11/17/2008 12:00AM

Getting Einstein into Clark is tricky

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Barbara D. Livingston
The legal difficulties of Einstein's owners present a problem for his Kentucky racing status.

LOUISVILLE, Ky. - When Einstein ran second in the Stephen Foster Handicap and Firecracker Handicap last spring at Churchill Downs, the horse competed under the names of Patricia Cunningham and Melissa Green, who were listed as lessors from the owners, the Midnight Cry Stable.

Trainer Helen Pitts has told Churchill racing officials she is considering a run for Einstein in the annual fall-meet highlight, the Grade 2 Clark Handicap on Nov. 28, but if Einstein is to make the race, his connections will have to do some legal maneuvering.

John Veitch, chief steward for the Kentucky Horse Racing Commission, said a new set of emergency regulations that went into effect earlier this month have closed the legal loopholes that had allowed the "lessor" situation to exist.

Midnight Cry is the racing stable of Shirley Cunningham Jr. and Bill Gallion, former lawyers who were permanently disbarred last month by the Kentucky Supreme Court for ethical violations related to their role in the settlement of a widely publicized fen-phen diet drug case in 2002. Midnight Cry also is a 20 percent owner in Curlin, although that share is in the process of being liquidated by court order.

Veitch said one stipulation of the new regulations essentially bars the licensing of owners or their proxies when they have had licenses stripped or refused by the state in other professions or pursuits, as is the case with Gallion and Cunningham.

Einstein has not raced since finishing a troubled fifth in the Aug. 9 Arlington Million, in which he suffered a minor injury. He most recently breezed Sunday at Churchill, going an easy five furlongs in 1:03.80.

Commentator, the speedy New York-bred gelding who arrived here Nov. 12, is the favorite for the $400,000 Clark, for which nominations closed Saturday. Entries for the 1 1/8-mile race will be drawn Nov. 25.

Talked-about decision will stand

A controversial non-call by the stewards following the eighth race here Saturday had parts of the grandstand buzzing. As Game Face, the eventual winner by a head with Ramon Dominguez riding, raced to the wire in front, it appeared that Dominguez was taken by surprise by an inside rally from Miss Isella, the eventual runner-up under Calvin Borel.

A few yards from the wire, as soon as he turned to his left and saw Miss Isella gaining furiously along the rail, Dominguez instinctively stuck out his left arm about two feet - with both his whip and the rein in his hand. As he took that action, Game Face angled inward toward the rail, and Dominguez's left hand clearly appeared to brush against Miss Isella's neck at just about the time the horses passed under the wire.

The Equibase footnote for the race chart states that Game Face, the odds-on favorite in the $48,700 allowance race, "narrowly lasted while angled into the runner-up late in a blocking maneuver."

Borel filed an objection, but after deliberating, the stewards ruled that no change be made in the order of finish.

Veitch said afterward that Miss Isella "came out on the other horse at the end" of the race and that "no contact was made" before the wire.

Ian Wilkes, trainer of Miss Isella, said the stewards' decision will not be appealed to the Kentucky Horse Racing Commission. The owner of Miss Isella is Domino Stud, whose owner, Ken Jones, died last month at age 90. Wilkes said Jones's heirs are scattered about in Guam and other parts of the world, and "now just wouldn't be a good time for something like that."

Two noses for it all

It wasn't quite close enough to rival the famed Carter Handicap of 1944, but the sixth race Saturday produced a bang-bang-bang finish to make it one of the most exciting of the meet. After a lengthy delay, the photo-finish camera showed that Run the Other Way finished a nose ahead of Da Da Da Dum, who in turn had a nose on Billybud in the $15,000 conditioned-claiming race.

The dead heat between Brownie, Bossuet, and Wait a Bit in the 1944 Carter at Aqueduct remains the only triple dead heat for win in stakes in North American racing history.

Derby starter in for $5K

A whole lot of water has gone under the bridge since Easy Grades finished 13th in the 2002 Kentucky Derby. Now 9, the gelding has switched barns 11 times since having started his career on the West Coast and ventured to the 128th Derby with trainer Ted West.

Away from the races for nearly a year, Easy Grades will return to action Wednesday, starting for a career-low $5,000 claiming price in the fifth race. David Vance trains Easy Grades, who has earned nearly $560,000 from 62 starts.

Another veteran makes an appearance

Another old-timer making an encore Wednesday at Churchill is the 13-year-old Gretchen's Star, a gelding making his 47th career start. Based at the Thoroughbred training center in Lexington with owner-trainer Ron Isbell Jr., Gretchen's Star will ship in for the eighth race, a starter-allowance at a mile on turf.

Gretchen's Star already has won a race this year, having prevailed by a head in a $20,000 claiming route on the River Downs turf in June. Remarkably, the gelding has won at least one race every year beginning in 2001, except for when he went 0 for 3 in 2005.

* Tuesday was to be the 10th anniversary of the launch of the nearby riverboat casino in Harrison County, Ind. The Horseshoe boat, formerly known as Caesars, became a major competitor for Churchill Downs for local gambling and entertainment dollars when it opened Nov. 18, 1998.