Liebman Lets Fly at Conference

by Mike Kane

Sixteen years ago, Bennett Liebman was a founder of the annual Saratoga Institute on Equine Racing and Gaming Law that has often been a news-producing event. Speaking last during the final panel of Tuesday's program, Liebman delivered biting comments on the controversy surrounding the New York state's extended control of the New York Racing Association.

New York Governor Andrew Cuomo took over NYRA in 2012, following the release of a report that said NYRA was overcharging bettors for some wagers for what was supposed to be a three-year reorganization period. The return to a private NYRA has been twice delayed and won't take effect until October 2017. The squabble escalated earlier this year over the amount of government oversight and the makeup of the NYRA board. The current Reorganization Board is dominated by members appointed by public officials. Liebman used the mythical village of Chelm from Jewish folklore to make his point during, “The Racing Franchise in New York: the Current State of Play and Lessons for the Nation.”

“Chelm is inhabited by befuddled, stupid, foolish but endearing people,” he said. “The saga of the reprivitization of the New York Racing Association is looking more like a story set in Chelm. The obvious reason why were are in Chelm is that we are aggressively arguing about nothing.”

Liebman said one of the proposals from the current NYRA board is for the governor to appoint two members and the chairman of a new 15-member board, while the governor's proposal was for four members and the chairman. He noted that 12 of the 17 members of the board are state appointees and said that the same people will move onto the new board.

“We're in Chelm, where everyone is befuddled and foolish,” he said. “Each side. NYRA. The governor's office. The Concerned Citizens of Saratoga. The Legislature. They're in Chelm. We've got to find a way out of here.”

Liebman is the foremost authority on racing law and racing history in New York and may have no peer in the country. He served in Governor Mario Cuomo's administration, spent 11 years on the Racing and Wagering Board, was the executive director of the Government Law Center at Albany Law School and returned to government as Andrew Cuomo's Deputy Secretary for Gaming and Racing before retiring in 2014. He is serving as the interim director of the Law Center.

During his remarks, Liebman questioned why the Cuomo administration did not move away from racing this year since NYRA is reporting that it has returned to profitably and horse safety has been improved. He knocked the Concerned Citizens group for pushing for privatization if the business is so good at Saratoga under the current administration led by Christopher Kay.

He pointed out that a change to a completely private NYRA would shield the often-embattled non-profit from the Freedom of Information Law, the open meetings law and make it difficult to be audited by the state comptroller. And he asked for clarity and transparency in how the current board is approaching the future, which is part of its mandate during state control.

“At the very least, the public needs some sort of explanation for their proposals,” he said. “Instead, we got none. We're doing a good job. We'll do more if we're private, but they don't say what they would do otherwise. What can they do as a private board that they can't do as a public board? Why is there any need or reason to make the NYRA CEO a statutory member of the board.”

Trainer Rick Violette, the president of the New York Thoroughbred Horsemen's Association and a non-voting member for the NYRA board, criticized what he likened to paralyzed situation.

“As far as long-term plans for NYRA and for racing in New York state, I really think we're missing the boat, missing a great opportunity. It has been reduced to changing the deck chairs on whatever boat you want to call it, the Titanic or something else. The foremost suggestion out there as a reorganization plan is to turn to a different board going forward. On of the reasons they've kind come up with this non-plan submission is that they didn't want to make lasting decision on the new board.

He continued, “It's a mistake. We've wasted four years. I don't know that direction to get from the governor's office or the legislation, if any, but it seems to me a reorganization plan has a vision a decade or two decades out. Any other sports entity does. They tore down Yankee Stadium and built a new stadium, not for two years but for decades to come. I think that plan has to include whether we're going to consolidate Aqueduct and Belmont, if we're going to totally refurbish Belmont or blow it up and start anew.”

Violette said that if a decision is made to close Aqueduct and allow for the expansion for the Genting casino, that the revenue from the sale of that part of the property should stay in racing to help pay for making Belmont into a year-round facility. He called for re-opening of off-track betting venues in New York City.

Assemblyman Gary Pretlow, chairman of his chamber's racing committee, opened his remarks by saying that there were negative four-letter words in English and one of them was NYRA. He end through a brief history of the NYRA franchise and its problems in recent decades. He said the legislature tried to make a new NYRA board during this year's session, but the effort failed.

“I don't believe the governor was happy with our proposal and ultimately it didn't go to the floor and pass, not because we didn't want that to happen,” Pretlow said. “Where we stand now is exactly where we stood last year and the year before that, where the State of New York has overriding control over the operation of racing. Quite frankly, as chairman of the racing committee, I don't want to be in that position. I think that racing should be handled by the racing entities. Hopefully, next year the governor will be more comfortable with the proposals that we in the legislature have and give racing back to the people that know how to run it.”

The first panel of the day was a debate over the the most recent attempt to bring horse racing under federal control that would include drug testing by the U.S. Anti-Doping Agency. That legislation, the 2015 Horse Racing Integrity Act, is co-sponsored by Congressmen Andy Barr (R-KY) and Paul Tonko (D-NY).

Consultant Joe Gorajec, a former Indiana state regulator, and Joseph DeFrancis, chairman of the Humane Society of the United State's new National Horse Racing Advisory Council, supported the legislation. On the other side were Alan Foreman of the New York Thoroughbred Horsemen's Association and Edward Martin of the Association of Racing Commissioners International. Gorajec called for an increase in out-of-competition testing and said the U.S. lags far behind other prominent racing countries at just one percent of the total tests.

“That, ladies and gentlemen, is an embarrassment,” he said and that at the present rate it would take 44 years to get to 10%. Gorajec said theree needed to be uniform testing standards across the country. “Do our labs do a good job? Maybe yes, Maybe no,” he said. “We don't know because we don't have double blind samples programs to test the lab's competency. No one is testing the testers, at least not in a way to determine their day to day abilities. I believe there are many fine labs that do excellent work. My experience in Indiana, however, is a cautionary tale.

Gorajec continued, “In Indiana, I wanted to insure that we were getting top service from our lab. So I initiated a audit of our primary lab in 2014. We sent the same samples to our primary labs and an audit lab. After 26 days of racing, our audit lab found seven positive tests. Our primary lab found none. We terminated the primary lab under a breach-of-contract provisions.”

Gorajec said that federal approach was needed and that the National Uniform Medication Program was not enough.

“The Horse Racing Integrity Act is a serious effort by serious people to address serious problems in the regulation of horse racing in the United States,” he said.

Foreman said that a primary goal of the Barr-Tonko bill is to eliminate the race-day medication Lasix, which is not practical. He said the needed changes and improvements can be accomplished through NUMP
“The question is, do we need the federal government or a private authority to do what we as an industry are doing, doing better than we ever have done before,” he said. “We're more focused. We're more intense. We are making a generational change to the way we approach medication, the use of drugs and the safety and welfare of our our horses.”

Foreman said he doesn't think the federal government wants to control horse racing.

“I can tell you having being in Washington for the past year, Congress doesn't know anything about the horse racing business,” he said. “When you talk to these people, they don't know what you're talking about and it's very easy to manipulate their thinking, whether it's the Humane Society or you're talking about drugging about horses. They know that this is an industry regulated by the states and that's the way it will continue to be.”