Is a foul a foul?

Four and a half years and 2,071 miles apart, stewards on opposite sides of the nation faced a similar dilemma: whether or not interference in two of the most important races in the world—the $5 million 2014 Breeders’ Cup Classic at Santa Anita and the 2019 $3 million Kentucky Derby at Churchill Downs—had occurred, and if it had, whether or not that justified the disqualification of the winning horse.  Wouldn’t it have been great if both sets of stewards had uniform rules to help make those incredibly difficult decisions affecting all the horses’ connections as well as millions of bettors and fans around the world?  Horse racing in North America having uniform rules would be a dream come true. Different rules in different states is an ongoing nightmare. “It’s a joke,” said Bennet Liebman, a former member of the New York State Racing and Wagering Board from 1988 through 2000, who is currently the government lawyer in residence at the Albany Law School. “It’s a freaking joke.”  Nobody’s laughing.  Other than North America, racing jurisdictions around the world use Category 1 rules on interference that mandates a disqualification only if the horse who committed the foul gained from the interference. Penalties are severe for jockeys who commit a foul resulting in a disqualification: suspensions and fines which increase with repeated infractions.  North America is in Category 2, which mandates disqualification only if the interference “in the opinion of the stewards” affected the order of finish or compromised the fouled horse’s chances of a better placing. Different language, terms and standards within those individual states’ rules make it even more confusing.  Japan, which switched from Category 2 to 1 in 2013, saw a drastic reduction from 143 inquires in 2012 to 25 in 2013. In 2017, there were only nine inquiries.  The catalyst for Japan’s decision came after a controversial disqualification in one of its most cherished races, the 2010 Japan Cup. The popular favorite in the race, Buena Vista, won by two lengths but was disqualified and placed second because the stewards ruled that she had shifted in and cost Rose Kingdom a chance at a better placing,  Kim Kelly, chief steward of the Hong Kong Jockey Club and chairman of the International Federation of Horseracing Authorities (IFHA) Harmonization Rules Committee, spoke about the effect of that disqualification at the International Conference of Horseracing Authorities in Paris on October 8, 2018: “The demotion of Buena Vista caused considerable consternation both within Japan and internationally as the horse which was overwhelmingly the best on the day was placed behind a horse which was demonstrably inferior. Even the trainer of the horse which was elevated to the winner of the race was quoted as saying that he had `mixed feelings’ about the result.”  Kelly continued, “The silver lining to what clearly was a less than ideal outcome was that the Japan Racing Association reacted positively to the international comment on the result by seeking assistance of the Harmonization Committee in changing to the Category 1 philosophy. It is indisputable that had Category 1 been in operation in Japan in 2010 then Buena Vista would have rightfully retained the race. The decision of the Japanese Racing Association to change to Category 1 was a brave one for which they deserve tremendous credit. To recognize that change was necessary and in the best interests of the sport, and to completely change a racing interference culture dating back decades was a significant moment for the JRA.”  More recently, both France and Germany, the last two European countries using Category 2, switched to Category 1 at the beginning of their 2018 seasons. They were followed by Panama, the last country in Latin America using Category 2, which switched to Category 1 in September 2018.  “Since January 1, 2019, North America is the only racing jurisdiction using Category 2,” Cathy O’Meara, program coordinator for the Racing Officials Accreditation Program, said.  But in reality, both categories have their deficiencies. “Category 1 makes for easy decisions, but it seems like anything goes,” Liebman said. “If I cut somebody off and it costs him one length, no big deal. They’re not going to take me down. I think our system doesn’t go far enough, and theirs see seem to go too far. Our system is so confusing affecting the outcome. It was easier when a foul was always a foul.”  That didn’t prevent a major controversy in 2002 which ultimately led to a change in New York’s racing rules. On August 19 at Saratoga, Silver Squire and his jockey Richard Migliore came in slightly in mid-stretch on the way to a 5 ¾ length victory. Just four days earlier, Migliore rode Doc’s Doll when she finished second after being bumped by the winner Roses for Sonja. “They posted the inquiry sign but left the number up because they said it didn’t affect the outcome,” Migliore said. He expected a similar result with Silver Squire. The official chart of the race said Silver Squire “lugged in a bit while blowing by the leaders.” Regardless, the stewards disqualified Silver Squire. Migliore ripped a phone out of the wall in the jockey’s room, got dressed and took off the rest of his mounts, actions which prompted a $2,000 fine.  Dr. Ted Hill, one of the three stewards along with John Joyce and David Hicks who collectively voted to disqualify Silver Squire, empathized with Migliore. “That was a tough pill to swallow,” Hill said last month. Hill, a former chief examining veterinarian at Aqueduct, Belmont Park and Saratoga, was a New York Racing Association steward from 1996 through 2015.  Both Hill and Liebman said that race was a catalyst in changing the New York State rule on interference in 2004 to say a horse may be disqualified “if the foul altered the finish of the race” or “if he interferes with, impedes or intimidates another horse.”  Liebman said, “The rule was rewritten very badly. It reads very strangely. The point of it was now you take into consideration whether it affects a position. How do you determine that?”  That’s a decision stewards in each state must make based on its state’s rules, definitions and terms, which vary from state to state across the country. Sixteen years after Silver Squire’s disqualification at Saratoga, Daily Racing Form handicapper Mike Watchmaker wrote this of the 2018 Saratoga meet: “It is not hyperbole to suggest the inconsistency from the stewards at Saratoga meet was among the worst ever seen. It’s not even a stretch to make that claim. It’s a valid position. Forget about the demonstrable evidence that what was a foul one day was not another day. No one knew from race to race what an actionable foul was. If felt like the goalposts were always moving.”  The NFL didn’t have that problem, but it took a lot of criticism this year when a controversial non-call of pass interference at the end of the New Orleans Saints and Los Angeles Rams game resulted in a Rams’ victory in the NFC Championship Game January 20. Can anyone imagine the bedlam that would have ensued if there had been different rules about pass interference in Louisiana and in California—that it was not a penalty in Louisiana where the game was played, but is a penalty in California?  “We need to determine which philosophy we want and uniformly have Category 1 or Category 2 rules,” O’Meara said. “Now is the time to deal with it.”  How did the stewards deal with those two decisions in the 2014 Breeders’ Cup Classic and this year’s 2019 Kentucky Derby?  In 2014, the speedster Bayern went from the seven post. On his immediate inside in post six was Shared Belief, the undefeated favorite. In the four post was Moreno, a longshot speedball.  At the start, Bayern immediately veered inward, slamming Shared Belief hard enough to create a chain reaction, which affected both the horse in post five, V.E. Day, and Moreno. The incident was so blatant that the track announcer called it live, saying Bayern “may have impeded” other horses.  Without Moreno to push him, Bayern went unchallenged on the front end early and wound up winning by a nose. Shared Belief, who was steadied a second time after his compromised start, finished fourth. Writing about the race for the  Daily Racing Form , Jay Privman said, “Bayern led from start to finish after clobbering several rivals at the start but was left the winner by the stewards after a lengthy inquiry.”  In Privman’s story, he named the three stewards, Kim Sawyer, Scott Chaney and Tom Ward, and quoted Sawyer saying, “When the contact occurred at the start, according to the rules, we thought the horse (Shared Belief) was not cost a better placing.”  Privman also wrote that the decision by the stewards was unanimous, and that 90 minutes after the race, the California Horse Racing Board released a statement from Chaney that said in part, “The incident occurred in a part of the race where the horses interfered with were not cost the opportunity to place where they reasonably expected to finish.”  That statement defies logic, common sense and any understanding of the dynamics of a race. How could Shared Belief, the undefeated favorite who rallied for fourth despite the incident at the start and a second incident because of that poor start, not have finished better than fourth? He wasn’t “expected to finish” fourth; rather he was expected to finish first because he was the undefeated favorite.  Shared Belief’s jockey, Mike Smith, told Privman, “I think it cost him the race. I was never able to get comfortable after getting hit at the break.”  And what of Bayern? Given the fact that even with being loose on the lead, he barely won by a nose. With Moreno pressing him for any part of the race, it would be logical to conclude he wouldn’t have won.  If Category 1 had been used, Bayern’s action was a perfect example of a horse gaining an advantage because of the foul he committed. But California used Category 2. Even so, it’s hard to fathom the race not producing markedly different results had the incident not occurred.  The unsaid message sent by the stewards was “anything goes at the start of a race, including plowing into the horse to beat and wiping out the only other speed horse in the race to win by a narrow margin.”  More telling was that after the incident, a part of the California rule on interference was changed, deleting a mention of what part in the race the foul had occurred.  Suffice to say, there was blatant contact at the start, a narrow victory by the horse who committed the foul, and a decision by those stewards to let the original order of finish stand.  Contrast that decision with this year’s Kentucky Derby, when the 1 ¾-length winner, Maximum Security, became the first winner in the Derby’s 145-year history to be disqualified for an incident around the far turn. Replays clearly showed no contact, but that Maximum Security’s legs drifted into the path of War of Will’s legs on his outside. That forced War of Will’s jockey, Tyler Gaffalione, to take up and also caused two other horses, Long Range Toddy and Bodexpress, to take up, while the horse immediately outside those horses, Country House, did not appear to be affected.  The incident became even more confusing when the rider of Country House, Flavien Prat, claimed foul after finishing second, and Long Range Toddy’s jockey Jon Court claimed foul after finishing 17th, but War of Will’s jockey, Tyler Gaffalione, didn’t claim foul after finishing eighth.  One fact seemed to be accepted by just about everyone is that Maximum Security saw something or heard something in the infield, which caused him to switch leads and drift right. But Maximum Security’s rider, Luis Saez, immediately grabbed his horse to get him back running straight, and then drew away to win the Derby by nearly two lengths.  A second fact widely accepted is that it was practically a miracle that one of the affected horses didn’t clip heels with another horse, which would have caused a massive accident, possibly leading to significant injuries or even fatalities of jockeys and horses.  With the ongoing drama of the 30 horses who have died at Santa Anita in the last six months, a tragic Kentucky Derby accident could have brought Thoroughbred racing to its knees.  The three Kentucky Derby stewards, Chief Barbara Borden, Brooks Becraft and Tyler Picklesimer, were in a no-win decision. If they did not disqualify Maximum Security, there would have been complaints that racing did not protect the safety of the affected horses. With a disqualification, the stewards would be making Derby history for all the wrong reasons.  Citing that Maximum Security had “impacted the progress” of War of Will, Long Range Toddy and Bodexpress, the stewards took down Maximum Security, the 9-2 second choice, creating a ton of unhappy fans, bettors, horsemen and casual observers. Then they gave Saez a ridiculously severe suspension of 15 days. As soon as Maximum Security changed course when he spooked, Saez took a hold of him and straightened him out. If the stewards decided Saez had to be disciplined because Maximum Security caused two other horses to check, and because Maximum Security was disqualified, a five-day suspension would have made a lot more sense than 15 days.  Again, if Churchill Downs used Category 1 rules of interference, the decision would have been easy because Maximum Security actually lost a bit of momentum when he drifted, then resurged to win by a considerable margin. He hadn’t gained by the interference he committed, and he had been much the best horse in the Derby.  That’s exactly the point Kim Kelly made in a story in the  South China Morning Post  the day after the Kentucky Derby. “He [Maximum Security] was the dominant horse in the race,” Kelly said. “No case could be successfully argued that those horses, if not for that interference, would have finished in front of him.”  Kelly has been invited to speak about the advantage of the Category 1 rules of interference at the Jockey Club Round Table this summer August 11 in Saratoga Springs. Kelly had already gone on record about the importance of uniform rules on interference at the International Conference of Horseracing Authorities in Paris in 2018: “Conflicting rules have the potential to negatively impact owners, trainers and jockeys traveling between jurisdictions. They can be in conflict with each other. Uniformity is crucial for the sport.”  This is the IFHA Model Rule on Interference: “If, in the opinion of the Staging Authority’s relevant judicial body, a horse or its rider causes interference and finishes in front of the horse interfered with, but irrespective of the of the incident, the suffered would not have finished ahead of the horse causing the interference, the judge’s placings will remain unaltered.”  Kelly said he hopes the dissatisfaction over this year’s Kentucky Derby winner being disqualified will induce the United States to switch from Category 2 to Category 1.  But, unlike every other racing jurisdiction in the world, there is no central racing authority in the United States able to make that decision. We are left with each state’s independent racing commissions, whose common denominator is preserving its power and its existence with hundreds if not thousands of patronage jobs hanging in the balance.  Is it wishful thinking to have a national racing authority in the United States? Does the NFL, MLB, the NBA and the NCAA have separate rules, state by state? Of course not.  Choosing Category 1 or Category 2 isn’t as important as choosing one or the other for the entire country. “It should be obvious that we need national uniformity in our race rules,” Liebman said. “There no longer are meaningful borders between states. Everyone bets on everything. It’s a no-brainer to have a uniform rule. We have a mess on our hands.”

By Bill Heller

Four and a half years and 2,071 miles apart, stewards on opposite sides of the nation faced a similar dilemma: whether or not interference in two of the most important races in the world—the $5 million 2014 Breeders’ Cup Classic at Santa Anita and the 2019 $3 million Kentucky Derby at Churchill Downs—had occurred, and if it had, whether or not that justified the disqualification of the winning horse.

Wouldn’t it have been great if both sets of stewards had uniform rules to help make those incredibly difficult decisions affecting all the horses’ connections as well as millions of bettors and fans around the world?

Horse racing in North America having uniform rules would be a dream come true. Different rules in different states is an ongoing nightmare. “It’s a joke,” said Bennet Liebman, a former member of the New York State Racing and Wagering Board from 1988 through 2000, who is currently the government lawyer in residence at the Albany Law School. “It’s a freaking joke.”

Nobody’s laughing.

Other than North America, racing jurisdictions around the world use Category 1 rules on interference that mandates a disqualification only if the horse who committed the foul gained from the interference. Penalties are severe for jockeys who commit a foul resulting in a disqualification: suspensions and fines which increase with repeated infractions.

North America is in Category 2, which mandates disqualification only if the interference “in the opinion of the stewards” affected the order of finish or compromised the fouled horse’s chances of a better placing. Different language, terms and standards within those individual states’ rules make it even more confusing.

Japan, which switched from Category 2 to 1 in 2013, saw a drastic reduction from 143 inquires in 2012 to 25 in 2013. In 2017, there were only nine inquiries.

The catalyst for Japan’s decision came after a controversial disqualification in one of its most cherished races, the 2010 Japan Cup. The popular favorite in the race, Buena Vista, won by two lengths but was disqualified and placed second because the stewards ruled that she had shifted in and cost Rose Kingdom a chance at a better placing,

Kim Kelly, chief steward of the Hong Kong Jockey Club and chairman of the International Federation of Horseracing Authorities (IFHA) Harmonization Rules Committee, spoke about the effect of that disqualification at the International Conference of Horseracing Authorities in Paris on October 8, 2018: “The demotion of Buena Vista caused considerable consternation both within Japan and internationally as the horse which was overwhelmingly the best on the day was placed behind a horse which was demonstrably inferior. Even the trainer of the horse which was elevated to the winner of the race was quoted as saying that he had `mixed feelings’ about the result.”

Kelly continued, “The silver lining to what clearly was a less than ideal outcome was that the Japan Racing Association reacted positively to the international comment on the result by seeking assistance of the Harmonization Committee in changing to the Category 1 philosophy. It is indisputable that had Category 1 been in operation in Japan in 2010 then Buena Vista would have rightfully retained the race. The decision of the Japanese Racing Association to change to Category 1 was a brave one for which they deserve tremendous credit. To recognize that change was necessary and in the best interests of the sport, and to completely change a racing interference culture dating back decades was a significant moment for the JRA.”

More recently, both France and Germany, the last two European countries using Category 2, switched to Category 1 at the beginning of their 2018 seasons. They were followed by Panama, the last country in Latin America using Category 2, which switched to Category 1 in September 2018. 

“Since January 1, 2019, North America is the only racing jurisdiction using Category 2,” Cathy O’Meara, program coordinator for the Racing Officials Accreditation Program, said. 

But in reality, both categories have their deficiencies. “Category 1 makes for easy decisions, but it seems like anything goes,” Liebman said. “If I cut somebody off and it costs him one length, no big deal. They’re not going to take me down. I think our system doesn’t go far enough, and theirs see seem to go too far. Our system is so confusing affecting the outcome. It was easier when a foul was always a foul.”

That didn’t prevent a major controversy in 2002 which ultimately led to a change in New York’s racing rules. On August 19 at Saratoga, Silver Squire and his jockey Richard Migliore came in slightly in mid-stretch on the way to a 5 ¾ length victory. Just four days earlier, Migliore rode Doc’s Doll when she finished second after being bumped by the winner Roses for Sonja. “They posted the inquiry sign but left the number up because they said it didn’t affect the outcome,” Migliore said. He expected a similar result with Silver Squire. The official chart of the race said Silver Squire “lugged in a bit while blowing by the leaders.” Regardless, the stewards disqualified Silver Squire. Migliore ripped a phone out of the wall in the jockey’s room, got dressed and took off the rest of his mounts, actions which prompted a $2,000 fine.

Dr. Ted Hill, one of the three stewards along with John Joyce and David Hicks who collectively voted to disqualify Silver Squire, empathized with Migliore. “That was a tough pill to swallow,” Hill said last month. Hill, a former chief examining veterinarian at Aqueduct, Belmont Park and Saratoga, was a New York Racing Association steward from 1996 through 2015.

Scott Serio

Both Hill and Liebman said that race was a catalyst in changing the New York State rule on interference in 2004 to say a horse may be disqualified “if the foul altered the finish of the race” or “if he interferes with, impedes or intimidates another horse.”

Liebman said, “The rule was rewritten very badly. It reads very strangely. The point of it was now you take into consideration whether it affects a position. How do you determine that?”

That’s a decision stewards in each state must make based on its state’s rules, definitions and terms, which vary from state to state across the country. Sixteen years after Silver Squire’s disqualification at Saratoga, Daily Racing Form handicapper Mike Watchmaker wrote this of the 2018 Saratoga meet: “It is not hyperbole to suggest the inconsistency from the stewards at Saratoga meet was among the worst ever seen. It’s not even a stretch to make that claim. It’s a valid position. Forget about the demonstrable evidence that what was a foul one day was not another day. No one knew from race to race what an actionable foul was. If felt like the goalposts were always moving.”  

The NFL didn’t have that problem, but it took a lot of criticism this year when a controversial non-call of pass interference at the end of the New Orleans Saints and Los Angeles Rams game resulted in a Rams’ victory in the NFC Championship Game January 20. Can anyone imagine the bedlam that would have ensued if there had been different rules about pass interference in Louisiana and in California—that it was not a penalty in Louisiana where the game was played, but is a penalty in California?

“We need to determine which philosophy we want and uniformly have Category 1 or Category 2 rules,” O’Meara said. “Now is the time to deal with it.”

How did the stewards deal with those two decisions in the 2014 Breeders’ Cup Classic and this year’s 2019 Kentucky Derby?

In 2014, the speedster Bayern went from the seven post. On his immediate inside in post six was Shared Belief, the undefeated favorite. In the four post was Moreno, a longshot speedball.

At the start, Bayern immediately veered inward, slamming Shared Belief hard enough to create a chain reaction, which affected both the horse in post five, V.E. Day, and Moreno. The incident was so blatant that the track announcer called it live, saying Bayern “may have impeded” other horses…

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