The New York State Gaming Commission sent BloodHorse May 15 a detailed timeline of events it says followed Forte testing positive for meloxicam, a nonsteroidal anti-inflammatory medication, after finishing first in the 2022 Hopeful Stakes (G1) Sept. 5 at Saratoga Race Course.
The timeline suggests arguments over procedures and split sample testing contributed to the delay of more than eight months between the race and a positive test and sanctions announced May 11, 2023. Chief New York steward Braulio Baeza Jr. has informed owners Repole Stable and St. Elias Stable that the eventual champion 2-year-old male will be disqualified from his victory in the Hopeful. In addition, trainer Todd Pletcher will be suspended 10 days and fined $1,000.
The connections plan to appeal the decision. The New York State Gaming Commission (NYSGC) sent out a timeline of events from that post-race test through a May 10 hearing where the stewards decided to sanction the owners, through disqualification, and Pletcher. On May 11 Pletcher’s attorney, Karen Murphy, disputed claims that the colt’s connections were responsible for the delays.
“The Gaming Commission has stated two or three times that we delayed the process, and that’s a little bit shocking to me because it’s false. I don’t like government regulators making false statements. They can embellish a bit but they can’t say something that’s not true,” Murphy said. “We were on this from day one and before day one. We don’t even have George Maylin’s (of the New York Equine Drug Testing and Research Laboratory) lab report. They refuse to give that to us. It took the gaming commission four months to give us a list of labs we could send our spilt sample.”
On May 15 the NYSGC provided BloodHorse with this timeline. Following is background, as listed by the NYSGC, and timeline, also as compiled by the NYSGC. Included comments assessing what is allowed or not allowed, correct or incorrect, are those of the NYSGC, not BloodHorse.
The Racing Medication and Testing Consortium split sample program was announced in 2017. At that time, the New York Thoroughbred Horsemen’s Association notified its members, which includes Mr. Pletcher, of the program.
As a courtesy, in the fall of 2022 (after the Hopeful Stakes), the New York State Gaming Commission worked with the trainer’s counsel to help identify an RMTC-approved lab to test the split sample at issue. A list of such labs is readily available on the RMTC website.
Below is the NYGSC’s timeline of communications between the gaming commission and the trainer’s representative between the Sept. 5, 2022 Hopeful Stakes at Saratoga Race Course and the May 10, 2023 stewards’ hearing:
Sept. 5, 2022: Saratoga Race Course: Hopeful Stakes, G1; horse FORTE finished 1st; sample collected & shipped to New York Equine Drug Testing & Research Laboratory (Lab) in Ithaca, N.Y.
Sept. 23, 2022: The lab notifies the commission of a positive finding. The commission immediately notifies the state steward, who then matches the sample’s identifying numbers to the previously locked documentation of collected samples. An investigation begins.
Sept. 29, 2022: The trainer’s counsel is notified of the positive finding.
Oct. 3, 2022: The trainer’s counsel asks for the “laboratory finding” and “underlying data,” incorrectly claiming that providing such during an investigation has been “long-standing practice.”
Oct. 5, 2022: The commission denies the trainer’s counsel’s request, noting: “a licensee being investigated for potential discipline is not entitled to evidence until such time as the commission’s adjudication rules require disclosure of the same. This position applies to any request for such disclosure, whether related to potential residual sample testing, or any other subject matter.”
Oct. 7, 2022: The trainer’s counsel protests and incorrectly reasons that by not providing such findings at that time (before a ruling is even issued), there must have been a “change in that protocol.” The trainer’s counsel then requested materials that led to this nonexistent change in procedure.
Oct. 11, 2022: The trainer’s counsel complains via email that the copies of the aforementioned provided to her as a courtesy (were) inaccurate and that the labs they contacted were unable to conduct the requisite testing.
Oct. 14, 2022: The trainer’s counsel again complains about the aforementioned courtesy-provided lists of labs, falsely claiming that because the commission would not permit disclosure of the lab’s report (NOTE: permitting as much during an investigation would be unprecedented), “We are unable to proceed with our election for split sample testing.”
Nov. 16, 2022: Again, as a courtesy and convenience, the commission sends the trainer’s counsel an updated published list of lab options for split sample testing (downloaded from RMTC’s website), and even pre-files the split-sample request form. The commission advises that, “As soon as the commission is notified by the laboratory that you select, indicating that they have received your requests and the fee for performing the tests, we will ship the blood to that laboratory for analysis.”
Nov. 23, 2022: Texas A&M’s laboratory agrees to conduct the split-sample testing.
Dec. 8-16, 2022: The commission coordinates the trainer’s payment of and shipment of the split sample to be tested at the Texas A&M Lab:
Dec. 21, 2022: Texas A&M receives the sample for split-sample testing
Jan. 28, 2023: Texas A&M confirms finding in split sample to the commission, which then informs the state steward of the confirmation.
Feb. 3, 2023: Test results of split sample are sent to trainer’s counsel and commission.
Feb. 22, 2023: State steward advises trainer’s counsel of March 2, 2023, stewards’ hearing, stating: “Please let your client know he can be available by phone.” The trainer’s counsel informed the state steward that March 2 was not possible due to a prior scheduled obligation and that they expect to attend in person.
Feb. 23, 2023: The state steward offers March 22, 23, or 29 as possibilities for the “stewards’ hearing.”
March 1, 2023: The trainer’s counsel asks for the “stewards’ hearing” to take place on March 23.
March 8, 2023: The state steward clarifies the purpose of the “stewards’ hearing,” as:
“…not an adjudicatory proceeding … but … a meeting to provide your client, a licensee, with an opportunity to be heard before I consider potential regulatory action. … a licensee may have counsel … to provide counsel/advice to the licensee. As the meeting’s purpose is to provide a licensee with an opportunity to be heard, however, a licensee’s counsel is otherwise only able to attend the meeting as an observer, and is not able to ask the stewards questions or to elicit any type of testimony or evidence … If some sanction of the licensee results, there would be a later opportunity for the licensee to request a de novo adjudicatory hearing, at which time the types of hearing procedures you suggest may be available pursuant to SAPA and commission regulations.”
Despite this and prior explanations, the trainer’s counsel again requests “hearing ‘guidelines,” the New York Lab test results, a confirmation of certain witnesses, and more records with an artificial one-day deadline of March 9, stating: “if it is not met, we will have to adjourn without date.”
March 13, 2023: The trainer’s counsel and the owner (NYSGC notes are not specific about which owner) of the horse propose an inappropriate “conference in advance of the March 23 stewards’ hearing,” stating that the horse’s owner “believes this discussion of preliminaries will be in all parties’ interest as well as in the best interest of the sport.”
Further complicating the scheduling of an already postponed “stewards’ hearing,” the trainer’s counsel represents that the owner “might find that his formal appearance is mandatory to ensure the integrity of the sport and that the process is conducted in a fair manner.”
March 14, 2023: The commission steward responds to the trainer’s counsel, reiterating that the “stewards’ hearing will move forward as previously described to provide Mr. Pletcher an opportunity to be heard. As it is an opportunity for a licensee to provide the stewards with any additional information or evidence that the licensee wants the stewards to consider prior to my implementing a decision as the state steward, Mr. Pletcher may present witnesses to provide such additional information at that time.”
March 16, 2023: The trainer’s counsel responds with a list of 17 witnesses—in addition to the trainer—they wished to speak at the “stewards’ hearing” and asked for a confirmation by end of the day.
March 18, 2023: The commission responds to the trainer’s counsel:
“…the stewards’ hearing is an opportunity for Mr. Pletcher to be heard. If Mr. Pletcher wants to present witnesses (to appear and provide information voluntarily), he may do so.”
March 20, 2023: The trainer’s counsel responds to commission:
“… While we appreciate the ability to present witnesses, your failure of a timely response leaves us with insufficient time to contact and prepare our witnesses. … Consequently, we are respectfully postponing the Thursday hearing. Once we have reached out to everyone and secured time on their schedules, I will get back to you with dates.
March 22, 2023: The commission steward grants another postponement of the “stewards’ hearing” and offers March 30, April 12, April 19, May 3, or May 10, noting:
“… if the Stewards’ Hearing does not take place on or before May 10, 2023, no further dates will be offered, and Mr. Pletcher will be deemed to have declined the opportunity.”
March 23, 2023: The trainer’s counsel selects the May 10, 2023 date.
Mike Repole (right) speaks with trainer Todd Pletcher (left) and Dr. Nicholas Smith, chief veterinarian of the Kentucky Horse Racing Commission (back to camera) May 6 at Churchill Downs
May 8, 2023: The trainer’s counsel writes to the commission steward:
“An unforeseen circumstance has caused Mr. Pletcher to remain in Kentucky and, thus, he is unable to be present on Wednesday for the ‘stewards’ hearing.’ Accordingly, he respectfully requests an adjournment without date at this time.”
The commission steward responds to the trainer’s counsel:
“As you will recall, on March 22, 2023, I advised that if the stewards’ hearing does not take place on or before May 10, 2023, no further dates will be offered, and Mr. Pletcher will be deemed to have declined the opportunity. In light of your email of May 8, 2023, we offer that Mr. Pletcher may appear at the May 10, 2023, stewards’ hearing via videoconference, in order to take part in a stewards’ hearing. Please advise as soon as possible so that we may set up the videoconference. Otherwise, we will note that Mr. Pletcher has declined the opportunity to participate in a stewards’ hearing and proceed accordingly.”
May 9, 2023: The trainer’s counsel writes to the commission steward:
“… we are at this very moment showcasing the entire racing industry on a national stage. And in doing so, the subject of extraordinary and appropriate scrutiny (on that point I have been contacted by a prominent reporter of a national New York publication who cannot be called a friend of racing concerning the subject at hand). The misfortune of the tragedies at Churchill Downs will only be wrongfully amplified should the board of stewards proceed at this time. (Editor’s note: The reference is to seven equine fatalities there from April 27 through May 6.)
As such, we respectfully renew our request that tomorrow’s stewards’ hearing be adjourned until after the completion of the Triple Crown (final race June 10)—an action that is certainly in the best interests of our entire racing community. … Second, as is always the case, the health and welfare of the horse must come first and there will be no exception here. The “unforeseen circumstance” mentioned above is the scratching of the Kentucky Derby (G1) favorite Forte and then having him placed on Kentucky’s veterinary list. This requires Mr. Pletcher’s complete attention as he will be monitoring him on a daily basis. In full transparency, tomorrow morning Forte is scheduled for testing at which both Mr. Pletcher and his owner will be in attendance. Mr. Pletcher, therefore, is unable to participate, even remotely, in the stewards’ hearing at that same time. … Because of the urgency of this matter, we expect to hear back from you at your earliest convenience or no later that 8 a.m. tomorrow morning.”
The commission steward responds to trainer’s counsel:
“…we have repeatedly offered and will again offer that Mr. Pletcher may appear at the May 10, 2023 stewards’ hearing via videoconference, in order to take part in the stewards’ hearing. In light of his schedule in the morning, we are able to reschedule the stewards’ hearing for a later time tomorrow, at 1 p.m. Please advise as early as possible if Mr. Pletcher wants to proceed tomorrow, so we may set up the video conference. Otherwise, we will note that Mr. Pletcher has declined the opportunity to participate in a stewards’ hearing and proceed accordingly.
5:33 p.m.: Forte’s owner (NYSGC doesn’t specifically say which owner) to commission steward: “We both look forward to the hearing!!!!!”
May 10, 2023: The “stewards’ hearing” takes place.
