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.