IN THE MATTER OF THE Racing Commission Act S.O. 2000, c.20;
AND IN THE MATTER IN THE APPEAL OF
THOROUGHBRED LICENSEE MARK FROSTAD
Thoroughbred licensee Mark Frostad appealed from Stewards’ Ruling TB 4410/2006 dated August 12, 2006, in which Mr. Frostad was found to have violated Rules 36.05.01, 36.05.02, 36.05.03, and 36.05.04 of the Rules of Thoroughbred Racing and fined $2,000 for refusing to allow his horse ELEGANT EFFORT to be administered Lasix.
On May 30, 2007, a panel of the Ontario Racing Commission consisting of Vice Chair Hon. James Donnelly and Commissioners David Gorman and George Kelly convened to hear the appeal.
Patricia Latimer appeared at the hearing for the Administration and Mr. Frostad appeared on his own behalf.
On hearing the evidence of Steward William McMahon, Mr. Frostad, Emma Jane Wilson, Bob Anderson and Nick Coukos, and on reading and reviewing the exhibits filed, and on hearing the submissions of counsel and Mr. Frostad, the Commission allowed the appeal, and rescinded the order imposing the fine.
The Panel’s written Reasons for Decision are attached to this Ruling.
DATED this 12th day of June 2007.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
- Thoroughbred Licensee Mark Frostad appeals Ruling TB 4410/2006 wherein he was fined $2,000 for violation of Rules 36.05 01, 02, 03, and 04 of the Rules of Thoroughbred Racing for refusing to allow the horse ELEGANT EFFORT to be administered Lasix at the appointed time for the running of the 10th race on July 22, 2006 at Woodbine Racetrack, to ensure a late scratch.
The Appellant
- Mark Frostad is a licensed thoroughbred trainer and one of the twelve directors of Woodbine Entertainment Group (WEG).
The Horse
- ELEGANT EFFORT is owned equally by trainer Frostad and Bob Anderson, a WEG director.
Counsel
- Patti Latimer for the Administration. Mr. Frostad self-represented by choice.
The Issue
- Rule 36.05.04 provides an exemption for non-compliance based upon “reasonable justification”.
The Rule
- 36.05.04 “Any trainer of a horse that has been certified to receive Furosemide (Lasix) in accordance with the provisions of the Lasix Program, who fails or refuses, without reasonable justification, to have the certified horse injected with Furosemide (Lasix) within the time limited in accordance with the provisions of the Pari-Mutuel Supervision Regulations under the Criminal Code and these rules for any race in which the horse is programmed to start shall be deemed to have committed a breach of these rules and shall be subject to a fine and/or suspension being imposed by the Stewards within the provisions of Rule 16.13”.
The Precipitating Factors
Two events converged to provide the background.
Firstly – Woodbine thoroughbred non-turf track was being reconstructed with an artificial surface (Poly Track). During the interim, the standardbred track had been temporarily re-surfaced to provide a provisional or temporary track for thoroughbred racing. This was to a standard below that of the main track. One problem was that the temporary surface was subject to erosion in wet conditions and particularly so in the vicinity of drains.
Secondly – There were heavy rainfalls on Saturday, July 22 and Sunday, July 23. As a result, on July 22, track management announced about noon that the three turf races on the afternoon card would be run off turf. On July 23, the last seven races scheduled for the temporary track were cancelled. The track was closed for repair.
Mr. Frostad was familiar with the temporary track and its limitations. He testified that he had run horses three times on that track and had ruined two of them.
Mr. Frostad’s Dilemma
- ELEGANT EFFORT had run its first race (June 17/05) on the main track finishing 5th, beaten by 8-1/4 lengths. It had workouts on turf June 8 and 16 and on the off turf track June 24 and July 15. After that first start, ELEGANT EFFORT raced only on turf as follows:
July 2 3rd by 3-3/4 lengths
Oct 14 3rd by 2 lengths
Oct 21 3rd by ¾ length
Nov 3 1st
July 1/06 3rd by 3-1/2 lengths
Thereby ELEGANT EFFORT was demonstrated to be a “turf” horse. As a result of the track management decision founded on wet racing conditions, this “turf” horse was being directed to race off turf contrary to trainer Frostad’s wishes.
The response to track management’s “off turf” announcement
The 4th 7th and 10th races were scheduled to be run on turf. ELEGANT EFFORT was in to go in the 10th. Ten horses were entered in that race. Three others were “also eligible”. Horses 2, 3, 4, 5, 6, 7,8 and 10 applied to be scratched. Of the original ten entries, only horses 1 and 9 were willing to race. One of the “also eligibles” #11 also agreed to race for a total of three. Track policy required a minimum field of 5 starters, which hopefully would produce a competitive field and induce wagering. Because of an earlier request for a scratch in the event that the race went off turf, the #10 horse was scratched. With a field of three horses it would be necessary to recruit two of the remaining seven seeking scratches. In the language of the trade the two unfortunates were “stuck” – that is compelled to race. This was achieved by lottery. ELEGANT EFFORT was one of the two.
Similar lotteries were required to fill the fields in the 4th and 7th races. In each, two horses were “stuck”.
Presiding Steward, William McMahon, with 20 years experience as a Jockey, 12 years as a Steward and long experience as a trainer, explained that certain horses do not handle an off turf track as well and when the “off turf” announcement is made, scratches are not unusual. In this instance with the switch to Woodbine’s temporary track, there was a second deluge, that being of scratches.
Upon learning that ELEGANT EFFORT was stuck, Mr. Frostad clearly upset, phoned the Stewards to inform them that his horse could not safely race in the mud. He was told that the horse was “stuck” and would race or he would be penalized.
In consequence, Mr. Frostad announced that ELEGANT EFFORT would not race and he refused to have Lasix administered as required by the Rules of Thoroughbred Racing. Upon that refusal, the rules further provided that the horse must be scratched – and it was. The 10th race went with four horses for a purse of $69,100.
Thereafter, the Judges convened a hearing, found a breach of rules by the Lasix refusal and imposed a fine of $2,000.
Finding of facts
- There was no serious evidentiary dispute. The foregoing narrative was supported by the evidence. Those findings of fact are hereby made.
The Appellant’s position – is summarized in the notice of appeal.
“Running this filly on an off track would have been dangerous to both horse and rider and possibly others in the race. Rules can’t be placed above safety considerations and stewards were remiss when not exercising discretion when the situation was brought to their attention.”
Mr. Frostad’s concern about safety was supported by the evidence of Emma Jane Wilson, the Jockey in all of ELEGANT EFFORT’S races. She expressed dismay to her agent when the horse was not scratched. The horse is difficult to handle in the mud and would be particularly so on the temporary track surface. She expressed a very real concern about the horse racing on an off track. She described racing in two races that did go on that track at that time. She described significant wash outs and said that she came close to going down.
Nick Coukos, Executive Director, Horsemen’s Benevolent and Protective Association (HBPA), testified that his Association opposes the practice of “sticking” horses. In the turf/dirt context, it is seen as a fundamental breach of the trainer’s contract to enter his horse to race on turf. He confirmed the danger inherent in forcing a “turf” horse to race on an “off” non-turf track.
Analysis
Clearly ELEGANT EFFORT did not handle an off track well. The avalanche of scratches supports the validity of the expressed safety concerns.
Mr. Frostad’s experience with the temporary track and with this horse and his conclusions premised thereon merit respect.
Mr. Frostad espoused a value system where safety concerns trump industry policy designed to present an attractive wagering potential. With that proposition, there was and can be little opposition. His objection is that in his case, the stewards did not come so far as to consider that inherent jurisdiction to consider the issue and if appropriate to put safety first. His evidence, uncontradicted at that, was that he started to express safety and liability concerns to the stewards and he was cut off with the response “You are stuck – race or be penalized.”
Before concluding the following is worthy of note. That Mr. Frostad and Mr. Anderson are WEG directors is not a relevant fact. Not being relevant, it is excluded from the adjudicative process. However, undoubtedly it is a fact that will attract attention. Accordingly, comment is appropriate. Justice in statuary form is depicted as blindfolded. This symbolizes equal justice for all. Of vital importance these directors must not be advantaged by reason of their position. Of equal importance, they must not be disadvantaged by that position. They are entitled to have their evidence assessed by the usual standards. They presented as dedicated, experienced, knowledgeable horsemen. Their demeanour was that of passion and candour. No reason was presented or suggested why their evidence should not be accepted as accurate and reliable, and so it was.
Mr. Frostad and Mr. Anderson discussed refusing to have the horse race. The decision was premeditated. The question then becomes, was this a demonstration of contempt for racing rules which apply to lesser mortals or was it a stand taken on principle, safety first. A stand taken with full knowledge of the rule and of its saving provision that “reasonable justification” was a valid exemption and a firm conviction that there was reasonable justification.
Conclusion
- We find as follows:
The evidence clearly establishes a safety concern subjectively held by Mr. Frostad.
It further establishes that from an objective perspective his safety concern was reasonable.
It further establishes the primacy of safety over this industry business practice of sticking
Accordingly, on a fair assessment of the entire evidence, Mr. Frostad had reasonable justification as contemplated by the rule. The appeal is allowed. The order imposing the fine is rescinded.
- An interesting alternative approach arrives at the same conclusion by a different route. By refusing to race the horse, Mr. Frostad was under no obligation to accept the Lasix. Hence if there was a breach, it was not under the Lasix violation alleged
Sticking
In the course of the appeal, the Panel was invited to comment on the “sticking” issue. Such gratuitous comments are unwise and to be given a miss. However, to avoid being seeing as discourteous, and because Mr. Frostad and Mr. Anderson are on WEG’s thoroughbred Racing Rules Committee, we respond.
The “sticking” of horses carries a universal potential for unfairness. The stewards have discretion but as explained by William McMahon, they seek to accommodate the track’s business policy – a difficult position for them. Owners are subjected to the peril of injury to their horses. Jockeys are exposed to an unnecessary level of risk. There is increased danger of injury for the horse.
All of which is significant but the dominant factor pointing to a rethinking of the “sticking” practice relates to integrity and the public interest. The rationale underlying “sticking” is to present a competitive field with an attractive wagering potential. That quest for integrity may produce inequity.
A race is presented as competitive. It would be naïve to conclude that it was fully so. Those who are “stuck” may exhibit less than ordinary enthusiasm and full competitive fire.
Fairness would demand that the public be fully informed about the “stuck” horses. If the public is fully informed then the mutuel pool may parallel what it would have been had the stuck horses been scratched. Very few bettors would wager on a horse bearing the label - “I am forced to run but my motivation is to get out of the race safely”. There are alternatives, cancellation or a non-betting contest.
The sticking practice could invite the response - where integrity is demanded, integrity should be delivered.
From a practical standpoint, it may not be necessary to rethink the “sticking” issue. The “Frostad” defence may have wide application.
DATED this 12th day of June 2007.
James M. Donnelly
Vice Chair