09/23/2010 12:24PM

Suspended jockeys mocking the system

Barbara D. Livingston
Paco Lopez and his attorney, Richard Schibell, went to the Supreme Court of New Jersey to get a stewards ruling overturned so he could serve a suspension after Monmouth’s summer meet ended.

Paco Lopez is something of a throwback jockey. Lopez, 24, grew up in poverty in a small town near Tierra Blanca, Mexico. At 12, he left home to work on a ranch and began riding Quarter Horses in his early teens. He learned his trade on bush tracks and won thousands of races. He has been riding Thoroughbreds for less than four years, but already his accomplishments include an Eclipse Award for leading apprentice and consecutive riding titles at the Meadowlands, Gulfstream, and, most recently, Monmouth.

Lopez is skilled, hungry, aggressive, and, at times, reckless. He calls to mind the early Latin American jockeys, such as the whirling dervish Manny Ycaza, who captivated railbirds beginning in the late 1950s. For his riding style, Lopez, like Ycaza, has made few friends, particularly among track stewards.

As a result of his aggressive style, Ycaza served 376 days in suspensions during his first six years and more than 750 days in his two-decade career. Though the comparison is imperfect, Lopez has largely avoided serious punishment on behalf of stewards.

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What has changed is the system, which one state steward described as “very jockey-friendly.” It is accepted wisdom now that jockeys collect shorter suspensions for careless riding and, afforded legal rights of due process, can appeal them almost ad infinitum and in the end serve the days at will.

“Ninety-eight percent of the appeals of suspensions that I witnessed during my career was to buy time,” said retired Hall of Fame jockey Jerry Bailey. “There’s no reason to do this. It’s bordering on the ridiculous now.”

Rather than in good faith, Bailey pointed out, the appeals are used as a vehicle to “run out the clock” until they are dropped during a quiet period in the racing calendar. The multi-layered appeals process has created a bureaucratic logjam for stewards and racing boards. Some states, such as New York, automatically reduce a suspension from seven to three days if a jockey does not appeal.

In addition, almost every major racing jurisdiction designates stakes races in which jockeys are allowed to ride during their suspensions. Rarely do jockeys contest the suspensions themselves, but rather the timing of when they will begin.

“The tail now wags the dog,” Bailey said. “The jockeys now dictate what the stewards can do instead of vice versa.”

Last month, in the final two weeks of Monmouth’s lucrative meet, Lopez found himself in the middle of a legal drama that will have lasting consequences for jockeys’ rights of appeal. At the same time, in California, two cases also paint a picture of the current system: In one, veteran jockey Patrick Valenzuela, once ruled off “permanently” by the racing board for substance abuse off the track, was allowed to resume riding there less than three years later; and in the other, young jockey Christian Santiago Reyes continues to ride while appealing suspensions totaling 63 days.

Beginning at Monmouth, Lopez received a three-day suspension from stewards for careless riding July 10, his second such offense of the meet. The racing commission granted him a conditional stay of that suspension, and the stay would be vacated if he committed a third offense during the meet.

On Aug. 13, stewards disqualified Lopez again after he crossed in front of another horse on the backstretch. Stewards imposed a five-day suspension, thus vacating the stay of his previous three-day suspension. Those eight days, beginning Sunday, Aug. 22, coincided with the final eight days of the meet. At the time, Lopez held a 10-win lead over Elvis Trujillo and Joe Bravo in the jockey standings, another title within his reach.

Lopez served the first day of his suspension. He hired an attorney, Richard Schibell, who filed an application for reconsideration to the racing commission, arguing that the suspension was “unduly burdensome and harsh,” Schibell said. That was denied. The appellate division in Monmouth County denied a hearing for the case.

Finally, they appealed by way of petition to the state Supreme Court, and, in what was considered a longshot, Judge Roberto A. Rivera-Soto overturned the lower court’s decision and granted them a hearing. The judge ruled Lopez could delay serving the rest of the suspension until after the meet.

Nobody could recall a jockeys’ appeal that had reached a state’s highest court, including Schibell, who called the case “precedent setting.”

In the hearing, Schibell argued that Lopez could never be adequately compensated for losing the chance to protect his lead.

“What we were saying is, you could never replicate this meet,” Schibell said. “It might not happen again.”

Schibell contested the punishment, not the content of the rulings. He said the racing commission had failed to adjust its penalty schedule for the shortened summer meet and that eight suspension days should have been only a couple in the new format.

In fact, the stewards did change the penalty schedule to fit a shorter meet. During the previous five years, the first offense for careless riding required a three-day suspension. (Before that, seven days were automatic.) This year, stewards gave jockeys the option of instead paying a $3,000 fine. Designed to accommodate the riders, that option was a no-brainer for Lopez and others.

The entry box had closed for Friday and Saturday when, that Wednesday, Lopez received permission to resume riding. He sat out three days in total. (There have been no formal hearings on his remaining five days.) Elvis Trujillo, the defending riding champion, who had also been granted a stay of a three-day suspension earlier in the meet for a second offense, mounted a spirited rally, only to fall two wins short of Lopez, 69 to 67.

The Monmouth riding colony was mum on the matter. Lopez’s agent, Cory Moran, referred all questions to Schibell. The executive director of the racing commission prohibited the stewards from commenting for this article. But the outcome engendered strong reactions inside and outside the jockeys’ room.

Danny Nied, a former jockey and the agent for Joe Bravo, who led jockeys in earnings, said he did not buy the argument that the suspension would have been detrimental to Lopez’s career.

“What they did was blow smoke up the New Jersey Supreme Court’s ass,” he said. “He makes $25,000 a week. How would that stop his career?”

Nied added: “They got away with it. The court doesn’t know our business.”

This was not new ground for Lopez. At Monmouth last year, he received eight days for two suspensions. In 2008, his undeniable talent, matched with his aggressive style, made him a rising star in his first full year riding in the country. At Calder, he accrued more than 60 days of suspensions and continued riding while appealing almost all of them. On Nov. 14, however, Churchill Downs Inc., the owner of Calder, took the rare action of barring Lopez, then the leading rider, from riding there or any other CDI-owned track until Jan. 2, 2009.

In California, a similar scenario is unfolding with Christian Santiago Reyes, who followed Lopez as the nation’s leading apprentice in 2009. Since May 13, stewards have handed the 21-year-old Reyes six suspensions for riding offenses totaling 36 days; four of those suspensions came at Del Mar. Following a recent hearing before the stewards, he also received a 30-day suspension for attempting to weigh out before a race with a prohibited item in his possession June 6. Except for three days that Reyes served, all of these suspensions are in different stages of appeal.

The American legal system, using California as an example, is bred for distance. Following an infraction in a race, stewards review the tapes the next day and issue a ruling. Jockeys have 72 hours to request a stay of the suspension with the racing commission so they can appeal the stewards’ decision. This is almost universal. The racing commission can deny or grant the request for a stay; some states grant them automatically, others rarely. These days in California most requests are denied, as has been the case for Reyes. It matters little.
If the request is granted, the stewards eventually hold formal hearings. If denied, the attorney immediately files a petition for a writ of mandate in Superior Court, saying the jockey has been deprived of his due process rights to appeal and should not serve the days until he has had a hearing. Bing Bush, who represents Reyes and most Southern California jockeys, said he has always been successful winning these motions.

At this point, the racing board schedules a hearing with an administrative law judge, who has 30 days to make a decision. That decision goes to the board again, which meets once a month. The board can approve, reject, or modify the judge’s decision. The rider would generally have to serve the days then, although he can appeal that decision, too. That would bring it back into the regular court system. Jockeys rarely win their appeals, but drop them and serve the days months later, as will probably be the case with Reyes.

This prolonged process is almost Kafkaesque. On Sept. 22, at its monthly meeting, the racing board was scheduled to consider the administrative law judge’s decisions on Reyes’s two riding suspensions at Hollywood Park in May, more than four months after they were issued. His more recent appeals have not gone to court yet because those suspensions couldn’t be served until the Oak Tree meet.

Asked if this was an abuse of the system, Bush said, “I think that’s a perception that some people have, but in many of the cases the suspensions are unwarranted.”

As an example, he disputed the 10-day suspension Reyes received in May for apparently grabbing another rider’s reins. He admitted that not all the appeals have the same merit.
“It’s not that Christian is perfect,” Bush said. “No rider is. There’s no doubt that he could improve on his riding as any rider could. We hope for a resolution to these cases.”

Stewards say the bureaucratic process is burdensome. They are far outnumbered by the number of jockeys at each racetrack. During the process, they have to hold formal hearings, handle excessive paperwork, call witnesses, make recordings, coordinate with the racing commission, and testify before the administrative law judges.

In their own interest, stewards have worked with jockeys to create a more favorable system. Penalties have become shorter and less frequent. The slate is wiped clean after a meet. Still, the flow of appeals has not abated. In Reyes’s case, it has been hard sometimes to bring him to a hearing. At Del Mar, stewards fined him $50 and $100 on two occasions for not attending.

Horse racing, to some extent, has followed the litigiousness of our society as a whole, with more lawyers, more lawsuits, and more money at stake. But this is a relatively new, albeit entrenched, state of affairs.

The original rules of racing were that the stewards were gods, and jockeys had to serve suspensions right away. They had no recourse. Pete Pedersen, a steward for six decades in Washington and California, recalled a story from his days at Longacres in the early 1960s. Jockey Lino Burgos constantly broke the rules and argued every decision.

“We finally sat him down and gave him the rule book and told him to open the section pertaining to rough riding,” Pedersen remembered. “One of us said, ‘Lino, you must remember that another rule is that the stewards’ decision is final.’ He tossed the book over his shoulder and said, ‘Why have a rules book?’ ”

Stewards could tell a jockey to pack his bags without any idea of appeal. Harsh punishments were not uncommon. The classic case involved Eddie Arcaro, who, in 1942, got into a lengthy jousting match with Vincent Nodarse during a race at Aqueduct. It ended when Arcaro forcefully knocked Nodarse off his mount and almost into the infield.

Chief steward Marshall Cassidy asked Arcaro what he was trying to do. With unvarnished honesty, Arcaro screamed, “I was trying to kill the son of a bitch.” Cassidy suspended him indefinitely, and Arcaro sat out for a year.

This was before film review, which also helped the stewards’ cause. Within two to four days of an infraction a jockey was on the bench, usually for a minimum of seven days. Bailey recalled sitting before legendary Kentucky steward Keene Daingerfield as a young rider and listening to his iron-clad rules.

“You knew what the rules were, and you followed them,” Bailey said. “If you crossed them, then you served the time.”

Angel Cordero Jr., also a retired Hall of Famer rider and no stranger to serving days, was one of the first jockeys to appeal his suspensions. In 1974, he was found guilty of “some rodeo tactics,” wrote Sports Illustrated’s Whitney Tower, in a race before that year’s Belmont Stakes and given a suspension that cost him the mount on Cannonade, his Derby winner. Cordero said he won the injunction, but Jorge Velasquez got the mount regardless. Cordero also recalled appealing a suspension so he could retain his mount on the Allen Jerkens-trained Step Nicely.

Cordero began the process, but others soon followed. As purses went up, jockeys wanted to hold onto their best horses in big races. Those at the top of the game started to earn enough money to hire attorneys and pay the costs of appealing in court.

Ultimately, racing commissions and stewards decided to designate races, such as graded stakes, that jockeys could ride while serving suspensions. California, for instance, instituted this policy eight years ago. Meant to stop the logjam of appeals, the opposite was true. “It let down the barrier,” Pedersen said.

One reason, he said, is that jockeys have found sympathetic audiences in administrative law judges. They view the appeals as disputes between employer and employees. In such a dispute, jockeys garner more support than racetracks. After all, few other professions require an ambulance to follow someone during his workday.

But more than some legal tête-à-tête, several former and current riders say safety issues are involved. There is no way to measure this other than anecdotally.

“I think there’s more rough riding than there used to be, because of the way suspensions are now,” said Cordero, who is the agent for John Velazquez.

With designated races and three-day suspensions, he said, a jockey will barrel through that hole.

“I don’t blame them either,” he said. “Good for them. They don’t lose much.”

But, according to Bailey, the system as it now stands penalizes most riders at the hands of the few who ride carelessly and appeal endlessly.

“A few riders will take advantage of the system, so you have to do it, too,” he said.

In dispute is not jockeys’ freedom to appeal, but the timeliness of the process.

“In my opinion, there should be a vehicle for a very quick appeal,” Bailey said, suggesting a 72-hour window, “and there should be more severe penalties for frivolous appeals.”

Penalties for frivolous appeals are almost unheard of, but in Kentucky, the racing commission has started to issue them.

In January, the commission doubled a three-day suspension Calvin Borel received in November for careless riding. Borel appealed and rode the rest of the Churchill fall meet, winning the riding title, and then dropped his appeal in December.

The commission saw that as a way for Borel to avoid serving the days until a quiet part of the schedule. The decision to double the appeal reflected the commission’s desire to discourage that practice among jockeys and trainers, a practice that had become commonplace and expected.

“We’re trying to put a stop to these frivolous appeals,” Lisa Underwood, the commission’s executive director, said at the time.