owner-trainer
Penalty: $500 fine, horse disqualified, purse forfeited
Violation: Medication violation (for horse that ran at Turfway Park)
Explainer: Upon receipt of notification from The University of Kentucky Equine Analytical Chemistry Laboratory, the official testing laboratory for the Kentucky Horse Racing Commission, sample number R008025 taken from Future Victory, who finished second in the first race at Turfway Park on April 1, 2023 contained methocarbamol at a level of 7.98 ng/ml in blood (Class C drug). After waiving her right to a formal hearing before the Board of Stewards, Barbara J. Riley is hereby fined $500. Future Victory is disqualified and all purse money forfeited. Pari-mutuel wagering is not affected by this ruling. Upon receipt of this ruling, the licensee is required within thirty (30) days to pay any and all fines imposed to the Kentucky Horse Racing Commission. Failure to do so will subject the licensee to a summary suspension of license pursuant to 810 KAR 3:020 Section 15 (cc).

NEW HISA STEWARDS RULINGS

The following rulings were reported on HISA's “rulings” portal, except for the voided claim rulings which were sent to the TDN directly. Some of these rulings are from prior weeks as they were not reported contemporaneously.

One important note: HISA's whip use limit is restricted to six strikes during a race.

Violations of Crop Rule

Gulfstream Park
Madeline Jane Rowland – violation date April 7; $250 fine and one-day suspension, 8 strikes
Miguel Angel Vasquez – violation date April 8; $250 fine and one-day suspension, 7 strikes
Edwin Gonzalez – violation date April 8; $250 fine and one-day suspension, 7 strikes

Keeneland
Tyler Gaffalione – violation date April 8; $1697.25 fine and one-day suspension, 7 strikes
Jose Luis Ortiz – violation date April 8; $250 fine and one-day suspension, 7 strikes
Grace Louise Mcentee – violation date April 12; $250 fine and one-day suspension, 7 strikes
Junior Rafael Alvarado – violation date April 12; $250 fine and one-day suspension, 7 strikes

Oaklawn Park
Ramon Vazquez-Negron – violation date April 2; $250 fine, “striking his mount three times in a row without a pause”
Keith James Asmussen – violation date April 7; $250 fine, “raising wrist above helmet when using crop”

Tampa Bay Downs
Jose Luis Alonso – violation date April 8; $250 fine and one-day suspension, 9 strikes

Turf Paradise
Luis Valenzuela – violation date April 4; $250 fine and one-day suspension, 7 strikes

Will Rogers Downs
Lindsey Kate Hebert – violation date April 12; $250 fine and one-day suspension, 7 strikes
Chad A Lindsay – violation date April 12; $500 fine and three-day suspension, “struck mount after obtaining maximum placing,” on appeal and stay requested

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Kentucky State Senate Resolution ‘Urges’ Federal HISA Funding Review

Kentucky's state senate adopted a resolution by voice vote Mar. 29 that will “urge” the overseers of the Horseracing Integrity and Safety Act (HISA) and elected federal politicians “to review the funding methodology of HISA and ensure that they provide uniform treatment to all states,” according to a summary of the measure posted on the web page of the Kentucky General Assembly.

Senators Damon Thayer and John Schickel sponsored the resolution, which was both introduced and passed on Wednesday.

The resolution describes itself as a means of “expressing concerns regarding the unintended consequences of the current funding methodology of HISA.”

A phone message left for Thayer on Thursday seeking details about what impact he believes the state resolution might have at the federal level did not yield a return call prior to deadline for this story.

The text of the resolution reads as follows:

“WHEREAS, the Senate recognizes the need for the safety and welfare of horses and jockeys, confidence in the fairness of competition, consistent oversight and regulation, and national uniformity and harmonization in the rules of the horse racing industry; and

“WHEREAS, the Senate believes that HISA, IF implemented properly, can achieve these objectives and enhance the reputation of horse racing in the United States; and

“WHEREAS, the Senate is aware that concerns have been raised by others regarding the unintended consequences that may arise from the current funding methodology, which does not provide uniform treatment to all states and may place undue economic pressure on horsemen and the racing industry in Kentucky; and

“WHEREAS, the Senate acknowledges that it is important to the prosperity of Kentucky horse racing that the safety of the human and equine athletes and the integrity of the sport be paramount;

“NOW, THEREFORE, Be it resolved by the Senate of the General Assembly of the Commonwealth of Kentucky:

“1. The Kentucky Senate urges the Federal Trade Commission and the HISA Authority to review the funding methodology of HISA and ensure that they provide uniform treatment to all states.

“2. The Clerk of the Senate is directed to transmit a copy of this Resolution to the Commissioners of the Federal Trade Commission, the Board of Directors of the HISA Authority, the Speaker of the United States House of Representatives, the Majority Leader of the United States Senate, and Kentucky's Congressional delegation.”

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