IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF STANDARDBRED OWNER/DRIVER/TRAINER
RANDALL WAPLES
Standardbred owner/driver/trainer Randall Waples appealed Ruling SB 31529 dated May 10, 2004, in which he was fined $1,000.00 for violating Rule 6.17(d) of the Rules of Standardbred Racing for improper conduct, and Rule 6.20 (b) for conduct prejudicial to the best interests of racing as a result of comments that he made in a television interview broadcast on SCORE TV Network on April 26, 2004.
Mr. Waples also appealed Ruling SB 31260 dated May 10, 2004, in which he was fined $500.00 and his licence as a driver suspended for 5 days and in which his licence made conditional pursuant to Rule 6.01(d) on his attending and successfully completing an anger management course to the satisfaction of the Supervisor of Standardbred Racing within 60 days and in which his licence was placed on probation for one year, as a result of improper conduct before the Judges at Mohawk raceway on May 4, 2004.
On October 7, 2004 a panel of the Ontario Racing Commission consisting of Chair Lynda Tanaka, and Commissioners Jane Garthson and George Kelly, heard these appeals. Gerald Sternberg represented Mr. Waples and Tim Snell represented the Administration.
Upon hearing the evidence of Judge Gary Cahill and Mr. Waples, upon reviewing the evidence and hearing the submissions of the Parties, the Commission decided as follows:
With respect to Ruling SB 31259, the appeal is dismissed. Mr. Waples is fined $1,000.00.
With respect to Ruling SB 31260, Mr. Waples has seven (7) days from the issuance of this decision to deliver a letter of apology in a form satisfactory to the Director of Racing to the three judges, Senior Judge Gary Cahill, Judge Don Lawrence and Judge Chuck Fraleigh, who conducted the hearing on May 4, 2004, as described in the reasons for decision attached. If the letters are not received by the judges as set out above, the appeal is dismissed and the penalties set out in Ruling SB31260 by the judges are imposed.
The Commission’s reasons for decision are attached and form part of this Ruling.
Pursuant to the Rules, Mr. Waples is hereby fined $1,000.00 payable forthwith and before he can participate directly or indirectly in racing again.
DATED this 18th day of October, 2004.
BY ORDER OF THE COMMISSION
John Blakney
Executive Director
REASONS FOR DECISION
On Thursday October 7, 2004, the Commission convened a hearing before the panel consisting of the Chair, Commissioner Garthson and Commissioner Kelly to deal with appeals by Randall Waples from Standardbred Judges’ Rulings SB 31259 and SB31260. Ruling SB31259 arose as a result of remarks made by Mr. Waples during the course of an interview on SCORE TV network. The judges found Mr. Waples to be in violation of Rule 6.17(d) and Rule 6.20(b) of the Rules of Standardbred Racing. Ruling SB 31260 arose as a result of statements by Mr. Waples at the end of a hearing before the judges on May 4, 2004. The judges found Mr. Waples to be in violation of Rule 6.17(d) and Rule 6.20(b) of the Rules of Standardbred Racing.
The Administration called Judge Gary Cahill as a witness and Mr. Waples testified in response and in support of his appeals.
With respect to Ruling SB31259, we dismiss the appeal and fine Mr. Waples $1,000.
With respect to Ruling SB31260, Mr. Waples has seven (7) days from the issuance of this decision to deliver a letter of apology in a form satisfactory to the Director of Racing to the three judges, Senior Judge Gary Cahill, Judge Don Lawrence and Judge Chuck Fraleigh, who conducted the hearing on May 4, 2004, as set out in our reasons below. If the letters are not received by the judges as set out above, the appeal is dismissed and the penalties set out in Ruling SB31260 by the judges are imposed.
The following are our reasons:
RULING SB31259
Randall Waples is a licensed owner/driver/trainer who is 39 years old and has been active in the industry for many years. He testified that for 20 years he has been interviewed for television at Woodbine and Mohawk racetracks. On the evening of April 26, he was interviewed by SCORE TV which broadcasts races at Mohawk under an agreement with Woodbine Entertainment Group which owns Mohawk race track. He testified that his wife has been very ill and that on that particular day she was in pain and uncomfortable and in order to cheer her up he told her that, if he won a race and was interviewed, he would send her a particular message. When she questioned whether he would really say that (presumably because it would be shocking) and he assured her he would, she smiled and appeared cheered up. He was true to his word. He won the second race and was interviewed by SCORE TV. He provided an intelligent commentary on the race and at the end said,
“I’d like to say hello to Allotta Fagina. She’s at home there.”
He explained that everyone knew that “Allotta Fagina” is the name of a female character in one of the Austin Powers movies, that he and his wife are great Austin Powers fans and everyone understood the reference was to his wife.
He justified his reference on public television to the character by referring to the opening of the Mohawk slots facility. Ontario Lottery and Gaming Corporation hired actors portraying four of the characters from the Austin Powers movie “Austin Powers: International Man of Mystery” at the opening a few years earlier, including the character “Allotta Fagina”. Apparently some of Woodbine’s employees brought the actors in costume through the grandstand area of Mohawk and to the paddock to introduce them to Mr. Waples because they knew he was a huge fan. He confirmed, however, that on April 26, 2004 there was no other reference to the Austin Powers movie in the SCORE TV production other than his remark, there might be people watching SCORE TV who were not familiar with the movie or aware of the context that is personal to him, and that people might be offended.
Mr. Waples testified that on the day in question, the interviewer was amused and that after the camera went off them, they had a laugh. He testified that people around the track were stunned at first but laughed. On the following Saturday Woodbine advised him that they would not permit him to be interviewed on air again but apparently some five months later, Woodbine has asked him again to be interviewed for race commentary.
Mr. Waples testified that the standardbred racing industry is really quite small and that everyone knows about his enjoyment of the Austin Powers movies so they would understand the context of the remark. Mr. Waples was surprised when Woodbine took the position that he would not be interviewed again.
He also said that he would say anything he wanted to anyone, that if he thought someone was an idiot he would say it to his/face. Under cross-examination he indicated that he “supposed” that there were times when it was not appropriate to do so. He “guessed” that dealing with judges of the Ontario Racing Commission might be one of those times.
He acknowledged that the timing of the broadcast of his interview at the conclusion of the second race would mean that the broadcast would be made sometime between 8:00 and 8:30 PM, a time when children might well be watching TV. He said that the Austin Power movie was not restricted but acknowledged that its rating was PG 13, for nudity and sex-related dialogue.
Mr. Waples’ counsel adduced other evidence he said was relevant to the standard of conduct of licensees through cross-examination of Judge Cahill who acknowledged that as part of a Christmas promotion for racing at the behest of Woodbine Entertainment Group, he and two other judges had, some years ago, dressed in costumes as three blind mice for a parody of the Twelve Days of Christmas carol for advertising of racing over the Christmas period.
In our view the context for both the opening event of the Mohawk slots facility and the Christmas carol parody were clear and unambiguous and there was sufficient information surrounding the conduct referred to, so that the people observing or watching could put the event in the context intended.
In contrast, the change in the tone of the interview from solid professional commentary on racing to an unfounded and unrelated comment without any context was clear to anyone seeing the interview or viewing the tape. There was no “Austin Powers” reference in the interview or any portion of the evening broadcast in which the remark could find an appropriate context. The remark was used for its shock value. The comment was at best “an in-joke” taking advantage of the “sex related dialogue” on which the movie’s rating was based. His remark was inappropriate and showed a lack of judgment or appreciation of the potential adverse impact on racing.
The only reason Mr. Waples was being interviewed was to share with the public his comments on racing from the point of view of an experienced, articulate and knowledgeable racing participant. He is privileged to have the opportunity to speak as a representative of the industry and his interview on TV in that context is one of the bases on which the professionalism of the industry is assessed by the public. To the extent that there are stars in harness racing, they are the horses and the drivers. The conduct of an experienced and accomplished driver such as Mr. Waples reflects on the industry. While we acknowledge that broadcasting racing should be entertaining, this incident reminds us of what hard work comedy really is.
We agree with the judges’ finding that the comment was prejudicial to the best interests of racing in the context in which it was made. We confirm the finding of the judges that a fine of $1,000 is appropriate. Another panel dealing with any subsequent occurrence either from Mr. Waples or from another licensee might well take a different view if the sense is that the fine is treated merely as a licence fee. Our intent is to discourage such comments and to make licensees mindful of the importance of their role in conveying the professionalism of the industry to the public.
SB RULING 31260
The evidence before us is that on May 4 Mr. Waples attended a hearing before the judges with respect to a race interference allegation at the judges’ office at Mohawk racetrack. This hearing postdated the interview on SCORE TV referred to above and Mr. Waples asked Judge Cahill, the senior judge, prior to attending the hearing if anything other than the race interference case would be dealt with that day. He indicated that he intended to call his lawyer if they were going to deal with the SCORE TV interview. Judge Cahill assured him that they would only deal with the race interference. The judges imposed a three-day driving suspension on Mr. Waples for interference during the course of a race. Judge Cahill said that Mr. Waples thought the judges were wrong in their assessment of the race and was belligerent and upset.
At the end of that hearing, Mr. Waples asked Judge Cahill if there was anything else, and, according to Mr. Waples, Judge Cahill pulled out a copy of a videotape (which has been assigned the Exhibit No. 3) and said that the judges were going to have to look into the SCORE TV interview. There is a difference in the recollection of Judge Cahill and of Mr. Waples as to the exact conversation at this point but in our view it is not determinative of the issues here.
Judge Cahill’s evidence was that Mr. Waples was visibly angry and, as he was leaving the room and in the doorway of the judges’ office as it opens onto a busy corridor which was full of people, Mr. Waples was heard by the judges to say “idiot” or “idiots”. The judges assumed that in the context of his losing the hearing as to the race interference and the conversation concerning the future investigation of the interview, Mr. Waples was referring to them. Mr. Waples says that in fact he said “you idiot” and that he was referring to another licensee who was waiting in the hallway for his turn to meet with the judges. At no time has Mr. Waples explained to the judges that he was not referring to them but rather to another licensee in the hallway.
Later that evening, Mr. Waples called Senior Judge Cahill on the phone. Judge Cahill recalls that Mr. Waples was very upset. Mr. Waples’ version is that he was calm. The telephone call dealt with whether or not Woodbine Entertainment Group had received “numerous complaints” concerning the SCORE TV interview or none at all.
The judges held a hearing on May 10 with Mr. Waples represented by counsel to deal with the remark made as Mr. Waples was leaving the May 4th hearing as well as the SCORE TV interview. The panel included Judge Lawrence and Senior Judge Cahill with Judge Coke, instead of Judge Fraleigh. On instructions from his counsel Mr. Waples did not provide the explanation he gave us as to his conduct. Mr. Waples has never provided to the judges on that panel or to Judge Fraleigh his explanation of the remark “idiots” or his justification for the televised comment. He has left them with the impression that his “idiots” remark was referring to them.
Mr. Waples expressed unequivocally his dislike of Senior Judge Cahill and his belief that Judge Cahill is biased against him. He acknowledges that other judges have found him to be in violation of the Rules.
As noted above Mr. Waples testified that he will say exactly what he thinks of someone to their face and with no regard to the reaction of the other person to his assessment. He is as confident that his assessment is unquestionably right as he is that it is appropriate to share his assessment, apparently with few limitations, with others. He was forthright and energetic in his expressing his views to us. He indicated he liked performing and did so here.
Based on their understanding that the remark “you idiot(s)” was directed to the May 4 panel of judges, the judges fined Mr. Waples $500 and a five day driving suspension. They also required that he attend an anger management course as well as have a year’s probation. Mr. Waples has been on probation before and he says he has attended an anger management course before. He said he only attended four of the sessions and then dropped out.
We do not disagree with the assessment of these penalties in the event that a licensee makes such a comment concerning the judges either to the judges or about the judges in a public place. This Commission will not tolerate licensees treating the judges in a disrespectful manner.
We accept Judge Cahill’s evidence that the judges believed that Mr. Waples, true to his acknowledged habit and belief, made the derogatory comment directed to the May 4 panel of judges. We are, however, prepared to accept Mr. Waples’ evidence that while he made the statement, he did not intend to direct the comment to the judges but to another licensee. No evidence was lead as to whether or not anyone in the hallway or in the judges’ office interpreted the remark as being directed to the judges or directed to someone else. Whatever he intended, the judges were insulted. Mr. Waples has been made aware that the judges think the comment was directed to them and has taken no steps to correct that. He was content to leave the record on the basis that he made the comment about the judges, until he came before this Commission.
We appreciate that the Commission judges want to see and should see a change in conduct towards them from Mr. Waples but he has no appreciation that he has to change his conduct.
We are therefore providing Mr. Waples with the opportunity to correct the judges’ impression that he referred to them as “idiots” and therefore an opportunity to avoid the finding of a violation of the Rules. Mr. Waples should write a personal letter of apology in a form satisfactory to the Director of Racing to each of the three judges insulted by his remark on May 4, being Senior Judge Cahill, Judge Lawrence and Judge Fraleigh. The letters should provide to the judges the clarification and explanation that Mr. Waples gave under oath to us, informing them that the remark which he acknowledges making as “you idiot” was not directed to them, and expressing his regret that the judges believed that the remark was directed to them. The letter must include an explicit apology for his conduct in creating the misunderstanding and his failure to clear this up earlier.
If the letters are not received within seven (7) days of the issuance of this decision the appeal will be dismissed and the finding of the Rule violations as made by the judges and the penalties imposed by the judges will stand.
DATED this 18th day of October, 2004.
Lynda Tanaka
Chair