Patrick McKenna | Horse Racing Free Tips

New Ruling on Changes Leaves NYRA, Trainers Puzzled

The notice began appearing on the overnight in early January. “By order of the stewards. Pursuant to NYSGC RULE 4033.8. Effective February 1^st, only equipment specifically approved by the stewards shall be worn or carried by a jockey or a horse in a race. No equipment change (including shoes) will be allowed once the overnight is published.”

“There is no new rule,” wrote Brad Maoine, Director of Communications for the New York State Gaming Commission in response to TDN's request for information about the new posting on the overnight. “The intent of the message is (to) ensure that the betting public has access to accurate information regarding equipment changes in a timely fashion.”

But a reading of the NYSGC's rule 4033.8 reveals no mention of a horse's equipment, and reads only, “Only equipment specifically approved by the stewards shall be worn or carried by a jockey or a horse in a race.” There is no mention of equipment changes for horses after the publishing of the overnight in the ruling as stated on the Gaming Commission's website.

Trainers, horsemen's representatives and the NYRA expressed confusion over what the impetus for the rule was, and concern over the repercussions.

Right now, NYRA races are drawn either five, three or two days in advance of the race, with any late changes announced on the t.v. and general address system at the track, and off.

“NYRA has mechanisms in place to inform the betting public in the event of a late equipment change,” said NYRA spokesman Patrick McKenna. “This new rule does nothing to further protect horseplayers and will likely penalize owners for administrative errors that can easily be corrected in real time.”

“I think there are several issues with it,” said trainer Todd Pletcher. “My first concern would be over an occasional shoe situation. We've had scenarios where a horse sheds a frog and we train the horse in an aluminum pad, and we try to keep it on to complete their training, which is usually right up to the day of the race. If you want to make that shoe change you sometimes literally don't know until game day. Entries in most jurisdictions are becoming further and further out, so that's one concern.”

Secondly, he said, “everyone makes mistakes occasionally, and maybe you made an honest mistake and didn't enter with blinkers, and caught it after the overnight came out, or maybe the racing office made a mistake and didn't note blinkers on. It seems as if there should be a 24-hour grace period.”

Trainer David Donk conceded that in a perfect world, trainers would and should indicate changes of equipment at entry time, but that the current system of taking entries by phone, rather than by computer with mandatory fields filled out, made it more likely for errors to be made.

“Why can't I enter online?” said Donk. “Listen, it is the trainer's responsibility. I probably don't have a real problem with it, but is it the commission overstepping? I don't see where it's coming from, and why there can't be a grace period? Common sense says there should be some compromise.”

Donk said that he imagined that the equipment changes hinted at would be blinker changes or the addition of a bar shoe. Attorney Drew Mollica—who has represented numerous clients in conflicts with the Gaming Commission, including two currently–said that he envisioned that the rule would not only make it more likely to cause unnecessary scratches, but could be subject to legal challenges.

“No shoe changes after entry puts the horse in jeopardy and hurts the track,” said Mollica. “Say a horse pops a small quarter crack and needs a bar shoe. If that is announced, does that not protect the owner, the public, the horse and the track? But under this rule, he must scratch. Why?”

“And how about blinkers?” he continued. “Say a horse breezes on the day after entry and the trainer thinks blinkers would help, but now has to scratch or run without equipment that could benefit his performance because the new rule says he must scratch or not wear them? Who does this help? In a game that has enough natural landmines, do we have to plant more?”

Will Alempijevic, the executive director of the New York Thoroughbred Horsemen's Association, replied in an email, “NYTHA is currently engaged in discussions with both the NYSGC and NYRA to understand the issues that precipitated the change. We will continue to play an active role to see if we can collectively come up with proposed solutions to everyone's mutual benefit.”

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Thoro-Graph Sues NYRA Over Disputed $333K in ADW Partnership

A business partnership between performance-figure provider Thoro-Graph, Inc., and the New York Racing Association (NYRA) that had been billed as a “win-win-win” deal for the two parties and advance-deposit wagering (ADW) customers when it first launched in 2017 has gone sour, resulting in a lawsuit filed in New York State Supreme Court.

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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Suspended NYRA Clocker Denied Stay, Claims Absence Will ‘Harm’ Horsemen

Richie Gazer, the longtime NYRA head clocker who is set to begin a 30-day suspension and pay a $2,500 fine for “altering a published work of a horse to make the horse eligible to race,” has been denied a stay of his penalties by the New York State Gaming Commission (NYSGC) while he seeks to elevate the case to the state court level.

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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NYRA Considers Action Against Potts

After the news that trainer Wayne Potts had been suspended by the New Jersey Racing Commission for the first 30 days of the Monmouth Park meeting, the New York Racing Association is investigating the possibility of holding a hearing and potentially suspending the trainer as well, according to NYRA spokesman Patrick McKenna.

The news was first reported by Dave Grenig of Daily Racing Form.

In a TDN story Saturday, it was revealed that on Aug. 6, 2021, Potts allegedly told his assistant, Bonnie Lucas, not to permit one of his trainees to be vanned off the track after a race at Monmouth Park despite an order to do so from the New Jersey Racing Commission (NJRC) veterinarian. Potts was fined $1,000 and suspended 30 days in September, with the dates of that suspension being announced just last week.

“In just the last five months, Wayne Potts has been suspended by both the New York State Gaming Commission and the New Jersey Racing Commission due to conduct in direct violation of the rules of racing,” said McKenna. “Most recently, Mr. Potts was proven to have jeopardized the health and safety of a horse by refusing to allow the horse to enter an equine ambulance as directed by a regulatory veterinarian. This is a particularly egregious breach of his most fundamental responsibility as a trainer—to ensure the well-being of horses under his care. NYRA has afforded Mr. Potts the privilege of stabling and racing at our venues, but this pattern of conduct calls into question whether he should continue to enjoy that privilege. NYRA is gathering the necessary facts to support a statement of charges and a formal administrative hearing to potentially suspend Mr. Potts from participating in racing at Aqueduct Racetrack, Belmont Park and Saratoga Race Course. In the near term, NYRA is determining immediate options such as revoking his stall allotment at Belmont Park.”

The news comes amidst the hearings being held as NYRA attempts to suspend trainer Bob Baffert from racing at their facilities.

Potts ran afoul of New York authorities after an incident in August at Saratoga where he violated the `restricted' transfer rule which prohibits the claim and subsequent transfer of a horse within a 30-day timeframe.

In August 2020, Potts was barred from racing and stabling at Maryland tracks due to accusations from The Stronach Group that he was operating as a “program trainer” on the basis that he was receiving horses that had been previously trained by the suspended Marcus Vitali.

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