Heleringer: Will The Absolute Insurer Rule Save Racing … Again?

“Doped” horses. “Hopped” horses. “Drugged” horses. Cheating. Indictments. Scandals. Let the bettor beware.

Those terms don't describe the current conditions in horse racing, but the overarching problems that dogged the sport nearly 90 years ago when racing had basically no reliable security system in place to protect the betting public. As is the case today, horse racing in the United States had no national governing body that set uniform standards and rules to police the sport. (Thankfully, this will finally change on July 1, 2022, with the federally mandated Horseracing Integrity and Safety Authority.)

Until his death in 1924, August Belmont Jr. could unofficially govern the game by the sheer force of his name and prestige — he had created the concept of a racing commission in 1895 and then persuaded a New York legislature dominated by Republicans to enact it into law. (Belmont was a staunch Democrat.) But at his passing, there still was no effective means – no proven scientific process – to combat racing's biggest challenge: how to detect and thwart the cheaters, the unscrupulous horsemen who drugged horses to reap huge “scores” at the betting windows.

Joseph Widener, in an attempt to both reform a sport he loved and, less altruistically, protect the sizeable investment he was making in the total transformation of Hialeah Park in south Florida, dispatched Marshall Cassidy in 1934 to France to study the post-race drug-testing system of a horse's blood/saliva the French racing authorities had conceived to police their own game. Cassidy brought the system back to the United States and installed it for Widener at Hialeah (overcoming a brief but bitter strike of horsemen in the process).

That single act, with stout punishment for offenders, copied nationally by a burgeoning racing industry that couldn't build racetracks fast enough, may have single-handedly saved the sport of horse racing from itself. The fans that fueled this explosive growth could now push their money through the windows with some degree of confidence they were betting on an honestly-run sport.

The simple, uncomplicated standard that governed was called the “absolute insurer rule.” The person doing the “absolute” insuring was a horse's trainer of record. It didn't matter if that trainer was (theoretically) on a three-year shuttle to Mars, if he ran a horse during that time anywhere in America and was the listed trainer of record; he was totally and exclusively liable for the consequences of any failed post-race drug specimen ­­– not the groom, the hotwalker, a veterinarian, or even the familiar “disgruntled former employee.” Confirmed “positives” meant, automatically, the DQ of the winner, loss of purse by the owner, and a fine/suspension or both for the trainer. But how would the reviewing courts interpret such a unique guilty-until-proven-innocent standard? The answers were not long in coming.

In a landmark case with a number of similarities to the current Bob Baffert imbroglio, in late 1945, prominent trainer Tom Smith, the man who had trained the immortal Seabiscuit, was suspended for an entire year by New York's racing board after one of his grooms had been observed in the paddock at Jamaica spraying a “substance,” later confirmed as ephedrine, into the nostrils of Smith's horse. (Smith wasn't even at the racetrack that day.) In a battle of experts sure to be reprised when the Baffert hearing begins, Smith's expert testified the ephedrine's effect on the horse was “negligible” while New York's chemist believed the drug “might [key word] affect a horse … by increasing its respiratory capacity.” The racing board's harsh penalty was upheld by New York's appellate court. (Smith was even ordered to pay the board's court costs of $50.)

But, at least initially, no other state was inclined to follow New York's lead. Perhaps as a consequence of the strong (but widely unpopular) sanction meted out to Tom Smith, Maryland's highest court – barely two months after the Smith decision was handed down – affirmed a lower court's decision declaring Maryland's own absolute insurer rule unconstitutional. Trainer J. Dallett “Dolly” Byers had a winning steeplechase horse at Pimlico test positive for “benzedrine,” a stimulant. Echoing Mr. Baffert's initial defense after Medina Spirit's positive for betamethasone, Mr. Byers testified at his hearing that he was totally innocent and had no idea how the prohibited drug got into his horse's system. Byers' defense, complete with character witnesses, was found unavailing and he received the same one-year suspension that Tom Smith had gotten. A reviewing trial court threw out the suspension and the law/regulation on which it was based, calling the rule's “conclusive presumption of guilt” a “great vice.” A unanimous Maryland court of appeals affirmed and went even further: “This irrebuttable presumption [of guilt under an absolute rule] destroyed the right of [Byers] to offer evidence to establish his innocence. If this is 'just,' then the term 'unjust' has no meaning.”

Florida's Supreme Court weighed in the following year (1947), striking down that state's own absolute standard in the Baldwin case, holding for the first time anywhere that a horseman's license was “a valuable property right” that could not be suspended without due process of law, i.e., without some finding of guilt based on evidence not a mere violation of an automatic rule.

But just when it looked like the absolute insurer rule was going to be ruled off, California's Supreme Court upheld the beleaguered standard in 1948. In a 5-2 decision that the two dissenting justices called “un-American,” the majority reinstated a six-month suspension of trainer W.L. Sandstrom's license after his winning horse at Del Mar, Cover Up, tested positive for a “caffeine-type alkaloid.” Sandstrom's sanction, said the high court, was not “unreasonable, arbitrary, or capricious” since the absolute rule upon which it was based “was designed to afford the wagering public a maximum of protection against race horses being stimulated or depressed” and was a “reasonable exercise of California's 'police powers.'”

Over time, the Sandstrom decision became the consensus view of nearly every court that considered constitutional challenges to racing's single most important rule. (Both the Byers and Baldwin cases were eventually overruled.)

With the hiring of Spencer J. Drayton in 1946, wooed away from the upper leadership of the FBI, and his national efforts to “clean up racing” with the Thoroughbred Racing Protective Bureau (TRPB) that included the agency's aggressive enforcement of absolute insurer rules, horse racing became a major recognized sport in the United States, as honestly-run and incorruptible as humanly possible. The game enjoyed its “golden age” thereafter up through the 1970s.

The question must be asked, in the crucible of the serial Bob Baffert “medication” controversies, which supplanted the serial Rick Dutrow “medication” controversies, can horse racing survive in this country without a drug-testing system that is NOT based on the strict enforcement of an absolute insurer rule that the betting public can rely upon with the utmost confidence?

While every horseman's constitutional right to due process of law must be protected, at the same time, does the sport's leadership seriously believe that the wagering public (or their elected representatives) will tolerate a drug-enforcement apparatus that, far from the zero tolerance standard it adopted barely a dozen years ago (and has obviously been discarded), permits a chaotic system that allows excuses, explanations, and prevarications for drug positives that are only limited by a licensee's imagination? Exactly how is the public interest served if horsemen can plead, not just in mitigation, but as an affirmative defense, “environmental contamination,” transferred lidocaine patches, innocent applications of ointment, and wide-open-to-varying-interpretations how many picograms of a “therapeutic” (but nevertheless prohibited during races) medication “affects” a horse's performance during a race that lasts perhaps a minute and a half?

Now that the abandonment of the former “absolute” standard is on full display in the aftermath of a positive drug screen of the winner of the world-renowned Kentucky Derby, with the attendant incalculable damage to horse racing's “brand,” is it time once again to resume the strict application of an absolute insurer rule to save an industry that employs tens of thousands and is enjoyed by millions?

Bob Heleringer is a Louisville, Ky., attorney, former racing official and author of the legal textbook Equine Regulatory Law, the second edition of which will be released later this year by the University Press of Kentucky.)

The post Heleringer: Will The Absolute Insurer Rule Save Racing … Again? appeared first on Horse Racing News | Paulick Report.

Source of original post

No ‘Kid’ding: Dontletsweetfoolya More Settled Alongside Goat Friend Entering Barbara Fritchie

There's a scene in the 2003 motion picture 'Seabiscuit' where trainer Tom Smith cradles a goat in his arms as he walks along the road on owner Charles Howard's California ranch leading to the stable where the movie's cantankerous main character has been keeping his connections on their toes.

“Goat racing?” Howard, played by actor Jeff Bridges, asks.

“Oh, no. Just trying to calm him down a little,” fellow Academy Award winner Chris Cooper, playing Smith, answers. “The smart ones, they hate being alone all the time. Sometimes, another animal just soothes them a bit.”

Moments later, the goat is seen exiting Seabiscuit's stall in mid-air before landing and scampering past an astonished Smith, standing with his mouth open and hands on his hips. Ultimately, Smith brings in a pony to keep Seabiscuit company, and the rest is cinematic history.

Trainer Lacey Gaudet hasn't had any such trouble since Doris, a 7-month-old baby goat, or kid, joined her Laurel Park barn in mid-January. Doris has been nothing but a positive influence for the entire stable, in particular the occasionally high-strung, multiple stakes-winning filly Dontletsweetfoolya, who is scheduled to make her 4-year-old debut in the $250,000 Runhappy Barbara Fritchie (G3) Feb. 13.

“She's become the barn mascot,” Gaudet said. “Everybody loves her.”

Especially Five Hellions Farm's Dontletsweetfoolya, who has reeled off five consecutive wins by 28 ¾ combined lengths including the Primonetta and Willa On the Move stakes at Laurel to cap her sophomore season, the latter on the day after Christmas.

“She since has added a goat to her stall, which we wavered back and forth on doing for a long, long time. It just happened that one of our neighbors got two little goats and they needed a spot for one,” Gaudet said. “It's been a fantastic experiment.

“She loves the goat, and the goat loves her. My rider swears that it has changed her in the mornings,” she added. “I definitely see a bit of a change in her through her daily routine. I guess we'll find out next Saturday if it has helped her much.”

Though having animals around the barn with the horses is nothing new to racing it is a first for Team Gaudet. The late Eddie Gaudet won more than 1,700 career races and was the patriarch of one of Maryland's best known and respected racing families. His wife, Linda, and oldest daughter have done the training since 2011.

“There's a lot of barns out there that have goats. Everybody does this from time to time, but this is our first time. My dad and my mom never had goats in the barn,” Lacey Gaudet said. “She is the tiniest little thing. She is not even as big as my Jack Russell. She is a tiny goat, but she has been great to have in the barn.

“Everybody loves her,” she added. “She's so quiet. She doesn't make any noise. We'll just walk by at any point in the day and she'll be sleeping between this filly's legs or the filly will be laying down and the goat is between her legs.”

Dontletsweetfoolya had her third and final breeze for the Fritchie Feb. 6, going a half-mile in 48 seconds in company with newly turned 3-year-old filly Fraudulent Charge, runner-up to multiple stakes winner Street Lute in the Dec. 26 Gin Talking who is pointing for a rematch in the $100,000 Wide Country, part of the Winter Sprintfest program of six stakes worth $900,000 in purses.

“She hasn't missed a beat. Her works have been fantastic,” Gaudet said. “She's just so push-button, where before she was always full speed ahead and we could not slow her down. She was a little rank. We would always try to settle her, to no avail. She's really gotten to the point where if we want her to work in 51 [seconds], she'll work in 51. If we want her to work in 48, she'll work in 48.

“Each work off of that last race was fantastic. Each was a little bit faster and it was definitely under control,” she added. “She's doing very well, so we're looking forward to it.”

Approaching her 200th career victory, Gaudet is chasing her first graded-stakes win in the Fritchie. Her most recent attempt came with long shot Charles Town Oaks (G3) runner-up Chauncey in 2018.

“It's fantastic. The last time we ran in a graded-stake my horse was [42-1] and she ran second and got beat a [neck],” she said. “It's fun to point toward this race and I think we actually have a chance.”

Among the horses Dontletsweetfoolya is expected to face are fellow multiple stakes winners Hello Beautiful, herself on a three-race win streak, and Needs Supervision; Sharp Starr and Victim of Love, both Grade 3 winners in New York last year.

“It's funny because last time when she won the stake … people were like, 'Oh, you're going to have to face Hello Beautiful now,'” Gaudet said. “I think everybody in Maryland, especially the people on the backside, and everyone that has seen these two fillies flourish, I think they're all really looking forward to these two coming together. And, we are too.”

The post No ‘Kid’ding: Dontletsweetfoolya More Settled Alongside Goat Friend Entering Barbara Fritchie appeared first on Horse Racing News | Paulick Report.

Source of original post

Verified by MonsterInsights