05/11/2009 12:00AM

Time to close Preakness loophole

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It wasn't exactly Franklin Roosevelt trying to pack the Supreme Court with a group of younger judges, more supportive of his besieged New Deal programs. But the idea floated by racehorse owners Ahmed Zayat of Pioneerof the Nile and Mark Allen of Mine That Bird - to stuff the Preakness starting gate full of unworthy animals just to keep Rachel Alexandra in the barn - had the same odor of rancid desperation.

Roosevelt could almost be forgiven, at least in political terms, for his attempt. It was 1937, the country was still a long way from economic revival, and the high court had declared eight of the President's recovery programs unconstitutional. As it turned out, the mere threat of such a radical change in the Supreme Court was enough to shift its votes on a number of key New Deal cases, and Roosevelt's court proposal was dropped.

Listening to their inner Frances Genter, Allen and Zayat backed away from the tacky Preakness plan, but not before every blog jockey worth his uniform resource locator weighed in with a ferocious flurry of dope slaps. Folksy Allen played the "Dang, ma'am, I sure as heck didn't mean no harm" card, while Zayat threw Allen under the bus and pretty much said it was the other guy's idea in the first place.

If the Preakness eligibility wording had been more precise, and the interpretation of Rachel Alexandra's status as a likely supplementary nominee been less fuzzy, there would have been no chance for Zayat and Allen to even think about playing schoolyard bullies. The idea of a horse "properly nominated" sounds more like a penmanship critique than a basis on which to mount a solid legal defense. If a hundred-grand doesn't get a man's horse properly nominated and then some, I don't know what would.

But this has happened before, and will happen again, as long as racing makes up the rules as is goes along, from state to state, year to year. The fact that businessmen such as Zayat and Allen would see such a juicy loophole and get ready to pounce speaks more to how they might comport themselves in areas of endeavor beyond horse racing. But that's not horse racing's problem.

Strangely enough, the possible Preakness stuffing is not the first significant squabble over entry into a high-profile event. Sherman, set the way-back machine to 1981 and the Kentucky Derby, which attracted 22 entries for a 20-horse field.

Numbers 21 and 22 were Mythical Ruler, who won the Spiral Stakes at Latonia that year, and Flying Nashua, who took the San Vicente at Santa Anita. Their owners went to court to challenge the field selection rule - then based on all earnings - and won. After a scratch, Flying Nashua finished eighth to Pleasant Colony and Mythical Ruler ran 17th. The earnings rules were tightened and have not been successfully challenged since.

Among entry embarrassments, my personal favorite occurred in 1982, illustrating institutional hubris more than abuse of technicalities.

When the list of invitations to the prestigious Marlboro Cup were announced, owner Aaron Jones was stunned to discover that his Vaguely Noble colt Lemhi Gold had not been included. Jones was told by New York racing officials that they presumed his horse was a turf horse - after all he had only won the Sword Dancer and the San Juan Capistrano, while finishing fourth in the Whitney - prompting Jones to shoot back that they should let him decide if Lemhi Gold was a turf horse or not. Chastised, the New York Racing Association issued a late invitation and plopped Lemhi Gold at the bottom of the handicap, with 115 pounds. He proceeded to win the Cup by 8 3/4 lengths, which was not bad for a turf horse.

Then there was the 1991 Breeders' Cup at Churchill Downs, when former Breeders' Cup president C. Gibson Downing took the Breeders' Cup to the Kentucky Racing Commission for not allowing his modest allowance horse Cameroon to be entered in the oversubscribed Breeders' Cup Turf. When Downing was rebuffed by the commission, he appealed to the judicial system, but a hearing could not be scheduled before the race. So the Turf went without Cameroon, who ended up well beaten in a small stakes event the day after the Breeders' Cup was run.

"We were sweating bullets," said Ted Bassett, the retired chairman of Keeneland who was Breeders' Cup president at the time. "And the fact that he was a past president made it difficult, because it wasn't really in the best interests of Breeders' Cup. But rules are rules. Cameroon was well down the list of alternates, and the field had been confirmed - at that time seven were in on points and seven selected by committee."

Bassett, whose entertaining autobiography "My Life" was published this spring, suggested that the Preakness powers, "better update the provisions of those nominations," or there could be more chances for confusion and abuse.

The whole system of eligibility could use an overhaul. Nomination fees are aggressively hustled in events like the Triple Crown and Breeders' Cup, and it's a great scam. Consider, for instance, that nomination, entry, and starting fees for the Kentucky Derby can represent more than half the advertised $2 million purse.

However, owners must understand (and most of them do) that the simple acts of nomination and entry - no matter what the cost - buy access to a race, not control. Horses would need to emerge from the woodwork, but as it stands, it is still possible that Rachel Alexandra could be excluded from the Preakness, in full keeping with the rules. Just because Zayat and Allen have stepped away from the cliff, doesn't mean the temptation to jump has disappeared.