Last week’s blog, For Whom the Bell Tolls, generated a good amount of response, although there were a few who didn’t quite get the essence of the piece. Let me make one thing absolutely clear. I will never suggest that jockeys or trainers never knowingly break the rules. Of course they do and if anybody believes I thought otherwise let me unequivocally disabuse you of that notion. I also believe that transgressions involving performance enhancing medications (as opposed to theraputic drugs) should be dealt with fairly, but in the end a proven, willful violation should be dealt with harshly. Just like in the real world, Commissions need to understand the difference between a traffic ticket and a felony. My piece was primarily about the competency and consistency of racing commissions. I quoted liberally from Maggie Moss’ article for Blood Horse Magazine, When Regulation Runs Amok, which was about the problems she saw with the Indiana Horse Racing Commission.

I’ve argued that many racing commissions are filled with political appointees who are marginally qualified to enforce racing’s rules, much less steer racing through increasingly choppy waters and grow the sport. I agreed with Maggie Moss that the commisions can be inconsistent and seemingly arbitrary in the way that they deal with violations. Because of the absolute insurers rule they often lose any incentive to coduct complete investigations on violations. We all know that despite numerous real world demonstrations that increasing take out decreases handle, commissions will still raise take out rates and then be puzzled  about why revenues from betting go down. Most of all, we were in agreement that the negative press that results from racing’s trevails tends to do less to rid the sport of all evil than to reinforce the negative opinion held by too many of the non-racing public.

Those on the inside, under the aegis of cleaning up the sport, are casting so wide a net that every fish in the sea is getting snared. That is more what my piece was about.

Joe Gorajec, executive director of the Indiana Commission, wrote a response to the Maggie Moss piece, and I’ll focus on that this week.

Not unexpectedly, Mr. Gorajec suggested most of Maggie Moss’ claims are “either false or misleading.” Then he goes on to essentially not refute most of those claims with any substance. The depth of his argument is that she is simply wrong in most of her assertions.

This is the list of issues/questions I got from the Maggie Moss article and how Mr. Gorajec responded.

Moss: There were uncertain withdrawal times for theraputic medications, creating an ever-changing landscape for horsemen.

Gorajec: As best I can tell, his response was that Indiana applies the Association of Racing Commissioners’ International model penalty guidelines to everyone equally, and then he launches into a discussion of the Tom Amoss and the Ross Russell cases. I was having a hard time actually seeing the connection, but I think he was saying nope, that didn’t happen, and there you have it.

 

Moss: There was a pattern of closed door deals, and she actually cites two trainers who were deposed and admitted they used illegal substances, but are still training.

Gorajec: The idea that there is selective enforcement could not be, in Mr. Gorajec’s words, farther from the truth. And that takes care of that. As for the allegation that the Commission was not consistent in disciplining the two trainers she mentions, there didn’t not seem to be a direct comment.

 

Moss: Indiana (read that Joe Gorajec) changed labs without Racing Commission approval, initially picking a lab that was not the low bidder then in the middle of the meet switching labs again. Ms. Moss suggests that this put the chain of custody in disarray.

Gorajec: As best as I could tell, Mr. Gorajec didn’t address this issue directly.

 

Moss: The measure of substances was done in picograms, a trillionth of a gram, and that these amounts were not only immeasurable, but could not affect the performance of a horse. Ms. Moss notes that positive notifications went up substantially (from 5 to 70), often to trainers who had been historically clean. She also charges that none of this was told to the public.

Gorajec: Mr. Gorajec says that this is “simply untrue.” He then basically explains that using modern measuring devices, they can in fact measure trace levels and this is critical to identifying the use of illegal drugs. The answer was pretty clever. He focuses on the idea that measuring equipment is getting more and more sophisticated and can find smaller and smaller amounts as a way of discrediting Ms. Moss’ statement. In fact, her use of the term immeasurable was inaccurate for conveying what I thought was the base issue – how reliable is a measurement of a picogram? It was about precision, not the raw number. Now I don’t pretend to understand physiology on that level, but I have a feeling at some point you could be picking up stuff a horse breathed from the steel plant down the road if all you find is a trillionth of a gram. I think in this case they were talking past each other.  If I understand it, she is saying, people have been caring for their horses a certain way for a very long time, and all of a sudden normal care turns into violations and somebody at the Commission should be taking this into account. New rules, new measurements – how about some time to adapt? Gorajec argues that unless measurements are in picograms, Indiana could miss a cocktail of the most abused drugs in racing. Really? A trainer could feed a horse clenbuterol, stanozolol, methylprednisolone, betamethasone, and dexamethasone on race day, and unless the track could find a trillionth of a gram, the trainer could get away with it? Just as a point of reference, a trillion seconds is 31,688 years. In other words (and apologies if you don’t buy the whole evolution thing), 31,688 years ago neanderthals were what passed for humans. I’m going to go out on a limb and say Mr. Gorajec really needs to give us a better discussion of how having a picogram of methylprednisolone is an unmitigated disaster for racing. An assurance that they’d never railroad anybody just isn’t good enough for a lot of us.

 

Moss: Ms. Moss alleges that there were trainers deprived of any due process or procedures outlined specifically in the Indiana Racing Rules. She says that rights to lawyers, timely split samples, or allowing the HBPA representatives to accompany alleged violators were ignored. She also says that individuals were threatened with excessive penalties of they didn’t not take deals that were offered.

Gorajec: Mr. Gorajec suggests that Ms. Moss is frustrated because the media did not look into her “self-styled troubling allegations.” In defense of the Indiana Racing Commission, he notes that in 20 years no court has supported a charge of lack of due process. He didn’t address the whole plea barganing issue.

 

In reality, Commissions are not obligated to investigate beyond the sample positive. As we learned in the case of Doug O’Neill and TCO2, the fact that a positive was measured was all that was necessary to penalize him. The California Commission was not required to demonstrate how O’Neill elevated the horse’s TCO2 level. In fact, all they did was speculate that it could have been Lasix or dehydration, but in the end it didn’t matter how the TCO2 got elevated. O’Neill sued, in part contending he was not given due process. He never stood a chance because due process at the racing commission primarily means did they follow their own administrative rules. It has nothing to do with the state having to prove how the TCO2 level became elevated. Any statement that the one thing racing commissions are good at is due process is sort of humorous.

As for plea bargaining, we all know that is the way of the world. Whether or not it is the case that trainers were threatened is probably a matter of perspective, but if you ever got a traffic ticket and went to see the D.A., you pretty much know how things work. Some extraordinarily high percentage of the time the violator pleads guilty and in return for not burdening the system, you get the violation knocked down to something less.

I don’t know either of the participants, nor do I have a great familiarity with Indiana racing, but after reading the two pieces I’d say Gorajec was mostly non-responsive or perhaps tangential in his response. Maggie Moss makes some fairly serious allegations and Joe Gorajec pretty much dismisses them out of hand without really offering a lot of substance.

Seems like business as usual to me.