09/23/2003 11:00PM

Delayed justice hurts all of racing


TUCSON, Ariz. - Bennett Liebman has walked on both sides of racing's warped cobblestone street of justice.

In New York, as one of the most knowledgeable of the nation's racing commissioners, he was a dispenser of racing's brand of long-delayed justice.

As the current head of the Albany Law School's program on racing and wagering law, he is one of that system's most vociferous critics.

As a commissioner, he was on duty watch when it took three years to resolve a 10-day suspension of Angel Cordero for careless riding; five years to resolve a medication violation involving Flanders and Wayne Lukas; and 12 years before a one-year suspension of Jacinto Vasquez (for allegedly offering a fellow rider money to restrain a horse) was fully settled.

These distortions of administrative due process would be comedy if they weren't tragedy, and Liebman thinks there is a vastly better way of affording constitutional rights.

In an Albany law dissertation on alternate approaches to drug penalties and other offenses, he points out what has not worked, and what might.

Among the failures: handing out lower penalties if a licensee agrees not to appeal; allowing jockeys and harness drivers to compete in major events while under suspension; substituting fines for suspensions; and implementing the basic trainer responsibility rule that governs whether or not there was intent to affect the outcome of a race.

Liebman not only agrees with England's Gladstone that justice delayed is justice denied, but also says the current system has failed everyone in racing. And he has a solution: a major overhaul in how justice is dispensed.

He believes mediation and arbitration would work far better, and much quicker.

A penalized participant could elect to have outside experts - former riders, drivers, stewards, regulators - provide their expertise in mediation. If no agreement could be reached through that process, the matter could go to arbitration, with expert arbitrators either appointed - one from each side of the dispute, and a third named by the two sides' choices - or drawn by lot. In either case, the charged party would agree to abide by a decision reached in weeks at most, and the penalty, if any, would be served quickly.

In illegal-medication cases, mediation and arbitration would require agreement between racing commissions and horsemen's associations. The drug test's positive result would likely have to be stipulated beforehand, and the process would determine the degree of a trainer's responsibility and the proper penalty.

Liebman doubts that horsemen would agree to this in the case of major suspensions - but they might, given the cost of defending them. But the system is worth trying, regardless of exceptions or declinations that might arise. In addition to speeding up the process, mediation and arbitration could, Liebman believes, result in suspensions being served promptly.

Under such a system, he says, "Equal justice would be available to all licensees, regardless of their wealth, and the use of nationwide standards could ensure that the state of the location and the violation does not determine the penalty to be imposed on the trainer."

Mediation and arbitration, he believes, would resolve appeals more rapidly; moderate the present inequities in which wealthier licensees can "game the system"; give poorer licensees more access to justice; establish greater consistency in overall disciplinary actions; and put an end to administrative bias.

Having been there, Bennett Liebman knows that understaffed and underfinanced racing commissions, suffering from declines in states' racing revenues, can appear to be indifferent to the rights of licensees. He thinks that in this environment, commissions often sound like the Wizard of Oz, "emitting lots of sound, smoke, and fury, but having little substance behind them."

This is a reasonable description of many racing commissions, but the smoke they issue can suffocate racing and its participants.

The present system, which Liebman calls a non-system, needs fixing. In Ontario, for example, a perennial leading harness trainer, Bill Robinson, continues to train horses, including Art Major, the likely harness horse of the year, while appealing 16 months of suspensions and $55,000 in fines for medication and other rules infractions.

Justice delayed is justice denied? Of course it is, and not only for participants but for the sport and business of racing, and its image as well.