Marcus Vitali | Horse Racing Free Tips

Weekly Stewards and Commissions Rulings: Nov 7-13

Every week, the TDN posts a roundup of the relevant Horseracing Integrity and Safety Act (HISA) related rulings from around the country.

Among the key rulings from the last seven days, trainer Natalia Lynch has been handed down a combined four-year suspension by an arbitrator, and a combined $55,000 in fines and arbitration costs.

Lynch had faced sanctions for two separate issues. One was for the possession of banned thyroid drug, Levothyroxine. The other was a positive test for another banned substance, Altrenogest—a synthetic progestin used in horses for the purpose of suppressing estrus—from Lynch-trainee, Motion to Strike.

Lynch's attorney told the TDN Monday that the trainer plans to appeal the arbitration result to a Federal Trade Commission administrative law judge.

An interesting wrinkle in the case is how in a series of proposed rule changes now headed out for public comment, HISA is seeking to alter the status of Altrenogest from a substance banned at all times to a controlled substance, permitted for use within certain criteria. Controlled substance positive findings are significantly leaner than those for banned substances.

Also this past week, trainer David Reid has been banned four months and fined $4,125 after his trainee, Maligator, tested positive for the banned substance, Venlafaxine. The case was resolved without a merits hearing.

Reid had previously provided proof to the Horseracing Integrity and Safety Unit (HIWU) that his assistant of over 30 years had been prescribed Venlafaxine for 15 years.

The Horseracing Integrity and Welfare Unit (HIWU) established “by a balance of probability” that Maligator's positive finding was brought about by consuming hay contaminated as a result of the assistant relieving herself in the horse's stall.

NEW HISA/HIWU STEWARDS RULINGS

The following rulings were reported on HISA's “rulings” portal and through the HIWU's “pending” and “resolved” cases portals.

Resolved ADMC Violations

Date: 10/20/2023

Licensee: Antonio Sano, trainer

Penalty: A fine of $3,000; imposition of 3 Penalty Points. Admission.

Explainer: A possible violation of Rule 3314—Use or Attempted Use of a Controlled Medication Substance or a Controlled Medication Method—on the horse, Il Miracolo. This is also a possible violation of Rule 4222—Intra-Articular Injections Within Seven (7) Days of Timed and Reported Workout.

Date: 9/08/2023

Licensee: Clarence King, trainer

Penalty: A fine of $500; imposition of 1.5 Penalty Points. Final decision of the internal adjudication panel (IAP).

Explainer: For the presence of Dimethylsulfoxide—Controlled Medications (Class C)—in a sample taken from Indirectly. This is a possible violation of Rule 3312—Presence of Controlled Medication Substance and/or its Metabolites or Markers (Post-Race/Vets' List).

Date: 08/15/2023

Licensee: Jeffrey Crozier, trainer

Penalty: Disqualification of Covered Horse's Race results, including forfeiture of all purses and other compensation, prizes, trophies, points, and rankings and repayment or surrender (as applicable); a fine of $500; imposition of 1.5 Penalty Points. Final decision of the IAP.

Explainer: For the presence of Phenylbutazone—Controlled Medications (Class C)—in a sample taken from Orb of the Boro, who won at Belterra Park on 8/15/23. This is a possible violation of Rule 3312—Presence of Controlled Medication Substance and/or its Metabolites or Markers (Post-Race/Vets' List).

Date: 09/28/2023

Licensee: Ruben Gomez, trainer

Penalty: 7-day period of Ineligibility, beginning on November 2, 2023; a fine of $1,000; imposition of 2 Penalty Points. Admission.

Explainer: For the presence of Acepromazine—Controlled Medications (Class B)—in a sample taken from Blue Cloud. This is a possible violation of Rule 3312—Presence of Controlled Medication Substance and/or its Metabolites or Markers (Post-Race/Vets' List).

Date: 08/29/2023

Licensee: Kevin Fletcher, trainer

Penalty: 7-day period of Ineligibility, beginning on November 4, 2023; a fine of $1,000; imposition of 2 Penalty Points. Admission.

Explainer: For the presence of Caffeine—Controlled Medications (Class B)—in a sample taken from Ruby Layne. This is a possible violation of Rule 3312—Presence of Controlled Medication Substance and/or its Metabolites or Markers (Post-Race/Vets' List).

Date: 08/03/2023

Licensee: Angel Castillo Sanchez, trainer

Penalty: 18-month period of Ineligibility, beginning on October 12, 2023; At least a 60-day period of Ineligibility for Covered Horse beginning on August 28, 2023 and subject to a Negative Finding in a Re-Entry Test; Disqualification of Covered Horse's Race results, including forfeiture of all purses and other compensation, prizes, trophies, points, and rankings and repayment or surrender (as applicable); a fine of $12,500. Admission.

Explainer: For the presence of Metformin—a banned substance—in a sample taken from Pylon who won at Delaware Park on 8/3/23. This is a possible violation of Rule 3212—Presence of a Banned Substance and/or its Metabolites or Markers.

Date: 07/20/2023

Licensee: Natalia Lynch, trainer

Penalty: 24-month period of Ineligibility for Covered Person, beginning on July 20, 2025; a fine of $25,000; payment of $2,500 of arbitration costs. Final decision of arbitral body.

Explainer: For the possible presence or possession of Levothyroxine, a banned substance. This is a possible violation of Rule 3214 (a)—Presence of a Banned Substance or a Banned Method.

Date: 07/20/2023

Licensee: Natalia Lynch, trainer

Penalty: 24-month period of Ineligibility for Covered Person, beginning on July 20, 2025; a fine of $25,000; payment of $2,500 of arbitration costs. Final decision of arbitral body.

Explainer: For the possible presence or possession of Levothyroxine, a banned substance. This is a possible violation of Rule 3214 (a)—Presence of a Banned Substance or a Banned Method.

Private Property Rights Under HISA

The legal threads connecting the rights of licensees to ply their trade and racetrack owners to police their grounds have been pulled tighter than a rip cord these past few years, thanks to a series of high-profile battles involving Hall of Famers Jerry Hollendorfer and Bob Baffert.

These same threads hamstrung the years-long dispute between California's trainers and racetracks about what should be written into the race-meet agreement about fair procedures for trainers facing potential banishment from a facility.

It all boils down to this: How best to balance the rights of track owners to protect their businesses from bad actors alongside the rights of trainers and others from becoming targets of arbitrary bans—actions with often huge implications for their professional futures?

As Jan. 1 looms, when the full remit of the Horseracing Integrity and Safety Act (HISA) is scheduled to go into effect—including most crucially HISA's anti-doping and medication control program—how will federal oversight of the sport alter exclusionary rights, if at all?

“HISA is finalizing its policies in this area and will have more to share in the weeks ahead,” wrote HISA spokesperson, Liz Beadle, when TDN asked to discuss the issue with a HISA representative.

So instead, the TDN reached out to three legal experts in the field. Their main takeaway? Other than a tightened regulatory world, don't expect much to alter—at least for now.

“I don't think it will really change the legal analysis,” said Bennett Liebman, Government Lawyer in Residence at Albany Law School and an adjunct professor of law.

Nuances

First and foremost, “I don't think HISA preempts the common-law right of a racetrack to exclude someone for whatever reason they want absent some protective civil right,” said Alan Foreman, CEO and chairman of the Thoroughbred Horsemen's Association (THA).

This means that if a track or racing association decides that a trainer has contravened moral or ethical boundaries—irrespective of whether that same person has fallen foul of any rules and regulations—they have the authority to do so independent of HISA, Foreman said.

“HISA can regulate in areas which they're authorized to regulate, but they can't tell me who I have to allow on my property and who I don't,” Foreman said.

Such actions are rarely cut and dried, of course.

Private properties are required to afford licensees the legal framework of “fair procedure” when seeking to bar them from their grounds. For a state agency—including a quasi-state agency non-profit organization like the New York Racing Association (NYRA)—the legal standard is “due process and equal protection.”

With this in mind, racetracks try not to specify detailed reasons for excluding an individual “in almost all cases,” said Liebman.

“When they do that,” Liebman explained, “there's potential that they might damage the individual's reputation and perhaps give way to constitutional protections.”

Therefore, “the normal approach by most racetracks is to say, 'you're being excluded for our best business interests,'” said Liebman. And he doesn't expect that broad legal dynamic to change much under HISA.

There are nuances, of course.

Even if a racetrack in West Virginia or Pennsylvania excludes a licensee from its grounds, that licensee can then petition the racing commissions in those states to overturn the ban, said Foreman.

In the hypothetical scenario a racetrack in those two states excludes a licensee for a reason that falls under the remit of HISA—for a welfare and safety related issue, for example—and the licensee then tries to take their case to the requisite commission, the relevant track “is going to make the argument that HISA deprives the racing commissions of any jurisdiction over drugs and safety,” said Liebman.

“I don't think it's going to be successful,” Liebman added, about such an argument made by the tracks. “But they're going to raise it.”

Foreman is less sure. Although HISA pre-empts state law, he said, it's unclear whether HISA nullifies the right of those commissions to independently arbitrate track exclusions in their jurisdiction.

“Maybe HISA does have the right to stand in that area,” he wondered. “Maybe not.”

Right of Private Property

This leads to another hypothetical.

In the event a racetrack in other states excludes a licensee for a reason that falls under HISA's regulatory umbrella, there's a strong possibility that person will litigate the action on grounds that HISA should be the one to adjudicate the alleged offense, not the track owners.

“If I was a lawyer representing an individual, I'd argue, “HISA does have jurisdiction here, and HISA has to tell the track what to do because HISA preempts state law,'” said Foreman.

But even then, individual tracks wield enormous legal clout, Foreman added. “If I'm the track, I'd say, 'I'm not acting under state law, I'm acting under right of private property.'”

As Foreman sees it, a more streamlined regulatory environment under HISA—including more expeditious case handling times—should negate the need for tracks to weed-out so-called bad actors (more on this in a bit).

“I think the actions the tracks have been taking recently is because they thought the regulatory system was failing to address offenders, multiple offenders, or those who were giving the industry a bad name,” said Foreman.

As such, “I think it's unlikely we're going to see tracks take actions against individuals because of their records,” said Foreman.

“I think with the enactment of HISA and the implementation of HISA, that probably goes away somewhat,” he added, “unless HISA's a failure.”

But how much latitude does HISA really have in this sphere?

Fair Procedure

Earlier this year, trainer Juan Pablo Silva was handed a 180-day ban from Turf Paradise after a 1-20 shot he trained and owned was pulled up and eased shortly after the start of a race.

This past June, trainer Marcus Vitali reached an undisclosed settlement with NYRA, after the latter claimed the trainer had “engaged in conduct that is detrimental to the best interests of the sport of Thoroughbred racing or potentially injurious to the health or safety of horses or riders.”

These two trainers subsequently found a home at Mountaineer—alongside another trainer, Burton Sipp, who has faced multiple allegations involving insurance scams and dead horses, animal neglect cases at a zoo he operated, race-fixing stings and regulatory malfeasance over a 40 year period.

Interestingly, Vitali and Silva have recently saddled horses at Turf Paradise, which kick-started its latest 2022-2023 winter meet on Nov. 4.

The question raised by the professional conduct and inter-state activities of these individuals is this: Does HISA have legal sway to independently step in and exclude licensees it deems a detriment to racing's image when a racetrack fails to do so?

For many watching HISA closely, this particular question is where the rubber meets the road.

There's language in the rules that appears to give HISA fairly broad authority over conduct detrimental to the sport and to equine welfare. As Foreman explains it, however, HISA has the ability to “fine, suspend, or revoke registration” from a licensee registered with HISA, but only if that individual is found guilty of violating stipulated HISA rules, and afforded due process.

Ultimately, “If a person is suspended, that's HISA's jurisdiction. HISA is the new national racing commission,” Foreman said, before hammering home how “that has nothing to do with a track's private property rights.”

An important caveat is that every licensee begins life under HISA with a clean slate.

“Remember, everybody starts at zero when the medication rules go into effect on January 1,” said Foreman. “They're not allowed to take into account their prior record.”

And Foreman said he is hopeful that HISA's new stricter set of rules and sanctions in general will motivate better overall standards of equine care.

One salient example of how this stricter regulatory theater will look surrounds Boldenone, an anabolic steroid better known as Equipoise.

In September, the stewards at Gulfstream Park suspended trainer Nagib Aboughaida 15-days and fined him $500 for a Boldenone positive. Under HISA, Boldenone is a prohibited substance, a positive for which necessitates an ineligibility period of up to 14 months.

Still, beyond the purview of actionable conduct, HISA's wrists are still fairly tightly tied, Foreman conceded. This of course includes there being “no mandatory reciprocity among racetracks if a racetrack chooses to exclude an individual for reasons it determines are appropriate,” Foreman added.

“That will still remain moving forward.”

Penalties for Equine Injuries?

That's not to say HISA doesn't have the potential authority to exclude trainers for actions or behaviors that aren't currently specific violations, said Drew Couto, an attorney who has represented trainer Jerry Hollendorfer in the many-splintered litigations stemming from his exclusion from The Stronach Group facilities in June of 2019.

The trick, Couto said, will be to devise a set of objective criteria to specifically delineate expectations of ethical equine care.

Crucially, such criteria must be relayed to trainers and others in clear, easily understandable fashion, said Couto.

“I don't think somebody should be left alone without any idea that their license is in jeopardy and all of a sudden be blind-sided,” said Couto.

In other words, “being congratulated one week in the winner's circle for your winners, and then the next week being told you've got to get out of Dodge,” Couto added.

In this regard, what HISA would have to do is similar to what the California Horse Racing Board (CHRB) attempted last year, when proposing regulations that would have penalized trainers for certain equine injuries or fatalities.

The CHRB shelved that idea in favor of a blue-ribbon panel to review equine injuries, stymied—at least for now—by the practicalities of framing sanctionable regulations around what is often such a nuanced and multi-faceted issue.

As for HISA intervening in private property matters, Couto believes that in the early days of the law, the new federal Authority will prove reluctant to weigh in on many matters where licensees have been excluded from private facilities.

Absent that clear set of standards in cases where licensees haven't broken any specific rules, “I suspect HISA's not going to want to jump into the deep end of that pool—not at the outset,” said Couto. “Their lawyers are going to say, 'do we want to be the defendants in a Jerry Hollendorfer-type of case?'”

Given the sheer scale of litigation costs as well as the enormity of the undertaking still ahead in ensuring that HISA works as intended, said Couto, “does HISA want that?”

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NYRA and Vitali Reach Undisclosed Agreement

The New York Racing Association and trainer Marcus Vitali have reached a settlement regarding NYRA's effort to exclude the trainer from participating at its three tracks. According to NYRA spokesman Pat McKenna, the agreement requires that the terms of the settlement remain confidential.

The TDN reached out to both Vitali's attorney Brad Bielly Friday in an attempt to gather more information. By mid-afternoon, he had not responded. Vitali told the TDN that he was not aware of the terms of the deal.

In September, NYRA announced that it would begin the process of taking action against Vitali, alleging that the trainer had “engaged in conduct that is detrimental to the best interests of the sport of Thoroughbred racing or potentially injurious to the health or safety of horses or riders. Further, as detailed in the respective statements of charges, this conduct warrants revocation or suspension of their right to train horses, enter races, or engage in any racing-related activity at all NYRA properties including Aqueduct Racetrack, Belmont Park and Saratoga Race Course.”

In an official “statement of charges issued against Vitali, NYRA pointed to what it alleged was a long and lengthy list of suspensions and medication violations.

“From between in or about 2010 and in or about 2020, Respondent amassed an extensive record of medication violations, lengthy suspensions, improperly using 'program' or 'paper' trainers during suspensions and obstructing an investigation into alleged wrongdoing,” the statement read. “In the past five years, Respondent was denied entry, ejected and/or had license applications denied by regulators of Thoroughbred racing in Florida, Pennsylvania, West Virginia, New York and Delaware; and was sanctioned by the Jockey Club for violating a racing statute, rule or regulation relating to prohibited or restricted drugs, medications or substances seven times in a single year.”

Since the original statement of charges was issued, things have only gotten worse for Vitali. In February, he was hit with a one-year suspension by the Pennsylvania Racing Commission after a horse he trained allegedly tested positive for methamphetamine. Vitali appealed the suspension and has continued to train. With several tracks not accepting entries from his stable, he has raced primarily at Presque Isle Downs and Turf Paradise.

Vitali rarely runs in New York, but did have a starter at last year's Saratoga meet. He sent out Red Venus (Candy Ride {Arg}), who finished seventh in a $50,000 claimer.

As was the case with Bob Baffert, who was also issued a “statement of charges” in September, NYRA was required due to a court ruling to hold a hearing into the Vitali matter before it could take any action against the trainer. The hearing was originally scheduled for March 1, but was delayed. With Friday's announcement, a hearing is no longer necessary.

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Potts, Vazquez Among Trainers Denied NYRA Stalls

Six trainers, including Wayne Potts and Juan Vazquez, have been informed by NYRA officials that they will no longer be allowed to stable at Belmont Park and that their horses must be off the grounds by Wednesday. However, all six will still be permitted to race at the NYRA tracks, at least for the time being.

The story was first reported by the Daily Racing Form's David Grening.

NYRA's decision to not outright ban the trainers stems from a ruling issued in the Bob Baffert matter last July by the United States District Court for the Eastern District of New York. The court ruled that trainers cannot be banned at the NYRA tracks without due process, starting with a formal statement of charges. Denying or revoking stalls may not fall under the same guidelines. It was not known Friday whether or not NYRA will eventually take the steps that would be required to ban any or all of the six trainers.

The other trainers notified that they would no longer be permitted to stable at the NYRA tracks are Marvin Richardson, Luis Miranda, John McAllen and Michael Simmonds. In addition, Bonnie Lucas, an assistant to Potts, was also denied stalls, which she applied for after Potts' stall application was denied.

“NYRA retains the exclusive right and discretion to grant, deny, revoke, or reduce stall space for licensed trainers at its properties,” NYRA spokesman Pat McKenna said in a statement. “Following the completion of the stall application process for the 2022 spring meet at Aqueduct Racetrack and 2022 spring/summer meet at Belmont Park, NYRA has denied stall allocations to trainers Wayne Potts, Juan Vazquez, Marvin Richards, John McAllen, Luis Miranda and Michael Simmonds. The trainers were notified of this decision earlier this week and will be required to vacate their current stalls or transfer horses under their care by Mar. 30. Bonnie Lucas, an assistant to Potts, submitted a stall application following the denial of stalls to Potts and her application was rejected.”

The statement continued: “No matter the point of origin, all horses shipping in to race at NYRA tracks are subject to the same level of health and safety scrutiny as horses stabled on NYRA property. These protocols are effective in mitigating risk, enhancing equine safety, and protecting the integrity of the sport in New York.”

Potts and Lucas were suspended last year for 30 days by the New Jersey Racing Commission, which charged that they defied a request from a state veterinarian to have a horse vanned off the track following a claiming race. Both have appealed. Potts also ran afoul of authorities during last year's Saratoga meet when it was alleged he violated rules regarding a claim, which resulted in a 30-day suspension. The New York Gaming Commission charged that the horse, Mach One (Air Force Blue), was claimed by Potts' owners Frank Catapano and Nicholas Primpas by trainer Amira Chichakly and then transferred to Potts. Potts claimed another horse from the same race and trainers are not allowed to claim more than one horse in any given race. Additionally, Potts was banned from the Maryland tracks in 2020 amid allegations that he was a paper trainer for Marcus Vitali.

Potts won a career-best 61 races last year and was the leading trainer at Monmouth. He said he has 47 horses in New York and plans to relocate them to a training center in New Jersey.

“I was shocked when they told me I wasn't being allocated stalls,” Potts said. “I supported the NYRA circuit strong the last two winters when they have short fields. If this is an act to clean things up, there are other people that should be gone before myself. I don't have a whole list of mediation violations. I have done some stupid things in life, but there are other people there that have done much worse than I have.”

When asked if he fears NYRA will eventually ban him outright, Potts said: “I don't think that will happen. I had a meeting today with the racing secretary and with Frank Gabriel. They said I am still free to enter and I can conduct my business as I was before. That's what I'm going to continue to do.”

Vazquez received two consecutive 15-day suspensions from the Pennsylvania Racing Commission after two of his horses tested positive for the dewormer levamisole in races at last year at Parx. One, Hollywood Talent (Talent Search), tested positive after winning the GIII Turf Monster S. at odds of 108-1. Vazquez has filed an appeal. Vazquez has numerous suspensions and violations on his record. In one ruling, issued in 2017 in Pennsylvania, it was noted that Vazquez had eight drug positives during a 23-month period. Vazquez, who did not return a phone call seeking comment, is fifth in the Aqueduct trainer standings.

While Potts and Vasquez are prominent trainers, the others are not. Richards is 0-for-6 on the year and has won only five races in a career that began in 2017. He is facing a suspension of up to one-year from the New Jersey Racing Commission after his horse, Awesomenewyear (New Year's Day) tested positive for the prohibited medications oxazepam and ibuprofen following a Sept. 3 race at Monmouth. He has six horses stabled in New York.

“That would be something that is easy for NYRA to lean on,” Richards said of the drug positives in New Jersey. “They can say you have a positive so we're not going to give you stalls. I can't say for sure that's what it is. It might be. I'm still at Belmont, so they haven't kicked me off the racetrack yet. Where am I going to go? I'll have find a place where I can put my horses up. I'll have to try to get stalls elsewhere. It will be a great inconvenience. I live right next to [Belmont]. I don't even want to think of not being at Belmont.”

The Racing Form, citing sources, reported that McAllen was denied stalls for allegedly demonstrating an inability to properly care for his horses. He is 2-for-54 on the year and said he has 12 horses at Belmont.

“If someone wanted to come and see my horses I'd have no problem showing them to you,” McAllen said. “They are 100% perfect.”

McAllen said he will look for stall space somewhere before eventually taking his stable to Monmouth Park.

Miranda has won with just 4 percent of his career starters and is 2-for-94 since 2020. Simmonds is 1-for-19 on the year after going 2 for 75 last year. It was not immediately clear why those trainers were denied stalls.

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