Assessing and Updating the Rules of the Race

By Bennett Liebman
Government Lawyer in Residence
Government Law Center
Albany Law School

Speech before The Racing Officials Accreditation Program
Tucson, Arizona
December 5, 2016

Thank you for having me here today. And thank you for that overly kind introduction which only proves one thing: I’m old.

I got the request to speak here last week; so I’m somewhat of an added starter here. I should be wearing substitute silks. It has been suggested that I drew in from the also-eligible list. I have tried to do some research for the speech, since I’ve said and written a little on this overall topic for about a decade. I spend a good deal of my time writing articles of critical importance to gambling and horse racing. My recent law journal article on the history of dog racing in New York State was a real page-turner, and you can look forward to even more cutting-edge articles awaiting publication on the history and meaning of the term “pari-mutuel” and how New York racing developed a theme song for the Belmont Stakes.

Stewards and racing officials have been just about my favorite people in the business. Racing officials were incredibly kind and generous to me when I became a commissioner. My friend Leo Connelly brought me out to his office in Syracuse to show me how to watch races. Mark Thomas, who was our assistant state steward at NYRA, gave me all his cassette tapes from the first national class on stewarding. The late NYRA steward Dick Hamilton became a cherished close friend. Wendy Davis let me participate in teaching classes to stewards. In fact, Leo Connelly and I got to be the moderators for the early programs we held here on stewarding during the symposium.

That said, and even though I have said little in recent years on this topic, I find, somewhat unfortunately, that things have changed far little than they should have, and I can actually largely update what I was saying in 2006.

From a historical perspective, horse racing officials were the leaders in sports technology. We were the worldwide leaders. The sports world started using photo-finish cameras in track and field for the 1932 Olympics in Los Angeles. Racing built on this innovation, and racing was the first professional sport to add photo-finish cameras and electronic timing in approximately 1935. In the mid-1940’s, racing became the first sport to authorize film and tape reviews of race. Racing was the first sport authorizing objections and inquiries to be resolved by game officials through reliance on film and tape.

Of course, there were some hiccups along the way. You can see that Massachusetts – not surprisingly ‒ had its problems in trying to implement photo finishes. They even banned the photo-finish camera for a time in the 1930’s. And even into the 1970’s, especially if you ever spent time at Saratoga harness, you would continue to hear fans complain that the photo-finish camera was rigged or favored either the outside or the inside horse, depending upon what losing horse they wagered on. It may not have come easy, but we were the leaders.

But we’ve been joined by others in recent years. Every major sport now has significant elements of video replay and post-live action review available. Have we been surpassed? Well, both yes and no. They may have more technology, designated replay officials, elaborate procedures and even bunkered troops reviewing tapes in distant cities. But they’re basically reviewing objective decisions. Racing is still the one professional sport using replays to make decisions on judgment calls. The others basically don’t.

Look at the other major sports. Baseball reviews catches and safe and out calls and whether the ball left the park. The only thing remotely subjective are the interference plays, and by now the rules on an issue like home plate interference are practically black and white. If it becomes anything near subjective, the initial decision is upheld.

The NFL calls are also designed to be totally objective. Was the ball caught? Was it a touchdown? Was it out of bounds?

Hockey is even more restrictive. It’s only for goals, and everything is designed to be objective. Was there a goal? Did time expire? Was the net dislodged before a goal?

The NBA is a little trickier. The on-court decisional reviews are supposed to be objective. There are also reviews of fights and flagrant fouls because major penalties have to be assessed immediately, but for the on-court action, the review is objective.

In tennis, where the replays have probably been most successful, we’re looking at line calls, and the video decisions are quick and non-controversial.

So we’re seeing a replay world, where we are looking at replays largely focusing on objective factors. Nobody is reviewing balk calls, check swings, pass interference, or intentional grounding, boarding, or charging. We also are not reviewing certain decisions that could be objective, but would involve changing the entire ethos or pace of the game. You could arguably objectively review the strike zone in baseball, travelling in basketball, boarding or all offsides calls in hockey, and foot faults in tennis. Nobody is willing to go that far.

So the issue is what horse racing should be doing in the age of replays, understanding that officials in racing make largely subjective rather than objective calls. I would suggest that racing’s goals should include how best to use technology to help the on-site racing officials, how to use technology to assess the performance of racing officials, and how to show our fans that we are working to improve the quality and the consistency of our decisions.

My basic suggestion is that we need to nationally unify our rules governing the running of races, unify our rules on entries, and keep racing commissions out of the review of steward judgment calls.

It ought to be obvious that we need national uniformity in our race rules. There no longer are meaningful borders between states on racing. Everyone bets on everything. New Yorkers arguably have – at least as measured by purses – the best racing in the country. But most of the money bet by New Yorkers is bet on out-of-state tracks. 72% of the money bet at New York State tracks is bet by out-of-staters. And most obviously to me, this should be an obvious move. It’s not a hard policy call like our drug rules; it’s a no-brainer to have a uniform rule.

And there’s a need for a uniform rule. As our jurisdictions moved away from the Gertrude Stein rule that “a foul is a foul is a foul” to the more Monty Python notion of “The Meaning of (Foul) Life,” states went their separate ways.

New York, for instance, banning interference, impeding and intimidation, or the foul, altered the finish of the race. New York’s rule on the meaningfulness of fouls is actually written in the alternative, so it’s incredibly hard to analyze it. The model rule is probably written better banning interference, impeding and intimidation where the stewards believe the interference altered the finish of the race.

Other states are even different. Arizona has no ban on intimidation. It does require racing room and you can’t keep a horse in the pocket, which reads like some odd attempt to prevent Angel Cordero from retroactively riding in Arizona. Oregon and Colorado also require racing room.

California is as oddly worded as New York and includes language that seems to narrow the situs of a foul only to those areas where the incident would have affected the race finish, while broadening the nature of a foul to include placements to where a horse was reasonably expected to finish.

Ohio retains the rule that a foul is a foul is a foul. In the UK and Hong Kong, fouls are only determined based on the effect solely of the horses involved in the incident.

I used to be bothered by the lack of any definition of interference, impeding and intimidation, but you see all the other sports which don’t specifically define major terms. There is no baseball rule defining a check swing, no NFL rule on what constitutes holding, and not much in the NHL on what constitutes boarding. It just is what it is.

But how can intimidation or impeding be a foul in one state and not in others? What’s the point of a pocketing rule or a racing room rule? Do you have to cross in front of a horse to cause a foul? What if you just force a horse wide? And then California adds making the part of the race in which the foul occurred part of the foul calculus. What ever became of the notion of the hazards of the start?

And obviously we have enormous problems with applying what I’m terming the Monty Python meaningfulness rule. It cannot just be an excuse for scrutinizing fouls in races.

Should we only apply the rule involving placing decisions between the fouler and the foulee? Do we care if the foulee would move up to a position where it would have earned a higher check, or should it only involve cases where the horse would have finished in the top 3 or 4 places? And most importantly, what degrees of proof are needed to determine whether a foul affected the result? You can go anywhere from finding that there was no reasonable doubt that it affected the result to some credible evidence that it might have affected the result. We have a mess on our hands. We need a national uniform rule on what a foul is and how it affects the finish of the race.

As an aside, I love the notion of taking a Wayback Machine back to the past to apply the Monty Python rule retroactively to past major events. Secretariat certainly doesn’t get taken down in the 1972 Champagne Stakes, where he won by two lengths. Equipoise probably wins three additional races. Dr. Fager probably doesn’t get taken down in the 1967 Jersey Derby, where he won by 6 ½ lengths. And maybe we don’t even have the disqualification (DQ) controversy in the 1980 Preakness, where Codex beat Genuine Risk by 4 and ½ lengths.

We also need to deal with couplings and uncouplings. Traditionally in racing, horses with the same trainers and/or the same owners were coupled in the wagering. Traditionally, if one part of the entry was DQ’d due to a foul, the entire entry was DQ’d. This got changed over the decades so that the innocent part of the entry was only DQ’d if the incident affected the finish of the innocent entry mate. You also kept entries out of exotic races. Gradually over the years, with the need to fill races and the need to expand wagering opportunities, the coupling rules were weakened extensively.

It’s worth going back and reviewing what used to be the fan and commentator history on uncouplings. It once was incredibly unpopular; we had fans protesting and rioting about mistakes on couplings. In 1976, the New York Racing Board allowed it in thoroughbred racing for horses with the same trainer. It proved so unpopular that it was repealed four years later. As late as 1999, Andy Beyer could say that the “practice has generated immense suspicion and hostility.” Nonetheless, the pendulum has shifted and uncouplings are basically accepted.

But they’re coming under increased scrutiny largely as a result of the running of the million dollar Sword Dancer Handicap at Saratoga about three months ago.

That race was won by the overwhelming favorite, Flintshire, trained by Chad Brown. Flintshire’s uncoupled entry mate, Inordinate, ridden by Aaron Gryder, also trained by Chad Brown, moved off the rail in the stretch to make way for Flintshire. The stewards disallowed the foul claim made by the trainer of the horse to the outside of Inordinate. The fan reaction against the free passage of Flintshire has forced an overall review of the issue.

And there really are major reasons to review these rules. First of all, here in Tucson, we have the traditional Stan Bergstein ecumenicalism and parity issues. The coupling rules are far different for harness racing than for thoroughbred racing. There’s no reason for that.

The rules on what horses can be uncoupled differ from jurisdiction to jurisdiction, and the rules on whether to disqualify the innocent party of the entry differ.

In New York, you only disqualify the innocent party if due to the foul, another horse was prevented from finishing ahead of the innocent entry mate. Under the model rules, it’s discretionary with the stewards. Some states disqualify the innocent party, where the innocent party was unduly benefitted. My personal favorite might be New Jersey, where the thoroughbred rule largely follows the discretionary model rule and the harness rule provides for the DQ of the innocent entry mate, where the foul may have affected the finish of the race.

You also have issues over whether you can take action against an uncoupled entry due to a foul by the uncoupled mate. In New York, under the literal rule, you could only take such action if the horses have the same trainer, but not where they have the same owner but a different trainer.

The UK has an interesting way of dealing with the entry issue. A maneuver in the interests of a horse under common control is considered a violation. It does not include pure pacemaking, and the jockey is responsible – and potentially the common trainer ‒ for the assistance violation.

It’s not too dissimilar from what happened in the 2006 Hambletonian. Trainer-driver Trond Smedshammer, on the tiring leader, pulled his horse off the rail in the stretch to make room for one of his uncoupled trainees. He received a 30-day suspension for helping. In 1969, driver Yves Filion opened up the rail for his brother Herve with a coupled entry. He got 15 days. And about 74 years ago, the incredibly talented rider Don Meade got a 19-month penalty for signaling to the rider of his entry mate to take care of one of the competitors. In short, we need a uniform rule on this topic and we need to consider applying the UK improper help rule to these entries when there is no actual interference.

Finally, we need to end racing commission review of steward judgment calls. It still happens in some states, and there’s no reason for it. All other sports have rejected the secondary review of judgment calls made by game officials. The Court of Arbitration for Sport has consistently rejected review of “field of play” decisions. Besides the need for finality, the fact is that the technologic innovations have tried to make sure that the decisions are made at the most knowledgeable level. Let’s face it, the volunteers who serve as racing commissioners are not at the most knowledgeable racing level. They should not be reviewing steward judgment calls.

There are a few categories of calls that can be addressed through administrative appeal.

Obviously, bad faith decisions. You can’t uphold decisions made by the 2002 Olympic figure skating judges who agreed to vote jointly for their home country skaters. You can’t uphold decisions by crooked NBA ref Tim Donaghy, and you can’t uphold the early 1980’s Great Barrington Fair stewards’ decision, where the stewards took down the first two finishers to put up an exacta they had wagered on.

You can’t uphold obvious mistakes of fact, where the wrong horse was ID’d. Most obviously, in 1986, when the Saratoga stewards took down the horse Allumeuse in a race where he was not involved in the incident.

You also can’t uphold decisions made based on a mistake of law. If the rule says “you can’t run inside the pylons,” and the judges don’t take down the horse because they saw that the horse received no advantage from running inside the pylons, that’s a mistake of law that needs to be addressed.

That really isn’t too different than the George Brett pine tar decision. The penalty for excess pine tar was that you tossed out the bat. You did not declare the batter out. It also was the last play of the game. So no field of play decisions were affected. It was the equivalent of DQ’ing a horse because it was late to the paddock or ran in the wrong silks.

So what does racing do to utilize new technology? The problem is that racing stewards make judgment calls. These are not the kind of decisions that replay officials make in other sports. They make objective fact calls. What would they rule on: running inside the pylons, leaving the course in a steeplechase?

Moreover, until racing has actual uniform rules on what constitutes a foul, you can’t have officials in a bunker in Lexington or Columbus or in a highrise in Manhattan making DQ decisions. And even if you did have a uniform rule of the race, you would have to get individual racing commissions to cede jurisdiction to a central body. If the past is any prologue, that is not about to happen.

So how does racing use technology as we go forward? In the non-steward field, inevitably down the road, we are going to see technology, rather than humans, review the finish line camera results and other portions of the running of the race. There is a strong likelihood that individual racetracks and/or state budget offices will work on racing commissions to limit the number or put an end to the use of patrol judges and placing judges.

Eventually, we will get to automated timing and microchip identification of horses that are engaged in workouts, and we will be seeing a shakeout in how and where racing will employ the use of clockers.

These are depressing results for many of us who like heavy doses of tradition in horse racing. But it’s likely to happen. This hotel, as we speak, is holding a luncheon for the Arizona production of “Fiddler on the Roof.” Horse racing is much like Anatevka, because without our traditions, we would be as shaky as a fiddler on the roof.

Moving on to stewardship, if we are serious about judging fouls on the basis of how they affected the finish, we will need technology that accurately measures the speed of horses throughout the race. Did a bump or a jostle actually affect the speed of the horse? How many lengths were actually lost when a horse was forced to check? How much distance was lost as a result of a horse being forced wide? Can we develop algorithms that would legitimately estimate how a horse would likely have finished if it was not fouled or impeded? If we want stewards to make informed calls on whether an incident affected the result, we need to provide stewards with the most information possible. We will need a Trakus 2.0 or maybe even a Trakus 3.0 to do this.

Perhaps we need to let stewards consult with designated replay review officials in the bunker during the inquiry. This is not too dissimilar to the NFL review. In the NFL, game officials make the call with the help of review officials. Wouldn’t you want the stewards to be able to talk to a Mike Pereira-type when they reviewed the race? This could work to provide expertise and limit steward inconsistencies. I’ve always thought that it would be nice to have a devil’s advocate present in the stewards’ stand, and this video replay assistant could deliver that outside voice.

Perhaps a subsequent day review would be the best way to use replay officials in racing. This could work similarly to the NHL review session, but without the power given to the NHL replay officials. The day after the game, the NHL replay officials gather in Toronto to review the issues that came up in the prior games. They review hits and checks to see if they merit suspensions. They generally determine whether incidents merit greater punishment and whether in-game calls were correct. Thus, they serve as a way to review the overall work of the game officials and to provide a more detailed and accurate view of what actually took place in the game.

In racing, they could review the basically objective incidents that could not be called on-track due to time limitations. Now this should involve whip violations, how often was the horse struck, how high was the hand, where was the horse struck, at what point in the race was the whip used, and did the whip strike another horse or another rider. They also could review the objective elements in a harness race, including running inside the pylons, staying in lane during the stretch, and resolving lapped on breaks at the finish line. You might even use the subsequent day review to look for foreign objects on tracks.

On a more subjective level, you could review the tapes of riding incidents to help determine issues of the severity of jockey or driver misconduct. If it’s truly dangerous riding, the replay officials can suggest increases in the penalties for jockeys or drivers.

They can review tapes to see if the rider or driver ran the horse on its merits. They would have time to review tapes to see review form reversals and to check on races with suspect payouts. I’m not proposing that the review officials have independent authority, but they ought to be able to make recommendations to the proper authorities.

This could potentially work to improve stewarding decisions and decrease inconsistency without affecting the sovereignty of racing commissions and racing stewards.

So in conclusion, let me reiterate what I’ve said this afternoon. Horse racing was the early leader in technology. It is still basically the one professional sport where the in-game officials use replays to make subjective decisions.

To make stewarding consistent, we need uniform rules of the race, uniform rules in couplings, and we need to keep racing commissions out of in-game decisions.

Because replay officials generally make only objective calls, racing would get less benefit from replay officials than other sports get.

Racing can be helped by better technology in making the decision of whether a foul affected the result of the race. Let’s hope we can afford the technology.

There should be times when stewards could consult replay officials during the race review to obtain additional expertise and to get a different perspective on the running of the race.

We definitely ought to be able to have expert replay officials review tapes of the race in the days after the race to help make decisions on objective issues that could not have been called due to time restraints on the game officials and to provide subjective input on the severity of any misconduct that occurred in a race.

Most importantly, we can improve stewarding through technology, but we need to put our own house in order first.

Thank you for letting me speak to you this afternoon.


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