Confab: Does Penalty Always Fit Crime?

When it comes to penalties, it can be hard to look at things in black and white.

Chances are many more officials in the horse racing industry support uniform regulations a lot more than they support uniform penalties—at least beyond a literal interpretation.

Rules are rules, but do penalties always fit the crime? That topic was hashed out for a few hours Dec. 8 during the first Racing Officials Accreditation Program conference, which kicked off University of Arizona Symposium on Racing and Gaming week in Tucson, Ariz.

“There is a disconnect between uniformity and mitigating factors,” said Alan Foreman, chief executive officer of the Thoroughbred Horsemen’s Association and an equine attorney for more than 30 years. “In my view, there has been a huge overcorrection. I’m concerned with the way some of these (infractions) are being handled. Why would anyone want to buy a racehorse?”

Penalties for racing-related violations still vary by jurisdiction, though the Racing Medication and Testing Consortium, in conjunction with the Association of Racing Commissioners International, has developed model rules. The penalties, however, acknowledge mitigating and aggravating factors that lead to what Foreman called an “intellectual” examination of such cases.

In racing, a trainer is the “absolute insurer” regardless of acts by third parties. Foreman said racing officials have a choice, though it’s not always easy: issue the standard penalty or dig deeper to find out why a violation has taken place.

“If you do it right and intellectually, you get to a right place,” he said.

Foreman, who began his presentation by saying: “I’m an attorney. I’m the bottom-feeder in all this,” believes racing officials have power similar to that of judges because they make decisions in an administrative setting in which biases come into play. He used the case of jockey Jeremy Rose as an example.

Foreman represented Rose this year in a case in which the rider was suspended six months for striking a horse in the face with his whip at Delaware Park. (The penalty was later reduced.) Foreman said the case was a perfect example of mitigating circumstances, in particular timing and the role of the media.

The incident took place soon after the breakdown of Eight Belles in the Kentucky Derby Presented by Yum Brands (gr. I) gallop out, an incident seized upon by animal rights activists. Foreman said the video of the Rose race was on less than two hours after it took place.

“The bloggers were already at work,” Foreman said. “You’ll never convince me that didn’t have some influence on the decision by the stewards and racing commission. Having said that, there are factors they took into account,” such as the fact Rose had two or three previous whipping violations.

In another case Foreman took on, trainer Patrick Biancone was suspended one year for having cobra venom in his barn at Keeneland in Kentucky. Biancone, who began training again Nov. 1, said he didn’t know what was in the veterinarian’s cooler and didn’t use cobra venom; he passed a lie detector test to that effect. Still, he acknowledged having the cooler in his barn was a violation of racing rules.

Foreman has long contended Biancone was tried in the media before he even had a hearing in Kentucky, and noted that at the time, a Standardbred rule on the books in Kentucky actually said cobra venom is an acceptable substance to use for nerving a horse. Dr. Rod Stewart, the vet who left the cooler in Biancone’s barn, had Standardbred clients, Foreman said.

Last year, there was a rumor Biancone could get five years on the sidelines.

“What is an appropriate penalty?” Foreman said. "We're all over the place here."

In yet another case, Foreman said a horse tested positive for TCO2—a “milkshake”—even though the trainer insisted the horse, a Thoroughbred, didn’t receive bicarbonate. As it turned out, the horse was in violation of TCO2 “house rules” at a racetrack that allowed for the anti-bleeder medication Salix to be administered 90 minutes before a race, not four hours.

It has been documented that Salix can elevate TCO2 levels, Foreman said, but management wouldn’t rescind the penalty.

“I am not a proponent of use of house rules, particularly for medication,” Foreman said. “There is a reason for due process.”

The ROAP conference included videos of various incidents and subsequent discussion by participants. Frank Lamb, who recently retired after 20 years as executive director of the Wyoming Pari-Mutuel Commission, said about 80 people registered for the conference, far more than the 25-30 originally expected.

ROAP president Stan Bowker said he hopes the conference is held each year given the level of interest. ROAP was formed in 2006 to provide a “home office” for all things related to accreditation and continuing education for racing officials in the horse racing industry.