That disclosure is not only timely because of the HISA Authority's May 22 implementation of the Anti-Doping and Medication Control program. Monday's news of the three additional unadjudicated tests was important because those unresolved cases were made public nearly two weeks after a brouhaha erupted about 2-year-old champion Forte (Violence) having failed a post-win NYSGC drug test at Saratoga Race Course on Sept. 5, 2022.

The finding of meloxicam, a non-steroidal anti-inflammatory drug, in Forte's system wasn't the entirety of that controversy. A more concerning aspect of the issue was that Forte's positive was kept from the public for more than nine months, and wasn't revealed until May 9, 2023, when the New York Times first broke the story, citing as sources “two people who are familiar with the matter but are not authorized to speak about it.”

On May 11, the NYSGC formally announced Forte's disqualification from the Hopeful while imposing fine of $1,000 and 10-day suspension upon trainer Todd Pletcher. Those penalties have been appealed, and both the NYSGC and Pletcher's legal team have bickered back and forth, with each side publicly blaming the other for causing extended delays in the process that involved split sample testing and the scheduling of a stewards' hearing.

Williams described the three other currently unadjudicated drug tests as being in the pipeline “at either qualified, accredited, independent laboratories or awaiting determination through a meeting of the stewards.”

Commissioner John Crotty asked Williams, “Do you have a timeline on resolving them?”

Williams was quick to answer: “I don't know the specifics of any of those cases,” he said.

Crotty responded, “Okay…” before NYSGC chairman Brian O'Dwyer interjected.

“I suspect, Mr. Crotty, given the situation, that we will be very, very diligent in terms of making sure that those things are adjudicated much more promptly,” said O'Dwyer, ending that discussion.

Williams noted that the outstanding Thoroughbred drug positives were current through May 19, but that the NYSGC will retain control over any sampling taken through May 21.

The commission will also maintain its testing obligation in harness racing, “as HISA has yet to address that industry,” Williams said. He added that there are two outstanding Standardbred drug tests awaiting adjudication.

Williams said that the Forte controversy has sparked NYSGC changes to the way it will handle any adjudications that remain under the board's control.

“Changes to the split sample procedure have been instituted to reduce the ability of an affected party to game the system,” Williams said.

“Absent extraordinary circumstances, from now on a trainer advised of a positive drug violation will be afforded no more than two weeks to identify and make arrangements for the split sample to be tested,” Williams said.

“Additionally, upon notification of the split sample result being returned, the stewards' meeting must be conducted within three weeks. If a trainer cannot appear within three weeks' time, they will be deemed to have constructively waived their appearance before the stewards, and the matter will proceed,” Williams said.

After Williams finished giving his report, O'Dwyer said that he wanted to express “my thanks and the thanks of the commission members for setting the record straight in regards to the Pletcher matter.”

O'Dwyer continued: “I think it's very important that, and was quite unfortunate, some of the reporting that came out, [and] the board and commission and our staff needs to be commended for the way that they handled it. I understand there were some time differences. But they did everything they could to give Mr. Pletcher considerable due process, and I'm glad that [Williams] was able to correct the record in that regard.”

Pletcher's attorney, Karen Murphy, had given a contrasting synopsis of the delay to TDN back on May 11.

“One point I want to address up front is that the gaming commission has stated now two or three times that we somehow delayed the process,” Murphy said at that time. “That's a little bit shocking to me because it's false. I don't like government regulators to make false statements. [From] day one, we were on this. This delay is wholly on the gaming commission. It's because they weren't prepared to proceed with the case in a professional, orderly manner.”

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Forte won the Hopeful by three lengths over a muddy track at odds of 6-1.

In a story published Tuesday just after 7 p.m., the Times writes, “Shortly after leaving the winner's circle, however, Forte was given a post-race drug test, which he failed but has yet to be adjudicated before New York regulators, according to two people who are familiar with the matter but are not authorized to speak about it. The positive test was for a substance used to relieve pain and reduce inflammation, according to those two people.”

The Times story does not say what that substance was.

The story, written by Joe Drape, quotes an unnamed spokesperson from the New York Gaming Commission as saying, “This matter likely would have been adjudicated months ago but for the repeated procedural delays sought by the trainer's counsel.”

The trainer's counsel, according to Drape, is lawyer Karen Murphy, who did not issue a comment to The Times.

The story says that, “After several delays, New York racing officials are scheduled on Wednesday to hear from Forte's trainer, the Hall of Famer Todd Pletcher, about the failed drug test from September, according to the two people.”

A spokesman for the New York Gaming Commission confirmed the accuracy of Drape's story. “We see no inaccuracies in the story as published,” said Brad Maione, Director of Communications of the NYSGC, in response to a request for comment from the TDN.

Texts and phone calls to owner Mike Repole, trainer Todd Pletcher, and Murphy were not immediately returned.

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The regulators acted after Dutrow, always a controversial figure, had a horse he trained, Fastus Cactus (Cactus Ridge), test positive for butorphanol in his system after winning the third race at Aqueduct on Nov. 20, 2010. Around the same time, Dutrow's barn was searched and investigators claimed to have found in a desk drawer three syringes filled with a muscle relaxer, xylazine.

“New York's racing industry has no place or patience for Mr. Dutrow,” Racing and Wagering Board Chairman John Sabini said in a statement announcing that Dutrow's license had been revoked.

Dutrow's lawyers were able to delay the matter in the courts for more than two years, but eventually ran out of legal options.

Had Dutrow merely been suspended, he would be back this week. But the process has been complicated by the fact that he had his license revoked. That means he has to start from scratch and re-apply for a trainer's license. Dutrow's attorney Karen Murphy said the application has yet to be submitted, but will be done shortly. The Dutrow legal team has grown and now includes Chris Boehning, a high-profile attorney with the firm Paul Weiss.

Murphy believes that it's just a matter of time until Dutrow is allowed to return.

“He's going to get licensed,” he said. “I can't imagine that if somebody served their penalty and paid an extraordinary fine [$50,000] like he did that they wouldn't let him back. He has served his time, he has paid his fine and he has conducted himself in an exemplary manner while he's been away. So far as how Rick has conducted himself, there hasn't been one smudge.  I don't know on what grounds they could deny him a license.”

Murphy estimated the process will take “a couple of months.”

But will it be that easy?

Racing is now regulated in the state by the New York Gaming Commission, which has made a number of controversial rulings of late that have had many scratching their heads. Dutrow is a polarizing figure and there are no doubt some important people who would rather he never train again. Even though the 10 years is up, with this commission there are no guarantees his application for a new license will be approved.

In the meantime, Dutrow, who declared bankruptcy in 2017 and has not worked since his license was taken away, will have to wait, exactly what he has been doing for 10 years. Will there be a another chapter to his training career? The answer is near.

Surick Named Names

With prosecutors having submitted a pre-sentencing report last week regarding convicted drug cheat Nick Surick some of the questions revolving around the former Standardbred trainer were answered.

Surick, who has admitted to drugging his own horses, as well as assisting Jorge Navarro in his doping program, will be sentenced Thursday. He is facing up to six years in prison but the government has signed off on a lesser sentence because Surick cooperated with prosecutors and offered to testify against others. Ultimately, the government felt that Surick's testimony could not be used against others because his credibility came into question when he told investigators that veterinarian Dr. Rebecca Linke injected a Standardbred he trained named Northern Virgin with EPO. Linke was able to prove she was not around the horse at the time he was drugged. The government has accepted the possibility that Surick was not lying and, rather, had trouble recollecting the exact circumstances of the Northern Virgin incident. Because Surick had tried to assist investigators, the U.S. Attorney's Office has stated its willingness to accept a lighter sentence than what he would have been given had he not cooperated. Surick's lawyer Timothy Donohue has asked the court to sentence his client to just 12 months of home confinement.

That's what we know. What we don't know is who else Surick implicated beyond those who were named in the March, 2020 indictments. The pre-sentencing submissions from both Surick's attorney and the governor confirmed that the former trainer turned over information on individuals whose names have never surfaced. Those names were originally included in the pre-sentencing reports, but were redacted.

That raises many questions. Who did he name? How many people did he name? And did he finger people in the Thoroughbred industry, the Standardbred industry or both?  Would the government have gone after those people had Surick not fouled up the Linke matter, bringing his credibility into question?

Unfortunately, those questions may never be answered. Beyond the more than two dozen people indicted nearly three years ago, the government has shown no appetite for continuing its investigation and going after a new set of alleged drug cheats. And even if the names were released there would be no guarantees that the government could build a case against those individuals, when the case could come down to Surick's tainted word versus the word of someone he implicated.

Surick has not been heard from, but through Donohue we have learned more about his mind-set. Why did he become a serial cheater? The answer is troubling.

“He rationalized his misdeeds with the idea that 'everyone was doing it,'” Donohue wrote.

Does any of this mean he should be given a break? That will be left up to U.S. District Court Judge Mary Kay Vyskocil, who has been unwaveringly tough on all the drug cheats that have entered her courtroom, never once showing any signs of leniency. So maybe Surick will be sentenced to a long stint in prison. Unfortunately, it looks like he will be taking his secrets with him.

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According to the civil complaint, Thoro-Graph is suing both NYRA and its NYRA Bets ADW platform over the alleged non-payment of at least $333,000 that Thoro-Graph believes is its rightful cut for incentivizing horseplayers to become NYRA Bets customers via a free, membership-based portal called Thoro-Graph Player Services (TGPS).

Thoro-Graph claimed in its complaint that its portal grew NYRA's betting handle by $100 million over a roughly five-year span, “solely through the joint venture resulting in $3 million in revenue” for NYRA.

When the alignment between the two entities was first announced in 2017, the deal was billed as giving Thoro-Graph an ADW partner, while NYRA Bets got a valuable pipeline of new customers.

Horseplayers would benefit too, a TGPS executive explained at the time of the launch, because they would get access to “concierge-level support,” volume-based wagering rebates, on-track visitation amenities and discounts on Thoro-Graph handicapping products.

But according to the lawsuit, “Defendant NYRA failed to perform its part of the bargain [by allegedly not paying] Plaintiff its full 50% share of its Net Revenue,” wrote Karen Murphy, the attorney for Thoro-Graph, in the Dec. 19, 2022, filing.

“That breach has resulted in hundreds of thousands of dollars in losses to date and has impacted the value of Plaintiff's corporation resulting in additional lost profits to Plaintiff,” the complaint stated.

The filing stated that the dispute involves how net revenues are calculated: “Plaintiff is entitled to its full 50% share of defendant NYRA's revenue that is generated from the handle wagered on NYRA races by non-New York residents and paid to defendant NYRA. In failing to do so, defendant NYRA is in material breach of its core financial obligation to pay Plaintiff its full revenue share under the terms of the joint venture.”

The complaint contended that Thoro-Graph attempted “good faith settlement efforts” to square up the purportedly mounting non-payments, including making a written demand for the money on June 13, 2022, and a meeting with NYRA representatives to discuss the issue.

“[NYRA's] response was to intimidate Plaintiff with the threat of termination of the joint venture and not to address the failure to pay Plaintiff its full 50/50 share,” the complaint stated.

NYRA then followed through with a letter Dec. 12 giving a 180-day notice of termination of the partnership. That action, in turn, led to Thoro-Graph's lawsuit one week later seeking “compensatory damages which are no less than $500,000 [and] estimated additional damages for the remainder of the term of the existing Agreement.”

The court has set a Feb. 10 date for the defendants to file a reply. TDN asked a NYRA spokesperson if the racing association or NYRA Bets wished to comment prior to that filing, and also asked how the termination of TGPS might affect horseplayers who use the portal.

“NYRA will honor the terms of confidentiality agreed to by the parties involved and reply to the court by Feb. 10. This contractual dispute does not and will not impact NYRA customers,” Patrick McKenna, NYRA's vice president for communications, wrote in an email.

The “Termination for Convenience” letter that NYRA served Thoro-Graph is scheduled to become effective June 10.

“That notice of termination has now been issued solely because Plaintiff made it clear it would proceed with legal efforts to protect its rights under the Agreements to receive its full share of compensation,” Thoro-Graph's complaint stated.

“Plaintiff performed its obligations under [the contracted terms] by maintaining its website as 'best in class' and offering free and reduced priced Thoro-Graph data which has resulted in NYRA Bets signing up over 1,700 horseplayers. This was accomplished by Plaintiff without any marketing assistance from the NYRA Parties…” the complaint stated.

“In 2017, Plaintiff grew the handle of defendant NYRA Bets by $3.1 million,” Thoro-Graph's court filing stated. “In 2018 Plaintiff's contribution was $10.7 million; in 2019 the contribution went to $15.3 million; in 2020 the contribution was $22.7; in 2021 the contribution reached $24 million; [At the time the Dec. 19 lawsuit was filed] Plaintiff's contribution [was] on track to reach $25 million making the total added handle over $100 million.”

Drilling the alleged non-payment issue down further, the complaint stated that NYRA's deduction of an “import host fee” from the net revenue calculation is a chief bone of contention.

The complaint put it this way: “To be clear, what defendant NYRA is claiming is an “import host fee” is simply money RECEIVED by NYRA Bets solely as a result of “Qualifying Wagers” by non-New York residents on NYRA CONTENT and then passed on to and RECEIVED BY DEFENDANT NYRA AS REVENUE.”

Attorney Murphy, when reached by the TDN, said, “For now, we will let the complaint speak for itself. We will have more to say after NYRA's response.”

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Gazer's attorney, Karen Murphy, confirmed the NYSGC's denial to TDN on Friday afternoon, shortly after the commission emailed her the decision stating the stay would not be granted. She said at this point, Gazer has exhausted all his commission-level appeals.

“This is a purely vindictive response. I am actually shocked by the whole thing,” Murphy said.

In making the case for a stay to be granted, Murphy had written to the commission that Gazer's “absence from his duties as the Head Clocker for the significant suspension imposed will be harmful to all NY horsemen and horsewomen whose horses rely on his daily services.”

On Dec. 12, the NYSGC voted unanimously to uphold Gazer's commission-level appeal of penalties by rejecting a hearing officer's recommendation that the case be dismissed.

Instead, the commissioners imposed the original penalties that had been handed down earlier in the year by Braulio Baeza, Jr., the NYSGC state steward at the three New York Racing Association (NYRA) tracks.

Gazer's penalty stems from a May 19, 2022, stewards' ruling in which he changed a published five-furlong work by subsequently substituting the correct four-furlong split from within that longer work.

The purpose of providing the half-mile timing was to make a horse eligible to come off NYRA's “poor performance” list, which is governed by a seldom-triggered rule that does not allow for a workout farther than four furlongs.

“The decision to issue the penalty [is] without precedent and lacking strong basis to affirm the decision…” hearing officer Dayrel Sewell wrote in his Oct. 21 report that recommended vacating Gazer's penalty. “Respondent has a spotless 40-year track record, and there is no evidence of corruption or favoritism towards a trainer(s) during his employment as head clocker.

“Although there is no regulation [specific to what Gazer was accused of doing], the Stewards have discretion on how to handle this, but the discretion must be proportionate to the harm and there must be boundaries to the practice of discretion,” the hearing officer summed up.

The commissioners' outright rejection of the hearing officer's months of work in conducting the hearing and writing up the report is somewhat unusual. But in most state jurisdictions, racing commissioners are not bound to accept the opinions of the hearing officers, who are often attorneys, that they hire to hear appeals.

An exasperated Gazer has called the entire ordeal “a joke.” On Dec. 18, TDN's Bill Finley editorialized that the decision by the NYSGC to penalize the clocker was a “disgrace” that bucked common sense.

Murphy told TDN on Dec. 30 that Gazer is still clocking horses, and that he has yet to be informed when his suspension is supposed to start.

“He's at work and he'll be able work until [Baeza] sets the [dates for the] suspension down,” Murphy said. “But am I going to be able to get into court and get an injunction to stop that suspension? I think that's probably a hope that is beyond our reach at this point.”

Murphy explained that Gazer's court appeal involves a type of filing known as Article 78, which is a New York law by which a petitioner asks a court to review a decision or action of a state official or administrative agency to determine whether such action was unlawful.

Murphy added though, that petitioners have to weigh whether going through the courts is worth it, because Article 78 cases are expensive to litigate and often languish in the court system for months or even years.

TDN asked Patrick McKenna, NYRA's vice president of communications, if there was anything trainers needed to know about the morning clocking routine given Gazer's pending suspension and the in-limbo court appeal.

“Richie Gazer is a deeply experienced professional whose presence and skills as a clocker would absolutely be missed at Belmont Park should the NYSGC suspension take effect,” McKenna wrote in an email. “That said, NYRA does have the necessary staff in place to adequately cover his duties.”

Back on Dec. 12, NYSGC chairman Brian O'Dwyer said during the meeting that, “The commission reviewed the entire record [and] established the violation as a matter of fact…. And in particular, found that the conduct was improper in relation to commission rule 4042.1(f).”

That rule prohibits “improper, corrupt or fraudulent” acts or practices in relation to racing or conspiring or assisting others in such acts or practices.

Along with O'Dwyer, NYSGC commissioners John Crotty, Peter Moschetti, Jr., Christopher Riano, Marissa Shorenstein and Jerry Skurnik all voted in favor of rejecting the hearing officer's recommendations not to penalize Gazer.

The outcome of their vote, which had taken place at some point prior to the open, public meeting, was simply read into the record, and the commissioners did not debate any specifics or discuss findings during the Dec. 12 meeting itself.

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The latest chapter is the story of NYRA clocker Richie Gazer.

Back in May, Gazer was handed a 30-day suspension and fined $2,500 “for altering a published work of a horse to make the horse eligible to race.” The horse in question, Papi On Ice (Keen Ice) was originally credited for a five-furlong workout on May 1 in the time of 1:04.60. At the time, the horse was on NYRA's “poor performance” list, the result of his having been eased in a Mar. 19 race and then losing by 26 3/4 lengths in a Apr. 16 race. In order to get off the list and to be able to race again, he needed a published four-furlong workout in:53 or faster. Oddly, the rule, which is a NYRA rule, requires that the work must be at four furlongs and at no other distance. When made aware that the work had to be a half-mile in order for the horse to get off the list, Gazer changed the distance to four furlongs and the time to what was Papi On Ice's split for a half-mile, :51.33. The Gaming Commission then stepped in and cited a rule that prohibits “improper, corrupt or fraudulent acts or practices in relation to racing or conspiring or assisting others in such acts or practices,” pretty harsh language for a case where all the clocker did was shorten the distance of a workout by an eighth of a mile.

Gazer refused to roll over, hired a lawyer and filed an appeal. A seven-hour hearing was held and the hearing officer recommended that the case be thrown out and that Gazer should not be penalized. It appeared that Gazer had won. But the case took a 180-degree turn last week when the Gaming Commission rejected the hearing officer's recommendation and voted 6-0 to uphold the original suspension. Karen Murphy, the lawyer representing Gazer, told the TDN that in the 30 years she has been dealing with New York racing regulators never before had she had a commission reject a decision from a hearing officer. Why even use a hearing officer if you are going to ignore what they have to say?

This all comes down to a matter of common sense. Gazer used his when he approved changing the distance of the workout, which was necessary to allow the horse to race and, otherwise, affected nothing. The rule is in place to keep clockers from playing games, giving a horse a five-furlong workout in 1:03 when they actually went in :58. That's not what happened here.

But common sense is in short supply when it comes to the Gaming Commission. Perhaps by the very letter of the rule, Gazer was guilty of some sort of infraction. The best way to handle this would have been to issue a warning and to tell him not to do it again. Use common sense. Don't fine him, suspend him and try to sully his reputation with outlandish charges of corruption and fraud. Don't go to such great lengths that the commission, by a 6-0 vote, ignored the findings of a hearing officer.

“Everybody is horrified,” Murphy said. “Richard Gazer has been doing this for 40 years and is respected by everyone. You should be pinning a medal on someone like him, not telling the world he is fraudster.”

It's all part of a troubling pattern. Since April, the Gaming Commission and its steward, Braulio Baeza Jr., have sanctioned four NYRA employees a total of five times and levied fines totaling $14,500. In most cases, it was nothing more than a case of the person making an honest mistake.

In June, Frank Gabriel, the New York Racing Association senior vice president of racing operations, was fined $4,000 for “failing to follow proper claiming protocol” resulting in the track stewards voiding the claim of the horse Battalion (Tiznow) on May 28. There was a mixup regarding the claim of the horse. The horse was claimed for $25,000 by trainer Rob Atras, but the claim was not relayed to the clerk of scales, so the horse was not brought to the test barn. That led to the voiding of the claim.

Someone made a mistake. It happens. And never mind that Gabriel had nothing to do with this. Nonetheless, Baeza saw reason to sanction him because, he told the Daily Racing Form, Gabriel was the head of the racing department.

NYRA Racing Secretary Keith Doleshel has been fined twice since April, on one occasion $2,000 for “failing to conduct business in a professional manner.” According to NYRA, here's what happened: “Due to an unintentional administrative error, an unauthorized agent claimed a horse. . . . NYRA subsequently discovered the error and notified the NYSGC of its findings.” A horse was claimed at Saratoga by someone who was not licensed by the Gaming Commission or registered with the Jockey Club. But, again, it was an “unintentional error” committed by someone who has never previously been accused of being unprofessional and the mistake was caught. Doleshel has appealed the ruling through his attorney, Drew Mollica.

As for Gazer, there doesn't appear to be a path whereby the fine and suspension can now be overturned. Murphy says she plans to make the point that the Gaming Commission didn't follow procedure when it comes to transparency. The commissioners did not debate or discuss the details of the case during the open, public meeting, which she says is required.

“The chairman knows nothing about racing and shouldn't have done what he did,” she said of Gaming Commission Chairman Brian O'Dwyer. “We all should be upset about this on legal grounds.”

But that's probably not going to help Gazer. He will have to pay his fine and sit out 30 days, the latest example of an overreach by the New York Gaming Commission and its steward. Someone who has been doing this a long time and has earned a reputation for being a straight shooter, Gazer deserved far better.

The Woodward and Cigar Mile Downgraded

The American Graded Stakes Committee showed some tough love to NYRA last week, downgrading the Woodward S. and the Cigar Mile H., from Grade I races to Grade II's. The move wasn't without controversy. The Woodward is a prestigious race with a long, rich history. Twenty of its winners are in the Hall of Fame. During a seven-year stretch beginning in 1974, the race was won by Forego (four straight), Seattle Slew, Affirmed and Spectacular Bid. This year's Cigar Mile included four Grade I winners, including the winner Mind Control (Stay Thirsty), which made the timing of the downgrade a bit puzzling.

As tough as this may have been for NYRA to swallow, it was the right move. Everyone complains that, considering the declining number in the foal crop and that top horses usually only race four or five times a year, there are too many graded races and too many Grade I's. You can't have it both ways and complain about the Woodward and the Cigar. The committee is to be commended for making some tough decisions. There are still 440 graded races and 97 Grade I's. That's too many.

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The New York State Gaming Commission (NYSGC) on Monday adjudicated two unrelated penalty appeals by a clocker and a trainer by flat-out rejecting two separate hearing officers' recommendations that those cases be dismissed without penalization.

In both instances, the commissioners voted unanimously to impose the original penalties that had been handed down by Braulio Baeza, Jr., the NYSGC state steward at the three New York Racing Association (NYRA) tracks.

Monday's vote means trainer Orlando Noda now must pay a fine of $5,000, serve a 90-day suspension, and complete an anger management course prior to being reinstated for “for striking a horse excessively while working the horse out at Saratoga Race Course on Aug. 5, 2021,” according to the NYSGC.

And Richard Gazer, a longtime NYRA clocker, has been fined $2,500 and suspended 30 days “for altering a published work of a horse to make the horse eligible to race,” the NYSGC ruled.

The outright rejections of the officers' combined days of conducting the hearings and their months spent writing up the reports is somewhat unusual. But in a number of jurisdictions, racing commissioners are not bound to accept the opinions of the officers they hire to hear appeals.

Drew Mollica, who represents Noda, told TDN in a phone interview he was stunned by the NYSGC's decision.

“This is crazy. I was just telling my colleagues, 'I win, but I lose,'” Mollica said.

“This is madness. The hearing officer is the one who heard the evidence. On what basis, what evidence, did the commission use to overturn the hearing officer's recommendation?” Mollica asked rhetorically.

Noda, who has been training since 2019, is also licensed as an exercise rider.

In his reading into the record of the decision, NYSGC chairman Brian O'Dwyer said that, “The commission duly deliberated and considered this matter, and determined by a 6-0 vote to reject the hearing officer's report and recommendations. In doing that, commissioners reviewed the entire record, and established by a preponderance of evidence that Noda's conduct was improper and detrimental to the best interest of racing, and determined that the appropriate penalty was that which was given by the stewards.”

Mollica said he will confer with Noda about using “every legal remedy at his disposal” to fight the commission's order, “because the hearing officer vindicated him and found that he did nothing wrong.”

Gazer's penalty stems from a May 19, 2022, ruling in which the commission stated he “alter[ed] a horse's workout time while training at Belmont Park.”

The horse in question, Papi On Ice (Keen Ice), was initially credited with a five-furlong work in 1:04.60. The work was later changed to a half-mile in :51.33.

Because Papi On Ice had been beaten more than 25 lengths in a previous start, that result triggered a precautionary placement on NYRA's “poor performance” list. In order to get off that list, a horse must work a half-mile in :53 or faster. But the rule does not allow for a workout farther than a half mile.

Because Papi On Ice's workout was initially published as a five-furlong move, the racing office would not accept the colt's entry for a race.

Gazer told DRF.com back in May that the time of the work was not changed, but that the distance was shortened to comply with NYRA's rule. He did not time Papi On Ice himself, but a subordinate clocker told him the horse did work a properly timed half mile as part of the longer five-eighths breeze.

“This is a joke. It really is,” Gazer told TDN Dec. 12. “I've been doing this for 40 years. The horse was on the other training track, went a half-mile, and galloped out five-eighths and the trainer, Randi Persaud, wanted the five-eighths time. But they have that rule where he had to have a half-mile workout. It's a stupid rule. They called me up and I said I would change it. It was no big deal. It was either :51 for the half or 1:04 and something for five-eighths.”

Gazer continued: “We had a seven-hour hearing, [the hearing officer] recommended that they drop all the charges. And then they do this. It doesn't make any sense.”

Chairman O'Dwyer said Monday that the commissioners saw it differently.

“The commission reviewed the entire record [and] established the violation as a matter of fact,” O'Dwyer said. “And in particular, found that the conduct was improper in relation to commission rule 4042.1(f).”

That rule prohibits “improper, corrupt or fraudulent” acts or practices in relation to racing or conspiring or assisting others in such acts or practices.

Along with O'Dwyer, NYSGC commissioners John Crotty, Peter Moschetti, Jr., Christopher Riano, Marissa Shorenstein and Jerry Skurnik all voted in favor of rejecting the hearing officers' recommendations not to penalize the two licensees.

The commissioners did not debate or discuss the details of the two cases during the open, public meeting, which is standard for the way the NYSGC usually issues appeal outcomes after a hearing officer issues a report.

Based on past practice, the NYSGC  generally receives such reports and takes its vote on the hearing officer's recommendation at some point before the meeting, and the chairman then reads the results into the record when the meeting goes into session, explaining the vote in one or two sentences.

Karen Murphy, an attorney who represents Gazer, told TDN in an email that, “In the 30 years that I have been practicing before the Gaming Commission (and its predecessor) this has never happened….The decision in this matter was dependent on the credibility of the proffered witnesses. In recommending that all the charges be dismissed, including a 'fraudulent, corrupt act' charge, the designated Hearing Officer made a determination in favor of Mr. Gazer's credibility. Today, the Commission rejected that credibility [and] did so without giving any specific reasons or findings…”

Murphy added that the NYSGC's ruling against her client amounted to a failure of the open-government test, “and in doing so abjectly failed in its obligations under law to Mr. Gazer. We look forward to righting this wrong.”

The penalties for Noda and Gazer will go into effect within a few days upon formal issuance of the commission's findings and order.

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Dutrow was suspended for 10 years in 2011 by New York regulators for what it alleged was a long history of racing violations. He fought off the suspension in the courts for nearly two years before exhausting his appeals and began taking his penalty in 2013. Along the way, Dutrow has picked up a number of supporters, many of whom believed the penalty was far too harsh and that Dutrow was targeted because of his brash personality. There have also been allegations that syringes found in Dutrow’s barn were planted. Those allegations have been made by former New York Gaming Commission steward Stephen Lewandowski, who was among those who testified Tuesday on Dutrow’s behalf.

Murphy brought the case to Kentucky after her attempts to have the case revisited in New York failed. Had Dutrow been given a license, he would have been able to train in Kentucky but likely would have remained suspended in New York until 2023.

After hearing the decision, Murphy was clearly upset.

“I can’t tell you how disappointed I am,” she told the committee. “Can I ask you all a question? There was nothing persuasive in everything we supplied to you? I don’t know what you want. I don’t know what you considered. I don’t know what you found. I don’t know what you found so unpersuasive that you took this action, which I find to be profoundly disappointing. I’d like an answer.”
Murphy was told by chair Ken Jackson that it was the committee’s policy not to comment on its rulings once they had been made.

Appearing on the teleconference, Dutrow, 60, pleaded with the committee to allow him to resume training. He was emotional, talked in a shaky voice and appeared to be near tears.
“The racetrack means everything to me, my family,” he said. “It’s just really been a hard time with this. Just watching from afar and saying, ‘Man, I used to do this. Why am I not doing it anymore?’ I have a had a hard time with that. Since I have been away I have had a chance to reflect on things and look at myself. I know that I am part of the problem. There’s no question about that but I have done a lot of time for this. I just need an opportunity to train horses. That’s all I want to do. That’s all I’ve ever wanted to do. I’m sorry to take up all your time and cause all this stuff, but I just need to train horses. Please.”
Trainer Dale Romans was the first to testify for Dutrow and said New York racing officials were out to get his fellow trainer.

“I cannot sit on the sidelines and let this happen to one of my colleagues because what will ever stop it from happening to me?” Romans said. “In the racing world we are so concerned about integrity, and it is important to the game. Buy you also have to have integrity for people who work in the game. What this boils down to is a vendetta in New York. With all the evidence that is obvious.”
Veterinarian Dr. Larry Bramlage testified that he had found Dutrow to be someone who took excellent care of his horses and had an impressive record when it came to safety.

“My experience with Rick is simply how he treats these horses,” Bramlage said. “His approach to training is impeccable. He never takes short cuts with anything. He always goes with the best alternative for the horse. He never sacrifices a horse’s welfare to try to win a purse before something becomes clinical. His record on lack of fatalities speaks to that and to his approach for training the horse. I’m a big fan of how he approaches training the race horse.”

By allowing Dutrow to withdraw his application it will not go on his record that he had a license application denied. That could make it slightly easier for him to win reinstatement in another state, but he and his legal team are running out of options. Kentucky is off the table for now and New York does not seem inclined to even look into Dutrow’s case. Finding a racing commission that would go against those two states would likely be difficult.

In a recent story in the New York Daily News on Dutrow’s fight to be reinstated, it was reported that Dutrow has lost his home and filed for bankruptcy.

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The KHRC's license review committee has the ability to grant a license unconditionally, grant a license with specific conditions, deny an application, or grant an applicant the opportunity to withdraw their application. Committee chair Kenneth Jackson explained that the last outcome is provided to the committee as an option because a denial from one commission can negatively impact someone's application in another jurisdiction.

Karen Murphy, attorney for Dutrow, agreed to withdraw the application on his behalf but expressed frustration that the committee provided no overview of its discussion, which was held in closed executive session.

“I don't know what you want,” said Murphy. “I don't know what you considered. I don't know what you sound so unpersuasive that you take this action, which I find to be profoundly disappointing. I'd like an answer.”

Jackson declined to provide any further comment on the matter to Murphy or other meeting participants.

In 2011, Dutrow was handed a 30-day suspension by the New York State Racing and Wagering Board for possession of hypodermic needles and a 60-day suspension for a butorphanol overage around the same time. The Board later revoked his license for 10 years and issued a $50,000 fine for the two offenses. The KHRC denied a renewal of his license the same year. Dutrow did not actually begin serving his ten-year sentence in New York until he had exhausted his appeals process in 2013 and as such, will be suspended there until January 2023.

Dutrow has tried repeatedly to have his sentence in New York shortened, but has been unsuccessful thus far.

“The racetrack means everything to me, my family. It's really been a hard time with this,” said an emotional Dutrow via video conference. “Since I've been away, I've had a chance to reflect on things and look at myself and I know that I'm part of the problem. There's no question about that. But I've done a lot of time for this. I just need an opportunity to train horses. That's all I want to do, it's all I've ever wanted to do. I'm sorry to take up your time and cause all this stuff, I just need to train horses. Please.”

Trainer Dale Romans, surgeon Dr. Larry Bramlage, and former steward Steven Lewandowski also testified on Dutrow's behalf.

“The more I would look into it, I thought, 'I cannot sit on the sidelines and let this happen to one of my colleagues,' because what would ever stop it from happening to me?” said Romans. “What this case, I think, boils down to is a vendetta in New York and with all the evidence that has come out, it's obvious.”

Bramlage, who treated a number of horses in Dutrow's care in his time on the track, said he believed the trainer's management of horses was excellent.

“The legal question is yours, but my experience with Rick is in how he treats his horses, and his approach to training is impeccable,” said Bramlage. “He never takes shortcuts…he always goes with the best alternative for the horse, he never sacrifices the horse's welfare to win a purse before something becomes clinical. He's always done it the right way.”

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