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?