IN THE MATTER OF THE RACING COMMISSION ACT 2000, S.O. 2000, c.20;
AND IN THE MATTER IN THE APPEAL OF
THOROUGHBRED JOCKEY TODD KABEL
Thoroughbred licensee Todd Kabel filed an appeal from the ruling of the stewards at Woodbine with respect to his ride on the horse ANDALUSIAN in the 2nd race at Woodbine on June 17th, 2006. Mr. Kabel received a penalty of a $500.00 fine for excessive use of his whip and raising his whip over his head contrary to rules 9.27.04(iii) and (iv) of the Rules of Thoroughbred Racing.
On August 22, 2006, a panel of the Ontario Racing Commission consisting of Chair Lynda Tanaka and Commissioners David Gorman and Brenda Walker convened to hear the matter.
Luisa Ritacca appeared at the hearing for the Administration and Harvey Schwartz appeared on behalf of Mr. Kabel.
On hearing the witnesses and reviewing the documents filed, and upon hearing submissions of counsel, the Commission determined that Mr. Kabel’s appeal should be dismissed and confirmed that the fine imposed of $500.00 should remain intact.
The Commission’s reasons are attached to this ruling.
DATED at Toronto this 26th day of September 2006.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
Jockey Todd Kabel filed an appeal from the Ruling of the Stewards at Woodbine with respect to his ride on the horse Andalusian in the second race at Woodbine on June 17th, 2006. The matter was set down for hearing on August 22, 2006. The penalty imposed was a $500 fine, for excessive use of the whip and raising his whip over his head, contrary to Rules 9.27.04 (iii) and (vi) of the Rules of Thoroughbred Racing.
Also scheduled to be heard that day were two other appeals from rulings of the Stewards with respect to Rule 9.27.04 (iii), one by Jockey Slade Callaghan and one by Jockey Gerald Olguin.
Counsel for the jockeys brought a preliminary motion to consolidate the matters. Rule 10.1 of the Rules of Procedure of the Commission requires that the parties consent to a consolidation. The Administration refused to consent to the consolidation. Counsel for the appellants indicated that while he had only recently been retained by Messrs Callaghan and Olguin, he had been acting for Mr. Kabel at the time of the prehearing conference when he indicated his only witness would be the appellant. He indicated before this panel that he would call four witnesses on the issue of what is excessive use of the whip. He had only recently given notice to counsel for the Administration of this change in his witnesses. The panel requested that counsel show courtesy to other counsel by not springing surprises on the other, in this case or in the future. The panel adjourned to allow counsel to work out a procedure that would not require the repetition of the evidence of the four witnesses that counsel for the appellants wished to call to testify, in addition to Mr. Kabel. Counsel came to agreement on the order of witnesses so that the witnesses testifying on the general principle of what constitutes excessive use of the whip would not have to testify more than once but the matters otherwise were not consolidated.
These reasons set out the panel’s findings and determination both with respect to the general issue raised and also with respect to the individual appeal of Mr. Kabel. Separate reasons will issue for each of the other appellants.
Rule 9.27.04 provides as follows:
“Indiscriminate use of the whip is prohibited including whipping a horse:
(i) on the head, flanks or on any other part of its body other than the shoulders or hind quarters;
(ii) during the post parade except when necessary to control the horse;
(iii) excessively or brutally causing welts or breaks in the skin;
(iv) when the horse is clearly out of the race or has obtained its maximum placing;
(v) persistently even though the horse is showing no response under the whip; or
(vi) by raising the whip above their (the jockey’s) shoulder when striking their mount.
Also relevant to our determination is Rule 9.27.03 and Rule 9.01, the relevant portions of which provide as follows:
9.27.03
“No electrical or mechanical devise or other expedient designed to increase or retard the speed of a horse, other than an approved whip, shall be possessed by anyone, or applied by anyone to the horse at any time on the grounds of the Association during the meeting, whether in a race or otherwise”
9.01
“Every horse shall be ridden out in a race….Every rider must persevere throughout the race in order to finish as nearly as possible to first position and must demonstrate the best and fastest race of which their mount is capable.”
The Administration called Steward Gunner Lindberg a Steward presiding at each of the races and involved in the decisions of the Boards of Stewards that found the three jockeys in violation of the Rules and imposed the penalties on each of the appellants. He testified with respect to what the Stewards observed in the course of the stretch run of each race. He had watched each race from the window of the Steward’s stand with a clear view of the stretch run. He reviewed the videotape of the race with the panel pointing out what the Stewards considered to be the Rule violations.
His evidence was that the Stewards use as a guide the use of the whip on the horse 15 times as a point when they need to review the video after the race to determine if there was excessive use of the whip. He indicated that the number of times a jockey used the whip was not the only ingredient and that in some instances a considerably lower number of blows would still constitute excessive use of the whip. Each case is determined on its own merits by the Stewards. Steward Lindberg was a jockey for 20 years himself and is experienced in use of the whip in thoroughbred racing. He said it was possible for the jockey to use the whip only 3 or 4 times but in such a way as to constitute excessive use of the whip.
Steward Lindberg was the only witness called by the Administration.
Counsel for the appellants called four witnesses on the issue of what constitutes excessive whipping. Jockey Raymond Sabourin is President of the Jockey’s Benefit Association to which the jockeys all belong. He testified that there was confusion among the jockey community with respect to what constitutes excessive whipping under the Rules and when a jockey would be found in violation of the Rules. He was clear that violations of the specific requirements under Rule 9.27.04 should not be permitted but he expressed a concern about the Stewards finding a Rule violation outside the specific actions which are defined in the Rules. He also testified that the jockey community was not suggesting that cutting a horse with a whip or leaving a welt on a horse would be acceptable. In these cases, he said, there were no welts or cuts on any of the horses ridden by any of the three appellants, Kabel, Callaghan or Olguin. He also testified that in the course of a race, once in a while, a jockey’s arm may go above his shoulder in using the whip. His view is that this should not be considered a violation of the Rule. He testified that he had reviewed the race videos of all three races in question and in his opinion none of the three jockeys, including Mr. Kabel, had used the whip in a manner that violated any provision of the Rules. He referred to the jockey’s obligation to win provided under the Rules and expressed the opinion that all three jockeys had ridden to win, as they were expected to do by the trainers, owners and wagering public.
Jockey Robert Landry and jockey Emma Wilson also testified. Mr. Landry, a rider with over 20 years of experience and Ms. Wilson who has just lost her apprentice standing are both award winning jockeys. Both testified that they had independently reviewed the race videos and that none of the three jockeys in their view had violated the Rules of Racing. Both had been penalized for violating Rule 9.27.04 at one time or other in their careers. Both provided evidence supporting that of Mr. Sabourin as to the obligation of riders to ride to win and also the uncertainty in the jockey community as to what actions would result in their being fined or suspended.
Mr. Landry testified that he had tried to use one of the whips whose new design includes padding. He used it during training to get the feel of it and then once in a race. The outcome was that he was fined for raising the whip over his shoulder. He said that he had raised the whip over his shoulder because the new design was lighter, and once he had been fined for this violation he has refused to use the new whip again. He testified that jockeys love horses and would not knowingly abuse them. He testified that the Ontario Stewards are more likely to find excessive whipping violations than those in American jurisdictions, and that when an Ontario jockey’s record is reviewed by an American, used to less stringent requirements, the jockey is viewed in a very bad light. He also testified that the jockey can tell when he/she is riding whether or not the horse is running as well as it can and whether or not the horse needs the whip to be urged on. He said that riders try various ways to urge a horse to run faster, using the whip only when the other methods fail. He also testified that a rider’s riding style may mean that it appears his/her arm is above his/her shoulder.
Ms. Wilson noted that all three incidents before the Commission were stretch runs where there were a number of horses close together trying to win and that the jockeys have an obligation to ride to win. She testified that jockeys use different styles of whipping depending on what is best to urge the particular horse on and that there is no formal education on the various techniques available to train jockeys in the correct use of the whip. She said that Rule 9.27.04(vi) is confusing in that it is not clear if the Rule is violated if any part of the whip is above the shoulder or if all the whip has to be above the shoulder before the Stewards will call a Rule violation. She agreed that a jockey uses different techniques to urge a horse on and that the number of blows with the whip was not necessarily the definitive answer for whether or not there was excessive whipping.
All three jockeys who testified on the general issue were clearly in support of the specific restrictions on whipping set out in Rule 9.27.04. Their concern was with the ambiguity as to what constitutes “excessive” under Rule 9.27.04(iii).
Nick Coukos, Executive Director of the Horsemen’s Benevolent and Protection Association which represents owners and trainers, testified that the jockeys are chosen by the trainers to ride particular horses depending on their riding style, and that different horses respond to different styles of riding, including the use of the whip. He testified that the bettors in the stands watching the race encourage whipping by the jockeys. He also testified that if an owner or trainer believes that the horse has not been urged on to give 100% effort by the jockey and aggressively ridden, the jockey will not be hired again. Mr. Coukos emphasized that there was a considerable investment by the owner in the horse and its training.
Mr. Kabel testified that he had not in his view violated the Rules. He said that he had only ridden the horse once before but knew that the horse is one that does not like to win and has to be ridden aggressively. He has ridden the horse since and because of the fine in this case he did not ride as aggressively on one race. The result in that race was that the horse did not win any money. The other times he has ridden this horse aggressively, the horse has won money. He said that another occasion when he rode this particular horse he was “done” at the turn and so he did not use the whip on the horse. In the specific case before this panel, he only lost the race by a nose and therefore earned second place money. He said that he started whipping at the 3/8 post and hit the horse twice at the 5/16ths pole. He said he could tell the horse was responding to the whip.
Mr. Kabel testified that his horses are usually checked by the track veterinarian for welts and cuts at the end of races and there were none in this case. Mr. Kabel has been found in violation of the whipping Rule on a number of other occasions. He said that in this case the trainer told him that the horse needed to be ridden aggressively, but the owner will not tolerate abuse of any horse. The owner and trainer apparently were satisfied with his ride in this race.
When asked why he would ride a horse that does not want to win, he said that there was a challenge for him to make the horse win. He confirmed Mr. Landry’s evidence that the US jurisdictions are more lenient, that the public and regulators there encourage aggressive riding and look down on the Ontario riders for not being as aggressive as US riders are.
Findings
In all cases coming before us, we must decide the issue based on the public interest and taking into consideration the principles of honesty, integrity and social responsibility. The protection of the horse is a fundamental element of the Commission’s jurisdiction and protection from excessive use of the whip is clearly expressed in the Rules.
We have reviewed the model rules of the Association of Racing Commissioners International Inc. and note that while our Rule and the model rule in this case are very similar, there is no model rule preventing the jockey from raising the whip above his/her shoulder. The intent of the Ontario Rule is to control the range of movement of the jockey’s arm to limit the force of the blow, all with a view to protecting the horse. The Ontario Rules are deliberately more restrictive on the use of the whip.
It was acknowledged by all witnesses that the whip is to be used as one of the ways the jockey urges a horse on. The owners, trainers and bettors have to trust the instincts and skill of the jockey that everything that can be done to urge the horse on is being done so that the horse is putting forth 100% effort within the limits of the conduct that the Commission will permit. Whether or not the owners, trainers and bettors trust the jockey’s professionalism is a different issue and the use of the whip on a horse to an extent which violates the Rules of Racing will not alone earn that trust.
Rules 9.01 and 9.27 can and do work together to accomplish the goals of competitive racing that honour the importance of the expectations of bettors and the investors. The conduct of the jockey is limited by the need to protect the horse. So long as the horse is adequately protected, the expectation of the regulator and the public is that the jockey will ride to win. It is not in the best interests of racing or the public interest to remove or lessen the controls on the jockey’s use of the whip.
The goal of the Rule 9.27 is to eliminate inappropriate or excessive whipping and abusive conduct so as to protect the horse. All the witnesses agreed in this case that there is no right or wrong number of times a jockey can use a whip and exceed what is reasonable in the circumstances. With respect to the issue of ambiguity in the range of conduct which may attract penalty, the fact that a jockey may be penalized for excessive whipping on one occasion but not on others (or that one is penalized and another is not) is unfortunate but an inevitable consequence of the discretion that must be left to the Stewards. The Stewards who must enforce the Rules are experienced in the industry and, as in the case of Steward Lindberg, often riders of considerable experience and accomplishment. It is desirable that there be a clear understanding within the jockey community of the intent of the Rule as to excessive whipping and the range of conduct that will attract a penalty; that being said, the fact that there is discretion as to what conduct will result in penalty must encourage the jockeys to be conservative in the use of the whip, all of which better protects the horse. The appeal process to this Commission provides for oversight in the event of the potential for error in the use of that discretion.
The jockeys must appreciate that what constitutes abuse of a horse is not limited to the headings in Rule 9.27.04 and that there is a decreasing tolerance in the broader community for behaviour that involves the use of anything beyond reasonable force to control the animal. When the regulator is seen to tolerate behaviour beyond the standards that the broader community accepts as appropriate, the industry as a whole suffers.
We have reviewed the race video and observe that Mr. Kabel whipped the horse repeatedly with almost no break of any significant time between the blows. Other jockeys in the same race who were also vying for the win also used their whips but uniformly allowed more than a stride to assess whether or not the horse was in fact urged on by the whip. Mr. Kabel’s hand holding the whip was frequently above his shoulder as he whipped, and his shoulders and head moved with the rhythm of the whipping. There is clear violation of Rule 9.27.04(vi) and therefore we do not need to deal with Rule 9.27.04(iii). Given Mr. Kabel’s previous violations, we dismiss his appeal and confirm the fine imposed of $500.
DATED this 26th day of September 2006.
Lynda Tanaka
Chair