January 6, 2012 wasn’t a particularly special day at Aqueduct. The fourth race that day was a state-bred maiden race for fillies and mares, four and up. It was won by Cedar Island, a horse that only ran one more race after that. In fact, about half the field retired from racing never having won a race. I guess they were the lucky ones.

It also represented the debut for a horse named Eva Lil. Eva Lil ran 6th that day, and in 34 subsequent races has never been closer than four and a half lengths. She’s run on a wet track, she’s run on the turf, she’s run sprints, she’s run routes and the only thing those races have in common is that she lost each one. In fact, Eva Lil has never been closer than four and a half lengths behind the winner at the wire, and that was just one time. For the first half of her “career” she was trained by David J. Smith, not a household name and not considered a top trainer by anyone. She’s now trained by Leslie Hinds who is no better when it comes to conditioning horses. It’s hard to know how good the horse would be with a first rate conditioner, but she currently looks as if she is more likely to end her career with a zero in the win column than a positive digit.

She ran in today’s first race at Aqueduct, finishing fifth (which also turned out to be last) by about 21 lengths. She got the obligatory early call, but was out of it before the horses hit the far turn.

Most trainers take great care of their horses, and I have no reason to suspect that David Smith or Leslie Hinds are any different in that regard. What is clear is that if I had a horse there is zero chance either one of them would make my trainer short list. Whatever it is that makes David Jacobson or Rudy Rodriguez successful claiming trainers, those two simply don’t have it.

Does that mean they should have their license pulled? No, they are welcome to train as long as they abide by the rules and find people to give them horses. Of course I’d have to wonder why anyone would entrust their thoroughbred to either of them, but I suppose not every owner is in the game to win races.

Two things struck me today. First, I couldn’t imagine spending 50 cents on the horse in any bet. I’d have rather punched in all the numbers except hers rather than hit the “all” button. Second, why is this horse still allowed to run at the better New York tracks? In my opinion it borders on the cruel to keep this horse on the track. As someone quipped today, I don’t know what she’s interested in but it clearly isn’t racing. In 34 races she’s banked a little over $17,000, meaning she is averaging $500 a start. Since she probably eats like a horse, it’s not likely Eva Lil is pulling her own weight. She hasn’t gone off at less than 17-1, and if she ever wins a race (say the entire field falls down and she is so far back she can just step around them) she’ll pay triple digits and still be an underlay. I want to meet someone who actually bet on the horse to win and ask them what in the world they were thinking.

There are plenty of places this horse could run and maybe even catch some purses. To put her in a race in New York, even at Aqueduct at the start of the winter meet, diminishes the racing product. I realize the racing secretary can’t make every field high quality, but there must be enough low-price NY-breds that it wouldn’t be necessary to use Eva Lil to fill a field.

This kind of thing is a black eye for racing in New York and all it accomplishes is to make those cynical about racing more cynical. Apparently, since she finished fifth she will be allowed to race again next year. Enough is enough. If she can’t legally be ruled off the track and if the trainer and owner really care about the horse they should look for a second career as a stable pony or a hunter/jumper or a pleasure horse for a caring owner. Or maybe give the horse to a trainer that can coax a win out of her. Or possibly get her to a track where she can race against horses with a similar talent level to hers. Arapahoe Park should have space next summer. Horses may not have the same psychological feelings of defeat that a human would have in the same position, but being herd animals they do have an instinct for when they are being left behind as mountain lion bait. Get her off the track before she becomes another break-down statistic.

Someone needs to be looking out for Eva Lil. Unfortunately it doesn’t look like the owner, trainer or Aqueduct are.

In 1956 Ray Bradbury wrote a short story called A Sound of Thunder. It was later used as the basis for a movie called The Butterfly Effect. The premise was fairly simple. In the future, a company that has perfected time travel takes people back to a point 60 million years ago to allow them to hunt and kill a T-Rex. The catch is that they must stay on a designated path because even the smallest action, say killing a mouse, could have disastrous consequences for the future. Naturally one of the party panics at the sight of the gigantic dinosaur, steps off the path and inadvertently kills a butterfly. While we don’t get to know exactly how that changed the course of history, it does in a dramatic way.

Luckily the Santa Anita stewards weren’t familiar with the story. In Steward-World there is no butterfly effect. Things can happen at the start of a race that the Oracles of California know had no impact on the eventual finish.

Knowledgable people can agree to disagree whether Bayern or Toast of New York should have been taken down after the rodeo start of the Breeder’s Cup Classic, but what we can’t disagree on is that the explanation the Stewards gave for leaving his number up was thoroughly unsatisfying.

CHRB rule 1699 states, “A horse shall not interfere with or cause any other horse to lose stride, ground or position in a part of the race where the horse loses the opportunity to place where it might be reasonably expected to finish.” In the opinion of the stewards, “it [the bumping]  didn’t happen in the point of a race where it was reasonable to speculate that they didn’t finish in a position where they were reasonably expected to finish, which is the language of the rule.”

Seriously? Shared Belief, an undefeated horse, was never going to finish better than fourth? Moreno, the other classy speed in the race and a horse that has made a career out of running to the front and hanging tough in the stretch, was never going to finish better than last? Not one single horse involved in the incident could have possibly been affected by the actions of Bayern?

If you ask me, the plot of the movie Rise of the Guardians where Santa Claus, the Easter Bunny, the Tooth Fairy, and Mr. Sandman get Jack Frost to stop the evil Pitch Black was more believable.

Frankly, I didn’t have a betting interest where a change in result would have made a difference, so my opinion isn’t tainted by that. To hear the Stewards tell it, they insisted their interpretation of Rule 1699 was absolutely dead on. They wanted the betting public and the other trainers to believe the incident at the start did not cause anyone to lose the opportunity to place where it might reasonably be expected to finish.

The key word in there is reasonably, and frankly that is where I think the Stewards missed the boat. Based on the feedback from knowledgable racegoers around the country, one has to conclude that a lot of reasonable people saw Bayern’s start as costing some horse a placing.

I don’t care how many races you’ve watched. If you are a steward and can state without equivocation that a foul at the start of a race – and remember, everyone including the Stewards agreed it was a foul – has less impact that a foul in the middle of a race or in the stretch, then I’d say you are wasting a unique talent judging races.

Just like the people in The Butterfly Effect, none of us could know with reasonable certainty that a clear foul at the start of the race would have no impact on the outcome. Beyond that, a lot of reasonable people who are not regular racing fans had to wonder if that just wasn’t one more reason why horse racing is losing popularity. In the biggest race on horse racing’s biggest stage, the Stewards made a decision that just didn’t pass the smell test for a lot of fans. I referee high school basketball, and I guarantee if I went to a coach and said, yes, he got fouled on the shot, but he was never going to make the shot anyway, I’d be lucky to get assigned to a third-grade girls game after that.

Perception is everything.

“It’s not what you physically look at that matters in life, it’s what you see in it.”

Or in the case of the Santa Anita Stewards, what you don’t see in it.

Mary Cathleen Collins has done pretty well for herself. You probably know her better by her stage name, Bo Derek. Not everyone can reveal most of what you need to know about her life in four sentences. On the David Letterman show, she once  said,

“I was 16 when I quit high school. I didn’t really mean to quit. I spent a month going to the beach surfing and sunbathing while I was supposed to be in school: when I got caught my mom was furious. I started to go back to school, and I was really enjoying it, and then I went to go do this film with John in Greece…”

Seven years after going to Greece with John Derek, including a couple of years living in Germany where co-habitating with her future husband wouldn’t be problematic, she was reinvented as Bo Derek, snagging her iconic role in the movie 10. The rest, as they say is history. She became a hot property after her defining role, was subsequently cast in a few generally forgettable films, but eventually parlayed her popularity from 10 into a career serving as spokesperson or ambassador for various organizations.

So how is she qualified to be on the California Horse Racing Board (CHRB)? There is a reality to the appointments to most state boards and commissions. For the most part, the people who make it are either politically or personally connected to the Governor, or are being pushed by someone who is. In the case of horseracing commissions, it is also common for some members to have had long involvement as owners or breeders. which for the most part is seen as acceptable preparation for a body like the CHRB.  Ms. Derek was apparently less chosen for her race horse experience and political connections than being a member of the Hollywood community where former California governor Arnold Schwarzenegger apprenticed for his job, since her bio doesn’t go into much more depth than she owns Andalusians and has loved riding horses since she was young. The other six board members are something of a mixed bag.

The Chairman of the CHRB, Chuck Winner, came from a public relations background, founding the firm Winner and Associates. He began his career in the political world, working within the legislative and executive branches of the state and federal governments, and in senior management positions in numerous national, state and local campaigns.

The vice-chair, Richard Rosenberg, was the executive vice president of the William Morris Agency from 1992 to 2005, an agency that primarily represented Hollywood types, and primarily spent his career in that field.

Madeline Auerbach was the head of the Thoroughbred Owners of California, and has been involved for many years in horse ownership and breeding.

Steve Beneto has owned a plane rental business and has been a small-time race horse owner for decades.

Jesse Chopper was a professor of law at the University of California at Berkeley before coming to the CHRB. He has been a long-time horseracing fan, and had been looking for an appointment to the CHRB for a while. Upon his appointment he said, “I’ve loved the sport ever since my colleague, Larry Sullivan, took me to Golden Gate Fields in the late 60s. I was particularly fascinated by the challenge of handicapping, as well as the excitement of the horses coming down the stretch, and the whole atmosphere of the racetrack.”

George Krikorian worked in real estate for many years, and then opened a chain of movie theaters. He also has owned race horses for a long time, including Box Office Girl, Star Billing and Starrer.

It’s not up to me to determine if the CHRB has the ideal membership, but its composition is typical of racing boards around the country.

With the Breeder’s Cup at Santa Anita, it seemed natural to name Bo Derek as an “Ambassador to the Breeder’s Cup.” Her job was mostly to be Bo Derek, appear on the awards stand, hand out a trophy or two. Unfortunately, the Breeder’s Cup must have had an incredible brain cramp, because they decided Bo Derek should present the award to the winner of the Dirt Mile.

The favorite for that race was Goldencents, and he may have been the most logical favorite of the entire Breeder’s Cup suite of races. You can’t concede a race to any horse before it is run, but pretty much every serious handicapper recognized that Goldencents was bet correctly at 3-5.

The issue was not with Goldencents, but his regular trainer, Doug O’Neill. O’Neill had been cited by the CHRB for what they originally thought was a “milkshaking” violation for the horse Argenta. O’Neill decided to fight the citation, and pushed back hard against the CHRB. It was a messy battle and over the course of the year it took to ultimately resolve the issue there were some hard feelings on both sides (see my October 15 blog piece, TCO2 and Argenta). The point here is that Bo Derek was a horrible choice to present the trophy, especially given the high likelihood she was going to have to present it to the team that had recently gone through one of the more acrimonious cases decided by the CHRB.

That boneheaded move by the Breeder’s Cup was bad enough, especially since Ms. Derek should have immediately recognized the potential for, at the very least, an uncomfortable situation and been astute enough to tell the BC folks, I don’t think I would be the best person to present the award to WC Racing and O’Neill’s assistant, Leandro Mora.

Unfortunately, Ms. Derek decided to wait until they had reached the award stand for the Dirt Mile to express that sentiment, turning to Santa Anita President, Tom Ludt and saying, “I can’t believe you would have me give the trophy to these guys.” The blood drained from Ludt’s face when he realized she said it loud enough for the connections to hear it, and later he apologized to the principals. But, as the old saying goes, that horse had left the barn.

It’s hard not to be critical of Bo Derek as a CHRB member on a number of counts. Other than loving horses, about as low a bar as one could set for a commissioner, she seems to have very little in her background that suggests she has the depth or critical thinking skills to make an effective commissioner. For example, in CHRB meetings she has said that any trainer with a positive test is a cheater, which if nothing else points out she has a special enmity for trainer O’Neill. It’s hard to find someone who defends her abilities as a commissioner.

Chuck Winner has recognized some of the public relations problems horseracing has, and I understand at least part of the attraction of having Bo Derek on the Commission is that she is recognizable as “that 10 woman” by pretty much everyone over 40. She provides visibility to a sport in dire need of some way to attract players. But I believe once you’ve exposed yourself publicly as having personal biases, you have no business as a decision-maker. Certainly, you wouldn’t think the CHRB needs a member who blurts out something so inappropriate at the exact moment she should be acting in the best interests of Santa Anita and the Breeder’s Cup.

Bo Derek may have a soft spot for horses, but it’s long since time for her to step down from the CHRB. She was thrown into the deep end six years ago and this last incident makes it clear that while she may have public appeal in some quarters, she has worn out her welcome on the administrative side of horseracing.

If you want to start a passionate argument, express an adamant opinion about the absolute insurers rule. I’m sure most of you are familiar with the rule, but just in case, it simply states that the trainer of record is ultimately responsible for the condition of any horse in his charge. In the case of a medication violation, unless there is evidence otherwise, the trainer is assumed responsible. Although it may seem contrary to the foundation principal of American jurisprudence, trainers are presumed guilty and must demonstrate they are innocent.

The courts have provided no relief for trainers who argue they have been denied due process.

The New York Court of Appeals (the court of last resort in New York), held that “…the trainer responsibility rule is a practical and effective means of promoting these State interests–both in deterring violations and in exercising sanctions. The imposition of strict responsibility compels trainers to exercise a high degree of vigilance in guarding their horses and to report any illicit use of drugs, medications or other restricted substances by other individuals having access to their horses. Additionally, the rebuttable presumption of responsibility facilitates the very difficult enforcement of the restrictions on the use of drugs and other substances in horse racing. Indeed, it would be virtually impossible to regulate the administering of drugs to race horses if the trainers, the individuals primarily responsible for the care and condition of their horses, could not be held accountable for the illicit drugging of their horses or for the failure either to safeguard their horses against such drugging or to identify the person actually at fault. It is not surprising, therefore, that trainer responsibility rules have been upheld almost without exception, in other jurisdictions.”  

Pretty amazing logic. Finding out who is actually guilty is just….well, it’s just too hard. According to the court, without the absolute insurers rule, commissions would never get to punish wrongdoers. At least some of us would say, before we get to the point of guilty until proven innocent, shouldn’t we be doing as much as we can to keep violations from occurring and investigating them thoroughly when they do? There are a number of good ideas floating around out there, including scrupulously tracking drugs used and having surveillance cameras on the backstretch. I can’t go to the drug store and buy sudafed without having my personal information scanned into a tracking system, but somehow it is too complicated to require that all drugs administered to horses be tracked through a central, on-track pharmacy? We can’t require detailed records on everything from where a trainer gets his hay to what legal supplements the horse is getting? Can you honestly say, commission rules are doing everything they can to prevent violations, or at least make them easier to investigate, and not just punish them? Apparently, “just too hard” constitutes a rational basis for guilty until proven innocent.

What are the state interests? On the surface to maintain the integrity of the sport. Realistically it is to maximize revenues by ensuring the bettors that racing is clean. Not many people would bet on a game they think is rigged.

I’ve previously written about Wind of Bosphorus, a horse trained by Doug O’Neill. Wind of Bosphorus was found to have oxazepam in its system, and O’Neill was given a suspension and a fine for the positive test. There was no evidence that O’Neill (or his staff) administered the drug; in fact there was no explanation for how the drug got into the horse’s system. Unfortunately for O’Neill, there was also no evidence that someone other than his folks may have been responsible for the presence of oxazepam. Since O’Neill couldn’t prove his innocence, he was presumed guilty under the absolute insurers rule. If Belmont had a surveillance system in place, perhaps O’Neill or the State Gaming Commission may have been able to figure out how Wind of Bosphorus acquired the oxazepam. Maybe I’m in the minority, but I’d sure like to know things like, why would a trainer use a sedative to improve performance, and why is the commission even testing for oxazepam? I’d also like to know just how hard the Commission looked to find the culprit, assuming there was one and it wasn’t simply cross-contamination.

Much of the serious betting public has become disenchanted with what they perceive to be an inability to clean up racing. A group of racing fans, mostly in California, have started a petition drive to improve surveillance and security as well as make penalties for violators  tougher. http://www.ipetitions.com/petition/improved-thoroughbred-surveillance-and-safety

There is also nothing wrong with ensuring a race track knows who is accessing the backstretch. Many office buildings have security at the entrance, and while it can take a few minutes for visitors to gain access, it’s not really that inconvenient. Only allowing access to badged employees and escorted visitors makes complete sense.

Finally, there is the issue of penalties. The petitioners request to provide “appropriate consequences for all those that break the rules governing race day medication” is fine in concept, but leaves a lot of room for abuse by racing commissions that are comprised of political appointees, at least some of whom have fewer qualifications than the average guy who regularly attends the races. Everything is appropriate if the racing commission says it is. I submit the adoption of TCO2 rules, something that may or may not be performance enhancing, fits that category.

I was in Germany this summer and found time to take a day cruise on the middle Rhine between Rudesheim and Boppard. One of the most interesting aspects was the number of small towns that dotted the riverbank, each one with its own castle and its own set of rules, sort of like horseracing. You didn’t have to be a particularly sharp witted baron to figure out there was money to be made charging tolls to boats that wanted to use the river. Now the idea that everyone with a castle should be charging tolls created some problems, and eventually the situation came to the attention of the Holy Roman Empire (sort of like the legislature of the state). The Holy Roman Emperors assumed control of the tolling, and decided which town acquired the ability to charge tolls. As you might imagine, this got to be a pretty political process. The Emperors had three general guidelines: don’t have too many tolling stations, don’t put them too close together, and don’t forget to take care of your supporters. So while there may have only been 12 or so tolling stations at least five kilometers apart operating at any one time, over the course of the thousand years that the system was in place, 79 different places ultimately had castles and tolling stations. Much in the same way, racing is governed individually by the states in which racing is allowed. Only there is no Holy Racing Emperor to make sure the system operates smoothly. We are instead left with racing commissions whose members vary from very qualified to barely qualified. And to compound matters, New York ( or any state) is often barely interested in what New Jersey is doing, much less California – in fact, a state can choose not to be influenced by anything another state is doing, as the CHRB made clear when they said they would not adopt a dual standard to account for the Lasix bump affecting TCO2.

All this is to say

• I don’t trust racing commissions to come up with the fairest, most sensible set of rules, and
• to the extent it is possible, politics need to be taken out of rulemaking.

The complexities of making rules are myriad, and I’ll give you my opinions based on the research I’ve been doing and the conversations I’ve had with people involved in racing.

• The absolute insurers rule need to be examined in light of recent cases. I’ve mentioned the case of Christopher Grove in West Virginia who was found in violation of the medication rules for the drug Coramine, a stimulant. Grove, who wasn’t in the state at the time the violation occurred, and his attorney argued, “As currently applied, the rule is overly broad and provides uncircumscribed power to the racing commission and the stewards and actually discourages the conducting of thorough and comprehensive investigations in cases where the facts are not obvious. As demonstrated by Mr. Grove’s case, allowing the racing commission and the stewards to penalize a trainer when there is little to no evidence supporting the alleged violations (or even in the state at the time of the alleged violation) amounts to a direct violation of an individual’s state and federal procedural due process rights.” Naturally Grove lost, but two points are well taken. First is that any racing commission needs to conduct an actual investigation and produce findings that clearly implicate the trainer beyond, “the hell with it, we’ll just rely on the absolute insurers rule.” I’ve had people say to me, it’s like blowing 0.14 on a breathalyzer – at that point you’re presumptively intoxicated. No, it’s not like that exactly. It is all but impossible to not blame you for your inebriated state. In the case of a horse, all we know after a positive test is that something happened – we can’t blame the horse for getting jittery and grabbing an oxazepam – but we don’t know what involvement the trainer might have had. For those of you that are strident about assigning trainer guilt, I’ll just ask, if you owned a company and one of your employees embezzled, or a thief broke in and robbed you, should you be punished too under the dictum that you should have known someone would steal and it’s your fault they did? Christopher Grove and his attorney were right on. The absolute insurers rule needs to be revised to force the commissions to conduct an investigation to find the guilty party and punish them.
• There is a lot of griping about the fact that once a trainer is found in violation and given days, his stable can be given over to an assistant trainer. There are those who believe there should be no chance for business as usual for trainers found in violation. Having an assistant assume the stable may somehow seem not quite right, but on the other hand dispersing the stable is perhaps too close to a racing version of Sharia law to be fair. At the least it is something that thoroughly needs to be debated. Steve Davidowitz makes a compromise suggestion that only for violations beyond 60 days should the horses be dispersed. I personally think that whether a stable gets broken up should be dependent on two things: the egregiousness of the violation and the ability of the commission to prove the trainer knowingly and willfully sought to improve the performance of his horse. If a commission wanted to disperse a stable based on the facts and evidence surrounding the Wind of Bosphorus case, then in the words of Mr. Bumble, “the law is a ass – a idiot.”
• The vast majority of owners and trainers, at least the ones I know, are honest people who love the game and love their animals the way any of us loves our housepets. But I would add, there may be owners who are complicit in any purposely wrongful medication or treatment issues, and if that is the case, they need to be punished no less than the trainer. Once again, commissions should be required to get to the bottom of any medication violation or mistreatment of animals.
• There has been a suggestion to adopt the Hong Kong Racing rules, considered by many to be the standard by which racing should be governed. I do not trust the task to individual racing commissions, but I would trust the task to a national blue ribbon commission made up of experts from the various racing constituents – veterinarians, testing laboratories, the betting public, owners, and trainers. Yes, I left out racing commissions purposely. Once this modern set of model rules has been thoroughly vetted and adopted by the blue ribbon commission, states should have a period of time in which to adopt it or face a boycott by owners, trainers and bettors.
• One of my personal gripes is that racing is not the same everywhere. I guarantee you that some of the horses running at Arapahoe Park are there because they are not good enough to compete at Santa Anita or Saratoga. Great if all you are going to focus on is racing in California or New York, but if we have a national commission it needs to account for the differences between A, B, and C tracks. I did a blog on a three tier system for Lasix that understands the horses at C level tracks are not of the same quality as those at A level tracks. Nothing wrong with recognizing that. I realize some people see the issue as totally black or white. I believe this, like most things in life, has shades of gray and I think a national commission could fairly deal with it.

Let me emphasize, the hearts of the people behind the petition are in the right place. Racing commissions, trainers and the betting public need better surveillance and security, and given the cost of monitoring equipment these days, it would be hard to argue cost is a barrier. We do need rules that are fair and will ensure the integrity of racing. I applaud those who are giving their time and energy to the petition and racing. It is only by involvement that we have any chance to change things for the better. I urge you to look at the petition and extend your support in whatever way you think is appropriate.

Until a few days ago, I didn’t know much about Total Carbon Dioxide (TCO2) and why it was anathema to racing commissions. So, if you haven’t had the time to research TCO2, let me help.

TCO2 is measured in something called millimoles per liter, expressed as mml/l or mmol/l. Here’s what wikipedia says about moles.

Mole is a unit of measurement used in chemistry to express amounts of a chemical substance, defined as the amount of any substance that contains as many elementary entities (e.g., atoms, molecules, ions, electrons) as there are atoms in 12 grams of pure carbon-12 (12C), the isotope of carbon with relative atomic mass of exactly 12 by definition. This corresponds to the Avogadro constant, which has a value of 6.02214129(27)×1023 elementary entities of the substance. It is one of the base units in the International System of Units; it has the unit symbol mol and corresponds with the dimension symbol N.[1] In honour of the unit, some chemists celebrate October 23 (a reference to the 1023 part of the Avogadro constant) as “Mole Day”.

Let me come clean and say I actually took (and passed) organic and inorganic chemistry in college, but if I ever knew what a mole was I’ve long since forgotten. And the definition above was pretty much lost on me. I’m still more than a little fuzzy on what a mole is. However, I do know a millimole is a thousandth of a mole. Most special is that next Thursday is mole day and I hope you all celebrate appropriately.

The widely used horseracing industry standard is 37 mmol/l of TCO2. As best as I can tell, the standard was set based on testing that showed the natural level of 99+% of horses was going to be below 37 mmol/l, even after the horse has been treated with Lasix. In a natural habitat, TCO2 should be between 26 and 32 mmol/l. When horses are fed with commercially collected grasses and grains (hay, oats, etc.) and are given electrolytes and pellets that may have additional elements, the TCO2 level will move upward to 33 mmol/l or so. In fact, based on testing, “natural” levels of race horses are rarely going to be above about 35 mmol/l, even if they have been treated with Lasix. The CHRB cites that prior to adoption of a standard of 37mmol/l up to 20% of races horses tested above that level, but after adoption of that standard the percentage was essentially 0. They clearly state over and over, a level above 37mmol/l has to be the result of something the trainer did (e.g., feed) or didn’t do (e.g., not giving the horse water).

The critical question is whether an elevated TCO2 level is in fact performance enhancing. In the decision by the CHRB, they say

“The theory is that by raising the TCO2 level, you can reduce the build-up of lactic acid that occurs during a race. In essence the build-up of lactic acid that causes muscle fatigue is neutralized and performance is enhanced. Whether performance is actually enhanced is the subject of debate, with the Board taking the position that elevated TCO2 is a performance enhancer and O’Neill arguing that this proposition is unproven.”

So what we know are two things:

• that 37 mmol/l does not seem to occur naturally, even in racehorses, and
• it may or may not have a performance enhancing effect.

Let me give you two quotes from the Australian Harness Racing Council report presented in 2000:

“A horse that is scientifically trained or well-trained cannot be improved very much by the administration of alkinizing agents.”

When they refer to alkinizing agents, they mean “MILKSHAKES.” The report goes on to say

“In North American tests in 1996 it was found that some horses performed worse when administered with a buffering substance or an alkinizing agent.”

The CHRB cites testimony from Dr. Rick Arthur, the CHRB Equine Medical Director, and Dr. Scott Stanley, a PhD toxicologist from the U C Davis laboratory that did the testing, that indicated TCO2 levels above the 37.0 mmol/l could result in an improved effort. Their testimony solidified the CHRB opinion that elevated TCO2 is a performance enhancer.

What we’re not completely sure about is, even if elevated TCO2 is present, at what level does real performance enhancement occur? 37.1mmol/l? 40mmol/l? 50mmol/l? Remember, the standard wasn’t set based on knowing the level at which performance enhancement is sure to occur. It’s based on a level that a race horse should never exceed, even allowing for Lasix, food, or other medications, with a presumption that 37mmol/l is, in fact, performance enhancing.

The Michigan Office of Racing Commissioner uses something called a Radiometer to test horses pre-race, and they clearly state

“Although there are a variety of factors that can lead to elevated TCO2 levels in a horse, the Radiometer can only test for the level of TCO2, not for “baking soda” or whatever other factors may have caused an elevated level. For that reason, a TCO2 “overage” does not necessarily imply that a trainer has “milkshaked” a particular horse, but simply that the horse tested had an elevated level of TCO2 in its system at the point in time when it was tested.”

In order to tell if a horse has been milkshaked, the testing lab must look for elevated levels of sodium and chloride. In the case of Argenta, the CHRB found normal levels of both sodium and chloride and concluded

“We adopt these facts and opinions [regarding sodium and chloride levels] and hold that the filly Argenta was not milkshaked with a NaHCO3 solution prior to the August 25, 2010 race at Del Mar.”

It all gets subtle at this point. We have a theory of performance enhancement and some level of disagreement whether that is generally occurring. But the critical point is that a rule is a rule, and even if you think it is a stupid or even unconstitutional rule, if a trainer breaks the rule he can be found guilty. The CHRB made this clear in their decision

We find that the filly, Argenta, trained by Doug O’Neill, ran in the 6th race at Del Mar Racetrack on August 25, 2010 with an excessive amount of TCO2 in her system (39.4 mm/l). Nothing further is necessary to establish a prima facie case under rules 1843.6 and 1887. Therefore the burden has now shifted to Respondent to prove his Due Process Defense by a preponderance of the evidence.”

In less formal language O’Neill was DOA unless he could prove he either didn’t have anything to do with causing the elevated TCO2 level, or the testing was bogus. Since O’Neill didn’t contest the testing, it came down to proving he was denied due process.

The beginning of the case was really about milkshaking, and O’Neill was sure the horse hadn’t been milkshaked This gave him a strong motivation to protest his innocence. However, it became clear that even if the horse wasn’t milkshaked (English is a great for turning nouns into verbs) the TCO2 level was going to be enough to find him in violation. Fighting the CHRB on due process grounds was always going to be an uphill struggle.

“The Attorney General has pointed out that the present standard for evaluating a due process challenge is the “rational basis test.” A law is Constitutional if it is rationally related to a proper legislative goal…Respondent agrees that a law must be found to be irrational before it may be found to be Unconstitutional. Furthermore the law will be upheld even if it is unwise and results in some inequality. Those challenging the constitutionality of a law must carry the heavy burden of negating every conceivable basis which might support the law even if not found in the record.”

The chances of O’Neill winning the case were clearly slim. O’Neill argued that the Board failing to account for the Lasix Bump (described in more detail below) and failing to provide a TCO2 quarantine barn made 1843.6 irrational on its face. The CHRB ultimately rejected this argument.

Let’s talk about the factors that can lead to elevated TCO2 testing.

Lasix: It is well known that the diuretic Lasix can impact TCO2 levels, and trainers should adjust the dosage to ensure the so called “Lasix bump” does not occur. The Lasix bump was one of the arguments Doug O’Neill used in the case of Argenta.  In their decision the CHRB said

“Some jurisdictions impose a two-tier system where the few non-Lasix horses are limited to 37.0 mm/l [sic] and Lasix horses are allowed up to 39.0 mm/l [sic] of TCO2. The Board has chosen not to adopt this two tier system. 

In other words, Lasix indisputably bumps TCO2, but in the opinion of the CHRB the standard of 37 mmol/l is sufficient to take that into account.

We know Doug O’Neill’s vet, Dr. Joseph Dowd, administered a 10cc shot of Lasix approximately 40 minutes before the race. 10cc is the maximum legal amount a horse may be given before a race. Nobody contends any of this, but what is interesting is the CHRB language characterizing the injection of Lasix.

“We find that it was at O’Neill’s instruction that Argenta was given the 10cc shot of Lasix…”

I’m not sure the CHRB meant this, but a literal reading of the sentence was that O’Neill not only ordered the shot, he specified the dosage. O’Neills story is that he trusts his vet to properly administer medications, including Lasix, and in this case the vet apparently saw no problem with administering that dosage of Lasix, something he had done hundreds of times. There was no testimony that Dr. Dowd was forced to inject the horse, merely asked to administer it based on normal and legal pre-race medication procedures. The clear conclusion by the CHRB was that if there was a Lasix bump, O’Neill was in full control of Argenta’s medication and was thereby responsible.

Dehydration: Dehydration may lead to metabolic alkalosis, which in turn can result in an elevated TCO2 level. In the case of Argenta, she was vanned over from Hollywood Park on what the CHRB called an “extremely hot day.” Race day was also very hot. There was not specific evidence that dehydration caused the high level of TCO2, but it made no difference. O’Neill was in control of the horse, its transportation and its watering and that was enough to put the blame on him for the elevated TCO2 level.

Supplements: Any supplement can alter the blood chemistry of a horse, primarily those containing bicarbonate, citrate and acetate.

Medications: Buffers, antacids and anti-ulcer medications can raise TCO2 levels. There did not seem to be any testimony related to medications other than Lasix.

Feed: Diets that have a high carbon anion balance, for example alfalfa and soybean meal, can cause elevated TCO2. Once again, no one argued that the elevated level in Argenta was due to feed, but even if they did, it made no difference. O’Neill was in charge of the horse’s diet and if that was the cause it was O’Neill’s fault.

Electrolytes and Salt: It was a hot day. If you are exercising on a hot day, you lose electrolytes, and you drink beverages that would replace them, Gatorade for example. Again, it doesn’t matter with regard to a violation – if giving a horse Gatorade raises its TCO2 level, the trainer is in violation even if he did it out of caring for the horse.

We can debate the need for TCO2 rules in light of research that says it may or may not improve the performance of a race horse. It would be a stretch to consider the CHRB ruling as definitive of anything more than they adopted the rule, they found the rule necessary, and Doug O’Neill violated the rule. The CHRB stated

“We rejected Respondent’s well-argued due process defense primarily because of the overwhelming evidence that California trainers in general and Mr. O’Neill in particular have learned various ways to manipulate TCO2 scores without serving milkshakes.”

So according to the CHRB, trainers are purposely looking to elevate TCO2 levels. But then they go on to say

“We still cannot say it was done here intentionally. Frankly Argenta was a very poor candidate for TCO2 manipulation. According to Dr. Arthur and Dr. Stanley, the prime subject for raising TCO2 levels is a male horse running in quality races and finishing in the money. In other words the polar opposite of Argenta. She was a Filly running in the cheapest claiming races and falling so far back “she would need to sprout wings” to catch the leaders.”

At least it looks like someone at the CHRB has heard Trevor Denman call a race.

So which is it? O’Neill thought he would outsmart the CHRB or he was just flying too close to the sun without meaning to do that? The CHRB was basically saying, if a trainer is going to raise TCO2 levels he’s going to do it on a horse that already had a good chance of winning in the hope he’ll get the horse over the top.

The CHRB concluded O’Neill didn’t appear to intentionally try to elevate Argenta’s TCO2 levels. While it may have been puzzling O’Neill chose Argenta for elevated TCO2 levels, the only motive the CHRB speculated on was his own stubbornness. They said

“Perhaps it was his failure to heed Dr. Arthur’s warning that his training methods were leaving him too few standard deviations to the maximum allowed TCO2 line.”

The CHRB assured themselves they were making the right decision by noting Argenta’s TCO2 levels dropped to 29.75 mmol/l after O’Neill was notified about the violation. Such a dramatic shift had to mean O’Neill was looking to elevate TCO2 levels, even without milkshaking.

There is a continuum that can be applied to all trainers that they fall somewhere between those who constantly push the envelope by looking for an advantage and those who are conservative to a fault.  There are those who are operating with full knowledge about how their actions will affect racehorse performance. There are also those who are frankly not paying as close attention as they should. Say what you will about Doug O’Neill, but any conclusion about where he falls is going to have some speculation in there.

The other day Bill Finley at the Thoroughbred Daily News wrote a piece on how the CHRB dealt with the Doug O’Neill situation with regard to his suspension for a violation involving the anxiety-calming medication Oxazepam. For the most part it was a scathing indictment of the California Horse Racing Board (CHRB) for what Finley characterized as a farce for how they responded to O’Neill’s suspension by the New York State Gaming Commission.

The primary issue was that O’Neill had been assigned a 180 day suspension by the CHRB, 135 days of which were suspended pending   he did not receive any violations for Class 1, 2 , or 3 substances. Finley argued that the violation in New York fell within the probationary period and the CHRB made, in Finley’s words, a “dumb decision.” At the end of his piece he made the blanket indictment of O’Neill as a trainer who doesn’t play by the rules.

Finley is certainly entitled to his opinion. Many bloggers (including me) have fired off pieces based on something we read or an opinion we hold. But as long as we are expressing opinions, I don’t believe Mr. Finley did anyone any favors by concluding the CHRB is a group of “Bureaucrats who may or may not be qualified for the job, they didn’t have the stomach for a fight,” even if a lot of us might agree with him. There is a lot more to the story than bumbling bureaucrats.

Regardless of O’Neill’s reputation, the fact is that an opinion piece that doesn’t include any conversations with the principals involved has to be viewed as incomplete for assessing reality. Whether or not Finley hit the nail on the head when he said, “No doubt O’Neill hired some very good lawyers who went into the CHRB and said that if they didn’t reduce O’Neill’s penalties they were going to make life a living hell for them,” certainly would have been easy enough to verify. It’s one of the things I hope to find out from the people involved.

Let’s talk a little about why O’Neill was suspended for 180 days in the first place.

O’Neill was suspended for a violation on a horse called Argenta that ran in the 6th race at Del Mar on August 25, 2010, finishing 8th. For whatever reason, O’Neill’s horse was tested and was found to have a total carbon dioxide level of 39.4 mml/l against a standard of 37 mml/l. I don’t have a background in chemistry or biochemistry, but I did look up mml on Google, and they seemed convinced I meant mmol, or millimoles per liter.

I called a good friend of mine who is a chemist, and she tried to explain millimoles to me. It has something to do with measuring molecules, but I hung up about as confused as I started.

She asked me a lot of questions. Things like, are the standards set with a margin of safety? Does the point at which the sample is taken affect the carbon dioxide level? For example, would the CO2 level vary if the sample was taken before the race, right after the race, or an hour after the race? I asked if 2.4 millimoles was a significant overage, but clearly you need more context than I could give. I really have no clue what the answers are and it will take some digging to figure it out.

To cut to the chase, the CHRB, at least some of whom are no more expert in chemistry than I am, basically said it doesn’t matter when the sample was taken – it was over the legal limit. Sort of like if you blew into a breathalyzer and it read over the legal limit. At that point, you have a presumption of guilt. The difference is that you can go to court and argue your case based on various grounds, and you might be found not guilty, in which case you won’t wind up with a record. But in horseracing, you are presumed guilty because of the absolute insurers rule, and unless you could prove something that would negate the testing there would be no wiggling out of it, and even in that case (see my blog on Wind of Bosphorus) the trainer can be found guilty and punished.

O’Neill filed a federal lawsuit that asked the court to enjoin (prohibit) CHRB from taking any legal action against him pending a resolution of his federal court action, which was dismissed by the district court on April 11, 2011. The case was ultimately referred to an independent hearing officer.

The hearing officer conducted seven days of testimony at Del Mar between August and October 2011 with final briefings given to the hearing officer in March 2012.

The hearing officer rendered his decision on April 30, 2012. The CHRB met in executive session on May 24 and decided to announce its decision, including the findings of the hearing officer that there had been no “milkshaking” and that O’Neill had not committed any intentional acts. Still, O’Neill was still deemed accountable for the condition of the horse under the absolute insurer rule and was in violation of that rule.

Let’s go back to Bill Finley’s complaint. First, it’s pretty clear that “efficient” could not be used to describe the process of adjudicating violations. It took almost two years to come to resolution on the Argenta case and over a year to come to resolution on the Wind of Bosphorus case. But the real issue in the Argenta case is that O’Neill was punished after a federal hearing officer, after a full suite of testimony, basically exonerated him. And in the case of Wind of Bosphorus, there were a lot of questions that didn’t have to be answered because of the absolute insurers rule.

As I mentioned, Mr. Finley speculated, “No doubt O’Neill hired some very good lawyers who went into the CHRB and said that if they didn’t reduce O’Neill’s penalties they were going to make life a living hell for them.” Mr. Finley didn’t mention exactly how O’Neill would do that, but the last time he stood up to them (with Argenta) it cost him $440,000. That’s a pretty clear case of losing for winning. And frankly, I don’t think any of the CHRB commissioners had anxiety attacks that might need benzodiazepines because O’Neill decided to fight. Now like Mr. Finley, I’m speculating about that, although I was staff to a state commission in a previous life and the only real threat anybody had was to lobby the governor not to reappoint them, assuming they were trying to make a career as a commissioner. Now if Mr. Finley had said, given the fact that the commission basically punished O’Neill for a transgression he was found by a federal hearing officer to have not committed, perhaps the commission figured they didn’t want to make looking foolish an annual event, I would have expressed rousing agreement.

So I did send a response to Mr. Finley, which he indicated would be published by Thoroughbred Daily News. To this point it hasn’t been. There were other responses that were published. Mostly it seemed like they praised the opinions of Mr. Finley and Bill Oppenheimer who published a letter to the WHOA supporting discontinuation of raceday medication. You can read them for yourself and draw your own conclusions by going to the Thoroughbred Daily News web site.

I said in my last blog piece, Bill Finley makes some important points. On an academic level, I agree that real serial scofflaws should suffer serious penalties. And I also agree the qualifications of some people on racing commissions are deplorable. The point he didn’t make was that as long as commissioners cannot judge rule violations beyond the absolute insurers rule, the whole system is ripe for abuse.

Let me leave you with this question. Knowing just the basic details of the Argenta and Wind of Bosphorus cases, if you were in Doug O’Neill’s shoes, would it be appropriate for you to banned from making a living for six months or six years?

Below is a response I wrote to Bill Finley’s op-ed piece in the Thoroughbred Daily Times. If you want to read Finley’s piece click http://www.thoroughbreddailynews.com/restricted/pdf/tdn/tdn141011_1.pdf

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I read your piece on the CHRB ruling with regard to Doug O’Neill. I certainly agree with you on one thing – horse racing has not done a great job of dealing with it’s many drug issues. And yes, effectively the penalty phase in the case involving Doug O’Neill and Wind of Bosphorous, on the surface, seems like it must have been done under the big top.

I wrote a blog piece about O’Neill and specifically the Wind of Bosphorus ruling (halveyonhorseracing.com, What To Do With Doug) in which I suggested there is a lot more we don’t know about the whole situation and O’Neill’s reputation as a serial violator. To my surprise I got a call from Glenn Sorgenstein, owner of Goldencents, on Thursday in response to my blog piece. We discussed a number of things – obviously O’Neill, but also the CHRB. That was followed up on Friday by a call from O’Neill himself. We talked for about an hour, mostly about the Wind of Bosphorus case and the Argenta case, but plenty about CHRB as well. The conversation ended with O’Neill agreeing to let me spend a few days with him, both shadowing him at the track (when his suspension is over) and of course discussing Wind of Bosphorus, Argenta and his history of violations. Don’t ask me why – I’m pretty much a nobody, but I’m not looking a gift horse in the mouth, so to speak.

Let me make this clear. I am neither an O’Neill apologist nor an O’Neill decrier. Until I actually got to talk with him, all I knew is what I read. But after talking with him there seems a lot more to the Wind of Bosphorus story than has come out between The NYS Gaming Commission release and O’Neill’s open letters to his owners. That is what I am making my concern – getting a much broader picture of how the Commission and Board decisions unfolded because on the surface the whole thing makes a bad situation for horseracing worse. I want the facts on all sides of this, and I hope that leads me to write the correct characterization.

You bring up some great points – being able to run your stable while suspended essentially negates any real penalty for the owners and any innocent people who work for a trainer. To suggest it’s trivial to the trainer might not be fair.. But there are two underlying realities. First, the “absolute insurers rule” often causes racing commissions to not conduct thorough investigations. If a sample is positive, the trainer is deemed guilty and any inquiry into how the drug got there is not critical. This was Christopher Grove’s argument in his case against the West Virginia Racing Commission. In fact, Grove wasn’t even in the state at the time the violation occurred but the penalty was still upheld by the Commission because, in their opinion, the absolute insurers rule protects the integrity of racing. Second, for most small violations, trainers see the citation as a traffic ticket. Maybe you didn’t roll through that stop sign, but fighting the case is almost always going to be far more expensive and punishing than just paying the ticket, not to mention you leave with the eternal enmity of the Commission if you do decide to fight. At the end of the day, the Commission is always in a position to say, you all knew the rules – the trainer is always responsible for any medication violations. It is at least the one place where guilty until proven innocent is the rule.

In the specific case of Wind of Bosphorus, O’Neill was mostly correct in his assertion that Oxazepam is used to treat recovering alcoholics and irritable bowel syndrome. As I pointed out in my blog piece and on the phone with O’Neill, it would have been more accurate to say that it is used to treat the anxiety associated with alcohol withdrawal. Oxazepam is, in fact, more of a sedative, and is not used on horses in favor of the generic anti-anxiety medication diazepam, which is used pre-castration to calm horses.

I’m no expert in Oxazepam or benzodiazapines, but the first question that came to my mind was, how can a sedative be performance enhancing? Benzodiazepines work by essentially dulling the brain, and if you’ve ever had surgery and were given something like vallium, it doesn’t seem like it would help you in an athletic endeavor. The second was why Oxazepam instead of the more ubiquitous diazapam? As far as I can tell there was no investigation by the Commission that definitively showed how the drug got into Wind of Bosphous’ system, but of course they didn’t have to show how it got there. O’Neill was guilty when the test came back positive. My third question, why in the world would a commission spend money testing for Oxazepam? Does it make sense that, as O’Neill contends, his horse could have eaten contaminated food left on one of the stall floors that Bosphorus was moved to? It doesn’t take a long leap of faith to buy that argument. Does it make sense that a human on Oxazepam peed on the floor and that’s how it got into the system of Wind of Bosphorous? Again, it’s not absurd to consider that. Is it possible there was an incorrect reading and the real offending drug was diazepam, a drug in every vet’s kit by the way? It’s not beyond the realm of possibility, although it doesn’t answer the question of where the diazepam came from.

O’Neill told me that he does not administer medications to his horses, that it is done by his vet. Again, take it for what it is worth, but it is one of the things I’d like to know more about. It’s especially relevant because the violation occurred in New York, not O’Neill’s home base of operations.

O’Neill hired an expert, Dr. Steven Barker to analyze the Commission findings. Dr. Barker said, “Given that there was no opportunity to retest the blood and because the data presented by the Commission’s laboratory regarding the blood cannot and should not be considered evidence, it is my opinion that any discussion of the presence of oxazepam in the blood sample of the horse in question is legally and scientifically unfounded.” Was Dr. Barker biased in favor of O’Neill or against the Gaming Commission? I’m sure going to do what I can to find out, but Barker puts his reputation on the line and fires at the Commission.

And according to O’Neill, the amount of Oxazepam they found was about 1/7 the amount you might find if you tested a human on the drug. If you read Dr. Barker’s affidavit, he seems to be saying the Gaming Commission finding is essentially a pile of horse manure, and in fact they have a long track record of fumbling samples.

I realize you can’t simply take a report by a hired gun, no matter how good that hired gun is, or phone call as gospel. I will talk to all parties that will talk with me before I publish any further findings. But I have enough questions that need to be answered, and there is enough ambiguity staring us in the face, that I’m not ready to call this one cut and dried cheating, or incompetence by the commissions.

I’ll answer the question most people would ask. If O’Neill was innocent, why did he agree to the plea deal? In this case, O’Neill made a strong point to me. The Argenta case cost him $440,000 in legal fees. He said to me, “I know that number by heart because I had to sign the papers setting up my payment schedule.” You can fight city hall, but for the most part they have far more resources available than most trainers. In our justice system, being threatened with a long sentence (and O’Neill was initially threatened with a five year vacation) is a pretty powerful incentive to find a reasonable deal, guilty or not. The idea that O’Neill’s lawyers marched into the CHRB offices and made some sort of threat makes about as much sense as coming up to Don Corleone and telling him you were going to make an offer he couldn’t refuse. Even if O’Neill took them to court, the cost of litigation is very high. You can argue that the absolute insurers rule needs some updating, but at the moment it’s all the commission needs to enforce it’s judgment.

I’m not criticizing your blog piece at all. We need to bring this stuff out in the open. And perhaps regardless of the guilt or innocence of O’Neill, the inconsistency, arbitrariness, and perhaps incompetence of state racing commissions is a topic of critical importance. I’m making it my business to research and publish something that accurately reflects what is going on out there. Racing has problems, and all of us who love the sport are pissed off that stories like this continue to be the yardstick by which racing is measured.

I’d certainly be willing to discuss any of this further if you care to. Just let me know.

For anyone who hasn’t already heard the story, Doug O’Neill was suspended 45 days by the New York State Gaming Commission for a positive test for the drug Oxazepam, detected in a post-race sample taken from Wind of Bosphorus on June 2, 2013. Initially O’Neill had negotiated that the suspension start the day after the Breeder’s Cup but the Breeder’s Cup officials invoked the “Convicted Trainer Rule” that bans trainers convicted of a medication violation involving a Class 1 or 2 drug in the 12 months preceding the Breeder’s Cup. This means O’Neill cannot be the trainer of record for any horse in the Breeder’s Cup.

In the horseracing world this was big news. O’Neill is a well known trainer who has a Kentucky Derby win with I’ll Have Another, three Breeder’s Cup wins and a slew of major stakes victories. He’s also been cited 19 times for various violations. Regardless of his success, among serious handicappers, fairly or unfairly, he’s generally seen as a trainer who practices better winning through chemistry.

O’Neill fired back in an open letter and at first reading he makes a pretty good anecdotal case that he is a victim of circumstance, at least when it came to Wind of Bosphorus.

Let’s start with the drug itself.  O’Neill said, “When I was notified by the Gaming Commission, I googled the drug, Oxazepam, to see what it was. It is used by humans to help with alcohol withdrawal, and doctors prescribe it for folks with irritable bowel syndrome. I have included information on this drug in this section of the letter.”

O’Neill was not precise in his description. Oxazepam is actually used for the treatment of anxiety, including anxiety associated with alcohol withdrawal. He is correct in noting it is occasionally prescribed for irritable bowel syndrome.

And since trainer O’Neill got his information on Oxazepam from Google, I found that Oxazepam is in a class of drugs called benzodiazepines. It works by slowing activity in the brain to allow for relaxation, and this is why it is often prescribed for alcohol withdrawal patients.  The key word in that sentence is relaxation.

O’Neill also said in the letter, “I can’t possibly imagine that any horse trainer or anybody in the horse business would purposefully, intentionally give a horse this drug. Why in the world would they?”

I have no knowledge of any trainer specifically using Oxazepam to treat horses, but given it’s use as a drug to treat all sorts of anxiety, it doesn’t seem inconceivable that some trainer might try it on a high strung horse. The case for whether or not that horse was Wind of Bosphorus seems circumstantial. As for Oxazepam’s availability, it’s also not inconceivable that there is a recovering alcoholic or two on the grounds taking the drug, even if veterinarians aren’t normally carrying it in their kits.

So O’Neill’s first line of defense is that no trainer would knowingly use Oxazepam, ostensibly because horses are not recovering alcoholics (although some enjoy a cold barley pop after a race), nor do they have irritable bowel syndrome. Unfortunately, it is not beyond a simple line of logic for a non-medical person to conclude that a relaxation drug just might help a horse that is so keyed up before a race he expends most of his energy prior to entering the starting gate. If that conclusion makes no sense, perhaps we can get a respected veterinarian to tell us why not.

O’Neill adds this for emphasis. “Besides the absolute absurdity to think it could possibly be a good idea to give a horse this drug, there is no evidence that I’ve been able to find, of any examples of anyone ever using this drug on a horse to enhance a horse’s performance. And that is what I am suspended for? That is what my reputation is being kicked in the mud over? About giving a horse a drug that helps with alcohol withdrawal and for folks with irritable bowels? I couldn’t make this up if I tried.”

The key in that first sentence is “enhance a horse’s performance.” As O’Neill acknowledges, benzodiazepines (specifically diazepam) are commonly used in veterinary practices, especially prior to surgery, including gelding, to calm a horse. If enhancing a horse’s performance is a euphemism for making it run faster, perhaps O’Neill has a point. But if we include anxiety relief, perhaps it isn’t so absolutely absurd after all. O’Neill’s protestation smacks a bit of having his cake and eating it too.

O’Neill also argues that, “They found traces of this substance (Oxazepam) in the blood of our horse. If I had to guess (and it’s only a guess), it probably has something to do with the fact that Wind Of Bosphorus happened to move three times into three different stalls in the ten days leading up to his race. Many horses would have been in those same stalls over those ten days. Horses eat the feed that falls on the ground. Lots of folks are walking in and out of those barns. Could someone that was in the barn accidently drop something in the feed? I suppose anything is possible. My vet said that a possibility is that a drug in the same “family” of this is diazepam, and that it is in just about every vet’s truck. (It is known to cause false positives for oxazepam) He said vets apply it when horses need to be castrated, and this drug is used in surgery rooms, also. Could a horse that had been recently castrated been in one of those barns- and urinated on the soil of the stall? My vet says absolutely because this has happened with other medications found in such small amounts, and most recently happened in Canada.” 

This is really where the issue turns for me. Wind of Bosphorus was claimed the race before O’Neill took him and was claimed out of the race he won for O’Neill. The horse was moved around and the possibility of cross contamination definitely exists. He’s right that other horses in those barns could have contaminated feed that fell on the ground. And of course given the way horses move around, it doesn’t seem possible to tell whether it makes more sense to blame  someone other than O’Neill. The puzzling thing is why this kind of evidence was unpersuasive to the Gaming Commission.

Beyond that, Dr. Steven Barker reviewed the evidence in the case and concluded, “Given that there was no opportunity to retest the blood and because the data presented by the Commission’s laboratory regarding the blood cannot and should not be considered evidence, it is my opinion that any discussion of the presence of oxazepam in the blood sample of the horse in question is legally and scientifically unfounded.” His full report can be found here http://www.dougoneillracing.com/images/DrBarkerSt.pdf

Ok, Barker may be O’Neill’s witness, but where is the outcry telling us he’s talking out of his hat? Based on Barker’s report, it seems highly probable that if O’Neill took this to court he’d win drawing away. The fact that he didn’t take this one to court is probably as much a reflection of him not wanting to buy a team of legal eagles at $500 an hour and realizing the negotiated penalty was hardly much of a problem. It’s cheaper and easier for O’Neill (and most trainers) to pay the fine, take the days, and go right back to training however he trains.

If anything, this incident continues to underscore the deficiencies in the system around drug testing and assessing guilt. O’Neill was guilty as much under the age old maxim that the trainer is ultimately to blame for anything in a horse’s system as based on the evidence, which on the surface seems ambiguous at best. And it doesn’t hurt that O’Neill has been cited for medication violations 19 times. That many violations – he must be guilty.

Trainers often don’t see a violation citation as the end of the world. You perhaps get some days, pay a relatively small fine, and run horses under your assistant trainer’s name. Given the trainer’s world doesn’t wobble too badly, most of the time it isn’t worth fighting a Commission ruling. While O’Neill has derisively been called “Drug O’Neill” he’s not alone in being repeatedly cited for medication violations. In a 2010 article, the NY Times noted that, “In fact, of the top 20 trainers in the United States by purses won, only two — Christophe Clement and Graham Motion — have never been cited for a medication violation.” http://www.nytimes.com/2010/11/04/sports/04racing.html

Despite O’Neill’s reputation, according to the same article, well known trainers such as Jamie Ness (one violation per 217 starts), Bob Baffert (one per 465 starts), John Sadler (one per 478 starts), Bret Calhoun (one per 525 starts) and Kiaran McLaughlin (one per 710 starts) all exceeded O’Neill’s rate of one per 807 starts. And trainers such as Michael Maker, Jerry Hollendorfer, and Steve Asmussen have all been cited at a rate more than one starter per thousand.

What exactly is it about O’Neill that makes him the poster boy for drug use in racing?

A long article from The Horse Fund said, “Clearly the frequency of these violations together with the fact these individuals continue to train while suspended, regardless of the offense, demonstrates how ludicrous the North American system of penalty enforcement and severity is. Time and time again these trainers circumvent the rules and are rewarded for their penchant to cheat with punishments that all too often are in name only; their stables remain open and their horses are permitted to race, typically under the name of a trustworthy assistant.” http://www.horsefund.org/the-chemical-horse-part-9.php

The O’Neill case exposes myriad problems with drugs, testing and racing commission decisions. In an American court you are innocent until proven guilty, but in the court of racing you can be convicted on almost any evidence, solid or circumstantial. Moreover, until O’Neill got slapped with excommunication from this year’s Breeder’s Cup, he seemed to have worked out a pretty good deal that would have kept him off the track for only 45 days during one of the slower parts of the racing season.

O’Neill is not the problem. The system needs an overhaul starting with the consistency of drug rules and penalties from state to state. You can’t tell me we needed a whole year to figure out what happened to Wind of Bosphorus. You can’t tell me that New York couldn’t have figured out if O’Neill was really the culprit if they had complete records on which horses on what medication occupied which stalls at what time. You can’t tell me that the NY State Gaming Commission couldn’t have done what the cycling people did with Lance Armstrong when he protested his innocence – threatened to bury him with a mountain of evidence – after O’Neil came out with his letter that made it seem like he was railroaded, assuming they actually had that evidence. If you have incontrovertible proof that O’Neill is a liar and a cheat, produce it. We can handle it. Instead we are left with Doug O’Neill once again protesting his innocence and the sport being left with the odor of a stall that hasn’t been mucked for a while.

For the most part, there is only one reason why people show up at the track – to bet horses. They certainly don’t go for the ambience or the food, with some exceptions like Saratoga. Anyplace that has Hattie’s fried chicken, a nice picnic area to eat it in, and a row of pretty good food trucks attracts people for more than just the betting, but Saratoga is really the exception.

This discussions started with the closing of Suffolk and I noted that among other issues it had the ambience of a factory. Racetracks might learn a little from casinos. Yes, they are gambling destinations, but in Vegas you can eat at restaurants run by first rate chefs and shop at upscale stores. Perhaps racetracks should think about how to attract people who are not just hard core horseplayers.

Here are some ideas to think about.

• Why do tracks have to grab a few extra dollars for a “clubhouse” admission, especially at a place like Saratoga or Del Mar where the only advantage of an upgraded clubhouse admission is a few less people at the betting machines? If the clubhouse admission came with the ability to sit in a free grandstand, it would make sense. Otherwise it is just price gouging. GIVE PEOPLE SOMETHING FOR THE EXTRA MONEY.
• With the exception of Saratoga, tracks need to upgrade the food. In fact, there should be some destination restaurants on site. How about a restaurant that has its own entrance on the outside of the plant where people can eat without having to pay admission, and when they are done can use their receipt as track admission if they want? How about a food court with something more than hot dogs and beer? Nobody should have to eat crappy food at high prices just for the privilege of losing whatever money they have betting horses.
• Casinos are not big fans of shopping areas – they take space away from gambling – but they do it so the non-gambler has something to do other than sit 25 minutes between races. Perhaps a small shopping village on track property would work well.
• And while we’re accommodating the non-gambler, how about a first rate day care facility? It’s got to be better than having the urchins going up to the betting machines thinking they are some sort of video game.
• The day of the cavernous, concrete betting factory is long past. We need smaller, more accommodating racing plants. How about tables and individual TVs and betting machines much like you see at OTB sites? There should be a seat of some sort for everyone.
• Do tracks charge for parking because they want to encourage carpooling, or is it just a way of grabbing 100% of $5 instead of the 20% take? Tracks that operate parking should have two lots. One for free at the farthest reaches of the parking area, and one close in  that charges a nominal fee.

Tracks need to upgrade facilities and upgrade the fan experience. There have to be some ideas out there that are doable without spending enormous sums of money.