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When Payday turns to 'Someday' - Getting paid for your work as a trainer

By Peter J. Sacopulos

Recent lawsuits are shining a light on one of Thoroughbred racing’s ongoing problems: owners who do not pay their bills. Trainers often top the list of those who get stiffed. What can you do to protect your business and help ensure you are paid for your services? And what are your options when a client does not pay?

A trainer’s dream

Growing up on a farm in Indiana, Frank seemed to have been born with a knack for horses. By his mid-twenties, he had begun training Thoroughbreds and was looking for clients he could build a business on. Walter, an investment banker from Indianapolis who loves racing, purchased a promising Thoroughbred named Rocketastic and needed a trainer. Walter had heard good things about Frank, and after watching “the kid” work with a horse at the track, a deal was struck. 

Frank agreed to train Rocketastic for $100 a day, or $3,000 a month. This amount included the cost of feeding and stabling the horse in Frank’s small barn. The men shook hands, and Frank trailered the horse home. Rocketastic chalked up impressive fractions and earned his gate card. Official works were logged and approved. The owner and trainer agreed that three or four starts during the two-year-old season seemed reasonable. Walter mailed Frank a check at the end of every month to pay for training and expenses during the previous 30 days.

Rocketastic had the makings of a real contender. But early in the season, the horse suffered disappointing starts. Adding to Frank and Walter’s frustrations, the local racing secretary repeatedly wrote races that kept Rocketastic off the track on race day

The money stops

Frank was confident it would all work out. But by late August, he had not received payment for his work in July. Frank felt certain this was an oversight on Walter’s part. After all, he and Walter shared a good working relationship and a common goal. Frank understood that Rocketastic was not earning his keep, but Walter appeared to have plenty of money to cover costs. The owner was well dressed, sported a Rolex watch and drove a Porsche. He lived in a beautiful home in a gated community, and his children attended expensive private schools. 

When Frank called Walter about the lack of payment, the owner assured him that a check was already on the way. Frank continued to train Rocketastic, but by mid-September, neither the July nor the August payments had arrived. Frank again called Walter, who insisted there must be a problem with the mail. Frank grew skeptical after his local postmaster told him there had been no complaints of lost or stolen mail. Soon Frank’s calls to his client went unanswered and unreturned. Voicemails, emails and texts were ignored as well. 

Still, Frank was reluctant to give up on a promising horse, or the promises of its owner. By early November, Walter owed him over $13,000 in back pay and expenses. The lack of cashflow put tremendous stress on Frank’s business and his marriage. He did not know what to do or where to turn.

A recurring problem

The situation I have described is hypothetical, but it is based on numerous real-life complaints that I have heard from clients and potential clients. The fact that some owners do not pay their bills is a serious industry issue. It is known all too well by many who work in the industry. Anyone who thinks this is simply the result of trainers who lack business sense working with owners who lack horse sense should think again. Recently, the racing press has been filled with articles covering cases currently winding their way through the courts. Details vary, but the bottom line is the same: Trainers are not getting paid for their work. 

In this article, I will review high-profile cases and offer some pointers to help you avoid payment problems. I will also explore the options available when a client is unwilling to pay.

The Ramsey lawsuits

In March of this year, owner/breeders Ken and Sarah Ramsey were hit with back-to-back lawsuits. Each was filed on behalf of a trainer who claimed to be owed nearly $1 million in unpaid bills. The Ramseys are well-known Thoroughbred breeders and owners, with an impressive string of victories and a shelf full of Eclipse Awards to show for their efforts. 

Yet trainer Mike Maker’s suit alleged that the Ramseys had been behind on their training bills for years and owed him over $900,000. Another trainer, Wesley Ward, claimed the Ramseys owed him over $970,000 in unpaid bills, percentages of winnings and accumulated interest. Like Maker, Ward acknowledged that the Ramseys had paid some of their tab but alleged that the balance due had been in the high six figures for months and continued to grow.

Initially, it appeared these matters would be resolved out of court. Ken Ramsey told reporters that he had some cash flow problems but intended to pay both trainers. Unfortunately, Mike Maker’s legal team was back in court in July, claiming that the Ramseys failed to meet the agreed-upon payment schedule. In early August, Wesley Ward’s attorneys filed for summary judgement, stating that all payments from the Ramseys had ceased. 

Wesley Ward is another trainer to sue the Ramseys this year for allegedly failing to pay board and training bills

The Ramseys’ response revealed a major change in strategy. BloodHorse.com reported that the Ramseys’ new filing stated that there was no written agreement between Ward and the Ramseys on a day rate, what horses a rate should be applied to, or terms of payment. The filing also claimed that Ward had refused the Ramseys’ request to return 30 of their horses, and argued a potential lien on the animals would conflict with other statutes governing lawsuits in Kentucky. The filing also requested time to prepare a countersuit against Ward. As of this writing, it appears that all parties involved in both suits could be facing long, complicated legal battles.

Zayat’s legal woes

Meanwhile, a painful example of a long, complicated Thoroughbred legal battle continues to play out in the courts. At its center is Egyptian-born, Triple-Crown-winning owner Ahmed Zayat. Zayat, who founded and operated Zayat Stables, is the kind of larger-than-life character that racing enthusiasts love. Or love to hate. In 2015, the year American Pharaoh delivered Zayat Stables’ Triple Crown and Breeders’ Cup triumphs, Joe Drape of The New York Times described Ahmed Zayat as “flamboyant” and “controversial.”

Zayat made his fortune when his investment group bought, modernized and sold an Egyptian beverage company. He then set out to build a world-class Thoroughbred operation. Zayat spent big and enjoyed major successes, but he was sued by Fifth Third Bank in 2009 over an alleged $34 million in unpaid loans. He filed a countersuit, claiming the bank had engaged in predatory lending practices. Zayat Stables filed for Chapter 11 bankruptcy, allowing the company to continue doing business while attempting to deal with its debts. Legal proceedings soon revealed that Zayat owed significant sums to a number of creditors, including a total of $148,798 to trainers.

Ahmed Zayat and Mr Z at Churchill Downs 2015

Zayat Stables eventually came to terms with its creditors, including Fifth Third Bank. It emerged from bankruptcy and rode to glory with American Pharoah, among others. Then, in January 2020, history repeated. MGG Investments filed a lawsuit against Zayat Stables and Zayat family members, alleging the Thoroughbred operation had failed to pay back $23 million of a $30-million loan. Zayat filed a countersuit, alleging he was the victim of a predatory lender acting in bad faith, as he had done in 2015.

Accusations and allegations fly

Zayat’s ongoing legal struggles have taken many twists and turns, but I will do my best to summarize. MGG expanded its lawsuit, alleging that Zayat had conspired with family members and others to hide money and distort the value of assets, including horses and breeding rights. MGG also claimed that Zayat had sold assets that were to serve as collateral for its loan. A judge appointed a receiver to take control of Zayat Stables’ finances. Court proceedings again revealed a long list of unpaid bills, and some of Zayat’s many creditors filed legal actions of their own. 

In June 2020, a Kentucky judge ruled that Zayat owed MGG some $24.5 million in loan payments and interest, and dismissed many elements of Zayat’s countersuit. The judge also dismissed MGG’s claims against industry professionals who had done deals with Zayat Stables, but ruled that MGG could move forward with a fraud claim against Zayat. Ahmed Zayat filed Chapter 7 bankruptcy in September 2020. Most of his company’s assets, including Thoroughbreds, were auctioned off by the end of the year. This summer, Zayat’s bankruptcy attorney asked to be allowed to withdraw from the proceedings, claiming his client had racked up nearly $370,000 in unpaid legal bills.

Zayat Stables’ legal problems also revealed that the operation had run up a total of over $1.5 million in debts to a who’s who of Thoroughbred trainers, including Bob Baffert, Brad Cox, Mike Maker, Richard Baltas, Steve Asmussen, Todd Pletcher and Rudy Rodriquez. 

An ounce of prevention? 

As these events attest, there is no foolproof way to determine whether a client will pay a trainer. But there are some things you can do to protect yourself. Ideally, a trainer and an owner would sign a written contract detailing their arrangement, including the number of horses to be trained, the trainer’s day rate, terms of payment, etc. Written contracts benefit and protect both service providers and their clients, and are accepted as routine in most industries. Horse racing, however, is a notable exception.

Andrew Mollica has worked as racing official, broadcaster and an agent for top jockeys, among other things. In his forties, Mollica returned to college to earn a law degree. Based in New York, he currently practices law, with an emphasis on equine law. Mentioning contracts to Mollica draws a quick response. “I’ve worked in racing for nearly 45 years,” Mollica says, “and I’ve never seen one—not any kind of written agreement between an owner and a trainer. They don’t seem to exist!” 

Mollica’s not sure what an owner would do if a trainer asked for a written contract, or vice versa. Not that he thinks many would. “American Thoroughbred racing is a 21st-century industry run like an 18th-century enterprise. So much is done on handshake deals. Good or bad, that’s the way it is,” he says.

As an equine attorney and Thoroughbred owner myself, I know that suggesting you create a simple contract for your services and ask your clients to sign it may cause you to roll your eyes in disbelief. But it is still a good idea. Contracts can be awkward to ask for upfront, but they make all the difference when things go wrong. That is why the phrase “get it in writing” remains a business staple. 

If you do not have a contract, consider sending a follow-up letter or email to your client that outlines your understanding of the terms of your verbal agreement. If the owner thinks you have misunderstood the deal, he or she will likely respond regarding the areas in question. If there are differences, once those differences are resolved, I suggest sending an additional letter or email that documents exactly the agreed upon terms.

The upfront approach

Of course, you should always keep accurate records of your working hours and expenses. You should also consider requesting to be paid upfront. In the event you are training horses on a monthly payment schedule, request payment. If payment problems arise, you will know from the get-go. If you are not comfortable requesting the full amount in advance, consider requesting expenses for care and feeding. That can go a long way towards a solid cash flow. 

If you are concerned about entering a business relationship with an individual, you may conduct an online background check. Many reliable companies provide this service at a reasonable price, including Intelius, TruthFinder, BeenVerified, and others. A standard “people search” will typically review public records from the last seven years, should report any bankruptcies or criminal convictions, and does not require you to obtain permission of the person in question under current U.S. law. 

You may also consider conducting a credit check online. But be aware that credit checks are governed by strict federal regulations, as well as applicable state laws. In the United States, you must obtain written permission from the individual whose credit report you are requesting, among other requirements. You cannot legally conduct a “secret” credit check.

Remedies for unpaid bills

In the event the client/owner refuses to pay, what are your options? When this happens, act sooner rather than later, and document your communications with the client regarding the matter. Keep a written phone log listing calls and texts, save all emails, and keep copies of anything sent by mail. Once you have made a reasonable effort to get paid, contact an attorney, preferably one with equine experience. 

Every case is different, but here are some likely scenarios. Your attorney will contact the client, requesting the debt be paid to avoid legal proceedings. This alone may result in payment. Or it may result in acknowledgment of the monies owed and a negotiated payment schedule. If you are in possession of the horse (or horses), you will have to continue caring for and feeding the animal(s). Though this will increase the amount of expenses you are owed, you cannot simply neglect the horse. However, whether or not you continue to train the horse is your decision, and I suggest you make that decision with the help of your attorney.

Lawyers, liens and money 

If the owner refuses to make a good-faith effort to resolve the matter, and the horse is in your possession, your attorney will likely file for a lien. This powerful legal tool allows you to retain the horse as collateral until the debt is paid and retain or sell the horse if it is not. The specific term for this type of lien varies from state to state. It is commonly known as an agister’s lien, a stableman’s lien or a liveryman’s lien. The rules and regulations governing these liens vary by state, and it is important that you work with an experienced attorney when attempting to attain such a lien.

Obtaining an agister’s lien is a multi-step process. “If the horse is in your possession, and it’s worth more than the debt, you will get paid,” Andrew Mollica says. “But you have to follow the process.”

American Revolutionary War hero James Lawrence shouted, “Don’t give up the ship!” when the British attempted to board his vessel. “Don’t give up the horse!” is Andrew Mollica’s remarkably similar battle cry for trainers dealing with unpaid bills. Good advice, because in most states, if you return the animal to the owner or turn it over to officials, you may surrender your right to obtain or enforce an agister’s lien. If you are pressured to return the animal by anyone, inform them that you are in the process of obtaining a legal lien and have the right to retain the animal until the lien is issued. 

Many owners pay up when they learn of lien or possible auction. “They suddenly realize you’re serious and act accordingly,” Mollica notes. What if they still refuse to pay? If you auction the horse, in most states, you are entitled to what you are owed, plus legal expenses, including the cost of obtaining the lien, as well as the auction costs incurred. If the horse sells for more than what you are owed plus expenses, you are not entitled to keep the difference. You must send that money to the owner who hired you—no matter how much you resent them. If the horse sells for less than you are owed, you may pursue the remaining debt in court.

The bankrupt owner

Finally, if an owner who owes you money declares bankruptcy, hire an experienced attorney to file an official claim on your behalf with the bankruptcy court. The court will ultimately decide which creditors get paid how much and when. Filing a claim will not guarantee that you get paid the full amount you are owed. In fact, it will not guarantee that you get paid at all. However, failing to file a claim pretty much guarantees that you end up with nothing.

No trainer, no matter how skilled or successful, is infallible when it comes to sizing up which clients will pay their bills. Hopefully, these examples and recommendations will assist you in avoiding unpaid invoices, and help you obtain the money you are owed if payday ever turns to “someday.’


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The Horseracing Integrity and Safety Act: Review, analysis and concern

THE HORSERACING INTEGRITY AND SAFETY ACT: REVIEW, ANALYSIS AND CONCERNBy Peter J. SacopulosFor nearly a decade there has been an effort to have national legislation that governs Thoroughbred horse racing. The first major effort began in 2011, when the Interstate Horseracing Improvement Act of 2011—an attempt to amend the Interstate Horseracing Improvement Act of 1978—was introduced by Senator Tom Udall (D-NM). This bill was not successful. Another effort was advanced when, in 2015, Representative Andy Barr (R-KY) and Representative Paul Tonko (D-NY) introduced the Thoroughbred Horseracing Integrity Act. That same year, Representative Joe Pitt (R-PA) introduced the Horseracing Integrity and Safety Act (the first HISA). It too failed to pass. Fast forward to 2020: the Horseracing Integrity and Safety Act is introduced by Representatives Barr and Tonko and passes in the U.S. House of Representatives on September 29, 2020. Senator Mitch McConnell (R-KY) then introduced corresponding legislation in the Senate that was approved. On December 28, 2020, President Trump signed into law a government funding bill and COVID-relief package. Tucked away into this massive omnibus bill was the Horseracing Integrity and Safety Act (HISA).Since that time, there has been considerable reporting on HISA. Several issues have dominated the discussion of this new legislation. Those include the elimination of furosemide (also known as Lasix) on race day in two-year-olds and Stakes Thoroughbreds for the first three (3) years and, ultimately, in all Thoroughbreds after that. A second issue receiving attention is how the new federal bill that places the United States Anti-Doping Association (USADA) at the head of the recently established Horse Racing Anti-Doping and Medication Control Authority will be funded. Additionally, there has been and continues to be discussion of whether the HISA, which presently only governs Thoroughbred racing, will ultimately include both Standardbred and Quarter Horse racing, as well. However, there is a section of the HISA that is critically important to those in the Thoroughbred industry that has received limited discussion. That is Section 1209 of the HISA. For three primary reasons, Section 1209 of HISA is of particular concern for horsemen. First, it truncates the horsemen’s constitutionally protected right to due process. Second, instead of replacing the state system(s) of regulatory enforcement, the HISA creates a second system of review and enforcement for alleged medication and track safety violations that results in both additional expense and redundancy. Finally, the HISA, as presented, guarantees a multitude of constitutional challenges. Section 1209 of HISA entitled “Review of Final Decisions of the Authority” outlines the disciplinary process. Under the current systems, when a licensee elects to contest an alleged medication or safety violation, the dispute proceeds through an administrative law process followed by a judicial process. Specifically, in most jurisdictions, the licensee accused of violating a medication or safety rule or regulation is first provided the opportunity to present a defense/response to the Stewards at a Stewards’ hearing. If the Stewards’ ruling is not favorable to the licensee, he or she may appeal that decision. The appeal of the Stewards’ ruling is typically conducted by a state regulatory appointed administrative law judge (ALJ). The ALJ conducts a hearing on the merits and, in doing so, receives testimony and evidence from both the horseman/woman and the Commission. This is referred to as a merits hearing. At the conclusion of the merits hearing, the ALJ issues findings of fact, conclusions of law and a recommendation for a penalty or for no penalty. Either party may then appeal the decision/recommendation of the ALJ to the state commission for final administrative review. The ruling of the state commission, which in most jurisdictions constitutes the final stage of the administrative process, may also be timely appealed. It is at this juncture that the resolution process shifts from an administrative proceeding to a judicial proceeding via the filing of a petition for judicial review. Section 1209 of the HISA presents a departure from the current state regulatory system.The process for hearing and review set forth in Section 1209 of the HISA begins with the “Authority.” The HISA defines the Authority as a private, independent and self-regulated non-profit corporation, comprised of nine members. When a medication or safety violation is identified by the Authority, an investigation commences. If the Authority concludes a violation has occurred, then the Authority determines sanctions and, in doing so, files notice of the sanctions with the Federal Trade Commission (FTC). It is unclear whether these nine members will sit in judgment as “the Authority” for the initial stage of an alleged violation or whether a sub-committee of the Authority will do so. Section 1209 is also unclear as to whether the proceeding before the Authority is a hearing on the merits or not. This is critical to the horsemen because such a hearing establishes the record of the proceedings should the matter be appealed. What is clear is that the Authority replaces the current Stewards’ hearing in the present context of state commission proceedings. Section 1209 of the HISA does provide for the right to appeal a noticed civil sanction by the Authority. Within 30 days of the notice of sanction being filed by the Authority with the FTC, the sanctioned party may file an Application for Review of the Authority’s decision. If an appeal is taken, the dispute is submitted to an ALJ. Pursuant to Section 1208 of the HISA, the ALJs are to be “impartial hearing officers,” although the HISA ALJs appear to be employees or agents of the FTC. This is significant to horsemen because the ALJ that conducts the merit hearing and rules on the admissibility of evidence and testimony, and ultimately issues findings of fact, conclusions of law, and a recommended penalty, will apparently be an employee of the FTC. In short, one side selects, appoints and pays the ALJ. That side is not the horsemen but rather the FTC. Considering the great lengths to which the HISA defines and prohibits “Conflicts of Interest” this makes this provision difficult, at best, to square with legislation that contains a specific “Conflict of Interest” provision, that being Section 3(E) of the HISA.If either party is dissatisfied with the ALJ’s decision, they may then file an Application for Review with the Federal Trade Commission. The FTC may accept or \deny the application for review (appeal). This is significant. Should the Commission refuse an application for review, then the ALJ’s decision shall constitute the final decision of the Commission without further proceedings and may then be appealed to a federal court of law. Should the FTC accept an Application for Review and issue a ruling in connection with that application, that ruling constitutes a final ruling and is appealable. Whether the Application for Review is rejected by the FTC or, alternatively, accepted by the FTC and ruled upon adversely to the licensee, there is a right to a timely appeal to the United States Court of Appeals. Title 5, Chapter 7 of the United States Code provides for judicial review of agency action. Similar to a party petitioning for judicial review of a state agency’s decision before a state court, 5 USC § 702 entitled “Right of Review” provides that: “a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof….” See 5 USC §702. The scope of review, set forth in 5 USC § 706, is also similar to a petition for judicial review before a state court. This means the federal court will not retry the case on the merits. Instead, as is the case in most state court proceedings involving a petition seeking review of an agency’s final order, the federal court’s authority in reviewing a final order of the FTC is limited to: “…(1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions to be found to be- (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity;(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law;(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title…or otherwise reviewed on the record of an agency hearing provided by statute; or(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court….”Also similar to state court proceedings, parties subject to a decision of the U.S. Court of Appeals have the right to timely appeal. The court of last resort and final forum for appeal from an adverse decision issued by the U.S. Court of Appeals is the United States Supreme Court. Section 1209 of the HISA is of further concern to horsemen because it will result in additional expense and creates a redundancy regarding the review process. The HISA provides that the Authority will sit in review of alleged medication and track safety violations. However, non-medication and non-track safety violations will continue to be regulated, reviewed and enforced by state regulators/agencies. In short, there will be two paralleling systems. Proceedings before the Authority will be governed by the Code of Federal Regulations (CFR), Federal Trade Commission Regulations, the Administrative Procedures Act, and the Federal Rules of Evidence. If the licensee or “Covered Persons” is also accused of a non-medication or non-track safety violation, contemporaneous with a matter before the Authority, then that review process will proceed before a state agency and be governed by state administrative regulation, state rules of evidence and state regulatory rules. Therefore, a Thoroughbred trainer facing both medication violations and non-medication/non-track safety violations will be forced to navigate two paralleling disciplinary systems resulting in redundancy and additional expense to all involved. Further, these two paralleling systems of litigation may occur in different states. For example, the non-medication and non-track safety violations will be addressed by state regulators in the state in which the violation occurred. Medication and/or track safety violations will initially be heard by the Authority, likely in a different state. An initial Application for Review by an FTC-appointed ALJ, and a subsequent Application for Review may well be held at its offices in Washington, D.C. Further application for review will be heard before one of the 11 U.S. District Court of Appeals, more likely than not located in a state other than where the alleged violation occurred and, should there be a final appeal, that would occur before the U.S. Supreme Court in Washington, D.C. In summary, and to be clear, the HISA does not replace the entire review and enforcement function of the state commission. It does so only with regard to medication and track safety issues.The HISA is guaranteed to face multiple constitutional challenges by covered persons, horsemen associations, as well as constitutional “watchdog” groups. These are four anticipated constitutional challenges. First, that the HISA violates the Non-Delegation Doctrine of the United States Constitution. The Non-Delegation Doctrine provides that Congress is prevented from delegating legislative authority to any other entity. Second, that HISA violates the Appointment Clause of the U.S. Constitution. The Appointment Clause requires that appointments to public agencies be made only by the Executive Branch as set forth in Article II of the Constitution. Third, that HISA violates rules prohibiting Anti-Commandeering. The U.S. Supreme Court has held that Congress “may not issue direct orders to the governments of the states.” Congress may not commandeer the State’s offices or those of their political subdivisions to administer or enforce a federal regulatory program.The fourth anticipated constitutional challenge involves the Due Process Clause of the U.S. Constitution. The fourteenth amendment of the U.S. Constitution guarantees both procedural and substantive due process. Procedural due process requires the right to reasonable notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Substantive due process requires that there must be a rational relationship between a legitimate governmental purpose of a regulation (such as protecting the integrity of racing) and the means chosen for that desired end (the rules governing racing). The licensee/protected person’s due process rights, under the HISA, are at best, truncated. This is because the allegation of a medication and/or safety violation will be heard, on the merits, by an ALJ that is an employee, selected by, appointed by and paid by the overseeing regulatory agency—that being the FTC. Further, very, very few of those participating in horse racing will have the appetite or resources to appeal an ALJ’s findings of fact, conclusions of law and recommended order (assuming the FTC declines review) to a U.S. Court of Appeals. This is because such a legal proceeding costs thousands and thousands of dollars in fees. In short, due process is effectively eliminated by Section 1209, and the licensee/covered person is left with the “choice” of “take the deal” offered by the regulators. Additionally, the Due Process Clause of the U.S. Constitution prohibits an economically self-interested private actor from wielding regulatory power over private parties. The first constitutional challenge to the HISA which seeks declaratory and injunctive relief was filed on March 15, 2021, less than 100 days after the HISA was signed into law, a group of representative associations formally challenged the Horseracing Integrity and Safety Act. The party plaintiffs include the National Horsemen’s Benevolent and Protective Association (NHBPA) and its affiliate organizations in Arizona, Arkansas, Indiana, Illinois, Louisiana, Nebraska, Oklahoma, Oregon, Pennsylvania, and Washington. Also joining in as a plaintiff is the Mountaineer Park Horsemen’s Benevolent and Protective Association. This cause of action names as defendants the seven members of the Nominating Committee for the Horseracing Integrity and Safety Act, those being Jerry Black, Katrina Adams, Leonard Coleman, Jr., Nancy Cox, Joseph Dunford, Frank Keating, and Kenneth Schanzer. Also named as defendants are the Horseracing Integrity and Safety Authority, Inc, the FTC, the Acting Chair of the Federal Trade Commission, and the three Federal Trade Commissioners. This claim has been filed in the U.S. District Court for the Northern District of Texas. The plaintiffs seek an order declaring that the HISA delegates legislative authority to the Horseracing Integrity and Safety Act Authority in violation of the Non-Delegation Doctrine and that the HISA violates the Appointment Clause of the U.S. Constitution. Further, their action seeks a ruling and finding that the HISA violates the Due Process Clause of the U.S. Constitution because it provides the economically self-interested actors the power to regulate their competitors. Finally, the plaintiffs, by way of their complaint, seek a court order enjoining or prohibiting the defendants from taking any action to implement the Horseracing Integrity and Safety Act of 2020. The HISA, should it survive anticipated constitutional challenges, will have a major impact on those in the horse racing industry. Stay tuned. It is likely that HISA will remain a centerpiece of discussion and debate in our industry for the next several years.

By Peter J. Sacopulos

For nearly a decade there has been an effort to have national legislation that governs Thoroughbred horse racing. The first major effort began in 2011, when the Interstate Horseracing Improvement Act of 2011—an attempt to amend the Interstate Horseracing Improvement Act of 1978—was introduced by Senator Tom Udall (D-NM). This bill was not successful. Another effort was advanced when, in 2015, Representative Andy Barr (R-KY) and Representative Paul Tonko (D-NY) introduced the Thoroughbred Horseracing Integrity Act. That same year, Representative Joe Pitt (R-PA) introduced the Horseracing Integrity and Safety Act (the first HISA). It too failed to pass.

Fast forward to 2020: the Horseracing Integrity and Safety Act is introduced by Representatives Barr and Tonko and passes in the U.S. House of Representatives on September 29, 2020. Senator Mitch McConnell (R-KY) then introduced corresponding legislation in the Senate that was approved.

Senator Mitch McConnell and member groups representing the Horseracing Integrity and Safety Act meet at Keeneland, August 2020.

Senator Mitch McConnell and member groups representing the Horseracing Integrity and Safety Act meet at Keeneland, August 2020.

On December 28, 2020, President Trump signed into law a government funding bill and COVID-relief package. Tucked away into this massive omnibus bill was the Horseracing Integrity and Safety Act (HISA). Since that time, there has been considerable reporting on HISA. Several issues have dominated the discussion of this new legislation. Those include the elimination of furosemide (also known as Lasix) on race day in two-year-olds and Stakes Thoroughbreds for the first three (3) years and, ultimately, in all Thoroughbreds after that.

President Donald J. Trump signs the Consolidated Appropriations Act, 2021 which included the incorporation of the Horseracing Integrity and Safety Act, December 2020.

President Donald J. Trump signs the Consolidated Appropriations Act, 2021 which included the incorporation of the Horseracing Integrity and Safety Act, December 2020.

A second issue receiving attention is how the new federal bill that places the United States Anti-Doping Association (USADA) at the head of the recently established Horse Racing Anti-Doping and Medication Control Authority will be funded. Additionally, there has been and continues to be discussion of whether the HISA, which presently only governs Thoroughbred racing, will ultimately include both Standardbred and Quarter Horse racing, as well. However, there is a section of the HISA that is critically important to those in the Thoroughbred industry that has received limited discussion. That is Section 1209 of the HISA. For three primary reasons, Section 1209 of HISA is of particular concern for horsemen. First, it truncates the horsemen’s constitutionally protected right to due process. Second, instead of replacing the state system(s) of regulatory enforcement, the HISA creates a second system of review and enforcement for alleged medication and track safety violations that results in both additional expense and redundancy. Finally, the HISA, as presented, guarantees a multitude of constitutional challenges. Section 1209 of HISA entitled “Review of Final Decisions of the Authority” outlines the disciplinary process. Under the current systems, when a licensee elects to contest an alleged medication or safety violation, the dispute proceeds through an administrative law process followed by a judicial process. ….

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Justice on track - Real world lessons from a Thoroughbred court case

Justice on Track: Real-World Lessonsfrom a Thoroughbred Court Case By Peter J. Sacopulos Morning training of Thoroughbreds at tracks is standard to the industry. So too are exercise riders losing their mounts and loose horses. Less standard is a collision between horses resulting in civil litigation. This article examines such a case and several issues important to Thoroughbred trainers including the Sports Activity Doctrine.From Routine to UnforeseenMonday, May 7, 2018, dawned clear and cool at the Indiana Grand racetrack in Shelbyville, Ind. Jeremy Staley, who worked as an assistant groom for Michael E. Lauer Racing Stables, prepped a chestnut mare named Accessorizing for a routine morning training session. Accessorizing is owned by the trainer’s wife. The four-year-old had chalked up an impressive three first-place finishes in just under two years, and the Lauers were confident she had a bright future ahead.As expected, Mr. Staley met with a licensed jockey named Marcelle Martins. Martins had offered to exercise horses free of charge. Several trainers had taken her up on it, including Mike Lauer. Lauer had four decades of experience as a trainer and knew that Martins was a skilled horsewoman with a valid jockey license.Each received something of value from the transaction. For Lauer, it was the chance to test a potential hire while saving the expense of an exercise rider. For Martins, it was the chance to showcase her skills for a successful trainer and a shot at mounts in future races. Neither Martins nor Lauer presented or signed any paperwork. It was the kind of easy, informal agreement that happens all the time in professional horse racing.Martins mounted Accessorizing and began the workout. Of course, she was not the only rider on the track that day. A number of other exercise riders were putting horses through their paces, and the track’s outriders were on duty. Everything went as expected until Martins and Accessorizing rounded a turn. The mare began ignoring Martins’ commands. Martins was unable to gain control of the reins. Martins lost her balance and mount, and Accessorizing was loose and headed toward a group of horses that included Glitter Cat. Glitter Cat was owned by Civiol Cruz, who was taking his horse through its own morning exercise routine.Accessorizing collided with Glitter Cat. Cruz was thrown to the ground and injured. The clocker had sounded the loose horse alert. Cruz was loaded into an ambulance and taken to a local hospital. Martins was roughed up but did not require a trip to the ER. Remarkably, neither Accessorizing nor Glitter Cat sustained serious injuries.The LawsuitOn July 2, 2018, Civilo Cruz filed a civil lawsuit. The suit named the track, the training business, the owner/trainer, and Marcelle Martins as defendants. Cruz alleged in his complaint that the owner of the track failed to provide adequate safety precautions and protections. He also alleged that the existing safety systems, including the loose horse siren, failed to function properly. Cruz further alleged that, as owner/trainers, the Lauers knowingly allowed an unqualified employee to ride a dangerous horse, consciously putting others at risk. Finally, Cruz claimed Marcelle Martins was an unqualified exercise rider who had acted recklessly by losing control of her mount.Simply put, Cruz and his attorneys alleged that the defendants were responsible for the accident because they behaved recklessly and/or negligently. Cruz demanded the defendants pay his medical bills that totaled over $60,000. He also sought compensation for lost income and for pain and suffering.Insurance and LiabilityThe owner and trainer had purchased a ranch insurance policy. A ranch insurance policy is something of a hybrid between a consumer homeowner’s policy and a commercial policy. While policies vary, a ranch policy typically offers the protections of homeowner’s insurance, providing coverage for theft, burglary, fire and certain natural disasters. Similar to a homeowner’s policy, a ranch policy also offers specified levels of liability protection should someone be injured on the property. Ranch policies also include commercial protection, covering business assets and activities associated with the property, such as animals, equipment, and outbuildings. The policy’s liability protections extend to commercial activities as well. In many instances, a ranch policy may provide coverage beyond the physical location of the ranch. However, these policies vary.Therefore, had a visitor been injured by a horse on the Lauers’ Kentucky ranch, the company that issued the policy would have been involved in determining fault. If the injured party was not at fault, the policy would afford coverage within the limits of the policy. If an incident or injury resulted in a lawsuit, the insurer would provide a defense, including payment of legal costs and judgments per the limits of the policy.Confusion and misunderstandings about insurance coverage abound in the Thoroughbred racing world. What is clear is that trainers and owners should give serious consideration to securing business insurance that specifically covers equine athletic activity. A reputable equine insurance professional will ensure that you have a policy that fits your needs.Kevin Lavin, director of equine insurance at Sterling Thompson in Louisville, Ky., explains, “If an equine policy contains an athletic activity exclusion, a liability exposure exists for Thoroughbred trainers and owners.” Evan Beauchamp of Equine Insurance Specialists in Lexington notes: “At the bare minimum, trainers should have a liability policy that covers their training operation. In fact, in many areas, proof of liability coverage is required to participate in racing activities.”Mounting a DefenseThe defendants had a strong and solid defense to Mr. Cruz’ allegations. In fact, many points of the owner and trainer’s defense and the track’s defense overlapped.Counsel for the defendants moved that the case be dismissed before proceeding to trial. Such a dismissal is known as a “summary judgment.” A summary judgment is a motion seeking a ruling in favor of the moving party. To be successful, the moving party must show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law.It might be assumed that Indiana’s Equine Activity Law, which limits lawsuits against individuals and businesses involved in horse-related activities, played a role in these motions. However, in most states, the Equine Activity Statutes do not apply to horse racing. This meant the Sports Activity Doctrine formed the core of the defense.The Sports Activity Doctrine holds that, in most situations, an individual participating in a sport understands and accepts the inherent risks involved. Because the individual willingly exposes himself or herself to those risks, the Sports Activity Doctrine places limits on a participant’s ability to sue if he or she is injured. Of course, there are exceptions. If the injuries suffered are due to someone else’s negligence, recklessness, or intent to cause harm, legal action may establish that the injured party is owed a “duty of care.”The track, owner, and trainer asserted that Mr. Cruz had willingly and knowingly participated in a dangerous sports activity, accepting the risks involved. All defendants also asserted that the accident was of the type known to occur during such activity, and no one involved acted with recklessness, negligence, or the intent to harm. The track’s attorneys maintained that the safeguards it had in place were appropriate and functioning at the time of the accident. The owner and trainer pointed out that Marcelle Martins was licensed as a jockey by state regulators, and that her license qualified her to be an exercise rider, proving she was qualified to ride Accessorizing. Further, the owner and trainer’s defense maintained that Martins was not an employee, but rather an independent contractor.Employees and Independent ContractorsAn issue not decided by the trial court was whether Marcelle Martins was an employee or an independent contractor at the time of the incident. Martins had exercised horses for multiple trainers on the morning of May 7, 2018. The possibility of Martins being determined to be an employee of the trainer would have been contrary to the nature of the business. Therefore, the Lauers sought a determination of Marcelle Martins’ status on appeal.The issue of exercise riders being employees or independent contractors was not unique to this case. A brief discussion of the differences and distinctions between employee and independent contractor for trainers is important.Employees work directly for an individual or company. They are on the payroll, under the direction of the employer, and often receive benefits, such as sick time, paid vacation and health insurance. An employer is responsible for the actions of his/her employee(s) and specific payments toward an employee’s Social Security, unemployment insurance and Medicare funding.An independent contractor is an individual or company that operates as an independent business entity. Independent contractors often establish their own schedule, provide their own equipment, and are responsible for their own Social Security and Medicare payments. They are also typically responsible for their own business and health insurance retirement funding, and so on. Whether one is an employee or independent contract is a recurring issue in the racing business. Mr. Cruz argued that Ms. Martins was an employee; the owner and trainer argued that she was an independent contractor.Trainers retaining exercise riders or anyone else on a “per assignment” basis should establish that these individuals are independent contractors, not employees. Having a simple contractor agreement that is signed before any work is performed is ideal, as is creating a record of work assigned and payments issued. If the work requires a license, check the license, and make sure it is up to date. Doing so will go a long way toward protecting your business.A Decision and an AppealOn November 21, 2019, the trial court granted the defendants’ motion for summary judgment, holding that the Sports Activity Doctrine applied and that the track and the Lauers were entitled to judgment as a matter of law. In doing so, the court ruled that Cruz had not provided adequate evidence that the track, trainer, owner or the exercise rider had engaged in reckless or negligent behavior, nor that any of them owed him a “duty of care.” Pursuant to the Sports Activity Doctrine, Cruz had been injured while participating in an inherently risky activity. However, the court did not dismiss the issue of whether Martins was an independent contractor or employee, providing a possible avenue of appeal.The Court Conducts a ReviewCounsel for Mr. Cruz appealed the trial court’s decision. The Court of Appeals, in affirming the trial court’s decision, reviewed the Sports Activity Doctrine. In doing so, the court reviewed and relied upon Indiana’s Sports Activity Doctrine authority that has been applied to date. The discussion reviewed three cases that used the Sports Activity Doctrine. Those cases and a brief synopsis of those decisions follow.• In South Shore Baseball vs. DeJesus, a woman seated just outside of an area protected by netting was injured by a foul ball. She filed suit, largely based on the claim that the ballpark’s netting and other safety precautions were inadequate. South Shore Baseball asserts a defense based on the Sports Activity Doctrine. The state supreme court dismissed her case. The court found the netting and warnings to be adequate and determined that the woman had willingly exposed herself to the type of accidents known to occur in ballparks.• In Pfenning vs. Lineman, a teenager attending a golf tournament was injured by a golf ball while driving a beverage cart on a golf course. She filed suit, claiming negligence. The defense relied on the Sports Activity Doctrine. The court ruled that the young woman had accepted the risks associated with a sporting event, and in a decision viewed as expanding the protections of the Sports Activity Doctrine, that participants in a sport cannot be held liable for accidents if their conduct is within the range of acceptable behavior for that sport.• In Megenity vs. Dunn, a woman bracing a large punching bag at a karate event was injured when another participant delivered a more powerful type of kick than instructed. This case also found its way to the state supreme court. The defendant relied on and advanced a defense based on the Sports Activity Doctrine. The judges ruled that because sports are “imprecise and intense,” courts must look at the sport in general, and not focus on unintentional, in-the-moment mishaps occurring within the range of acceptable behavior.A Decision Is MadeOn June 26, 2020, the Indiana Court of Appeals dismissed Cruz’s suit against defendants, citing precedents established in the cases summarized above. The court ruled that the track’s safety systems met acceptable standards, and that none of the track’s personnel had acted recklessly or negligently.The appeals court also ruled that the precedents and protections defined by Pfenning and Megenity shielded the exercise rider, Martins, from liability. Because Martins could not be held liable, the owner, trainer and Lauer Stables could not be held liable regardless of the nature of her employment. The court noted that the Lauer Stables could potentially have been held liable if 1.) Martins had deliberately intended to harm others and 2.) Mike Lauer had been aware of such intentions but made no effort to prevent her from doing so. However, there was no evidence supporting either of these hypothetical situations.The court also ruled that there was no evidence that Accessorizing was any more dangerous than a typical Thoroughbred racehorse, vindicating the trainer and owner. Finally, the court found no that there were no facts disputing Marcelle Martins’ status as an independent contractor.Having represented individuals and entities in the equine industry for more than 15 years, there are a few “take away” points. First, do not assume that equine activity statutes and/or the Sports Activity Doctrine offer ironclad protection or defenses against liability actions. Second, work with an equine insurance professional to assure you and your business have the necessary coverage. Third, classify and document business interactions to limit disputes regarding whether assistants are employees or independent contractors.#####################

By Peter J. Sacopulos

Morning training of Thoroughbreds at tracks is standard to the industry. So too are exercise riders losing their mounts and loose horses. Less standard is a collision between horses resulting in civil litigation. This article examines such a case and several issues important to Thoroughbred trainers including the Sports Activity Doctrine.


From Routine to Unforeseen

Monday, May 7, 2018, dawned clear and cool at the Indiana Grand racetrack in Shelbyville, Ind. Jeremy Staley, who worked as an assistant groom for Michael E. Lauer Racing Stables, prepped a chestnut mare named Accessorizing for a routine morning training session. Accessorizing is owned by the trainer’s wife. The four-year-old had chalked up an impressive three first-place finishes in just under two years, and the Lauers were confident she had a bright future ahead.

z171102_eclipsesportswire_sk_06740 (1).JPG

As expected, Mr. Staley met with a licensed jockey named Marcelle Martins. Martins had offered to exercise horses free of charge. Several trainers had taken her up on it, including Mike Lauer. Lauer had four decades of experience as a trainer and knew that Martins was a skilled horsewoman with a valid jockey license.

Each received something of value from the transaction. For Lauer, it was the chance to test a potential hire while saving the expense of an exercise rider. For Martins, it was the chance to showcase her skills for a successful trainer and a shot at mounts in future races. Neither Martins nor Lauer presented or signed any paperwork. It was the kind of easy, informal agreement that happens all the time in professional horse racing. 

Martins mounted Accessorizing and began the workout. Of course, she was not the only rider on the track that day. A number of other exercise riders were putting horses through their paces, and the track’s outriders were on duty. Everything went as expected until Martins and Accessorizing rounded a turn. The mare began ignoring Martins’ commands. Martins was unable to gain control of the reins. Martins lost her balance and mount, and Accessorizing was loose and headed toward a group of horses that included Glitter Cat. Glitter Cat was owned by Civiol Cruz, who was taking his horse through its own morning exercise routine. 

Accessorizing collided with Glitter Cat. Cruz was thrown to the ground and injured. The clocker had sounded the loose horse alert. Cruz was loaded into an ambulance and taken to a local hospital. Martins was roughed up but did not require a trip to the ER. Remarkably, neither Accessorizing nor Glitter Cat sustained serious injuries. 

The Lawsuit

On July 2, 2018, Civilo Cruz filed a civil lawsuit. The suit named the track, the training business, the owner/trainer, and Marcelle Martins as defendants. Cruz alleged in his complaint that the owner of the track failed to provide adequate safety precautions and protections. He also alleged that the existing safety systems, including the loose horse siren, failed to function properly. Cruz further alleged that, as owner/trainers, the Lauers knowingly allowed an unqualified employee to ride a dangerous horse, consciously putting others at risk. Finally, Cruz claimed Marcelle Martins was an unqualified exercise rider who had acted recklessly by losing control of her mount. …

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Justify & Jimson Weed - from the racetrack to the courtroom - positive test result for a banned substance on race day

By Peter J. Sacopulos

Justify, Jimson Weed & Justice: From the Racetrack to the Courtroom By Peter J. Sacopulos Justify’s victory in the 2018 Santa Anita Derby served as the springboard for trainer Bob Baffert’s second Triple Crown triumph. In the wake of a 2019 New York Times article revealing the colt had tested positive for a banned substance on race day, Ruis Racing has filed a lawsuit against the California Horse Racing Board. Ruis claims the CHRB failed to do its duty, and the 2018 victory and the $600,000 first-place purse rightfully belong to Bolt d’Oro.A Duel at Santa AnitaAs the starting bell sounded for the million-dollar Santa Anita Derby on April 7, 2018, folks who knew racing knew the contest was likely to come down to a duel between two horses: Bolt d’Oro and Justify. Both were big, beautiful and born to run. Bolt d’Oro, owned/trained by Mick Ruis and ridden by Javier Castellano, had experience on his side. Justify, trained by Bob Baffert, had only two races to his credit, but the handsome colt had won both and was already tagged as a rising star. A first- or second-place finish in Santa Anita would guarantee a spot in the Kentucky Derby, and Baffert, who had captured the Triple Crown with American Pharaoh only three years earlier, publicly hinted that his latest protégé could go all the way as well.Baffert’s confidence seemed well placed when Justify, ridden by Mike E. Smith, took an early lead. Having firmly established themselves in second place, Castellano and Bolt D’Oro made their move in the final turn. With announcer Mike Worna describing the match as “prodigious talent versus established class,” Bolt d’Oro closed the gap and appeared ready to nose it out. But Justify sprang ahead in the final furlong, and prodigious talent won the day in an electrifying climax.History in the MakingThe rest, as they say, is history. Bob Baffert and Justify kept their string of victories going through a muddy Kentucky Derby, a foggy, rain-soaked Preakness, and a beautiful day at Belmont. Justify became the thirteenth horse to win the Triple Crown, and Baffert decked his already legendary status with fresh laurels. The trainer had chalked up an astonishing two Triple Crowns, five Kentucky Derbies, seven Preakness Stakes, three Belmont Stakes and three Kentucky Oaks.Baffert had his eyes on The Grand Slam, but a problem with his superstar’s left front ankle led to the stallion’s retirement in late July 2018. Justify had earned $3,798,000 in six races. He followed Seattle Slew as the second winner in Triple Crown history to retire undefeated. Breeding rights were sold for a reported $60 million, plus a $25-million bonus for the Triple Crown triumph. Justify’s stud fee was reportedly set at $150,000.A Stunning Revelation & Angry AllegationsThen, last fall, a dark cloud appeared above the green pastures of Justify’s retirement. On September 11, 2019, The New York Times ran an article headlined, “Justify Failed a Drug Test Before Winning the Triple Crown.” Racing journalist Joe Drape revealed what the California Horse Racing Board and the horse’s trainer and owners had managed to keep secret for over a year. Justify had tested over the acceptable limit for scopolamine on the day of his crucial victory at Santa Anita.That would have been a bombshell in and of itself. But the article went on to detail a series of questionable actions by the California Horse Racing Board (CHRB) in the aftermath of the positive test. Actions that, in the eyes of many, defied logic, violated procedure, and made mockery of ethics and transparency. Some even claimed the governing body had violated California law.Less than two weeks after the Times article appeared, California Governor Gavin Newsom publicly blasted the CHRB and the horse racing industry. “What happened last year was unacceptable, and all of the excuses be damned. We own that going into next season, and we’re going to have to do something about it,” Newsom told the Times. “I’ll tell you, talk about a sport whose time is up unless they reform. That’s horse racing,” the governor continued. He went on to excoriate the industry’s treatment of racehorses and warn that industries that don’t reform themselves get reformed by others.A Race Becomes a CaseIn January 2020, Ruis Racing, which owned and trained Bolt d’Oro, filed a lawsuit in the California courts. The suit contends that, under the California rules for Thoroughbred racing, Justify must be disqualified from the 2018 Santa Anita Derby, Bolt d’Oro must be recognized as the race’s rightful winner, and Ruis Racing must be awarded the first-place prize money. ($600,000 vs. their $200,000 second-place purse.) The suit also claims that the CHRB knowingly violated statutes and procedures, and that Ruis Racing is entitled to compensatory damages and reimbursement for all legal costs incurred by the suit.In the wake of the first Times article, Bob Baffert released a statement declaring that neither he nor his staff administered scopolamine to Justify prior to the Santa Anita run, or to any of his horses, ever. The statement said the substance had undoubtedly entered the horse’s system due to ingesting jimson weed—a natural source of scopolamine that can turn up in hay, straw and cereal grains. Baffert further stated that the CHRB had found no wrongdoing, that he had no influence over the Board or its decisions, and that Justify had tested clean in all of his other races.Getting into the WeedsBaffert’s statement correctly identified jimson weed as an environmental source of scopolamine. The chemical is a naturally occurring alkaloid found in noxious plants, including jimson weed. Invasive and aggressive, jimson weed is despised by farmers around the globe. Its defenses against nature’s plant-eaters include thorny seed pods, an unpleasant smell, and an extremely bitter flavor. Scopolamine not only contributes to the plant’s unappetizing taste, it adds toxicity. Though used in small amounts in human digestive remedies for centuries, modern medical experts consider jimson weed ineffective and unsafe, since ingesting the plant or its seeds can produce vomiting, seizures, muscle cramps and death. Its toxic effects extend to horses as well.While horses would likely avoid dining on jimson weed in natural surroundings, the plant is impossible to totally eradicate from modern farm fields, and small amounts of it occasionally turn up in horse feed, hay and straw. Horses that eat parts of the plant or its seeds will test positive for both scopolamine and atropine, another alkaloid found in jimson weed. The presence of both alkaloids in a horse’s blood or urine is typically taken as a sign of environmental contamination via jimson weed ingestion.The presence of scopolamine without atropine in test results would likely be evidence that a horse has been treated with Buscopan, a pharmaceutical approved by the FDA for the treatment of spasmodic colic in horses. This is because Buscopan contains a synthetic compound that is remarkably similar to scopolamine. In addition to relieving colic, the drug could also relax airways in the lungs, improving airflow. Buscopan’s labeling identifies increased heart rate as the drug’s major side effect.Science & SubstanceWhile scopolamine might theoretically increase racing performance, there is no scientific evidence indicating the alkaloid is an effective performance enhancer. As with many other substances, scopolamine is banned based on its theoretical potential, not real-world results.The New York Times piece that revealed Justify’s failed drug test reported a high level of scopolamine in the colt’s post-race urine sample: 300 ng/mml—well above the common industry thresholds of 60 or 75 ng/mml. The article never stated that Baffert or anyone on his staff had doped the horse. It did, however, include a disturbing quote regarding that high level from Dr. Rick Sams, who headed the Kentucky Horse Racing Commission’s drug laboratory for some seven years. “I think it has to come from intentional intervention,” Sams said.Many came to Baffert’s defense, including Tim Layden, who penned an article for NBCSports.com. Layden pointed out that Sams is a respected PhD and lab chief but is not a veterinarian, and that no vets’ or other experts’ opinions, some of which might well have contradicted Sams, were offered in the Times piece. Similar to an article I co-authored for The Horseman’s Journal, Layden outlined a case for environmental contamination at Santa Anita due to the presence of jimson weed in locally sourced hay and straw.The Environmental Contamination DefenseThe arguments for environmental contamination are hard to dismiss. Historically speaking, scopolamine positives have been few and far between. They often occur in clusters, which is an indicator of plant contamination. The Association of Racing Commissioners International (ARCI) recorded 28 positive scopolamine results over 30 years—22 of which occurred in California. Jimson weed thrives in the state, and its natural drought resistance makes it more likely to show up in feed when dry conditions reduce crop yields. In 2016, the CHRB officially warned industry professionals in Del Mar of the presence of jimson weed in straw.In 2018, Justify was one of six horses that tested positive for scopolamine in California around the time of the Santa Anita Derby, making feed contamination a likely culprit. All six animals also tested positive for atropine—a strong indicator that a plant, not a pharmaceutical, was the source of the compound.The presence of scopolamine at 300 ng/ml in Justify’s urine does seem high. But the presence of a substance in a urine sample indicates that it has been eliminated from the animal’s bloodstream by the kidneys. Properly functioning kidneys work to flush out as much of a natural or synthetic toxin as quickly as possible. Complicating matters, the level of a horse’s hydration and the acidity of its urine can also affect the levels of substances in its urine—all of which makes the measuring of substances in the blood a far more accurate indicator. As of this writing, the CHRB has not officially released Justify’s post-Santa-Anita test results. But multiple sources have reported that the level of scopolamine in Justify’s blood test was significantly lower.When it comes to Ruis Racing’s civil lawsuit, whether Justify accidentally nibbled on jimson-weed-tainted feed or was deliberately doped is strangely beside the point. After all, Ruis Racing isn’t suing Bob Baffert or Justify’s ownership group. Mick Ruis and his family are suing the California Horse Racing Board. And their case has the potential to shake American Thoroughbred racing to its core.What the CHRB Did & Didn’t DoThe following timeline chronicles CHRB’s actions during 2018 in light of Justify’s positive test for scopolamine. The timeline is based on press reports and information in the Ruis’ legal filing. Be aware that the CHRB’s refusal to publicly release all relevant information makes some dates and details impossible to pin down.On April 7, Justify won the Santa Anita Derby. Post-race samples were drawn from the horse for testing and sent to the official CHRB laboratory. On April 18, the lab reported the detection of scopolamine in Justify’s samples to the CHRB. CHRB rules required that both the organization’s executive director and medical director be notified.On April 20, the CHRB’s legal counsel, its chief investigator, and Executive Director Rick Baedeker received an email from CHRB Equine Medical Director Dr. Rick Arthur. The email noted that the Justify matter should be “handled differently than usual.”On April 26, Bob Baffert was notified of the test results and requested a split sample for independent testing. The split sample was sent to the lab on May 1. Justify won the Kentucky Derby on May 5. Three days later, on May 8, the split sample results confirmed the presence of scopolamine. CHRB Executive Director Baedeker informed Board members that, “The CHRB investigations unit will issue a complaint and a hearing will be scheduled.” (No complaint was issued, and no hearing was scheduled.)On May 19, Justify won the Preakness. On May 24, news of the horse’s breeding rights sale broke in The New York Times.At some point in May, the CHRB drafted revised drug classification rules, reducing the penalties for scopolamine. Under the proposed rules, what was a Class 3/Penalty B violation would become a Class 4/Penalty C violation. These changes would rescind requirements for disqualification and forfeiture of winnings.On June 9, Justify won the Belmont Stakes, clinching the Triple Crown.On a date in late August, the CHRB is believed to have held a closed or executive meeting to discuss the Justify situation. It appears that in the course of this meeting, Executive Director Rick Baedeker recommended the case be dismissed, and all those present voted to do so.In October, 2018, the CHRB’s revised rules for scopolamine officially took effect.Ruis Racing Weighs InThe Justify matter remained a well-kept secret until the Times published its exposé. In the months since, individuals who were members of the CHRB when Justify tested positive for scopolamine have spoken publicly about the matter. They have stated that an internal investigation determined that the scopolamine discovered in Justify’s urine was the result of accidental jimson weed ingestion, and the Board acted properly in allowing Justify to remain as the Santa Anita Derby winner while taking no further actions against Baffert or his horse. No harm, no foul. Mick Ruis and his attorneys disagree.The core of the Ruis Racing claim is that the CHRB failed in its mandatory duty by not following or enforcing its own rules, as required by California law. At the time of the 2018 Santa Anita Derby, California rules required a horse testing over the limit for scopolamine be disqualified, and any purse won be forfeited. Period.The Ruis suit claims that the CHRB did not apply the proper penalty at the time of the Santa Anita Derby, deviated from standard testing procedure, and failed to properly redistribute prize money after Justify’s positive scopolamine test. It also claims the CHRB failed in its mandatory duty, utilized a non-existent rule and an unofficial, illegal testing procedure, abused its powers of discretion, treated evidence in a selective manner, and applied a secret, unofficial standard. The lawsuit states that this amounts to arbitrary and capricious behavior by the Board, and that such behavior is biased, unacceptable and illegal, and violates Mick Ruis’ constitutional rights. There’s more, but you get the idea.Secrecy, Transparency & the Future of the SportYou may believe Justify accidentally ingested jimson weed in his feed and was vindicated by the CHRB. Or you may feel the CHRB played fast and loose to protect the record and reputation of a legendary trainer and his superstar horse. But no matter where you stand on the issue, it’s difficult not to be disheartened by the California Board’s lack of transparency in its processes and decisions regarding Justify’s scopolamine positive.As with all horse racing authorities in the U.S., the CHRB is supposed to enforce defined rules in a fair, consistent and uniform manner in order to protect horses, industry professionals, and above all, the public. It’s hard to see how the Board’s secrecy surrounding the Justify test results dovetails with that mission.Whatever the judge decides, Ruis Racing’s case will likely have deep, lasting ramifications for the horse racing industry. As the particulars play out in court, we would all do well to remember Governor Newsom’s warning to the racing industry and its regulators: “If you don’t reform yourself, you’re going to get run over and others are going to reform you in ways that you don’t like.” I could not have said it better myself. ####################

Justify’s victory in the  2018 Santa Anita Derby served as the springboard for trainer Bob Baffert’s second Triple Crown triumph. In the wake of a 2019 New York Times article revealing the colt had tested positive for a banned substance on race day, Ruis Racing has filed a lawsuit against the California Horse Racing Board. Ruis claims the CHRB failed to do its duty, and the 2018 victory and the $600,000 first-place purse rightfully belong to Bolt d’Oro.  

Justify with trainer Bob Baffert.

Justify with trainer Bob Baffert.

A Duel at Santa Anita

As the starting bell sounded for the million-dollar Santa Anita Derby on April 7, 2018, folks who knew racing knew the contest was likely to come down to a duel between two horses: Bolt d’Oro and Justify. Both were big, beautiful and born to run. Bolt d’Oro, owned/trained by Mick Ruis and ridden by Javier Castellano, had experience on his side. Justify, trained by Bob Baffert, had only two races to his credit, but the handsome colt had won both and was already tagged as a rising star. A first- or second-place finish in Santa Anita would guarantee a spot in the Kentucky Derby, and Baffert, who had captured the Triple Crown with American Pharaoh only three years earlier, publicly hinted that his latest protégé could go all the way as well. 

Baffert’s confidence seemed well placed when Justify, ridden by Mike E. Smith, took an early lead. Having firmly established themselves in second place, Castellano and Bolt D’Oro made their move in the final turn. With announcer Mike Worna describing the match as “prodigious talent versus established class,” Bolt d’Oro closed the gap and appeared ready to nose it out. But Justify sprang ahead in the final furlong, and prodigious talent won the day in an electrifying climax.

History in the Making

The rest, as they say, is history. Bob Baffert and Justify kept their string of victories going through a muddy Kentucky Derby, a foggy, rain-soaked Preakness, and a beautiful day at Belmont. Justify became the thirteenth horse to win the Triple Crown, and Baffert decked his already legendary status with fresh laurels. The trainer had chalked up an astonishing two Triple Crowns, five Kentucky Derbies, seven Preakness Stakes, three Belmont Stakes and three Kentucky Oaks. 

Baffert had his eyes on The Grand Slam, but a problem with his superstar’s left front ankle led to the stallion’s retirement in late July 2018. Justify had earned $3,798,000 in six races. He followed Seattle Slew as the second winner in Triple Crown history to retire undefeated. Breeding rights were sold for a reported $60 million, plus a $25-million bonus for the Triple Crown triumph. Justify’s stud fee was reportedly set at $150,000.

A Stunning Revelation & Angry Allegations

Then, last fall, a dark cloud appeared above the green pastures of Justify’s retirement. On September 11, 2019, The New York Times ran an article headlined, “Justify Failed a Drug Test Before Winning the Triple Crown.” Racing journalist Joe Drape revealed what the California Horse Racing Board and the horse’s trainer and owners had managed to keep secret for over a year. Justify had tested over the acceptable limit for scopolamine on the day of his crucial victory at Santa Anita.

That would have been a bombshell in and of itself. But the article went on to detail a series of questionable actions by the California Horse Racing Board (CHRB) in the aftermath of the positive test. Actions that, in the eyes of many, defied logic, violated procedure, and made mockery of ethics and transparency. Some even claimed the governing body had violated California law.

Less than two weeks after the Times article appeared, California Governor Gavin Newsom publicly blasted the CHRB and the horse racing industry. “What happened last year was unacceptable, and all of the excuses be damned. We own that going into next season, and we’re going to have to do something about it,” Newsom told the Times. “I’ll tell you, talk about a sport whose time is up unless they reform. That’s horse racing,” the governor continued. He went on to excoriate the industry’s treatment of racehorses and warn that industries that don’t reform themselves get reformed by others.

A race becomes a case

Bolt d’Oro

Bolt d’Oro

In January 2020, Ruis Racing, which owned and trained Bolt d’Oro, filed a lawsuit in the California courts. The suit contends that, under the California rules for Thoroughbred racing, Justify must be disqualified from the 2018 Santa Anita Derby, Bolt d’Oro must be recognized as the race’s rightful winner, and Ruis Racing must be awarded the first-place prize money. ($600,000 vs. their $200,000 second-place purse.) The suit also claims that the CHRB knowingly violated statutes and procedures, and that Ruis Racing is entitled to compensatory damages and reimbursement for all legal costs incurred by the suit.

Trainer Bob Baffert is interviewed after winning the 2018 Santa Anita Derby.

Trainer Bob Baffert is interviewed after winning the 2018 Santa Anita Derby.

In the wake of the first Times article, Bob Baffert released a statement declaring that neither he nor his staff administered scopolamine to Justify prior to the Santa Anita run, or to any of his horses, ever. The statement said the substance had undoubtedly entered the horse’s system due to ingesting jimson weed—a natural source of scopolamine that can turn up in hay, straw and cereal grains. Baffert further stated that the CHRB had found no wrongdoing, that he had no influence over the Board or its decisions, and that Justify had tested clean in all of his other races.

Getting into the Weeds

Justify, ridden by Mike Smith, in the winners circle after winning the 2018 Santa Anita Derby.

Justify, ridden by Mike Smith, in the winners circle after winning the 2018 Santa Anita Derby.

Baffert’s statement correctly identified jimson weed as an environmental source of scopolamine. The chemical is a naturally occurring alkaloid found in noxious plants, including jimson weed. Invasive and aggressive, jimson weed is despised by farmers around the globe. Its defenses against nature’s plant-eaters include thorny seed pods, an unpleasant smell, and an extremely bitter flavor. Scopolamine not only contributes to the plant’s unappetizing taste, it adds toxicity. Though used in small amounts in human digestive remedies for centuries, modern medical experts consider jimson weed ineffective and unsafe, since ingesting the plant or its seeds can produce vomiting, seizures, muscle cramps and death. Its toxic effects extend to horses as well. …

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Indiana's New "Biological Samples" Testing Law: Integrity Assured Or Invasive Overreach?

By Peter J. Sacopulos

From House Bill To Horse Law

On May 1, 2019, Governor Eric Holcomb signed Indiana House Bill 1196 into law. The statute, which took effect on July 1 of this year, directs the Indiana Horse Racing Commission (IHRC) to adopt a variety of new rules and procedures governing horse racing within the state. 

Governor Holcomb and Indiana State Representative Bob Cherry, who introduced HB 1196 to the legislature, are Republicans. However, the bill enjoyed broad bipartisan support—a rarity in current American politics. In fact, the final version sailed through both chambers, receiving not a single “nay” vote in the House and a mere three “nays” in the Senate. 

HB 1196 is something of an equine regulatory smorgasbord. Examples of its provisions include officially changing references to the IHRC’s “secretary” to “executive director,” altering the way breed advisory committee members are appointed, specifying that certain funds be directed to the Indiana-sired horses program, and the creation of new privacy protections to guard the personal information required on license applications.

Items like these, as well as several others included in HB 1196, are unlikely to cause ripples within the racing community. However, the new law also includes provisions designed to enhance and expand the Commission’s ability to detect, police and reduce the use of banned substances. And while this is undoubtedly a worthwhile cause, a two-word term used in the drug-testing language of HB 1196 has the potential to negatively impact horses and trainers for years to come, with consequences that may spread well beyond the borders of Indiana. 


Two Words, Too Broad?

The two-word term is “biological sample.” It is legally defined in the statue as follows:

“Biological sample” refers to any fluid, tissue or other substance obtained from a horse through an internal or external means to test for foreign substances, natural substances at abnormal levels, and prohibited medications. The term includes blood, urine, saliva, hair, muscle tissue collected at a necropsy, semen, and other substances appropriate for testing as determined by the commission. 

This definition goes well beyond the longstanding blood, saliva, urine, and more recently, hair, samples routinely collected from Thoroughbred competitors for analysis. It is also disturbingly open-ended. Indeed, the phrase: “…and other substances appropriate for testing as determined by the commission…”  is a definition that is essentially wide open, providing the IHRC staff the power to define or redefine a “biological sample.”

While there was discussion and temporary agreement to limit the use of biological samples to necropsy purposes, that limitation was removed from the final version of the bill that was signed into law and became effective July 1, 2019. Therefore, the Commission Staff is authorized and may elect to take muscle tissue, and other biological samples, from live animals as it deems and determines necessary and appropriate. This rule and its definition of biological sample establishes a new frontier of testing. 


Is This Risk Really Necessary?

One of the primary concerns and positions advanced in opposition to allowing biological samples to be taken from live animals is the risk of injury.

Taking saliva and hair samples from a Thoroughbred is painless and easy. And anyone who has ever been around horses knows that they are more than happy to provide all the urine you could ever want! Drawing blood from a horse is only slightly more difficult and rarely involves the use of a local anesthetic. 

However, taking “…any fluid, tissue or other substance… through an internal or external means…” is another matter entirely. It opens the door to far more invasive collection techniques that carry far greater risks for horses than blood, saliva, urine or hair sampling. To be clear, I am referring to biopsies. 

A biopsy is the removal and examination of cells or tissue from a living being for the purposes of testing and examination. Any biopsy carries risk of injury or infection. Taking a biopsy from a horse may be as simple as a skin sample from the withers or tissue from the lining of the mouth, or as difficult as removing material from the teeth or the interior of the eye; or from internal organs such as the heart, lungs, liver, intestine or colon. In the latter examples, a biopsy becomes a complex medical procedure. A procedure performed on a large, valuable animal requires sedation and may require general anesthesia to facilitate tissue collection. 

Sedating a horse is serious business. Sedatives and anesthetics carry significant risks, even when administered with care by skilled equine veterinary professionals. Those risks include allergic reactions, collapse, excitement, cardiac arrest, medical injury and post-anesthetic colic.

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INDUSTRY NAT Web Master INDUSTRY NAT Web Master

Racing To Comply: How The New GDPR Internet Privacy Rules Affect Trainers And Other Equine Professionals

By Peter Sacopulos

The Great Privacy Policy Alert

As the summer of 2018 began, every company doing business on the internet appeared to have developed a new user privacy policy overnight. Service providers, search engines, social media platforms, news sites, online retailers and others bombarded Americans with emails and pop-ups, urging users to review the new policies immediately and adjust their personal privacy settings accordingly. There is no official count of how many consumers dutifully clicked on links, doggedly read new rules, and deliberately updated their individual privacy preferences, or how many simply shrugged, ignored the alerts, and went on with their online lives.

Some who wondered what all the fuss was about may have thought the new privacy policies had something to do with recent headlines about corporate data breaches. Others may have associated them with the fallout of 2016’s US presidential election and UK Brexit referendum, after which reports emerged of foreign meddling online and a political consulting firm stealthily collecting data from tens of millions of Facebook users without their permission. (Criminal investigations are ongoing.) But many internet users knew the truth: the renewed focus on privacy was far from sudden and was the result of a European Union law known as the General Data Protection Regulation, that had been passed in 2016 and took effect on May 25, 2018.

The General Data Protection Regulation

Even though it is a European law, the General Data Protection Regulation (or GDPR) has implications for Americans who use the internet to conduct their business. Horse trainers and other equine professionals are no exception. This article will address the basics of GDPR, how it affects American businesses, and the primary steps your business should take to achieve and maintain GDPR compliance. Make no mistake, spending the time and effort to do so now will go a long way toward avoiding legal headaches and financial penalties in the future.

Privacy policies exist to protect personal data. Personal data is defined by the European Union as: “…any information that relates to an identified or identifiable individual….” It includes:  “…Different pieces of information, which collected together, can lead to the identification of a particular person….” In short, any form or combination of information that can tell others who you are is personal data. In the US, personal data is also referred to as personally identifiable information (PII) or sensitive personal information (SPI).

Personal data typically includes information that can allow others to locate, contact or monitor you. Examples of personal data include your first and last name, home address, email address, telephone number as well as an identification card number, such as your social security number, driver’s license number or passport number. In the digital age, it can also take far more subtle forms, including some you may not have even realized, such as your Internet Protocol (IP) address, your mobile phone location data or a “cookie” ID on your computer. Personal data does not include anonymous information, such as that found in statistics.

The Big Question

The General Data Protection Regulation is based on the answer to this increasingly important question: Who owns an individual’s personal digital data?

In the United States, the answer to that question is still being debated and, some privacy advocates would go so far as to say, avoided. But the countries that make up the European Union (EU) and the European Economic Area (EEA) have determined that, when their citizens are concerned, every individual owns his or her personal data, wherever it may appear online and however it may be gathered and used by others. The GDPR enshrines this principle of personal data ownership in law. It grants specific data privacy rights to individuals and sets out rules that businesses must follow when dealing with a consumer’s data. It mandates harsh financial penalties for businesses that violate those rules, along with strict notification standards whenever a business suffers a data breach.

The American Question

The first question most Americans will ask about the GDPR is obvious. Why would an American citizen doing business in the United States need to worry about complying with a European law?

Like nearly all businesses in the digital age, the vast majority of the Thoroughbred racing community routinely conducts business on the internet. And therein lies the answer to the American GDPR compliance riddle. The web truly is worldwide and that means your website, and any and all social media platforms you use (such as Facebook, Instagram, YouTube, Snapchat, Twitter and any Thoroughbred-biz-specific websites and platforms), are as easily accessed in Europe as they are in America. In the course of conducting business online, you can come into contact with a European citizen as easily as you do an American citizen.

The General Data Protection Regulation clearly states that when any business entity, based in any location, deals with a European citizen’s data, GDPR rules apply. But there are some important exceptions. If a European citizen’s data is collected while the individual is not physically in Europe, that data is not governed by the GDPR. If, for example, a German visiting America takes an online marketing survey while in New York and offers up personal information in the process, only American regulations regarding the use of that data would apply.

The GDPR also takes intentionality into account. Basic, broad-based, generic marketing materials are exempt from the law. If an Italian citizen who has in interest in Thoroughbred training happens across the English-language website of an American horse trainer whose services are only offered in the US, the GDPR does not come into play. But if an American trainer’s site appears to target European citizens, gathers information on them, or seeks to do business with them, GDPR rules do apply.

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A jockey's life: The true tall tales of gatebreakin' Ray Adair

By Peter J. Sacopulos

Like many baby boomers who entered their teens in the mid-1960s, Raymond Adair Jr. had an issue with his father. But it wasn’t a disagreement over long hair, rock music, or his choice of friends. The problem, in young Ray Adair’s eyes, was his father’s appalling ability to stretch the truth.

Ray Sr. claimed he began life as a foundling, left under a pinion tree by a band of Crow Indians before being adopted by a couple who ran a ranch in New Mexico. That was bad enough, but it was Ray Adair’s endless exaggerations about his horseracing career that really embarrassed his son.

In the elder Adair’s accounts, he won his first Thoroughbred race at age six. He lost a match race against the legendary Seabiscuit by a nose. He won the Bluegrass Stakes, finished second in the Preakness, and rode in the Kentucky Derby twice. He stood down gangsters and befriended greats like Eddie Arcaro. It was all too much.

“Growing up, I thought Dad was just a bullshitter. Or a horseshitter, anyway,” Ray Jr. says with a soft chuckle. “Imagine how I felt when I figured out all those horseracing stories were true.”

Throughout his childhood, Ray Jr. had been aware that his father was a jockey and horse trainer. His family, including his mother Evelyn and his older sister Rayette, had tagged along on the racing circuit for years. But Ray Sr.’s racing days and the Adair family’s nomadic ways came to an end in 1961. Evelyn had been diagnosed with cancer and could no longer travel. The family settled in Phoenix, and Ray Sr. hung up his silks and worked for a fruit distributor. Evelyn died in 1963, and Ray moved the family to Window Rock to work for his brother-in-law, who taught him how to operate construction equipment.

In Colorado for an unrelated job interview in 1964, Ray decided to call Thoroughbred breeder Conyer (“Connie”) Stewart. Connie Stewart had first seen Ray ride at the Jamaica Race Course in New York around 1950 (Ray Sr. sometimes said he first met Conyer Stewart in 1943. However, the Centennial Track did not open until 1950, making the late 1940s more likely). Deeply impressed, Stewart offered Adair a job as his jockey at the newly built Centennial Track near Littleton, Colorado. Adair and Stewart hit it off, but Ray, a top rider on the prestigious east coast circuit, passed on the offer. After he left the east coast in the mid-1950s, Ray did do some riding for Stewart at Centennial.

The day Ray called him, Connie Stewart answered the phone at his new Stewart Thoroughbred Farm. He immediately offered Ray the job of manager. Adair and his children came to live at the ranch, and Rayette and Ray Jr. attended school in Rye and helped out with the chores. Ray Jr. worked alongside his dad for four years, seeing firsthand how good his father was with horses. Ray Sr. seemed to have found the ideal life after racing—until he and Connie Stewart abruptly fell out.

Ray Adair after winning the Blue Grass Stakes at Keeneland on Mameluke

“I never really knew why,” Ray Jr. says, but he believes it was likely due to a quirk of his dad’s personality. Raymond Adair Sr. could be as sweet as soda pop or as stubborn as a mule. “The same thing had happened with my uncle in Window Rock. Dad was a little guy, only five feet three,” his oldest son recalls. “He was sensitive about it, and I think it made him quick to jump to the conclusion that someone was trying to push him around.”

Ray Sr. left and took a job maintaining roads for the county. Not wanting to change high schools, Ray Jr. stayed on. It was while working for Connie Stewart that Ray Jr. began to realize his father’s fantastic racing tales were true. Ray Jr. would bring one of them up as an example of his dad’s penchant for telling whoppers, only to have Stewart say, “Actually, your dad did do that.” It would take many years and some research to get the full picture, but eventually, Ray Jr. and his relatives would marvel at the true adventures of the jockey known as Gatebreakin’ Ray Adair.

Those adventures began in the summer of 1928, when a Texan named Louie Kirk arrived in the town of Blanco, New Mexico, and entered a Thoroughbred stallion named Static in a match race at the San Juan County Fair. Kirk stabled the horse at the track, and found an eager, if unlikely, caretaker in six-year-old Raymond Adair. Small for his age but full of energy, Ray was growing up on a nearby ranch and had a remarkable knack with horses. The boy not only loved them, he seemed to understand and communicate with them in that special way that only a few people can. Little Ray Adair earned a half-dollar a day feeding Static, cleaning his stall and riding the horse to the river for water.

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