10/18/2005 11:00PM

Guild under federal eye

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WASHINGTON - The Congressional hearing Tuesday focusing on the Jockeys' Guild and riders' health and welfare issues had all the elements of political theater: regretful confessions, reluctant admissions, sanctimonious speeches, and pointed accusations.

What it did not have was a clear conclusion.

When the chairman of the House Subcommittee on Oversight and Investigations, Rep. Ed Whitfield, a Republican from Kentucky, adjourned the meeting after seven hours of contentious and emotional testimony at the Rayburn House Office Building, both supporters and opponents of the Guild had reason to feel vindicated - despite withering attacks on the Guild and its chief executive officer, Dr. L. Wayne Gertmenian.

Supporters could point to comments made by Rep. Bart Stupak, a Democrat from Michigan, who wondered if the federal government should set up a national workers' compensation program for jockeys. Stupak said the committee might even ask the National Labor Relations Board to give the Guild the power to bargain collectively with racetracks despite the jockeys' status as independent contractors. Two dozen jockeys, who had been urged to attend the hearing by the Guild, rose up in applause.

Opponents could point to the subcommittee's relentless attacks on Gertmenian, the Pepperdine University professor who took over the Guild's management in 2001 after a heated fight among the Guild's board of directors. By the time the hearing was over, Gertmenian had been called an "absolute disgrace" by one committee member and accused of fraud and lying in what amounted to the most public and humbling broadside the controversial but resilient Gertmenian has ever faced.

It all added up to an unclear picture. Certainly, the committee was prepared to attack Gertmenian and the Guild - easy targets, given the long list of the Guild's critics. But the committee seemed less than prepared to address the larger issues of insurance and welfare.

Those larger issues will presumably be taken up in another hearing, which Whitfield's office has not yet scheduled. Whitfield said that hearing will focus on the obligations of track management and industry organizations to riders, which will open up arguments of longstanding debate in the racing industry, including whether jockeys' hazardous jobs should give them protections and rights not afforded other independent contractors.

Still, the Guild's management has never been in a more perilous position. Rep. Joe Barton, a Republican from Texas, the chairman of the full Committee on Energy and Commerce, accused Gertmenian of raiding the Guild's coffers by setting up "fronts" through Matrix Capital Associates, a consulting company owned by Gertmenian that was paid $335,000 by the Guild in 2004 and similar amounts every year since then. At one point, Barton surveyed the hearing room, met the stares of jockeys seated in the back rows, and implored them to replace Gertmenian.

"I don't know what it would take to make a change in management, but if I was a dues-paying member of the Guild, I would want a change in management," Barton said.

Gertmenian admitted under questioning that Matrix's office and the Guild's office were one and the same - even though the Guild pays Matrix rent - and that Matrix had no other clients. In addition, Gertmenian confirmed that a consulting company, Scoop Inc., which was paid $46,000 by Matrix in 2003, was owned by his daughter, Farrah - the sole employee of Scoop - who did clerical work at the Guild-Matrix office in Monrovia, Calif.

Committee members, led principally by Rep. Greg Walden, a Republican from Oregon, exposed flaw after flaw in the Guild's record-keeping practices, calling on the Guild's chairman, David Shepherd, and the co-vice chairwoman, Tomey Jean Swan, to produce any evidence of board votes on critical business decisions, including the Guild's decision to allow an ontrack insurance policy that covered jockeys for $1 million in medical bills to lapse in 2002. Neither Shepherd nor Swan could recall any meeting in which that decision was approved by the board, and both admitted that they may have voted on minutes for board meetings that they had likely never seen.

"That's just the way Gertmenian wants it," said Robert Colton, a retired rider who was briefly employed by the Guild in 2003. "No records, so no one to blame." Colton sued the Guild in 2004 claiming he was wrongfully terminated and defamed. The lawsuit has since been settled.

Gertmenian did not take the stand until five hours into the hearing, long after Amy Birzer, the wife of Gary Birzer, a jockey who was paralyzed from the middle of the torso down in an accident at Mountaineer in 2004, broke into tears several times while talking about her husband's injury and rehabilitation, including the now-infamous remark made by the Guild's chief operating officer, Albert Fiss, that her husband would be used as a "guinea pig" to further the Guild's mission. Fiss admitted later in the hearing to having made the remark but said he had apologized.

Amy Birzer repeatedly accused the Guild of publicly promising financial help with her husband's medical bills only to go back on those promises. Committee members peppered her and her husband with questions designed to confirm that the Birzers had no idea that the Guild had canceled the catastrophic insurance policy. Amy Birzer testified that her husband had paid $64,000 in dues to the Guild over seven years in the belief that the insurance was in place.

Perhaps the most unexpected testimony came from Chris McCarron, the now-retired Hall of Fame rider who introduced Gertmenian to Guild members and engineered the coup that replaced the group's former national manager, John Giovanni. For the first time in public, McCarron outlined his falling out with Gertmenian, saying he began to have "serious reservations" after the takeover. He strayed from his submitted testimony to make an emotional apology that some riders have been privately calling for.

"Bringing Dr. Gertmenian into the Guild was the biggest mistake I have ever made," McCarron said. Later, as the hearing continued, McCarron approached Amy and Gary Birzer, who were seated in the audience, and offered them apologies and hugs.

In fact, McCarron's comments and actions were only one example of what appears to be a highly fractured community that is struggling to make sense of its relationship to the Guild, which claims more than 1,200 members and is the only organization in the country that represents riders' issues. Of the two dozen riders brought into the hearing by the Guild, several seemed confused and joined with the Guild's most intense critics - including Jerry Bailey and Pat Day - in enthusiastically applauding when Barton unleashed a criticism of the Guild that ended with compliments for the general commitment by riders and the dangers of their jobs. The applauding Guild members quickly sat down, with sheepish looks on their faces.

The hearing illustrated a sobering point that jockeys are only now just beginning to realize. With Stupak's calls for federal intervention, and the rising number of racetracks that have purchased insurance policies that cover riders for $1 million in medical bills, Gertmenian's mission to improve riding conditions appears to be succeeding - but only through turmoil that he has helped to create and that many jockeys contend has ruined lifelong friendships.

The physical embodiment of that turmoil - and the very first witness to give testimony at Tuesday's hearing - is the wheelchair-bound Gary Birzer, the paralyzed jockey who says he has $500,000 in unpaid medical bills. Birzer will likely never walk again. It is equally unlikely that the Guild's members will ever settle their differences under the group's current leadership.