05/31/2012 3:08PM

Harness trainer Pena's case raises new questions

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The New York State Racing and Wagering Board has forged a new, controversial approach in the enforcement of medication rules with an aggressive case against a Standardbred trainer in which out-of-state veterinary records are the board’s only evidence to support more than 1,700 alleged violations.

The tactics have been praised by supporters of an overhaul of medication rules and their enforcement and criticized as “a witch hunt” by horsemen and the lawyers who frequently represent them. In any event, the use of the veterinary records “is a game changer with wide ramifications” for both harness and Thoroughbred racing, according to Ed Martin, president of the Association of Racing Commissioners International.

“This is a new chapter, make no mistake about it,” Martin said.

The case involves the trainer Lou Pena, a native of Mexico who moved his highly successful operation in 2009 from California to the Eastern seaboard, where purses at most harness tracks are heavily subsidized by casino gambling. Since the move, Pena has become one of the most successful trainers in harness racing, but the board suspended Pena’s license indefinitely last week after charging him with 1,719 violations of the state’s medication rules, based solely on a review of the New Jersey veterinary records for horses under his care over a 28-month span covering January 2010 through April 2012.

According to attorneys and regulators, no trainer has ever been charged with a medication violation without either a positive drug test or the discovery of prohibited substances in the trainer’s barn or possession. However, the tactic does have a related precedent: In 2006, the New York board handed down an 18-month suspension to the harness trainer Carmine Fusco for a postrace clenbuterol positive, and the board lengthened the penalty to five years after a review of the horse’s veterinary records indicated the horse had been administered medications on five other occasions within timeframes prohibited by a set of rules unique to New York.

New York is the only major racing jurisdiction that has passed statutes codifying so-called withdrawal times, making it a violation if a trainer administers various substances within a certain number of hours before post. In other states, withdrawal times are issued by racing commissions as recommendations to guide a trainer in the administration of therapeutic drugs so the trainer can avoid a positive postrace drug test for permissible medications. For that reason, other racing jurisdictions are unlikely to use the tactics employed by the New York board without changes to their own racing laws.

“No other state could make these charges stick, because in every other state the withdrawal recommendations are just that, recommendations,” said Alan Pincus, a Nevada lawyer who frequently represents trainers charged with violations.

None of the violations in the Pena case were for hard-core performance-enhancing substances, and none of his horses tested positive for any of the drugs. The majority of the 1,719 violations involved glycopyrrolate, a common anti-ulcer drug, and methocarbomol, a muscle relaxant that is used to prevent cramping. According to the board, the veterinary records indicated that glycopyrrolate was administered to horses 632 times within 96 hours of races at Yonkers and Saratoga Raceway, and that methocarbomol was administered to horses 639 times within 72 hours of post time, both in violation to the state’s regulatory thresholds. The board did not provide any specific information as to when precisely the medications were administered.

Officials for the New York State Racing and Wagering Board said they would not comment on the case because Pena still has not had a hearing into the charges (a May 30 hearing was postponed to a date to be determined). In a statement last week that accompanied a 45-page listing of Pena’s alleged violations – including the recommendation that Pena face up to $171.9 million in total fines – the board called its investigation “comprehensive and groundbreaking.”

Joe Faraldo, a New York Standardbred owner and a lawyer who argued a precedent-setting racing case, Barry v. Barchi, before the Supreme Court in 1979, predicted that the case would be thrown out if it reached the New York court system “for any number of legal reasons,” including the fact that none of Pena’s horses tested positive for the drugs before the racing commission reviewing the veterinary records. Faraldo was one of the attorneys who called the case a “witch hunt,” saying that Pena’s success had bred jealousy on the backstretches and led to rumor and innuendo among factions that support efforts to overhaul medication rules and practices.

“This is purely a reflection of the incompetence in the failure of the board in being able to find out how this fellow is having this degree of success,” Faraldo said. “It’s a back-door trap, to make it appear that they are doing their jobs.”

Because Pena’s horses are stabled in New Jersey, the New York board cooperated with the New Jersey Racing Commission in order to gain access to the veterinary records. Faraldo said that factor introduced other legal questions, because in New Jersey, the treatments that Pena is alleged to have administered would have been legal as long as the horse did not test positive at a New Jersey track. It is believed that all the horses were treated in New Jersey by a New Jersey veterinarian.

Like Faraldo, Pincus contended that the board had overstepped its authority in using the veterinary records as the sole basis of its case.

“There’s no probable cause to look at his records,” Pincus said. “He had 1,700 violations and they never found a positive, not once? This is a book-keeping error. It’s not a drug violation.”

Martin, the RCI president, said in a speech last month during the RCI’s annual convention that racing commissions should consider adopting new rules that allow regulators to seize veterinary records and use the records as evidence in enforcing medication rules. By doing so, commissions could put in place a powerful deterrent to keep trainers from experimenting with therapeutic medications close to race time, especially when considering that many therapeutic medications are not regularly among the suite of drugs that are specifically targeted in postrace tests.

“In light of the very legitimate equine welfare concerns that exist, it is prudent for lawmakers to reassess whether their racing commissions have the proper jurisdictional tools, authority, and resources necessary to protect our horses, drivers, and riders as well as the betting public,” he said in a prepared statement this week in response to the Pena case. The New York board is a member of RCI, and its chairman, John Sabini, is the chairman of the RCI’s board.

Drew Mollica, an equine attorney, said that when he visited Belmont Park in New York on Memorial Day the Pena case was the dominant topic among Thoroughbred trainers at the track. Many of the trainers wondered if the New York board would soon set its sights on Thoroughbred veterinary records as well, Mollica said.

“There’s a lot going on here that is really troubling, all in the name of integrity,” Mollica said. “And there’s no question it sets a dangerous precedent.”

One of Pena’s attorneys, Todd Engel, said his client was innocent.

“It’s a perfect characterization of a witch hunt,” Engel said. “We will fight this. We believe he did nothing wrong, and that he did not act in any way that was not in the best interests of the horses or, to his knowledge, violate any rules.”