Trainer Doug O’Neill has decided not to appeal an Illinois suspension that is being enforced in California and effective June 30 he will have no horses race in his name for 15 days.
O’Neill’s attorney Steve Schwartz, said based on the cost of an appeal and the unlikelihood that the suspension would be overturned he advised O’Neil to sit out the 15 days. "It would have been difficult to achieve an ultimate outcome" favorable to his client, Schwartz said, adding that the issues of law and equity "are within the broad discretion of the stewards."
The 15-day suspension and $1,000 fine were levied against O’Neill by stewards at Hawthorne Race Course in Cicero, Ill. after the horse Stephen's Got Hope tested positive for an excessive level of total carbon dioxide following a seventh-place finish in the April 3 Illinois Derby (gr. III).
According to the California Horse Racing Board’s records, O’Neill initially appealed the ruling to the Illinois Racing Board but dropped the appeal and paid the fine April 30. The previous day, O’Neill requested and received a stay of the Illinois ruling from CHRB chairman Keith Brackpool.
Among other issues, O’Neill argued that the CHRB should not recognize the Illinois suspension under reciprocity agreements between the two states because the rules in Illinois for TCO2 levels are more stringent than in California. Also known as "milkshaking," the administration of alkalizing agents like bicarbonate of soda are designed to reduce fatigue levels in a horse or, some believe, to mask the presence of other drugs.
After a hearing, California state stewards upheld the reciprocity agreement between Illinois and California and recommended that the stay be rescinded. Brackpool rescinded the stay and ordered the suspension to begin May 30.
In their analysis of the case, the stewards noted that O’Neill did not vigorously contest the initial suspension in Illinois, effectively "failing to avail himself of the due process that the appeal process affords." As a result, the California stewards rejected a request by O’Neill to introduce new evidence in his case "that could have and should have been raised in the original hearing in Illinois.
"This board finds it both ironic and problematic that he failed to avail himself of any of the due process protections afforded in Illinois (and accepted the ruling) but now seeks to raise substantive arguments to avoid its application here."
Schwartz said one reason there was no concerted effort to fight the Illinois stewards’ action was related to the procedures followed in that state the first time a horse tests positive for a TCO2 excessive level. He said that before disciplinary action is taken, the horse is tested again following its next start to see if the results were similar. If the TCO2 level tested the same or nearly the same, then it was not deemed to be a violation.
By the time the positive test came back, Stephen’s Got Hope was back in O’Neill’s barn in California and it would not have been practical nor fair to the owner of the horse to ship back to Illinois for another race just to see how he tested for TCO2.
In his presentation to the California stewards, Schwartz explained that O’Neill saddled horses in three other racing jurisdictions following the Illinois incident and that none of the states elected to recognize the suspension. He said California could have followed suit in not honoring the reciprocity in this case.
Schwartz said O’Neill also decided not to turn his horses over to his assistant, who would have had to go through the costly process of obtaining worker’s compensation insurance in his name, and permit them to race while the trainer serves the suspension. Also, Schwartz said, there was a liability issue if something happened to one of O’Neill’s horses or to someone as a result of action by one of his horses if stable operations continued without O’Neill there.
O’Neill’s 15-day absence from the entry box will be felt at Hollywood Park, where field sizes have been an issue during the current meet. While he did not have a list of the horses O’Neill would have started during the 15-day period, he said it would have averaged between four to seven horses daily.