Chris Wittstruck

The cry is heard constantly; “Why is that guy still training? He was suspended over a year ago!” The answer is really quite simple. Those charged with a violation have a fundamental right to exhibit that they have been wrongfully accused and should be exonerated, and deserve a stay of enforcement of penalties until that right has been fully exhausted. It is not the horseman’s burden to prove that he is blameless, so why should an innocent horseman suffer until an independent judicial system is fully satisfied that a particular racing commission has met its burden of proof in violating the individual? 

If after pursuing all available avenues of appeal a licensee is not successful, then he or she has simply put off the inevitable. The punishment suffered will come at a price higher than originally meted out, given the legal fees and court costs expended in the course of a protracted, and futile, court process. It’s hard to view such an individual as having won something.

Yet, some view the resort to seemingly endless appeals as simply ‘gaming’ the system. There is a need to understand the terrible position an innocent licensee is placed in under the regulations of the various racing commissions, and to grasp how very one-sided the adjudication of violation charges can be. Innocent people don’t game the system; they simply seek to clear their names.

First, a racing license, unlike a license to hunt or fish, is an occupational license. Families are literally fed or go hungry based upon whether the breadwinning horseman is able to keep his racing license valid.  In 1979, none other than the United States Supreme Court found that trainers (and, by logical extension, many other classes of  racing licensees as well) possess a property right in their racing licenses such that the protections of the Due Process Clause of the Fourteenth Amendment to the United States Constitution are invoked. Doing whatever is necessary to continue to feed your family can hardly be considered an ill-motivated strategy.

Of course, many view the fact that a racing commission, or even simply a laboratory result has ‘tagged’ a licensee is enough to find him or her guilty as charged. Sorry, but there are innumerable instances where such an initial finding has been dead wrong.

Consider the quick, down-and-dirty findings that four Grand Circuit trainers, each of high repute, were blood doping at The Red Mile in 2008. Out-of-competition testing by the track pointed to the presence of EPO (Erythropoietin) and/or DPO (Darbepoetin-alpha) in the horses. Each was scratched, and their owners were forced to forfeit hefty entry fees. More precise testing conducted by a laboratory under scientific conditions occurring months later, however, fully exonerated all of the trainers. Of course, they and their owners were very big losers, their complete innocence notwithstanding.

A few years ago, this author represented several trainers accused of milkshaking at New York harness tracks. While initially each had numerically elevated total carbon dioxide (TCO2) levels indicative of milkshaking, the state’s chief chemist admitted at the hearing that the administration of Lasix® (furosemide) in close proximity to the specimen collection of some of the horses potentially skewed results enough to recommend dismissal of a quantity of the charges.

Quite recently, a number of harness trainers racing in New York were tagged for overages of the legitimate therapeutic drug levamisole. Why? Presumptively, the positives came as a result of the state’s threshold level being reduced without notice, which meant that the industry’s recommended safe harbor withdrawal time was extended.  In other words, trainers and veterinarians who followed the rules as they knew them at the time of administration were subjected to rules they did not know at the time of testing. Yet, the fact that the goalposts were changed in the middle of the night by the commission didn’t trump the trainer responsibility rule.

Guilty as charged? Hardly.

Moreover, in states where commissions are allowed to play judge, jury and executioner, is it any wonder that most horsemen view the real challenge to accusations of violation to begin not at the commission level, but only after the commission has ruled?

Infamous Thoroughbred trainer Richard E. Dutrow was accused by New York’s racing authorities of possessing syringes in a desk draw at a time when he was not on the grounds and for the presence of an analgesic in one of his racehorses. The penalty assessed was 90 days. Dutrow appealed, and the Racing Board’s own hearing officer recommended a lifetime ban. The Board reduced the penalty to ten (10) years. Guilt or innocence aside, how hard was it to fathom that this licensee would exhaustively appeal a sentence meted out that was 40 times the original penalty assessed, simply because he had the audacity to exercise his clear right to an administrative hearing?

If attempting to clear your name is considered just a series of stalling tactics, then what of the circumstance where a racing commission drags its feet?

Harness trainer Lou Pena was accused of medication violations via the New York Racing Board’s highly questionable interpretation of veterinary billing records as a source of evidence in the complete absence of even one drug positive in any of the hundreds of horses in question. His license summarily suspended by the New York Racing Board, Pena failed to secure a stay in the courts. Despite the fact that administrative arguments concluded at the end of last summer, as of this writing (late January) the Racing Board has failed to render its decision. Why should it? Without a stay of enforcement, every day that a decision is delayed is another day Pena is not allowed to race. Here, it’s certainly not the licensee who is gaming the system by stalling.

There should be a balance between the right to ensure integrity in racing and the right for innocent participants to not have their rights trampled upon. No solution is perfect, but here’s an idea that is neither original nor complicated.

Arbitration is a means of settling disputes in a variety of realms. Commercial arbitration; labor arbitration; arbitration of damages in negligence suits… the circumstances are endless. Once abhorred by the courts, arbitration is now a quite accepted means of resolving disagreements between businessmen, labor and management, insurance companies and claimants and a variety of other aggrieved parties. Falling under the broad umbrella of Alternative Dispute Resolution (ADR), arbitration offers willing participants an inexpensive and rapid resolution of discord and controversy.

More importantly, arbitration comes with a certain finality not found in the administrative law realm. It is nearly impossible to overturn an arbitrator’s award in the courts. By way of example, under New York law an arbitrator’s award can only be vacated for the following severe reasons:  corruption, fraud or misconduct in procuring the award; partiality of an arbitrator appointed as a neutral, or; an arbitrator making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.

If both the licensee and the racing commission agree to submit an alleged violation to arbitration, it means both agree to be bound by the arbitration award, and neither will have much opportunity to successfully challenge it in court. A panel of arbitrators constituting one selected by the licensee, one by the commission, and a neutral chairperson selected by the two arbitrators would ensure that a fair hearing is held and an objective, unbiased decision is rendered.

As to penalty in the event the violation is upheld, there should be in place a set range of penalty. In this way, the horseman is not subjected to a Dutrow-like chilling effect on exercising his appeal right (i.e., appeal a 30 day suspension and risk getting 20 years), while the commission is assured that upon a sustained violation the horseman will get more than the penalty originally offered.

For instance, in the event of an accusation of an overage of a legitimate therapeutic where a 15 day penalty is scheduled, why shouldn’t the arbitrators be given a penalty range with only a reasonable enhancement upon a conviction?  In this way, most of the horsemen who did wrong and know it will take their punishment, lest they received enhanced penalties, while innocent horsemen will not think twice about pursuing arbitration, as the arbitrators can only fashion a penalty that ‘fits the crime’ as opposed to draconian punishments having no reasonable relation to the original charges.

Submission of license violations to arbitration would ensure that those horsemen on the track under suspension pursuant to a stay will either be exonerated in rapid fashion, or will be taking their deserved punishment sooner rather than later.

A faultless system? No. A system superior to what we have in place now in most jurisdictions? I don’t think the answer can be the subject of much dispute.

Chris E. Wittstruck is an attorney, a director of the Standardbred Owners Association of New York and a charter member of the Albany Law School Racing and Gaming Law Network.

Editor's Note: The views contained in this column are that of the author alone, and do not necessarily represent the opinions or views of the United States Trotting Association.