By Michael G. Wagner
(From the September 11, 2004 issue of The Blood-Horse)To minimize the negative publicity often attached to drug positives, the California Horse Racing Board (CHRB) has permitted its executive director to quietly settle cases directly with Thoroughbred trainers whose horses test positive for illegal medications. The practice, which includes replacing suspensions with fines, has become commonplace in the past several years, and was revealed in interviews and records requested under the California Public Records Act as well as documents obtained from sources at the CHRB. Roy C. Wood Jr., the board's executive director, also began bypassing stewards hearings and cutting deals directly with the trainers as a way to save money after a series of contested cases ended up in drawn-out litigation that ate into the CHRB's approximately $8.5-million annual budget. The CHRB is defended in these cases by state deputy attorneys general who bill the CHRB for their time and expenses. The result of these deals has been a regulatory system under Wood that owners, trainers, veterinarians, association officials, and bettors--in fact, just about every community of interest in California racing except the CHRB--believes is broken, and has led to a perception that giving horses drugs to enhance performance has become common practice in California. Since Wood does not speak regularly with the media, it is not known how much this criticism played into his recent decision to retire from the CHRB in December. Wood did not respond to requests for comment. "Horsemen I've talked to think the regulatory process has become a big joke in California and they think it encourages cheating," said Pam Berg, a medication steward in Northern California who was honored recently for her work with retired Thoroughbreds at her Glen Ellen, Calif., farm. "Nobody believes that Wood's version of 'Let's Make a Deal' has made racing any fairer or less scandalous," Berg added. "In fact, it's just the opposite. Who fears a slap on the wrist? That's what a system with no suspensions amounts to." Deep disappointment with Wood's handling of drug issues prompted numerous horsemen, owners, and association officials to press for more surveillance of so-called "super trainers," as well as other private initiatives aimed at curtailing cheating, that are more stringent than the CHRB has been. For example, for the upcoming Oak Tree Racing Association meeting this fall at Santa Anita, Sherwood C. Chillingsworth, the association's executive vice president, has warned horsemen that horses will be tested randomly for milkshakes (the loading of bicarbonates into the stomach through a rubber tube to lower lactic acid in muscles and in the bloodstream), and any trainer with a horse testing greater than 39 millimoles per liter of plasma "will be subject to revocation of their stall allotment for the duration of the Oak Tree meet." Additionally, Chillingsworth warned that "Oak Tree reserves the right to place surveillance cameras with recording devices in any location in the barn area that it deems appropriate." On Sept. 2, Santa Anita vice president Chris McCarron announced he favors detention barns for "in today" horses effective in December. CHRB chairman John Harris, a prominent Thoroughbred owner and breeder in California, defended the practice of privately settling drug positives with fines instead of allowing stewards to police doping as they have done for decades in California and in jurisdictions across the country. In an interview conducted via e-mail (at his request), Harris said, "California law expressly provides for substituting fines in lieu of, or in addition to, license discipline for some categories of medication violations. Roy Wood is not unilaterally settling those cases. "The suspension of trainers for days is a tough one to enforce, as it is not that difficult for a trainer to find a surrogate trainer to take their place," Harris continued. "Plus there is a disruption to the jobs of many people working for the trainer who were not at all involved in the infraction." But some stewards said they are not informed when a trainer has had a horse test positive until after a deal has been struck by Wood to settle the matter. A case in point involved a positive incurred by Mike Mitchell, one of the leading trainers in Southern California this year. According to CHRB records, Mitchell's horse Sweet Stepper tested positive for the metabolite of the tranquilizer Acepromazine after finishing fourth in a race at Del Mar Sept. 7, 2003. The horse was disqualified to last. On March 27, Mitchell appeared before the board of stewards without an attorney and claimed that an assistant whom he subsequently fired had mistakenly tranquilized Sweet Stepper instead of a "nutty 2-year-old" in the same barn. Mitchell was asked by the stewards to "walk us through" how he had come to settle his case privately with Wood before it reached the stewards. "When I first heard about it," Mitchell began, "it was like suspension time and I just got scared. "And talking to some of the investigators, they said, 'You know they really don't like to suspend anybody now--if you acknowledge the fact that it happened, and you want to pay the fine,' " Mitchell testified. "So I went through Roy Wood, talked to him." Mitchell said Wood "assured me, 'Look, we don't want to (spend) money to fight it either. But we are fine with setting a fine to you.' " Mitchell testified that he played "phone tag" until he finally reached Wood and "we had a nice conversation." The conversation lasted five minutes, Mitchell testified, and Wood told him the fine would be $5,000. "There was no bargaining?" steward Pete Pederson asked Mitchell. "I say 10; you say 8?" "No," Mitchell responded. "I felt I just--you know, a 30-day suspension just would have been devastating to me. It would have been terrible. The fine was great." Pederson expressed surprise about the way Mitchell's case had been handled, noting that usually "the penalty hadn't been set" before the matter came before the stewards. Shortly after Mitchell appeared before the stewards, Ingrid Fermin, a longtime steward in Southern California, wrote to the CHRB commissioners about Wood's settlement of Mitchell's positive: "The stewards were, in fact, unaware of the violations until the signed documents were placed upon our desks for the disqualification hearings." Fermin continued, "The positive findings for Class 1, 2, and 3 drug violations are no longer heard by the boards of stewards. Since that change, I cannot recall any licensee serving one day of suspension after having run a horse with potentially performance enhancing substances in that horse's system. "As the rumors swirl, I am convinced that the 'perception' of medication abuses are as damaging as the 'reality' of those abuses," Fermin wrote. A review of a document entitled "Analytical Test Findings--California Horse Racing Board (Class 1, 2, 3 Drugs)" that is kept privately at the CHRB for Wood shows that since 2000, the number of suspensions meted out to Thoroughbred trainers with drug positives at California's major tracks (Del Mar, Santa Anita, Hollywood Park, Bay Meadows, and Golden Gate Fields) has steadily declined every year. The document shows the CHRB began to settle cases with fines instead of suspensions more frequently after the highly publicized morphine positives involving trainers Bob Baffert and Bobby Frankel in May and June 2000. Known as the "poppy seed" bagel cases, Baffert received a 60-day suspension that is still under appeal. The two positives listed in the document for Frankel (who has not been sanctioned) indicate they were referred to a deputy attorney general and that a decision to redistribute the purses in those races is still "pending" more than four years later. Citing the pending cases, neither Harris in his interview, nor the CHRB in requests under the California Public Records Act, would comment on the cases or release documents about them. In 1998 and 1999, a number of California trainers turned up with Clenbuterol positives before the board changed the rules to allow certain levels of the drug in a horse after a race. Some of those cases were contested in lengthy, and expensive, hearings. Most were settled or dismissed. The most famous case involved top handicap horse Free House, whose positive didn't seem to make sense because it allegedly occurred when he was odds-on and towered over his field in the 1998 Bel Air Handicap (gr. II). In addition, his connections--trainer Paco Gonzalez and owners Trudy McCaffery and John Toffan--had squeaky clean reputations. The case was eventually dismissed. After the Clenbuterol and "poppy seed" cases, the trend in settling cases without suspensions began to grow. Out of 51 drug positives involving Thoroughbred trainers at the major tracks since 2000, only 10 resulted in suspensions (one trainer had two separate positives). But since 2001, according to Wood's private scorecard, through mid-March 2004, no trainer from a major track in California was suspended. It should be noted that a number of these positives are still listed as pending. Wood's settlement system has led to charges that it is unfairly tilted against small trainers. "I'm very bitter about it," said trainer Mark Glatt. "They seem to trample all over the little guy." A number of small trainers of horses at the state fair meetings and at Los Alamitos, which runs mostly Quarter Horse races, have received suspensions. On the advice of his Los Angeles attorney, Alan Klein, Glatt bypassed a stewards hearing to seek a negotiated settlement with the CHRB after his horse Que Facil Corazon tested positive in early 2003 for meprobamate, the metabolite of a muscle relaxant, after winning a race at Santa Anita. Klein said Glatt was offered that option by a CHRB investigator assigned to his case. In negotiations between Klein and a deputy attorney general, Glatt was initially offered terms that, he said, "would have put me out of business." The deputy attorney general offered Glatt a 30-day suspension and a $15,000 fine. Knowing that other trainers had been allowed to settle away their drug positives for much less and without the fear of suspension, Glatt said he called Wood. "Wood was very nice and sympathetic and understanding," Glatt recalled. "He said he was not in favor of taking a strong stance against trainers and he said he would look into it." But when Glatt tried to reach him again, Wood would not take his call. At that point, Glatt said he contacted CHRB chairman Harris and asked why he was being treated differently than trainer Mike Mitchell who, like him, had a Class 2 drug positive. Glatt said Harris told him "that didn't sound right" and he would check with Equine Medical Director Ronald Jensen "to see what he (Harris) could do." Glatt continued, "John Harris said he was in favor of negotiating just a fine because they (the CRHB) don't believe a suspension serves as good a purpose." Ultimately, Glatt agreed to pay a $10,000 fine and served no suspension. In defending Wood's system, Harris said, "Settling a case is not necessarily a sign of weakness or something that should be viewed as a minus. In both civil and criminal cases in state and federal courts there are settlements being approved in a high percentage of cases. This assures certainty of outcome, saves all parties money, and ensures that justice is not delayed." But critics of the current system note that the speed of justice may be less critical in an industry where millions of dollars are wagered daily in the belief the game is being closely monitored, and that trainers whose horses are later found to have run on drugs known to influence performance will be dealt with harshly. "Integrity should be the number one issue in this business, particularly in an industry that's in decline," said Norman C. Towne, former executive director of the California Association of Thoroughbred Tracks and now an industry lobbyist in Sacramento. Towne said the perception of cheating in California has become "the elephant in the room. Nobody wants to talk about it but it's there." "California has always been an island unto itself with all these controversial drug cases," said Alan Foreman, legal counsel to the Maryland Thoroughbred Horsemen's Association. "There's tremendous unhappiness out there" with the CHRB's handling of illegal medication. "You look at California drug rules for thresholds and guidelines, and they would never be adopted anywhere else," Foreman said, adding that the mid-Atlantic jurisdictions and New York consider California's permissive regulations "far too liberal." Although other jurisdictions permit trainers to settle cases by agreeing to pay fines, virtually none exclude the stewards and the possibility of suspension from the decision, said racing officials around the country. "Stewards handle them (drugging cases) here," said Joe Lynch, New York's chief of racing operations. New York prides itself on the "fast adjudication" of positives and employs its own administrative law judges. Only about a third of all cases are appealed past the stewards to the board, Lynch added. Kent Sterling, executive director of the Florida Horsemen's Benevolent and Protective Association and a member of the national medication consortium, said he cannot abide cheating in any fashion but believes that in some cases the absolute insurer rule that holds trainers responsible for any drugs in their horses' systems may unfairly punish some trainers. The exquisite sensitivity of the immunoassay tests, he said, detects minute traces of drugs that probably have no pharmacological effect on a horse. Nonetheless, Sterling said the sport needs more uniform penalties and a more consistent application of the rules nationally "because some of the statutes are so archaic and nobody has updated them." Lonny Powell, executive director of Racing Commissioners International, agreed. "No two jurisdictions handle drug positives the same way. You see all kinds of hybrids and permutations. "The law of the land was basically that the stewards back in the early days ran things with an iron hand and looked at issues in black and white and didn't worry about finding themselves caught up in the legal system," Powell added. Owner Aase Headley, wife of trainer Bruce Headley, is an outspoken critic of the CHRB. She said California regulators have done little to deal with the perception that cheating is rampant despite numerous efforts by owners, trainers, and association executives over the years to strengthen enforcement. "What really upsets me is that the Olympic Equestrian Team, by comparison, has 24-hour surveillance of every horse in the competition prior to the event. We have roughly 2,000 horses at the track, a hundred or so trainers and 35 vets--and only three guys (CHRB investigators) on a golf cart to watch them. No wonder they don't catch anything." Several horsemen and racing officials concerned about the perception of lax enforcement have spoken out at public meetings. At a meeting of the CHRB's medication committee earlier this year, Harris and another board member were confronted about a matter that occurred at Santa Anita during its Oak Tree meeting the day before last fall's Breeders' Cup World Thoroughbred Championships. It concerned an incident in which a security guard hired by Oak Tree for the Breeders' Cup reportedly saw trainer Jeff Mullins administer something to the horse King Robyn and reported what had been observed. CHRB personnel who responded confiscated the substance, but allowed King Robyn to run that day. The horse won the race. After the race, one steward said, the substance was returned--without testing--to Mullins by Dr. D. William Bell, the track vet, and Dr. Jensen, the equine medical director. Bell apparently deemed the substance to be a mouthwash. Although California's rules explicitly ban any substance except hay, oats, water, and Salix within four hours of a race, nobody would explain why an exception was made in this case. In response to requests under the California Public Records Act, the CHRB claimed it had no memos, e-mails, or reports of the King Robyn incident. In his interview Harris said, "I am aware of the incident but don't know enough of the details to comment on it. I do know that a statement of the CHRB policy on mouthwashes was reaffirmed by putting it on the overnights" prior to the opening of this summer's Hollywood Park meeting. Asked about the incident, CHRB spokesman Mike Marten said, "We probably didn't handle that as well as we should have." In the past few years, racetrack chatter about widespread medication violations has frayed nerves and led to sharp conversations between the CHRB, some of its employees, and critics such as Headley. Wood, too, has reacted to it. In what appeared to some to be an attempt to control backstretch rumors about his lack of enforcement, Wood wrote CHRB stewards, official veterinarians, and supervising investigators: "It has come to my attention that stewards are asking investigators to conduct investigations as a result of 'anonymous' tips and other sources. It has been alleged that upon making these referrals by the stewards or official veterinarians, nothing is being done or that there is no follow-up." To squelch rumors, Wood demanded CHRB officials receiving tips about illegal medication fill out a "Confidential Request for Inquiry/Investigation" naming the source of the information and his or her telephone number. But, Wood noted, "all of the investigations are confidential and the progress or contents...will not be disclosed." Veterinarian Rick Arthur said the "perception (of cheating) in terms of public relations becomes self-fulfilling and has a snowballing effect. The CHRB has to deal with that and to assure integrity in the sport. And it doesn't do either very well." Towne agreed. "I believe the cheating problem is real," he said. "Breeders, owners, and trainers are leaving the business in California because they feel they can't compete on a level playing field." Towne added it might take damaging episodes "to eliminate the bad apples...and I don't see that as a bad thing." After all, he said, "Where would baseball be today without the Black Sox?"Michael G. Wagner is a freelance writer in Northern California and former investigative reporter for the Los Angeles Times.