Commentary


Stan Bergstein’s Daily Racing Form columns

With permission of Daily Racing Form, Stan Bergstein’s bi-weekly columns for that publication will appear here every other week.

 

New Jersey/Ontario case a critical one

Bad news, good news – and the bad first, because it really is bad.

If it prevails, it will affect the runners as well as the trotters and pacers.

It is the case of the 90-day suspension for illegal medication in Ontario of the exceptional trotting filly Crys Dream, a winner of 5 of 6 starts as a 2-year last year, 7 of 8 this year at 3, and $1 million; the honoring of the suspension by the racing commission in New Jersey, where she was eligible for both the $1.5 million Hambletonian and the $750,000 Hambletonian Oaks, harness racing’s two richest events for 3-year-old colt and filly trotters; and the subsequent setting aside of the suspension by the chief justice of the New Jersey Supreme Court. He stayed the commission’s suspension and issued a temporary restraining order stopping the commission from enacting its ban.

Crys Dream is owned by four major figures in harness racing: the French breeder and trainer Jean Pierre DuBois, whose Reve Avec Moi Dream With Me stable is highly successful on both sides of the U.S.-Canadian border; former Wall Street trader Mike Gulotta, who now is owner of the major New Jersey breeding operation Deo Volente Farms; the brother team of Tom and Louis Pontone and their powerful TLP stable in New Jersey; and one of America’s most successful owners, Jerry Silva, a New York businessman who buys into countless proven or promising products and is part-owner of many of the sport’s best horses.

When they were told that the New Jersey commission intended to honor reciprocity with Ontario, they quickly found a lawyer. Not one from the many giant law firms of nearby New York City, but a small-town lawyer from the racing center of Freehold, N.J., home of Freehold Raceway. His name is Michael Schottland, and he owned harness horses in the 1990s, so he knows the sport.

Schottland decided to pursue two avenues: procedural due process, in that no formal hearing was held in Ontario or New Jersey, and on constitutional grounds that the state of New Jersey does not have the authority to enforce a foreign country’s ruling.

Chief Justice Stuart Rabner ruled that under his stay Crys Dream could race in either the Oaks or the Hambletonian.

Her owners chose the Oaks, and she suffered her first loss of the year, finishing third.

Schottland then filed a federal suit against the New Jersey Racing Commission’s executive director, Frank Zanzuccki, who had ordered the purse winnings of Crys Dream be withheld. Schottland says Zanzuccki’s action is “another effort to penalize people who are the basis and backbone of the success or failure of the harness racing industry in New Jersey.” He contends that Zanzuccki has exceeded the powers designated to him, and asks him to recuse himself since he will be the subject of the federal lawsuit.

It is not difficult to understand the four owners wanting to race their dominant filly in the richest race in North America for 3-year-old trotting females. They wanted to stop the Jersey racing commission from exercising reciprocity, and they were successful.

The case hinges on whether New Jersey can enforce rulings of Canadian commissions, but it goes far beyond those borders.

There is brisk traffic of horses in both directions, with horses racing in one country and the other on a regular basis, particularly in major events, of which Ontario has many, with its rich slots-infused purses at more than 15 tracks. The Woodbine Entertainment Group in particular has features worth $100,000 and far more every week, and also offers the richest race in North America for 3-year-old pacers, the $1.5 million North America Cup.

Precedent has dictated for more than half century that one state or province honor the major penalties of another. Precedence and common sense.

Now comes a challenge to both.

In effect, the restraining order issued in New Jersey, should it be made permanent, could render meaningless the issuance of penalties handed down by the Ontario Racing Commission – one of the best and most proactive in pursuing integrity in North America – at American tracks and states.

The owners of Crys Dream have won their case, and lost their race. To pursue the matter further, as Schottland is doing, has dangerous implications.

If it were to succeed, it could wreck the efforts of both commissions to battle illegal actions. But it could go even further than that, inspiring lawyers and owners elsewhere to challenge reciprocity in general.

If this happens, there is one possible benefit that could result. It could lead to action by state and federal lawmakers to mandate reciprocity by law, nationally by states and provinces, and internationally by mutual action or treaty.

Now for the good news.

Ruling bodies, regulators, and highly regarded racing organizations are actually walking the walk, rather than merely talking the talk.

The Breeders’ Cup has announced a ban on Salix (furosemide, a diuretic also known as Lasix) on race day for 2-year-olds next year, and all age raceday medication in 2013. The American Graded Stakes Committee has followed in partial suit, and will not offer graded status to juvenile races that do not follow the ban in 2012. The Jockey Club Round Table in Saratoga Springs lent support to the idea, and went further. It seeks medication-free racing, to be introduced on a graduated basis, and it may now deny registration to medication violators with significant offenses. Racing Commissioners International is proposing more stringent medication rules for all of its members.

There is opposition, of course, from some horsemen and veterinarians. But Stuart Janney III, vice chairman of the Jockey Club, says the organization “believes horses should compete free of medication, and supports that policy.” He spoke for thousands when he added, “Many people in this sport have grown weary of the pace of change.”

Amen. Let us pray.

Trainer feeling sting of being shut out

The name Lou Pena will ring few bells on the Thoroughbred side of aisle, but the harness crowd knows him well, particularly in the last two years. And the news involving him over the weekend carries significance for all of racing.

Both breeds have been plagued in recent years by suspicions without proof. The shadow world of chemistry has clouded the racing scene – runners, trotters, and pacers – with much rumor and innuendo but little proof. The chemists have outdistanced the regulators. There have been wrist-slaps and minor suspensions coast to coast, and rumors involving top trainers in both Thoroughbred and harness racing.

Lou Pena was not one of those suspended. Until two years ago he was best known on the California harness circuit at the Cal-Expo meetings in Sacramento, where he enjoyed success as a veteran California trainer and journeyman driver. Until last year he never had a million-dollar season as either.

Then Pena exploded on the scene, moving east and training the winners of $7,263,295 in 2010, charging back with $5,892,163 in the first seven months of this year, and rocketing to the top of American race-winning harness trainers with 436 wins to date in 2011.

His spectacular season last year and his roaring success this year – his Universal Driver Rating, a long-standing measure of harness accomplishment involving in-the-money performances, a slugging average rather than batting average – soared to .428 last year and stands at .449 this year. Tongues wagged, but Pena’s horses passed most tests for known illegal substances.

He was the leading trainer at the Meadowlands last year and a runaway leader at Yonkers this year, currently with 238 wins. His nearest rival at the major New York track has 79.

Last weekend the bubble burst.

Just as the World Driving Championship – a major harness racing attraction featuring drivers from Europe and Australia and New Zealand – got under way in this country, Yonkers Raceway notified Pena that he no longer was welcome at that track, known as The Giant of Trotting before the Meadowlands was built and now a huge money-making racino with some of the best harness horses and drivers in the world competing there.

Pena says he was “devastated” when the Yonkers racing secretary, Steve Starr, told him his entries no longer would be accepted. “I have been asked not to enter there anymore,” he said. “I guess you could call it being kicked out. They gave me no reason. They just said that in the best interests of the sport we’re going to ask you not to enter for a while. They said I could reapply in October.”

Pena was quoted in Harnesslink, an Australian publication, as saying, “None of my horses have ever returned a positive.” That’s not quite accurate. He had two positives, one at Yonkers and one at the Meadows in Pennsylvania, last year, as part of 27 penalties – mostly minor infractions – last season and this, and 10 positives in earlier years in California, according to United States Trotting Association records.

Pena has been racing at both Yonkers and at Pennsylvania harness tracks. He blames his Yonkers problems on his fellow horsemen, saying, “They might have said, ‘Hey, we’re getting beat nine out of 10 times by this guy.’ ” He calls them “the Jealousy Police,” and claimed in Harnesslink that “Officials have called me and said, ‘If you just slow it down a little bit, you’ll be fine.’ ”

He says he would never even use the blood-enhancer EPO. “Those are things I would never even consider. I make my living off these animals and I respect them. I always have their best interests in mind.”

Pena says he has not decided whether he plans to fight his exclusion, but “once I go that step, I have to make sure I put my head down and march forward. That’s the way I race horses. I don’t just sit back and hope and cross my fingers. It’s not horseshoes . . . . Hiring lawyers, you have to get the best of the best and have the best defense. If not, you’re in trouble.” But he told Harnesslink he couldn’t afford it, and acknowledged, “It’s a private racetrack, and I guess they have a right to say what horses race there and which ones don’t.”

If he does challenge the Yonkers decision, he could be in for a very tough fight.

With the Racing Medication and Testing Consortium now in possession of Dr. Lawrence Soma’s request for funding for finding the latest culprit, the French import drug ITPP, the balance of power could change, from the chemists to the racing scientists and regulators.

Over the years the Harness Tracks of America – the trade association of harness tracks analogous to the Thoroughbred Racing Associations in Thoroughbred racing – has spent much time and money in issuing three volumes on the right of exclusion by tracks. New York’s Bennett Liebman – fan, racing attorney, former racing commissioner, university professor, and now a state adviser on horse racing in the Empire State – compiled and edited the last one, the definitive word on the subject. Yonkers also for years utilized the services of Fred Martin, one of the best exclusion lawyers in racing.

Yonkers is not the first track to refuse entries from a top trainer. Thoroughbred tracks have done it as well. But this round, involving a trainer who zoomed from regional competence to national leadership in one remarkable leap and followed with another, will be interesting to watch.

Support for blood-booster research heartening

My last offering – on author Andrew Cohen and his raising the issue of the French blood-booster ITPP – drew a lively response.

I asked Cohen, after he had reported on the likelihood that it could be affecting, and infecting, U.S. racing, what kind of a response his column drew. He said two major hitters had privately expressed interest in helping out, but that otherwise “Crickets. No one did or said anything.”

I interpreted that response as silence, and said so here.

The charge drew the crickets right out of the bushes, and it now appears there are a host of them, chirping on both sides of the road and both sides of the border, with money in their hot hands, waiting to throw it at Dr. Lawrence Soma of the famed New Bolton Center in Pennsylvania for ITPP research as soon as he formally asks for it.

One of them was Mike Tanner, the executive vice president of the United States Trotting Association, which gives $100,000 a year to the Racing Medication and Testing Consortium in Lexington, Ky. Mike made it clear that he had suggested, loud and clear, at consortium meetings in California and Texas, that Soma’s investigation, in cooperation with the star racing chemist Dr. George Maylin, formerly of Cornell and now of Morrisville College’s school of racing in New York, was important and deserved support.

In Pennsylvania, where Soma receives the bulk of his support from the state, two major horsemen’s associations also have funded his work. The Pennsylvania Harness Horsemen’s Association, with its executive director, Ron Battoni, spearheading the effort, in cooperation with the Meadows Standardbred Owners Association, contributed $55,000 in 2008, $65,000 in 2009, and $75,000 last year. The Pennsylvania harness group’s plans to boost its contribution to $100,000 this year. The Meadows group has not acted on the matter as yet, but its executive director, Kim Hankins, says he expects action before too long.

In Canada, the president of the Ontario horsemen, Hall of Fame trainer-driver Bill O’Donnell, has discussed funding of the Soma project with Woodbine Entertainment, Sue Leslie of the Ontario Horsemen’s Benevolent and Protective Association, and this week with John Blakney of the Ontario Racing Commission.

It turns out that the problem, as far as the Racing Medication and Testing Consortium is concerned, is that Dr. Soma had not, until this week, submitted his proposal, and the consortium does not disburse funds without one. Its chairman, Dr. Robert Lewis, said, in an e-mail, “The Racing Medication and Testing Consortium (RMTC) has been monitoring discussion of the alleged use of a new drug, Inositol tripryophosphate (ITPP).

“The RMTC is eager to receive research proposals from scientists and researchers, both nationally and internationally, who are interested in improving our understanding of this substance and any risk it may pose to the integrity of horse racing. To date, no such proposal has been made to RMTC due to difficulties in obtaining sufficient quantities of ITPP for research.

“Either through exclusive arrangement directly with the manufacturer or from other sources, Dr. Larry Soma indicated just last week that he has identified a reliable source(s) for ITPP and is interested in pursuing research in this area. As a longstanding matter of organizational policy, RMTC does not disclose the availability of research funds.”

So I called Larry Soma, a longtime acquaintance. He laughed when I mentioned the delay in applying, saying, “You don’t put major research proposals together overnight. I expect to have mine for ITPP ready this week.” And he reminded me that you need to be able to hire assistants, buy expensive equipment, and gear up for a major program for a job like this one. It is no light traipse in the park.

My next call was to Jim Gagliano, a friend from our Meadowlands days. One of the brightest young executives in racing, he now runs The Jockey Club in New York, and he was quick to respond with an e-mail.

“Our position,” he said, is that we have also been interested in ITPP research for more than a year (in fact we have discussed it extensively with folks at the Partnership for Clean Competition, an organization of other major sports we are considering for membership).

“I understand Soma only recently (a week or so ago?) received an actual sample of ITPP. (In the past others thought they had a sample, but later found out it was bogus.) He has been encouraged to send in his research proposal to RMTC, but it hasn’t come in yet. We are active and significant supporters of RMTC and prefer research projects to go through that broad-based industry organization. If his proposal passes scientific muster, we would look to support the project. I know that researchers in other countries have been trying to obtain samples (and they have financing for that research) but a sample has been more elusive than the funding.”

Maybe some horsemen here or in Canada can tell them where to get the stuff.