System on Way Out Delivers Owners a Final Frustration

Winning a race at a New York Racing Association track is never an easy task, be it at iconic Saratoga Race Course or Aqueduct Racetrack in the dead of winter.

And for Eddie Fazzone, trying to win one particular race has proven to be more difficult than he ever could have imagined. "Aggravating," "frustrating," and "perplexing" are other adjectives that could be used to describe his emotions over the course of the last five months.

While a May 9 New York Times story on a failed post-race test by 2-year-old champion Forte  after his victory in the Sept. 5 Hopeful Stakes (G1) shined light on the sometimes insufferably long adjudication period for drug violations in New York, major stakes and the sport's premier stables are not the only ones affected by this at times slow process. The so-called "little guys" in the sport also have been impacted, and for them the situation is just as exasperating and, relatively speaking, more problematic on a financial scale.

Fazzone and Patrick Scognamiglio of Monarch Farm will attest to that. While the May 22 launch of the Horseracing Integrity and Safety Authority's Anti-Doping and Medication Control efforts under its enforcement arm, the Horseracing Integrity and Welfare Unit, have changed the process going forward, a Jan. 21 race that impacted the two owners illustrates problems in the state-to-state approach.

For much of the last five months Fazzone has been waiting to have his horse, Darn That Song , declared the winner of a $16,000 claiming race for non-winners-of-two lifetime races that offered a $28,000 purse Jan. 21 at the Big A. Fazzone has been told by state officials that the horse who crossed the finish line first by 9 1/2 lengths in that race, the Linda Rice-trained Afleet Arlene , failed a drug test and will be disqualified—a move that would see Fazzone's horse elevated to first. He was even forced to move his horse into the non-winners-of-three level in anticipation of that outcome. 

Scognamiglio's horse, Handle the Truth , was third in the Jan. 21 race and will be moved up to second if the winner is disqualified.

While the New York State Gaming Commission will not comment on pending cases, Rice said the split sample, which is necessary to verify the original finding, has not yet returned. As a result, there's no telling when the case will be closed and the order of finish changed, or if the split sample will turn up negative and the finish left will be left as is. 

"I can't blame Linda for following the procedures the state set up, but it's frustrating for little owners," said Fazzone, who has a stable of 11 racing under the banner of Eddie F's Racing. "What has made me aggravated is that when I went to enter back in a race about two months later, the (NYSGC and stewards) wouldn't allow me to enter. I didn't know anything about it until then. They told me, 'You're going to get put up as the winner (of the Jan. 21 race).' I said, 'I don't know what you mean. I'm not seeing any money, I'm not the official winner, and it's under appeal.' I asked about my options and was told I either had to run her out of condition in a non-winners of three or stay in the barn.

"The state just drags its feet on this stuff and it's not right. At this rate, we'll probably still be waiting until 2024, and then imagine if they don't take the other horse down."

Fazzone was able to enter Darn That Song in a Feb. 11 non-winners-of-two claimer, and the 4-year-old daughter of Mission Impazible  finished fifth. But after that the positive result on Rice's horse came back, and when trainer Rachel Sells tried to enter the New York State-bred filly at that same level the following month, word came down about the positive drug test on Afleet Arlene, news that would put Darn That Song in limbo in terms of conditions.

Adding salt to Fazzone's wounds, Darn That Song was shipped from Finger Lakes to Belmont Park for a race the connections thought she qualified for. She then had to be returned to Finger Lakes when the entry was blocked, at a cost of $800 in vanning charges to Fazzone.

"I understand people's rights and I was OK with everything until I was told I can't enter my horse," Fazzone said. "They should have called us and warned us about what was happening. It would have been nice to know what was going on."

Other than losing that $800, things worked out for Fazzone. Darn That Song ran April 6 in a $28,000 non-winners-of-three race with a $14,000 claiming tag and won by a half-length at 8-1 odds (a price no doubt influenced by handicappers unsure why the filly was running at a higher level.)

"People were wondering why we were running out of condition in a non-winners of three. They thought we were stupid but they didn't know our hands were tied," said Fazzone, who owns the popular Eddie F's New England Seafood Restaurant in Saratoga Springs, N.Y. "We thought about running out of town, but we were afraid we'd run and win and later they would disqualify us and take the money back."

Meanwhile, the wait to find out if the Jan. 21 purse will be redistributed goes on, with the possibility of an extra $9,800 for Fazzone and $2,240 for Scognamiglio.

"It would be nice to have the money," Fazzone said. "We're a small stable and it isn't easy to cover expenses when you're a little guy."

Small may be a bit of an exaggeration for Scognamiglio's Monarch Farm, which has just two horses in training. The wait for some extra purse money is excruciating.

"We have not been contacted by a soul," Scognamiglio said. "What's happened is insane. The worst part is the frustration. It seems like different rules for different people who have the money to extend things like this. Honest guys like us want a level playing field, but I'm just banging my head against the wall. It is beyond frustrating to be a little guy in this sport. We get the short end of the stick at every turn and you get closer and closer to throwing in the towel."

Since the race occurred before the May 22 implementation of the HISA/HIWU oversight of ADMC, new regulations do not change the course of the January case. But according to Lisa Lazarus, CEO of HISA, the lengthy delays will be reduced and horses will not be forced to run at the next condition level until the matter is fully adjudicated.

"Trainers have been able to manipulate the system to a certain extent, where I don't think they can under our rules," Lazarus said. "Once a decision goes into effect, you can appeal to the Federal Trade Commission but they can't stay the impact, which is a huge difference. The problem with the prior system is that in a lot of states you can keep appealing and the sanctions would not be in place during the appeal. Under our system the sanctions have to be implemented even if you appeal. Perhaps if you are appealing the disqualification and loss of purse money, that could help you down the road if it gets reversed, but you are not going to put off your suspension."

Under HIWU procedures for controlled medications, the connections of tested horses receive an email immediately after the sample is collected. The lab then has 10 business days to report the finding to HIWU. The report is reviewed and the owner and trainer are notified. The connections can then provide an explanation and request a split sample at their expense at one of six HIWU labs chosen by HIWU or the connections can accept the sanction.

If the split sample is negative, the case is dropped. If positive, the connections have seven days to accept the finding or request a hearing and the matter is posted on the HIWU website with the possibility of an expedited timeline. If there's a hearing, the matter is turned over to a three-member Internal Adjudication Panel. The owner/trainer will have seven days to present evidence, and a HIWU response is due seven days after that. The IAP's decision must then be issued within 14 days of the last written submission, barring any unusual circumstances.

Lazarus said it would generally take about three to four months for the process to be completed but that there would be no impact on the horse's ability to race at an appropriate level. Unlike what happened to Darn That Song, horses would continue to race at levels corresponding with how they crossed the finish line.

After three violations for a banned substance were published, HIWU announced its first controlled substance finding June 23 when it alleged that Jonas' Dream , trained by Sandino Hernandez Jr., tested positive for the controlled medication naproxen, a non-steroidal anti-inflammatory drug. 

In contrast, for findings of banned substances action is immediately taken. After the finding is reviewed by HIWU, a provisional suspension is issued before the split sample is tested and the process moves forward.

"We think the risk that you may be competing with a horse who has a banned substance is too great to allow for that to happen," Lazarus said. "We do not make that decision on controlled substances because they are allowed between races. With controlled substances we believe the risk should be on the regulator because they are not the most nefarious of the violations. That's how we approach it. There could potentially be some unfairness, but that's the only way to operate a system that has teeth. We are very careful with our laboratory procedures to mitigate the risk of that happening."

Joe Appelbaum, president of the New York Thoroughbred Horsemen's Association, expressed hope that HISA and HIWU will deliver what they promise and he will monitor how it plays out. He is pleased with the different procedures for controlled and banned substances.

"I can't imagine anyone isn't happy with an expedited system, but the proof is in the pudding. Things should be better according to their guidelines, but we have to see," Appelbaum said. "One of the big delays is that labs do not prioritize split sample testing because it's not their core business. HISA claims it has contracts that the labs will do that, but they have only been at it a month.

"Generally, horsemen think that the differentiation between controlled substances and anti-doping is a smart way to go and we appreciate the efforts made to differentiate between the two and the systems designed around them."

At the same time, the wait goes on for Fazzone and Scognamiglio.

"I think HISA is on our side and hopefully it helps us little people," Scognamiglio said. "I don't have the deep pockets to hire lawyers and fight something. The old rules let someone string things out as long as they want and that's not right."