O'Neill and Racing's Slow Regulatory Process

Within one week following a June 13, 2013, race at Belmont Park, the New York State Gaming Commission Equine Drug Testing Program had determined a horse had tested positive for a non-therapeutic drug with a high potential to affect race performance.

The horse in question, Wind of Bosphorus, trained by Doug O'Neill, finished second in that race at Belmont. O'Neill said he was informed of the positive within three weeks of the race.

The drug, a sedative, is in the highest penalty class (Class A) of the Association of Racing Commissioners' International Uniform Classification Guidelines for Foreign Substances and would seemingly call for swift, decisive action. That wasn't the case.

Sanctions in the case, a $10,000 fine and 45-day suspension, weren't announced until early October 2014. The suspension issued by the NYSGC was not scheduled to begin until Nov. 3, 2014, more than 16 months after the race in question. The sanctions were not handed down by the NYSGC; they were the result of a negotiated agreement.

The NYSGC didn't schedule a hearing on the matter for nearly nine months after the race in question when an order to show cause was sent to O'Neill March 10, 2014. The order called on O'Neill and any legal representation to appear before a hearing officer April 29-30, nearly 10 1/2 months after the race in question. The letter to O'Neill notes that he could face license suspension or revocation.

In an emailed response to questions about the drawn out time between the positive and the show-cause letter, NYSGC director of communications Lee Park said some of the nine months was used to investigate the finding. In an email, Park cited NYSGC Equine Drug Testing Program protocol.

"After the investigation is completed and all other information is gathered and studied, the licensee if appropriate, is assessed a penalty from the state steward or presiding judge," reads the policy in regard to the time frame following a laboratory report of a drug positive.

Park also said the O'Neill camp slowed the process.

"The state steward wanted to give Mr. O'Neill a chance to present his side of the story, and his attorney was taking a very long time doing so," Park said.

O'Neill said he used some of the time to determine what had happened. He said he was having a difficult time understanding how the positive had occurred and did receive time to look into the matter.

He said he didn't make the trip to New York for racing June 13, 2013, and had to interview staff about the matter. He said Oxazepam is not a drug that is used by his stable, and he was trying to determine how the positive occurred.

The scheduled April 29-30 show-cause hearing would have been open to the public, but the NYSGC said O'Neill and his attorney, Karen Murphy, "immediately sought a temporary restraining order in State of New York Supreme Court, County of Schenectady." That action prevented the commission from moving forward with the hearing.

The court hearing on the restraining order was conducted May 12, 2014, nearly 11 months after the race in question. The court ruled the commission could move forward with the process.

"I think clearly the commission has jurisdiction, and beyond that, they did not in my opinion wrongfully exercise their initiative here under the law as it's stated," ruled justice Barry Kramer. "I think they have a right to go forward. I don't think a writ of prohibition applies."

The NYSGC said O'Neill and his attorney then requested a series of adjournments, which were granted by the hearing officer and prolonged any resolution of the matter. The commission began settlement negotiations with O'Neill at that time as well.

A hearing finally was conducted Sept. 15, and the hearing officer granted a final two-week adjournment to Sept. 29. Before Sept. 29, an agreement was reached to settle the matter.

Under the agreement announced Oct. 2 between the NYSGC and O'Neill, the trainer was levied a 45-day suspension in New York set to begin Nov. 3.

The delay between the June 13, 2013, race day in which the positive occurred and the show-cause hearing March 10, 2014, may have benefitted O'Neill.

During that nearly nine-month period from June 2013 to March 2014, O'Neill saddled Goldencents   to victory in the $1 million Breeders' Cup Dirt Mile (gr. I) and five other Breeders' Cup starters at Santa Anita Park. This year O'Neill is barred from participating in Breeders' Cup, which prohibits participation of trainers who during the 12 months preceding the World Championships are found by any racing regulatory agency to have violated a racing regulation prohibiting the possession or use of any Class I or II substance (non-therapeutic medications with a high probability of affecting race performance) that falls in the Class A or B penalty guidelines.

That Breeders' Cup rule kicks in when final disposition is reached, which allows trainers time for the appeal process. O'Neill's appeal process didn't end until the agreement was announced earlier in October.

On Oct. 9 O'Neill received an additional 45 days in California because his positive in New York violated terms of an earlier probationary agreement. The California suspension began immediately, but because some of the dates overlap, the two 45-day suspensions together will actually result in just 70 days on the shelf. The trainer is allowed to return Dec. 19.

For O'Neill, this year's California suspension followed a Class 3 violation in 2012 for total carbon dioxide that resulted in a 180-day suspension, with 135 of those days stayed and 18 months of probation. A condition of the stay required O'Neill not to receive any further drug violations at the Class I, II, or III level during the probation.

The New York drug positive fell within the probationary time, but New York didn't issue its order to show cause until March 10, 2014, and the NYSGC penalties weren't announced until October.

The current suspension from the CHRB also included 90 days that were stayed and an 18-month probation with the same notice that the stayed days could be added if a further Class I, II, or III violation occurs. This time the CHRB made a point of saying the date of a positive test will be the deciding event in the 18-month timeframe, not the date of complaint or adjudication.

In an e-mailed response to a series of questions, the NYSGC did not directly answer if other drug positives in the state currently are in the investigative process.

In an Oct. 9 statement on his website, O'Neill said he could have pursued the New York matter further but didn't want to involve his owners in the process.

"Fighting these board decisions not only costs a lot of money, but far more importantly to me, I'd have to involve all the horse owners and everybody else I work with," O'Neill said. "I can't tell you how much I appreciate and respect the trusted relationships I am so privileged to have with our team's horse owners. And the last thing in the world I'm going to do is intentionally drag them in the same mud that I've been pulled in to. It's absolutely not fair to them.

"I understand why the boards take the actions they do and I'll deal with it on my own."

O'Neill suggested a possible reason for the positive could be stall contamination at Belmont.

"To that, we will institute some new policies in our barn which will heighten security and will include the professional disinfecting of stalls anytime a horse ships in or switches stalls," O'Neill said.