10/18/2016 4:57PM

Mott sues New York State Gaming Commission over lack of split sample for retest

Barbara D. Livingston
Trainer Bill Mott is appealing a 15-day suspension and a $1,000 fine for overages of two legal medications.

Whether horsemen in New York have the right to a split sample when notified of a positive drug test is at the heart of a lawsuit brought by Hall of Fame trainer Bill Mott against the New York State Gaming Commission.

Mott is appealing a 15-day suspension and a $1,000 fine handed him by the commission for overages of two legal medications found in the horse Saratoga Snacks when he finished last in the fourth race at Belmont Park on Sept. 20, 2014. The levels of the medications found in the horse were so high that Mott believes the tests were faulty.

Mott, as he believed was his right, requested a split sample be tested by an independent lab. However, Mott was told there was not enough blood remaining to be tested and that only the horse’s urine sample could be retested. While urine can confirm the presence of drugs in a horse’s system, it cannot determine at what levels.

Mott believes the inability to have a blood sample retested constitutes a denial of due process, and he has filed a lawsuit against the New York Gaming Commission in Nassau County Supreme Court.  The two sides are scheduled to be in court Oct. 27.

The Gaming Commission has delayed holding its own adjudication process until the state court acts.

Mott filed a suit in state court after a federal lawsuit he filed against the Gaming Commission in April 2015 was dismissed by Judge Sandra Feuerstein, who abstained from the case, referring it to the state level.

Mott contends horsemen have a right to a split sample since the Gaming Commission form he filled out requesting the independent test – also known as a referee test – states, in part, “I have been advised of my right to have an independent test . . .”

In court documents, the Gaming Commission says Mott “mistakenly characterizes the language of a former commission form as a formal rule or a contract. It is neither . . . No rule exists that requires the commission to guarantee the existing of a testable quality of residual sample.”

Lee Park, a spokesman for the Gaming Commission, said “if there is any remaining sample, then preserving that sample and making it available for testing is an obligation that we accept gladly. This is most easily conveyed to the horseperson by saying on the commission’s form that he or she has a ‘right’ to have the sample tested.”

Mott said he was shocked to learn that no such right exists.

“This is a problem for all horsemen,” Mott said Monday at his Belmont Park barn. “Apparently, this has gone on many times; I’m the only one that’s ever protested it. This has cost me a lot of money.”

Attorney Drew Mollica, who represents Mott, said this case “is shedding light on a dark, dark place.”

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Mollica contends that the state is now taking enough blood for referee tests and claims it was part of an agreement made between the New York Thoroughbred Horsemen’s Association and the Gaming Commission in August 2015. On Sept. 1, 2015, it was announced that NYTHA had purchased a $450,000 piece of equipment – a mass spectrometer – for the commission that enhances the state’s drug-testing capabilities.

Rick Violette, a New York-based trainer and president of NYTHA, said in an affidavit in the Mott case that in August 2015, “the Gaming Commission agreed with NYTHA to implement protocols to ensure that sufficient blood was drawn for purposes of referee/confirmatory testing by an independent laboratory.”

Dr. Scott Palmer, the state’s equine medical director, in an affidavit in this case, said that no such agreement was made. However, Palmer, in his affidavit, said that he “would be advising the state veterinarians under my supervision to collect two 10 cc tubes of blood samples [not just one] at NYRA races and that this should satisfy [Violette’s] concern, however misplaced, about remaining sample to permit independent, duplicate retests after our laboratory has reported a positive test result for drugs in a post-race sample.”

Park said any suggestion that the purchase of the equipment had anything to do with the state taking addition blood samples “would be patently false.”

Park did acknowledge that “several months ago the commission began collecting two blood samples from every horse tested at NYRA tracks to meet our demand for increased testing of blood samples by the laboratory, where the use of blood tests has been steadily increasing.”

Park said this likely would result in more remaining samples that could be made available to anyone whose horse has tested positive.

In Mott’s case, the levels of banamine and Lasix found in Saratoga Snacks were seven to 10 times the allowable thresholds. Further, it is a NYRA vet who administers the Lasix, and Mott said he only requested 3ccs, the minimum amount, be administered.

“Anybody could have looked at that test and said something’s wrong,” Mott said. “The test is flawed, but I can’t prove that.”

Added Mollica: “The only evidence against Mott is the alleged drug test, and there’s no way to verify it.”

Mott, who ranks third all-time among trainers in purse money won and ninth all-time in victories, said he is fighting the case at large expense to himself because he feels he did nothing wrong. He does believe all horsemen would benefit if he is successful.

“I’m sure nobody’s going to pat me on the back, but I’m kind of doing it for everybody because if we’re not careful this thing is going to be like a runaway freight train pretty soon,” he said. “We’ve got people setting threshold levels for a lot of these drugs and they’re classifying these drugs without enough science done on them.”