The New York State Gaming Commission on Monday voted to uphold a hearing officer’s recommendations to sustain a 14-day suspension handed down to the Hall of Fame trainer Todd Pletcher due to a 2022 overage of the regulated painkiller medication phenylbutazone.
The commission voted 6-0 to sustain the recommendation, which will require New York’s stewards to issue dates for the suspension. Pletcher is currently preparing several top 3-year-olds for a run at the May 4 Kentucky Derby and the other Triple Crown races, and any suspension that starts in the spring or early summer could impact those plans.
Pletcher could delay the onset of the suspension by initiating a so-called Article 78 proceeding, which would require a New York state court to review the commission’s decision. The horse involved in the case, Capensis, tested positive for phenylbutazone after finishing sixth in a race on July 30, 2022, at Saratoga Race Course.
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Last year, Pletcher filed an appeal under Article 78 in a different case involving a 10-day suspension for a positive for meloxicam in the horse Forte, also after a 2022 race. A state court stayed the suspension late last year while it reviews the case. Meloxicam is a non-steroidal anti-inflammatory medication that is a common ingredient in human painkilling medications.
Pletcher’s attorney in the Capensis case, Karen Murphy, said that Pletcher would appeal the decision and seek an administrative stay on the suspension once she is served with the official decision from Monday. If the commission does not issue the stay, Murphy said she will go to state court to initiate the Article 78 proceeding and seek the stay there.
Murphy had argued in her appeal before the commission’s hearing officer that racing regulators in New York had failed to adequately notify horsemen about a change in the permissible level of phenylbutazone at the time that Capensis tested positive. In the summer of 2022, more than a dozen horses tested positive for overages of the drug at New York tracks, according to horsemen.
A positive for phenylbutazone would normally draw a 10-day penalty, but the New York stewards had argued that their decision to issue a 10-day suspension in the Forte case called for an “enhancement” of the penalty in the Capensis case. The decision to apply an enhancement has been criticized by Pletcher’s attorneys because the Forte case has not yet been fully adjudicated.
Both the Forte case and the Capensis case are being adjudicated by the New York State Gaming Commission because the positives occurred prior to the onset of the jurisdiction of the Horseracing Integrity and Welfare Unit in the summer of 2023.
Also at the meeting, the commission upheld a hearing officer’s recommendation for a 14-day suspension of jockey Jaime Torres for “careless riding” during a July 3, 2023, race at Belmont Park. It was the second 14-day suspension that the New York stewards had handed to Torres, an apprentice rider at the time, in the past three months, after he received an identical suspension for being involved in a three-horse spill at a race in Aqueduct that April.
Following the second suspension, a large group of jockeys met with New York’s stewards to object to the length of the penalty. Typically, a careless riding suspension runs 3 to 7 days. In the incident that drew the second suspension, Torres’s mount carried out the second-place finisher several paths near the wire. The horse was demoted to second in the race.
Drew Mollica, Torres’s attorney, said after the meeting that the upholding of the suspension “is an indication of how out-of-touch with reality, and the bettor’s wishes, the gaming commission is.” Mollica said he would discuss the possibility of an Article 78 appeal with Torres, though he doubted Torres would go that route.
“He’s doing really well right now, just came off a great Fair Grounds meet,” Mollica said.
* At the close of Monday’s meeting, John O’Dwyer, the commission’s chairman, said he had asked the commission’s general counsel to review a March 4 judgment from a federal district court that found the trainer Steve Asmussen had engaged in “willful violations” of labor law. O’Dwyer, who has spent most of his career advising labor groups on federal laws and obligations of employers, said he had asked the general counsel to determine whether the gaming commission could issue additional sanctions on Asmussen based on the ruling.
In the fall of 2023, Asmussen said he would no longer maintain a year-round stable in New York, in part due to multiple fines assessed by federal and state labor regulatory agencies based on his failure to pay adequate overtime wages to employees and other violations. Asmussen, who had stabled in New York for two decades, continues to ship horses into New York for major stakes races.
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