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Thursday, May 31, 2012

Does Lou Walk? I Say Yes

Let the following be disclosed up front:  I hate cheating as much as anyone and believe in the rule of law.  I have never been a participant in a hearing in front of a racing commission panel.  My total legal training was one semester of Professor Simon's Business Law 101 and if my foggy memory is correct the grade was somewhere between a B and a C.  So while I am far from a legal expert, has that ever stopped a blogger from voicing their opinion?

After reading a column in the DRF, I do think the NYSRWB overstepped its authority and may have nailed Lou Pena just because of the outcry in racing circles called for action for which the NYSRWB got caught up in the frenzy as did the NJRC.  In other words, a witch hunt.

Once again, for argument sake let's assume Lou Pena indeed violated the withdrawal rules 1,719 times.  After all, according to the article, New York State is the only state that codifies withdrawal rules.  All other states make recommendations for withdrawal as a service to trainers so they avoid a positive test.  This is why the NJRC has not acted against Pena on its own.  Nor did it act against the veterinarian involved.  They simply did not violate the rules in New Jersey.

Now, it is no secret that Pena has been suspected of cheating with illegal substances due to his eye-popping success rate.  Seeing his success coming in from California, one can't help but wonder if something was not Kosher, but wondering if something is not Kosher does not make it so; you need evidence.  For this reason, with the way racing rules are set up, you can't suspend or revoke a license of someone on suspicion, you need proof.  Racetracks can certainly use their exclusionary rules if they wish, but the racing commissions must base their decisions on evidence.

Well the NYSRWB has their evidence; veterinary evidence from New Jersey.  The question is if this evidence is admissible.  Let's go over a couple of facts and questions.

Fact #1 - If asked if Lou Pena was innocent, the NJRC would probably have said before the NY action 'He is licensed to race in the State of New Jersey and is not currently under suspension."  They may think things smell bad but legally,  he was as clean as any other participant in the state; he's in good standing.  By the way, this is why the NJSEA could never exclude him; as long as someone had a valid license, as a state agency they had to let the person participate.

Fact #2 - Lou Pena had no positives in the State of New York.  Prior to the NYSRWB looking at the vet records from New Jersey, if asked if Lou Pena was innocent, they would have said "He is licensed to race in the State of New York and is not currently under suspension".

Question #1 - If the NJRC found no violation of their racing rules, do they have the right to offer the vet records to the NYSRWB?

Question #2 - If Pena didn't test positive, does the NYSRWB have the right to ask for the records of Pena's vet if no rule was violated as per the blood tests? 

Speculation #1: There is no way the NYSRWB is going to back down completely as they will look foolish.  If a deal can't be reached with Pena, the NYSRWB is going to revoke his license and fine him some outlandish amount.

So while the NYSRWB will revoke Lou Pena's license  if a deal isn't made, when this case goes to the courts in New York, these questions are going to be answered at least by one judge.  When all is said and done, I won't be surprised if Pena ends up victorious.  I believe the witch hunt as Mr. Faraldo himself has referred to it (and this is coming from the head of a horsemen group where a significant number of members would love to see Pena gone) may have caused the two racing commissions to overreach and thus the courts will overturn the NYSRWB's ruling.

This is not a case of is he or isn't he.  In America, you get convicted on hard evidence, you also have certain protections from an overreaching government entity.  Unless it is to prevent immediate bodily harm, you don't go looking into records on a fishing expedition unless someone comes to you with evidence of a potential crime or a crime has been committed.  Someone may 'know' something is wrong, but without some type of proof, it's nothing.   If as I suspect the vet records from NJ are going to be tossed by the judge, where is the legal evidence to sanction Pena?

Of course, Lou Pena walking may be a hollow victory.  While he may avoid an actual suspension from the NYSRWB and there may be no fine, I suspect he is going to be excluded from virtually all tracks in North America.  An acquaintance of mine said he wouldn't be surprised if there is going to be a lawsuit coming against the NYSRWB when all is said and done.  I initially chuckled when he said it, now I am not so sure....
Racing is not going to look good, no matter how it plays out.  Regardless of how this case plays out, we know racing's drug testing is a sham, where states don't test for all medications due to budget concerns.  This high profile case may also bring us closer to Federal Regulation.  How will that be for irony.

Should the NYSRWB case collapse by judicial review, many people are going to be angry.  Yes, a judge may decide the evidence was improperly obtained and thus invalid, eliminating the whole crux of the NYSRWB case, but remember those constitutional protections which may reverse the NYSRWB's ruling is the same thing that protects you from an overzealous government deciding it doesn't care for you.

Which brings us to...

Speculation #2 - This blog entry will make me look like a genius or a fool, which is why I had the disclosure right up front.

Speculation #3 - Being this case may take as long as five years to come to a conclusion, there is a reasonable chance neither you or I will remember this posting.

New York Times Article: The New York Times weights in on the Pena story.

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