Ontario

Racing

Commission

TB

RULING NUMBER COM SB 017/2008

COMMISSION HEARING TORONTO, ONTARIO – MAY 15, 2008

IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;

AND IN THE MATTER OF THE APPEAL OF STANDARDBRED LICENSEES

ROBERT HAMATHER, LLOYD NICHOLSON, GARY SMITH & GEOFFREY MOUND

AND

WOODBINE ENTERTAINMENT GROUP

Standardbred Licensees Robert Hamather, Lloyd Nicholson, Gary Smith and Geoffrey Mound sought a hearing before the Commission to dispute the decision made by Woodbine Entertainment Group (“WEG”) to deny their horses entry into races at WEG facilities.

On May 15, 2008, a Panel of the Commission consisting of Chair Rod Seiling, Vice Chair Hon. James M. Donnelly, and Commissioner George Kelly, convened to hear the appeal.

Luisa Ritacca appeared as counsel for the Administration. Ross Nicholson appeared as counsel for the Applicants and David McCutcheon and Angela Casey appeared as counsel for WEG.

Upon hearing the evidence presented by the parties and upon reviewing the written submissions filed, the Ontario Racing Commission determined that it had jurisdiction to consider the Application and held that WEG is prohibited from rejecting the Applicants’ eligible horse entries on a permanent basis.

The Panel’s Reasons for Decision is attached to this Ruling.

DATED at Toronto this 18th day of June 2008.

BY ORDER OF THE COMMISSION _____________________________________

John L. Blakney

Executive Director

REASONS FOR DECISION

1. Woodbine Entertainment Group (WEG) has refused to accept racing entries for the applicants’ racehorses which were in the care of trainer William Elliott on April 14, 2008. WEG’s suspension of those racing privileges is for an indefinite period. The applicants seek relief through intervention by the Ontario Racing Commission (ORC).

2. The burden of proof is on the applicants seeking interference with a business decision by WEG. Mindful of the decisions in Friedman and Lamoureux, that burden is on a balance of probability. Having regard to the importance of the issues for the industry, the evidential burden is upon clear, cogent and convincing evidence.

3. The relevant facts are not in dispute and are amply supported by evidence as follows:

i. Based on change of performance or investigative information, on August 29, 2007, ORC officials conducted out-of-competition blood testing at William Elliott’s training facility. Twenty-nine horses were tested. On April 14, 2008, test results confirmed the presence of EPO in one of the twenty-nine horses, that being MICHELLE’S POWER, owned by Jeff Snyder. Test results on the remaining twenty-eight horses were negative. Out-of-competition testing of all racehorses under Mr. Elliott’s care at his training facility was also conducted by ORC officials on May 2, 2007, October 6, 2007 and March 5, 2008. All tests on those dates were negative.

ii. Pursuant to ORC Rules, upon the positive test for MICHELLE’S POWER, Mr. Elliott’s trainer’s licence was suspended. All horses in his barn were declared ineligible to race until transferred to the care of another licensed trainer approved by the ORC.

iii. The applicants complied with that ORC protocol. Thereby under ORC Rules those horses were eligible to race. The problem arose when notwithstanding ORC eligibility, WEG refused to accept those racing entries at WEG tracks (Woodbine and Mohawk).

iv. The issue is whether the ORC has and should exercise jurisdiction to review, and if appropriate, modify or strike down WEG’s rejection of entries. Can WEG’s action be permitted to stand, given the ORC’s statutory obligation to:

“govern, direct, control and regulate horse racing in Ontario”? (Section 7(a) Racing Commission Act 2000 R.C.A.)

“in the public interest and in accordance with principles of honesty, integrity and social responsibility.” (Section 6)

v. This hearing, returnable May 15, 9:00 a.m., came forward on an urgent basis. The racing draw for the WEG Diplomat Series had been postponed as one of the horses in issue had been nominated for that Series. The draw was to be made on May 15 immediately following the Panel’s decision. The race would be run on the weekend.

vi. With that background urgency, WEG filed four volumes of material which were received by Panel Members at 8:40 a.m. on May 15.

4. A decision whether to hold a hearing normally would be the first item of business. Upon enquiry by Chairman Seiling, counsel for WEG indicated that because of the urgency, the hearing should proceed on a contingent basis with the jurisdiction issue reserved for later submissions.

5. Jurisdiction need not be re-litigated each time the matter comes before the Commission. The Ontario Court of Appeal put the jurisdiction question to rest in “Sudbury Downs”. There is authority to hold a hearing under the General Power in Section 7(k) R.C.A.

6. Upon the evidence, the Panel determined that the issue of an ORC licensed Race Secretary rejecting racing entries from ORC licensed owners otherwise entitled to race at an ORC licensed racetrack relates to the good of racing generally. Exclusion of racing entries is primarily and predominantly race related. The basis for rejection of race entries involves substantial public interest elements of broad application. Accordingly, the Panel determined that the applicants had discharged their preliminary onus on a balance of probability and the hearing should proceed. OHHA v ORC (2002) 2002 CanLII 41981 (ON CA), 62 OR (3d) 44 “Sudbury Downs” – ORC v Friedman Divisional Court April 18, 2008.

7. At the opening of the proceedings, the Chairman advised that the hearing would proceed as scheduled in order to accommodate the urgent circumstances. He further advised that given no opportunity to review the four volumes in advance, the Panel may find it necessary to consider interim relief. The evidence proceeded. An interim order issued requiring all Ontario tracks to accept these race entries pending the Panel’s final ruling. Written submissions were directed with the final submission being received on June 11th.

8. It is unnecessary to list the horses owned by each applicant. The issue turns on principle not on determination of an issue of fact. Suffice it to record that the applicants’ standardbred experience as owner ranges from 40 years to recent introduction.

9. Their commonality is the relevant feature.

• None has ever had a horse with a positive test;

• None has been the subject of ORC suspension or discipline;

• There is no evidence of any of the applicants suggesting, requesting or directing that a trainer including Mr. Elliott, use any improper drug, medication or substance on any of their horses or of the applicants conspiring, condoning or acquiescing in such conduct;

• There is no evidence of any of the applicants having knowledge or belief of such administration of a substance on their horses by Mr. Elliott or anyone else or of joining the Elliott stable for any improper purpose;

• There is no suggestion in evidence that the “investigative Information” underlying the out-of-competition testing related to any of the applicants;

• All are men in their sixties at or near retirement following successful business careers;

• No allegation is made nor is there a scintilla or evidence suggesting bad character by any of them;

• They are capable of being seen as typical of the quality of person the industry so badly needs in order to survive – legitimate, interested and financially able to support that interest.

10. Having not detailed the evidence, as finder of fact it is important to record impressions of the applicants and their evidence. Individually and as a group they presented as honest, truthful and reliable, if somewhat chagrined upon finding themselves without notice or fault in this predicament. A situation to be lamented.

11. Mr. Elliott’s Notice of Immediate Suspension by the ORC dated April 25, 2008 states: “Three horses trained by Mr. Elliott have demonstrated changes in performance.” No particulars of the horses or of the alleged changes are provided. There is no indication that such information was available to any of the applicants prior to or after August 29, 2007. The notice also references Mr. Elliott’s “ORC record that includes two previous positive tests (September 14, 2000 and August 23, 2000) and one rule violation by “participating while under suspension” (November 20, 2006). There was no evidence of knowledge of that record by any of the applicants.

12. The stated object underlying WEG’s rejection of racing entries is that this is a further phase in the long struggle to eliminate from racing the improper use of drugs and medication. That such covert activity is adverse to WEG’s business interest is beyond dispute. The betting public must be protected against horses competing with unfair advantage. Wagering must be protected in order to maintain purse levels and full racing fields.

13. The stated rationale underlying the indefinite term of the suspension is provided by Jamie Martin’s evidence that the drug has a long-lasting effect, thought to be as long as six months. That interval being uncertain, an indefinite suspension was imposed.

14. Reference was made to similar rejection of entries being imposed in the prior EPO cases of Brian Scott and Brett Robinson. If that was the case, the issue was not brought before the ORC for determination either before or after the rejection of entries. So far as is known through the evidence on this hearing, those rejections were not brought to the attention of the racing community in any manner, much less by advance notice of a WEG rule imposing the peril of similar censure for similar conduct. The righteousness of the cause is not enhanced by the plaintive claim - “we did it before and got away with it.” This issue is now presented to the ORC for the first time.

15. As has been noted in prior ORC rulings, WEG has its own track rules and policies, the former are ORC approved, the latter are not. Nowhere in either WEG rules or policies is there reference to this “offence”, if it may be so designated, or this penalty.

16. Notwithstanding that critical deficiency, WEG claims authority for its action as follows:

WEG’s Standardbred Rule Book

“1.1(a) It is a privilege, not a right, to use the Premises and Race at the Racetracks. Any conduct determined by WEG, in its sole and absolute discretion, to be injurious to the sport of horse racing or not to be in the best interests of the sport of horse racing, may result in the imposition of a penalty in accordance with Section 7.1 of the Rules and Regulations.”

“Section 7.1 provides:

A violation of any of the Rules and Regulations may lead to the imposition of a penalty or penalties including:

(i) suspension of privileges,

(ii) loss of any or all fees, and/or

(iii) eviction from the premises.”

17. The Diplomat Racing Series is stated in its racing condition sheet to be subject to ORC Rules of Racing and the following additional conditions”

18. “At the absolute discretion of WEG, the entries of any person may at any time be refused or cancelled without notice or reason being given without liability….”

19. Turning away from WEG’s stated reason for the suspensions and looking to a muted reason, the evidence is suggestive of “The Robinson Connection”. For more explicit understanding of that subplot - William Robinson of the Hagersville District was a prominently successful trainer on the WEG circuit and generally across the top echelon of standardbred racing. His success was dramatic to the extent of arousing suspicion of substance impropriety, scrutiny and ultimately his downfall by long-term current suspension. William Robinson v ORC February 14, 2004, Ruling COM SB 007/2004.

20. Although it is not found in today’s evidence, Mr. Elliott had been an assistant trainer in Mr. Robinson’s barn. Following the Robinson suspension, Mr. Elliott continued as an ORC licensed trainer, training at the Robinson training site, training some of the horses formerly trained by Robinson and racing primarily on the WEG circuit.

21. ORC Deputy Director, Rob McKinney, was cross-examined by counsel for the applicants on the following:

• McKinney, as the officer in charge of the ORC Investigative Branch, had suspicions about a continuing Elliott/Robinson link. He was aware of allegations that Robinson was associated with horses in Elliott’s stable but he had no evidence sufficient to warrant proceedings.

21. A similar theme was touched upon in the Jamie Martin cross-examination when Mr. Martin, speaking for WEG, stated: “Because of the Robinson Connection we had Elliott in retention.” (pre-race scrutiny in WEG’s retention barn on WEG’s grounds) Wm Elliott v ORC July 18, 2005, Ruling COM SB 021/2005.

22. As Mr. Martin indicated, for months WEG had required Mr. Elliott to race from retention (dating back as far as April 2005). His horses were released from the retention requirement in April 2007. Did that release signal the end of the cause for retention? WEG’s evidence through Mr. Martin was that WEG highlights or draws attention to certain trainers by imposing retention conditions.

23. WEG’s aims and objectives in protecting racing and thereby its business interests are beyond reproach. The theme of protecting racing coincides with the ORC’s statutory mandate. With a common purpose, perhaps more consultation with the Administration branch of the ORC might serve to advance that shared objective.

24. WEG, in its fervour to protect integrity, must exercise care not to assume the function of a tier-two regulator. Perceived deficiencies in regulation may be addressed through dialogue.

25. In drafting Reasons for Decisions relating to WEG, fairness, accuracy and thoroughness require preliminary acknowledgment of WEG’s lofty standards and primacy across all aspects of racing. This acknowledgment is more than courtesy. It is a declaration of truth.

26. Once again, the Panel affirms that in horse racing, WEG is “King”. That premise invites two historical references:

• The year 1215. The place, Runnymede. The king, King John. The end product, the Magna Carta. The central theme of the Magna Carta – “Even the King must obey the law.” As well these tenets were entrenched – “No freeman shall be deprived of property except by lawful judgement of his peers or by the law of the land.” – Also introduced was the concept of entitlement to “due process of law.”

• The trials and punishment imposed in Salem, Massachusetts in 1692. So originated a term, gross in opprobrium, “witch-hunt”. The mood at the time - So what if the innocent were swept up with the guilty? Sixteen people were hanged as witches; one hundred and fifty were imprisoned. The Salem trails resulted in the last witchcraft executions in America. Fifteen years later, the colony paid reparation to the families of witch-hunt victims.

27. Lessons long ago learned, with merit tempered by the ages, are not for casual discard.

28. The stated justification underlying WEG’s rejection of entries is capsulized by Jamie Martin’s responses in evidence to the effect:

• “If one horse was treated with EPO, we (WEG) believe in all likelihood other horses were so treated.”

• There is a strong potential other horses could be treated with the same drug.”

• I believe if it was used on one it was used on many.”

29. WEG has done well in protecting racing but neither is it infallible. Nor in its zeal for deterrence to protect integrity or to rid the Robinson Connection should it sacrifice those not demonstrated to have done wrong.

30. There can be no public interest in permitting overzealous tactics in the war against illegal substances to ride roughshod over the rights of licensees who have done nothing wrong. That is too close to the trial of Jesus and Pontius Pilate’s declaration:

“I find no wrong done by this man.”

and the crowd’s response:

“Crucify him, Crucify Him.”

31. The WEG commitment to protect integrity and possibly to purge the Robinson Connection cannot ratify punitive measures based on suspicion.

32. WEG was suspicious of Elliott. So Elliott’s horses went into retention. No other sanction was imposed on Elliott, presumably because suspicion could not justify a penalty. That virtuous criterion was not extended to the applicants. Could the imposition of their penalty supported only by suspicion have the appearance of a double standard?

33. As was stated in Hudon:

“Offenders should be identified and dealt with according to the measure of the wrong doing but only in accordance with principles of honesty, integrity and social responsibility which are required of the Racing Commission.”

34. The public interest in racing includes:

• An industry viable and self-sustaining.

• Racing competitive but fair, free of any form of cheating.

• Opportunity by licensees to participate freely, openly and honestly within the rules.

• Open-handedly and fairly dealing with all licensee matters coming before the Regulator.

• Principles of due process and protection against imposition of penalty absent fault.

35. Given the urgency of substance abuse in racing, the ORC concern embraces the well being of the horse as well as racing integrity. ORC pursuit of those twin goals has included emphasis on the general deterrent aspect of penalties. This, however, can properly only follow breach of the Rules of Racing with a full hearing and appeal process.

36. For the ORC to pay mouth honour to, but fail to practice and enforce, integrity is hypocrisy – “Though the heavens fall”, licensees must not be denied due process.

37. Owners are entitled to fair treatment. Neither ORC nor WEG rules has been breached. There has been neither advance notice of the conduct nor the penalty. WEG’s written rules were not amended to authorize application of this penalty. There has been ample time and more for such amendment. Through Jamie Martin, WEG states a similar penalty was imposed in the Todd Gray case. Mr. Gray’s suspension notice from the ORC for an EPO violation was dated August 3, 2006. The Elliott EPO positive test was declared on April 14, 2008 – an interval in excess of eight months.

38. The applicants met all announced standards set by the ORC and WEG. Absent notice and given the gravity of the consequences, the appearance or fact of the dominant player changing the rules in mid-game is to be avoided. Any such amendment to WEG rules would require ORC approval – perhaps a problem?

39. The propriety of the rejection of racing entries must bear scrutiny from three perspectives:

How the persons to be penalized are selected

40. Seven months and sixteen days separated the drawing of blood and the positive test laboratory report. (Blood drawn August 29, 2007, sample tested April 2, 2008, confirmation of EPO April 14, 2008) That interval exceeds the six-month period that according to Jamie Martin’s evidence is the reputed outer limit of the residual effect of administration of EPO.

41. With that extensive passage of time, is selection of April 14, 2008 as the effective date, rational or arbitrary? That date selection governs the identity of the owners in the stable at that time and so to be penalized. Arbitrary selection of the date ensures imposition of penalty by caprice.

42. Is the significant date August 29, 2007, that being “about the time” of the administration of the EPO? So far as this hearing record is concerned, the evidence is against administration of EPO after that date. Firstly, the March 5th tests were negative. Secondly, there are in evidence by the applicants, credible denials of impropriety and assertions of positive instructions against administration of any drug by Mr. Elliott. If horses are to be barred for the possible residual effects of EPO, should there be evidence of administration within the 6-month hangover period. For example, horses owned by applicants Nicholson and Smith were not in the Elliott barn in August 2007 when the EPO positive blood was drawn.

The validity of the penalty

43. The severity of the penalty considered entirely apart from the jurisdiction to impose a penalty is problematic. An indeterminate suspension is severe indeed. Can the indeterminate element be justified? The stated purpose is to protect the wagering public from horses competing while the effects of EPO may linger. WEG through Jamie Martin’s evidence did not seek such scientific evidence as may be available as to that probable duration. Undoubtedly the scientific response would be susceptible to the vagaries of many variables, dosage dependent and such. However, that enquiry would have permitted some type of fixed term suspension which would be more just and equitable. Indefinite suspension carries the potential for abuse by whim, low priority treatment or the like.

The propriety of the process underlying the punitive action

44. Imposition of penalty premised upon suspicion of generalized wrong doing in the stable must be carefully scrutinized. This approach seems to attribute no validity to the proven fact that Elliott’s horses endured long-term close scrutiny by WEG through the retention regime and by investigation ORC officials. Apart from MICHELLE’S POWER, no EPO was detected on any of the other horses racing from that stable upon the four test dates. Some of those horses are subject to WEG’s ban. Apparently none of retention, out-of-competition testing or investigative information produced evidence to support the rejection of entries.

• This WEG “rule” has no defined boundaries. Unwritten, who knows today’s scope – much less tomorrow’s?

• The rule was neither promulgated to the industry generally nor to the applicants specifically.

• The consequences of WEG’s action are substantial. Stake horses would be deprived of the opportunity to compete for onetime only significant purses. Their value is largely premised on this earning potential. Aged horses would be deprived of their earning power. In result, the value of the racing stock is substantially diminished. Beyond financial consequences, a significant penalty is imposed upon the applicants in terms of stigma. The financial consequences are not confined to WEG tracks. Other tracks follow this industry leader. In many cases, there is reciprocal enforcement of suspensions. Western Fair Raceway followed WEG’s lead and refused to accept entries for these horses. On a temporary basis, one of the applicant’s experienced difficulty in having a horse accepted for racing at the Meadowlands.

45. The Commission’s power to govern and regulate horseracing extends to the power to modify the legal rights of the parties, as identified in “Sudbury Downs”. The integrity component of racing, so vital to the industry, must of necessity embrace a fairness component. Consideration must be given to WEG’s business interests and the general well-being of racing. The over-arching element of public interest is that licensees must not be arbitrarily deprived of their rights. Owners and prospective owners must have confidence in the preservation of those rights.

46. As has been often observed in ORC Reasons for Decision, EPO/DPO is a grave threat to racing. Countermeasures are to be supported but not at the expense of fundamental principle.

Track policies intended to protect the integrity of racing should be supported, but not to extent of the unilateral extinction without cause of the rights of another licensee. Regulation lacking procedural fairness would be a total failure to comply with the standard of honesty, integrity and social responsibility.

47. It is said that the four applicants are not the public and do not represent the public, that only their private interests are in the balance. To so speak is to miss the point entirely. The Public interest is engaged by the process, not by the victims of the process. The issue deals with principle, not individuals. It is difficult to envisage a more compelling public interest than the total failure of due process.

48. The after-the-fact evidence and arguments related to the applicants’ racing records as detailed in WEG’s written submissions are irrelevant. The issue is singular and straightforward, the suspension of all horses in Elliott’s barn on April 14, 2008 for no reason other than that they were there. This is not a replay of the Friedman case. Access rights to WEG property is not in issue.

49. WEG’s factum (paragraph 47) adopting the Jamie Martin theme states:

“The implication is that horses besides MICHELLE’S POWER were given DPO but at a time that rendered detection impossible.” (underlining added)

50. This allegation is based on the premise that first-stage Elisa testing is effective 72-96 hours following administration of EPO. This timeframe was stated in the WEG’s factum but not in evidence in this hearing. Leaving aside the window of opportunity for detection and addressing “the implication”, nothing is implied. That reference seems to be to an “inference” rather than an “implication”. Any such inference, lacking evidence, could only be premised upon suspicion. Will some licensees depending on status be more susceptible to suspicion than others?

51. The WEG factum also states (paragraph 51):

“An owner placing his horses with a trainer such as Elliott knowingly takes a risk that his entries will be refused by WEG in the event of future rule violations by Elliott.” (underlining added)

There are two difficulties with that assertion:

• How does an owner identify a trainer labelled by WEG to be “a trainer such as Elliott?”

• The evidence falls absolutely short of proving such knowledge by the applicants either actual or imputed.

52. The WEG factum further states (paragraph 53)

“Since the applicants stood to benefit from Elliott’s behaviour, it is not unfair that they should bear the consequences.” (underlining added)

53. If consequences are to be borne, the inference may fairly be properly drawn that “behaviour” means “improper behaviour”. This must be. The evidence simply does not support that assertion of the applicants’ benefit from improper behaviour by Elliott.

54. WEG’s rejection of entries fails because the process is fundamentally flawed. Without prior notice or knowledge, the applicants were in sporting terms “blind-sided”. On fairness and as a matter of principle, WEG’s response cannot be allowed to stand.

55. However, WEG’s action apart from the flawed process may have much merit and so requires careful thought. Loss of racing’s monopoly on legalized gambling dealt the industry a staggering blow in terms of attendance and mutuel handle. The industry more or less “on the ropes” is then pummelled by the recurrent curse of illegal substances. Current drug test programs carry some deterrence. The Achilles heal is twofold.

• more would be better

• not always on the leading edge in terms of the next generation of performance enhancers

DOES THE RACING INDUSTRY HAVE THE WILL TO END DOPING HORSES?

56. Does it have the death wish to die by a thousand small cuts?

57. Would the doping of horses in public stables hit the wall as a result of unified action as follows:

• Adoption of WEG’s hard-line tactic of suspension of all horses in the stable on the date of the positive test for a performance enhancer with no therapeutic value. This would be accomplished by an ORC rule following implementation of the ORC’s protocol for rule changes with provision for industry input and ample notice to the industry and particularly in relation to licenses issued to new owners.

58. Any such action will have down sides. Will new owners be intimidated and driven away?

59. Any such action could be introduced only after preliminary review by the entire industry. Undoubtedly this would be a convulsion followed by a wild free for all, there being no industry shortage of opinions or able orators. That preliminary review would not proceed as an attempt to gain approval. It would be a dialogue engaged in with the expectation that strengths and weaknesses would be identified for consideration in making the proper decision.

60. The adage “money talks” may suggest avenues for exploration. Is the last hope for the industry to have the owners who fund the process flex their collective muscle?

61. Should owner/trainer contracts be mandatory? If so, should certain terms and conditions be mandatory? What would be wrong with the trainer’s record for racing violations and particularly suspensions being a schedule to the contract? Should there be a clause specifically prohibiting the improper use of drugs and medication, possibly with a cancellation of training accounts for a fixed time following a breach? If the WEG rejection or some variation thereof is upheld, should that peril to the owner be disclosed in the contract? Should there be reference to the recent ORC rule preventing the horse from racing for 90 days following certain positive tests?

62. Should the racing records of other trainers be available to owners to permit a fully informed choice of trainer? If owners are to be exposed to this type of peril, should racing not be obliged to give owners accessible tools for self protection? With that background, owners could practice due diligence in making a trainer selection.

63. If blood is drawn from an owner’s horse by the ORC, why not the following?

• Notice to the owner:

• Of the blood testing of his/her horses.

• The ORC acted on the belief that reasonable and probable grounds existed based on change of performance or investigative information. Should particulars of the alleged change of performance be provided if it relates to the owner’s horse? Should investigative information related to that owner but unrelated to informant privilege or “legally sensitive areas” be provided to the owner?

• The results of the test.

• An adequate portion of the blood sample to be available for testing by the owner within a reasonable timeframe.

64. The Administration’s closing submissions advocate against the ORC notifying owners that their horses have been tested with negative results, suggesting such notification is the trainer’s responsibility. This decision would involve consideration of such as:

• Is the trainer already under investigation by the ORC unlikely to give the matter further public exposure by notifying his owners?

• Should a trainer whose integrity is subject to question be given opportunity to deceive his owners by failing to disclose the testing to them?

• Do principles of openness, transparency and full disclosure require that owners should have this knowledge? Why provide a renegade trainer with opportunity to breach these principles?

• Given the current activism toward “penalize horse and owner”, it becomes more important that owners have full information. Is the information so vital that it should be provided to owners without imposing on them a burden of continuous search?

65. The applicants have discharged their burden of proof. In result, the interim order prohibiting rejection of these racing entries at WEG tracks will continue on a permanent basis.

66. This job is fraught with interesting events. One occurred following the interim restoration of racing privileges. WEG accepted the entries but imposed retention requirements. This conduct is not before the Panel but it does seem that old habits die hard.

DATED this 18th day of June 2008.

____________________________

Rod Seiling

Chair

____________________________

James M. Donnelly

Vice Chair

____________________________

George Kelly

Commissioner