IN THE MATTER OF THE RACING COMMISSION ACT 2000, S.O. 2000, c.20;
AND IN THE MATTER OF THOROUGHBRED JOCKEY TODD KABEL
AND TRAINER MARK FROSTAD
Thoroughbred jockey, Todd Kabel, and Thoroughbred trainer Mark Frostad, on his own behalf and on behalf of Sam-Son Farm, appealed Ruling TB 3064/2005 issued at Woodbine Racetrack on June 9, 2005, in which jockey Todd Kabel was suspended for three days and the horse DANCE WITH RAVENS, which finished in first position, was placed sixth in the eighth race at Woodbine Racetrack on June 5, 2005, pursuant to Rules 11.07, 11.09.01 and 11.09.03 of the Rules of Thoroughbred Racing, 2005.
On August 18, 2005, a Panel of the Ontario Racing Commission consisting of Commissioners Garthson and Brennan and Vice-Chair Todd convened to hear the appeal.
Brendan Van Niejenhuis appeared at the hearing for the Administration while Dan McMahon appeared for jockey Todd Kabel and Peter Howard appeared for Mark Frostad and Sam-Son Farm.
On hearing the evidence of Steward Richard Grubb, Robert Landry, Rui Pimentel, Robin Platts, Todd Kabel and Mark Frostad, and on reading and reviewing the exhibits filed, and on hearing the submissions of counsel, the Panel allowed the appeal and ordered that:
(a) Thoroughbred Ruling TB 3064/2005 was quashed and rescinded, and the suspension of Todd Kabel accordingly set aside;
(b) the disqualification of DANCE WITH RAVENS during the eighth race on June 5, 2005 at Woodbine Racetrack, and the subsequent placings, are set aside and quashed; and
(c) the actual order of finish during the eight race on June 5, 2005 at Woodbine Racetrack is restored, and DANCE WITH RAVENS is declared the winner of the Plate Trial Stakes.
The Panel’s reasons for decision are attached to this Ruling.
DATED this 21st day of September, 2005.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
Thoroughbred jockey, Todd Kabel, appeals Ruling TB 3064/2005 issued at Woodbine Racetrack on June 9, 2005.
Additionally, thoroughbred trainer Mark Frostad, on his own behalf and on behalf of Sam-Son Farm, appeals the placing of the horse “Dance With Ravens” from first position to sixth position in the eighth race at Woodbine Racetrack on June 5, 2005.
A Panel of the Ontario Racing Commission consisting of Commissioners Garthson and Brennan, along with Vice Chair Todd heard this matter. The aforesaid Panel convened on August 18, 2005.
Brendan Van Neijenhuis appeared at the hearing for the Administration while Dan McMahon appeared for jockey Todd Kabel and Peter Howard appeared for Mr. Frostad and Sam-Son Farm.
The Administration called for its case the evidence of Steward Richard Grubb, rider Robert Landry and rider Rui Pimentel. Additionally, the Administration presented the pan and head-on videotape of the race, as well as the tape recording of phone calls subsequent to the race between the Stewards and jockeys Todd Kabel and Rui Pimentel.
Mr. McMahon called Robin Platts and rider Kabel as the only witnesses on behalf of Mr. Kabel. The only witness called by Mr. Howard was Mr. Frostad on behalf of the owner and trainer of Dance With Ravens.
EVIDENCE
The eighth race at Woodbine Racetrack on June 5, 2005 was the Plate Trial Stakes run on the main course at a mile and an eighth for a purse of $150,000.00 added. The evidence indicated that this was a significant race on the three-year-old stake calendar in Canada.
The subject race was won by Dance With Ravens ridden by appellant Kabel and trained by appellant Frostad. Dance With Ravens was disqualified and placed sixth in a seven-horse field behind the horse, Atanas.
Steward Richard Grubb indicated the placing was implemented because Dance With Ravens “drifted out of his own accord” into the path of Atanas causing Atanas to clip the heels of Dance With Ravens who was running directly in front of him approximately 1/16th of a mile out of the gate. Steward Grubb indicated that the stewards felt that jockey Kabel “jerked his horse” into the path of Atanas thereby violating both rules 11.07 and 11.09.01 of the Rules of Thoroughbred Racing. Steward Grubb did acknowledge in both examination in chief and cross-examination that there did not appear to be any interference or heel clipping demonstrable in either the head on shot or the pan shot of the video replay of the subject race.
When pressed on cross-examination, Steward Grubb indicated that the “actual contact” or the heel clipping “can’t be seen on either the head on or the pan shot of the replay of the race”.
The evidence was undisputed that there was no claim of foul lodged after the running of the race by rider Rui Pimentel who was aboard Atanas. Exhibit 3, being the taped conversation between the riders and the stewards after the running of the Plate Trial Stakes recorded the following:
(a) Mr. Pimentel “thought it was Landry” who interfered with him and he didn’t claim foul;
(b) rider Kabel indicated he “didn’t bother anybody” and had concerns about not being able to hear the single question of the stewards on the subject phone line.
Robert Landry was the rider of Three In the Bag, the horse that finished second but was placed as the eventual winner after the stewards’ review and inquiry. Mr. Landry is an experienced and seasoned rider who indicated he didn’t observe the incident at the 1/16th pole as the horses left the gate and approached the first turn in the subject race. Mr. Landry did see the subject films of the race a day or two later and indicated that he couldn’t really say which horse Atanas appeared to clip. Mr. Landry indicated further that it was Three In the Bag, his horse, that was just outside Mr. Pimentel and a bit ahead at the point in time at or about the 1/16th pole when Mr. Pimentel’s horse clearly stumbled and lost significant momentum.
It was Mr. Landry’s evidence that when horses clip heels that generally both jockeys are aware of the incident and that many times there can be an injury to the horse clipped.
Mr. Landry did acknowledge that Mr. Pimentel “screamed” at him as the horses were pulling up after the subject race. Mr. Pimentel indicated to Landry that it was Mr. Landry’s horse that was coming over and “putting a lot of pressure on him”.
Lastly, Mr. Landry indicated that he did not see any contact between Mr. Pimentel’s horse and Dance With Ravens. It should be noted that the stewards at no time questioned Mr. Landry on his ride during the subject race even though Mr. Pimentel indicated that he “thought it was Landry” that impeded or interfered with him. In fact, Mr. Landry was back in the jockeys’ room and “was surprised” when it was announced that he had been moved up as the winner of the Plate Trial Stakes.
Mr. Pimentel gave evidence additionally on behalf of the Administration. He indicated that about 70 yards out of the gate that an inside horse ridden by Mr. Kabel “came out and my horse clipped his heels”. However, Mr. Pimentel also in his examination in chief indicated that the “last thing he saw before Atanas clipped heels was Mr. Landry looking back”. In short and before viewing the videotapes, Mr. Pimentel was quite sure that it was Robert Landry riding Three In the Bag that “clipped him”.
Mr. Pimentel further indicated that after being clipped, his horse stumbled albeit recovered with the assistance of the rider. However, Mr. Pimentel indicated that the damage was done and Atanas “wouldn’t relax after the stumble” and “ran rank” after the incident. Upon cross-examination and in response to two questions from Panel members, Mr. Pimentel indicated as follows:
(a) Atanas “did break a little slow”;
(b) Mr. Pimentel didn’t yell at anyone at or near the 1/16th pole at the point of the heel clipping;
(c) Mr. Pimentel did not claim foul against anyone as the race concluded because he was “unsure” and didn’t know the process; and
(d) Mr. Pimentel didn’t really know whose heels he clipped even though he thought it was Mr. Landry at first blush and a few minutes after the race when being interviewed by the stewards.
Mr. McMahon on behalf of jockey Kabel called retired jockey, Robin Platts, as an expert witness. Mr. Platts was, in fact, at the track on June 5, 2005 for the running of the Plate Trial Stakes and contemporaneously “wondered why Dance With Ravens’” number came down. It was the considered opinion of Mr. Platts that Mr. Pimentel was having trouble with Atanas leaving the gate and it was, in fact, Atanas that ran up on the rear of the field at or near the 1/16th pole. Additionally, Mr. Platts noted that the number one and two horses which were slightly ahead of Mr. Kabel’s horse at the 1/16th pole were drifting out and that Mr. Kabel’s only option was to follow them out as the field sorted itself out and fanned towards the first turn. Mr. Platts further indicated that this was a “tough call” for the stewards.
Mr. Kabel gave evidence on his own behalf. He indicated that Dance With Ravens broke out of the gate very awkwardly in the first several jumps and that in his discussions with the stewards, he thought their concern related to this incident and not the subsequent events at the 1/16th pole. Mr. Kabel’s evidence was to the effect that the number one and two horses, Out From Africa and Get Down, came out of the gate and by the 1/16th pole were “fanning” him wider and that he had no option but to steer Dance With Ravens a bit wider as the field came down the straightaway the first time. Mr. Kabel indicated that Dance With Ravens lost no forward motion and that he felt no clip or contact whatsoever anywhere during the race and in particular at the 1/16th pole. It was Mr. Kabel’s conclusion on viewing the tape of the race that Mr. Pimentel “put himself in a bad position and likely ran up on the forward field after an apparently poor start by Atanas”.
Mr. Frostad, on behalf of the owners of Dance With Ravens and himself, indicated that there was “a lot going on in the race during the first 1/16th of a mile”. It was Mr. Frostad’s analysis that Out From Africa and Get Down carried Dance With Ravens somewhat wider than normal and Three In the Bag was, at the same time, “coming down hard” from the number six-post position. Additionally, Mr. Frostad’s view was that Mr. Pimentel was “loose lining his horse” trying to make up for the “bad start until “he ran into traffic in front of him”.
Mr. Frostad, a trainer of many years’ standing, indicated that he had never had a horse come back after being clipped without some mark, damage or injury being discernable. Mr. Frostad inspected Dance With Ravens scrupulously after the race and, in fact, filed photographs (Exhibit 5) confirming no markings or damage to his horse immediately after the race.
There was additionally filed as Exhibit 6 a signed statement of Shane St. Pierre, the starter at Woodbine on June 5, 2005 whose view of the incident was from the rear as the horses left the gate and proceeded down the straightaway towards the 1/16th pole. It was the written opinion of Mr. St. Pierre that it “appeared that Atanas in fact ran up on the heels of Dance With Ravens”
ANALYSIS
There is no doubt that Mr. Pimentel’s horse suffered a sharp, quick and sudden stumble at or about the 1/16th pole. It was additionally most unfortunate that a chip in the ankle of Atanas was discovered after the race and that he has not run since.
Steward Grubb and all of the witnesses acknowledge that Exhibit 3, being the video replay shots of the subject race, are not overly helpful and are clearly inconclusive of either contact clipping between Atanas and any other horse at the 1/16th pole.
Accordingly, Mr. Pimentel, Mr. Kabel, Mr. Landry and the stewards were left to make their observations and conclusions on a split second event at the 1/16th pole during the running of the eighth race. This Panel therefore has to consider all of the split second contemporaneous events as related by the riders and the observers of the race and the pertinent events immediately following the race.
The following are these significant events that transpired and which we find as fact occurred:
(a) Atanas did not start the race well and was “a little slow in getting out of the gate with rest of the field”.
(b) Mr. Pimentel didn’t yell or raise any objections to the conduct of any riders in front of him as the field neared the 1/16th pole.
(c) Mr. Pimentel did not claim foul after the running of the race. We were given no credible explanation by Mr. Pimentel or anyone else as to why a rider of nine years’ experience wouldn’t know the process to claim foul had one transpired.
(d) Mr. Pimentel as the field pulled up after the race gave Mr. Landry, the rider of Three In the Bag, a calling down for pressuring and/or impeding him at the 1/16th pole.
(e) Mr. Pimentel, in his interview with the judges, blamed Mr. Landry for the events at the 1/16th pole.
(f) Mr. Pimentel made no mention whatsoever of Mr. Kabel or Dance With Ravens in his interview by the Steward minutes after the race.
(g) Before the riders left the track, Mr. Landry indicated to Mr. Pimentel that he had in no way impeded him or caused any clipping and that it was “someone else”.
(h) Mr. Pimentel, even after the above discussions with Mr. Landry on the track, continued in an interview with the Stewards that the interference or clipping suffered by Atanas was caused by Mr. Landry and Three In the Bag.
(i) Mr. Pimentel’s view of the causation of the clipping did not change until he saw the tapes of the race several days later.
(j) At no time on the day of the race did Mr. Pimentel ascribe any fault to Dance With Ravens and Mr. Kabel albeit this was the conclusion of the Stewards and the reason for the placing.
(k) Retired jockey, Robin Platts, who has no monetary interest or any other interest in the result, felt after seeing the actual race and viewing the tapes that it was Mr. Pimentel’s horse that ran up on the rear of the field and was to a substantial extent the author of his own misfortune as he regained contact the with field at the 1/16th pole.
(l) The evidence of Mr. Frostad that he has in fourteen years as a major trainer never had a horse come back after being involved in a clipping incident without some mark, cut or apparent injury must be given some serious weight.
Mr. Kabel testified that he felt no contact at the 1/16th pole and that in the dozens of clipping incidents experienced during his riding career that both riders generally have their horses thrown off stride or at least suffer a loss of momentum. He was adamant and the tape of the race confirms that Dance With Ravens suffered no loss of forward motion anywhere during the race and in particular at the 1/16th pole.
We further accept Mr. Kabel’s evidence that he was being moved out by the progress and momentum of Out Of Africa and Get Down running inside of him as the field passed the grandstand the first time. Mr. Kabel was simply holding his ground in a manner so as to not interfere with the horses running ahead and inside of him.
CONCLUSIONS AND DISPOSITION
On the evidence so found above, we are obliged to conclude that Mr. Pimentel’s horse, Atanas, was to a degree being “loose lined” after a relatively poor start to his efforts in the Plate Trial Stakes. As a consequence, Mr. Pimentel’s horse closed on the field quickly at or about the 1/16th pole. Before the remainder of the field had reached the 1/16th pole, there was a congregation of horses running side by side including Mr. Landry’s Three In the Bag and Dance With Ravens ridden by Mr. Kabel.
We find as a fact that Mr. Kabel and Dance With Ravens were legitimately in their running lane at the 1/16th pole and that at no time did Mr. Kabel “jerk his horse into the path of Atanas”. Rather, Atanas appears to have made up for his poor start as the field approached the 1/16th pole and Mr. Pimentel was obliged to take a hold of his horse at this juncture to avoid running upon the back of the field as they were sorting themselves out in the approach to the first turn.
We find that in the strides approaching the 1/16th pole, that Dance With Ravens and Mr. Kabel were well clear of Mr. Pimentel and any other horse in the field and were, accordingly, entitled under rule 11.07 of the Rules of Thoroughbred Racing to be in that position on the track occupied at the 1/16th pole. We further find that Mr. Kabel did not swerve or ride his horse either way at the 1/16th pole when Mr. Pimentel’s horse suffered the stumble or bad step.
Additionally, we have concluded on the evidence as above that neither Mr. Kabel nor Dance With Ravens bothered or interfered with Atanas at the 1/16th pole.
We additionally query the procedure and process leading to the conclusion of the stewards. They did not even interview Mr. Landry before arriving at their placing decision. Mr. Pimentel, the apparent aggrieved party, clearly indicated in his telephone discussion with the stewards that it was Mr. Landry’s interference and pressure that caused his horse to stumble. Mr. Kabel, in one or two sentences, indicated that he didn’t bother anyone. We would have thought it logical to at least query Mr. Landry before implementing a major placing in a major stake race with inconclusive video evidence.
Several additional observations are required:
(a) Exhibit 6 before us contained a number of media clippings concerning the events and the placing by the stewards in this particular race. These various articles can be summarized as a war of words over the differing perspectives of the Administration and the connections of Dance With Ravens. Virtually all the parties were involved in this media frenzy. The best interests of racing might better be served if all of the parties refrained from comments to the media like a “crock of crap” and went about their business in retaining and instructing the requisite counsel for the contemplated appeal.
(b) Certain witnesses before us appeared to take substantial umbrage at the process and procedural objections made during the course of the hearing. It would be of great assistance to the hearing panel if witnesses limited their efforts to giving the necessary evidence and did not participate orally or otherwise in legal and procedural objections that might develop during a hearing.
(c) Having heard the taped recording of the stewards’ interview with various riders after the subject race, we would suggest that the stewards indicate specifically when querying riders as to the exact location where they are focusing their interference queries.
In all the circumstances, we are obliged to allow the appeal and, accordingly, direct the following:
(a) Thoroughbred ruling 3064/2005 relating to Todd Kabel is quashed and rescinded;
(b) the disqualification of Dance With Ravens during the eighth race on June 5, 2005 at Woodbine Racetrack and the subsequent placings are set aside and quashed; and
(c) the actual order of finish during the eighth race on June 5, 2005 at Woodbine Racetrack is restored and Dance With Ravens is declared the winner of the Plate Trial Stakes.
The aforesaid are the unanimous Reasons of the Panel.
Dated at Toronto, this 20th day of September, 2005.
Larry Todd
Vice Chair