In a First, FTC Overturns HISA Whip Adjudication

The Federal Trade Commission overturned a decision by Horseracing Integrity and Safety Act (HISA) on the whip rule | Coady

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In a decision handed down Monday, the Federal Trade Commission (FTC) overturned a decision by Horseracing Integrity and Safety Act (HISA) stewards at Albuquerque Downs Racetrack last September who ruled that jockey Oscar Ceballos had struck his mount, Sheriff Brown (Curlin), in the Downs At Albuquerque H. five more times than the maximum six strikes permitted by HISA.

The sanctions imposed by the Albuquerque Downs stewards that day included a fine and suspension for the jockey, and disqualification of the horse's purse earnings.

It is understood that this is the first such appeal of a HISA whip adjudication both heard by the FTC and overturned by the governmental agency.

“This whole thing has been very frustrating because when you actually read the written rules we did not violate any of the written rules,” said Joseph Peacock Jr., Sheriff Brown's owner, who estimated that the legal proceedings have cost him north of $50,000 “and probably close” to $100,000.

“If we had lost at the FTC level appeal, [it] would have set a very dangerous precedent for riders going forward that you can't use the crop to preserve the safety of other horses and riders without HISA counting the strikes against you,” Peacock added.

The three-person panel of stewards at Albuquerque Downs Racetrack ruled on Sept. 25, 2022, that Ceballos had struck his mount 11 times during the prior day's Downs At Albuquerque H., which Sheriff Brown won in a driving finish.

Deeming the alleged infraction a Class 2 violation under HISA's rulebook, the stewards handed Ceballos a $2,160 fine, a three-day racing suspension, and issued him five HISA points. The stewards also disqualified the horse from purse earnings. The winner took home $108,000.
Ceballos and Peacock appealed the decision, which the HISA Board heard on March 27. The following May, the HISA Board affirmed the original stewards' decision.

Ceballos and Peacock then took their appeal to the FTC, which was heard by chief administrative law judge D. Michael Chappell in an evidentiary hearing on July 13, 2023.

The crux of the case centered around the correct interpretation of HISA's rule on “Use of the Riding Crop.”

The language of the rules states a rider may “use the crop on the hindquarters to activate and focus the Horse a maximum of 6 times during a race,” and can “tap the Horse on the shoulder with the crop while both hands are holding on to the reins and both hands are touching the neck of the Horse.” The jockey is also permitted to “use the crop to preserve the safety of Horses and riders.”

At that hearing, the plaintiffs argued that Ceballos struck Sheriff Brown three times on the hindquarters, and that the jockey's additional use of the whip had been down Sheriff Brown's shoulder for safety reasons-permitted under HISA's rulebook-as the horse has a history of “lugging in,” according to Chappell's written decision.

Jeff Williams-an accredited steward since 2013 and a former jockey with a 32-year career-testified on behalf of the plaintiffs, alongside Todd Fincher, Sheriff Brown's trainer.

In his decision, Chappell wrote that Williams “credibly opined that strikes to the shoulder do not motivate a horse to speed up or go forward, but rather are used to straighten out the horse, consistent with Ceballos' and Fincher's testimony stating the same.”
At the same time, Chappell questioned the professional bona fides of Albuquerque Downs steward Larry Fontenot, an accredited steward for approximately five to six years.

“Steward Fontenot's testimony about the absence of a safety issue was not particularly persuasive. Fontenot does not have professional jockey experience and his opinion that a safety concern did not exist because he did not see Ceballos rise from Sheriff Brown during the final stretch of the race was contradicted by testimony of Ceballos, Williams, and Fincher, who have significantly more experience than him in the field,” Chappell wrote, in his decision.

Further noting the “poor” quality of the race-day video footage, Chappell wrote that “the evidence fails to prove that Ceballos struck Sheriff Brown more than the 6 times on the hindquarters that are permitted under HISA. Moreover, the evidence proves that even if there were strikes to the shoulder, the strikes would have been made to stop Sheriff Brown from lugging in to preserve the safety of horses and riders.”

Peacock raised concerns with the HISA Board's hearing of their appeal in March via Zoom, saying that the panel failed to adequately field and address the plaintiff's testimonies and arguments.

“They were two hours late for our Zoom call. They listened to our arguments. Their witness who was one of the racing stewards that actually made the original decision, he was on his cell phone driving somewhere they had palm trees-he had no material in front of him. The whole hearing was a farce,” said Peacock.

“When it was over, I was talking to [trainer] Todd Fincher, and he goes, 'we've got a problem.' And I go, 'what's that?' And he said, 'they didn't ask a single question,'” said Peacock. “If we're saying the use of the crop was to preserve the safety of the horse and rider, don't you think that they should have asked the rider, 'hey, is that true? Is that what happened?'”

A senior HISA official on background countered various aspects of Peacock's characterization of the March Zoom hearing before the HISA board, saying that the panel was not late, but that the case was one of several being heard that day in a cue. The entire hearing, the senior HISA official added, lasted nearly two hours.

In explaining the HISA board's appeal ruling, the senior official said that the panel was limited to a standard of review of finding whether or not the original steward's ruling was clearly erroneous. The FTC's administrative law judge, on the other hand, was not required to give such deference to the stewards' original findings.

Irrespective of whether a party appeals the FTC's decision, that governmental agency has 45 days to unilaterally review the case itself, the senior HISA official said.

There exists no provision requiring HISA to recompense the plaintiff's legal fees.

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