Legal, practical and philosophical questions abound in the ongoing saga surrounding trainer Jerry Hollendorfer.
To recap, Hollendorfer was told in June by The Stronach Group (TSG) to remove his horses from their two California racetracks — Santa Anita and Golden Gate Fields — after six Hollendorfer-trained horses had been catastrophically injured at those two facilities since November.
Following TSG’s decision, the New York Racing Association (NYRA) appeared to bar Hollendorfer from making entries at its New York racetracks (though it has recently re-opened its doors to him). So too Del Mar, which banned Hollendorfer from stabling and entering horses under his name at the facility, though a subsequent judge’s ruling placed a preliminary injunction on that action.
Debate has swirled around the reasons — or lack thereof — given by these various entities for excluding Hollendorfer from their facilities, especially as the trainer hasn’t faced any formal, regulatory ruling against him in either California or New York.
On the one hand, TSG made it clear it didn’t believe Hollendorfer’s approach matched “the level of safety and accountability we demand” in an era of heightened policing at the track. In a recent court filing, TSG raised ethical questions about Hollendorfer’s operation, though a legal rebuttal questioned the veracity of those claims, as well as the track operators’ own competency.
At the same time, Hollendorfer runs a large stable in California with the most runners of any individual trainer in the state, and that alone raises important questions framed around hard, objective data: is he statistically more likely than another California trainer to suffer a breakdown, for example?
The day before Hollendorfer’s fourth horse died at Santa Anita, CNN reported that the California Horse Racing Board has issued the trainer 19 medication violations since 2006. But is he a statistical outlier when it comes to incurring medication violations?
Interestingly, TRC contributor Paul Von Hippel reported last week that Hollendorfer’s fatality rate was on a par with the national average.
Racetrack Veterinary Intervention rate
Which leads neatly onto last year’s Global Symposium on Racing, and a presentation given by Jennifer Durenberger, who operates a racing consultancy business called Racing Matters.
“We talk about the multiple medication violators. We talk about the one percent of occupational licensees that are responsible for really the majority of medication findings, at least the Class 1s and Class 2s in our industry. We’re looking for ways in general to address this small handful of participants,” said Durenberger before diving into a system she’d devised, giving an objective datapoint for use if desired by racetrack operators “to exclude individuals”, or for regulators to “suspend, revoke, or deny occupational licenses”.
The system is called the Regulatory Veterinary Intervention (RVI) rate. Here’s a transcript of her presentation, from which I’ve plucked quotes below. The mechanics of the system look like this.
Into an Excel spreadsheet goes a variety of information points per trainer: whether a regulatory veterinarian has removed an unsound horse from competition, whether a horse has suffered a catastrophic injury during training or racing, and whether a trainer is responsible for any medication violations. This information is then divided by the number of starts that trainer has at a certain track.
Modifications in mind
An official veterinarian is tasked with maintaining the system, and Durenberger stressed last year the need for that official to input granular information, like the exact reason why a horse was scratched, for example.
Let’s say a horse was scratched because if was off its feed. That’s a veterinary issue superfluous to the overarching aim of the RVI rate. Indeed, any scratch initiated by a trainer through his or her veterinarian is reported as a ‘vet scratch’, but it shouldn’t be factored in, stressed Durenberger.
However, if a horse was scratched because it was unsound, that data is very much within the rate’s purview. If the intent was to send the horse to post and the regulatory veterinarian intervened, therefore, that data point would be included.
Durenberger has in mind further modifications. “The next version, the 2.0, if you will, a metric that will look at any welfare concerns because … the perception of how horses are treated on the racetracks is very important,” she said. “They pop up about a half a dozen times a year where there are neglect cases on racetracks.”
As Durenberger explained last year, the RVI rate has already been trialed at a small seasonal track — one with few fatalities and medication rulings — and the findings are intriguing, to say the least.
That track’s baseline RVI rate was 1.83 percent, which means that out of every 100 horses entered, 1.83 horses on average had been scratched by the regulatory veterinarians, or the horse finished lame, perhaps vanned off.
Of the track’s 111 trainers, 108 of them had RVIs within three standard deviations of the baseline. Three trainers, therefore, had an RVI rate notably higher than the statistical norm.
“This is a really, really fascinating number to me,” Durenberger told the assembled crowd. “If you add those three outliers, if you add the number of medication rulings they were responsible for, it was 43 percent at the meet, it was 31 percent of the racing fatalities.”
The question then is: what to do with the data? Certain tracks routinely employ multiple layers of scrutiny to weed out potentially at-risk horses from making a start, and the RVI rate appears to be an additional layer of scrutiny to be used alongside the others.
“Imagine if you could remove three percent of your population — and that number seems high to me — but imagine if you took out three percent of your population of participants at your track, and you were able to reduce your [fatality] numbers like that,” Durenberger said. “Maybe it matches up with the folks that in your head are red-flag folks, and you may not be surprised by the results.”
Indeed, Durenberger outlined a number of hypothetical scenarios in which the system — which would provide a time-sensitive baseline rate of what’s happening at a particular track — might be employed.
A racetrack operator, for example, could use it to adjudicate stall applications, a commission to evaluate fitness for licensure, or a safety review committee when conducting a fatality review.
“As one racetrack operator said to me once, we can spend all the money in the world creating and maintaining the safest racing surface,” Durenberger explained, “but the one thing we don’t have control over is the quality of horses that set foot upon it.”
Few if any systems are perfect, and the RVI as described last year is no different. For one, the pilot study was conducted at a small seasonal track with a closed herd of horses. A larger facility would have a larger population of horses shipping-in, which would skew the baseline rate.
But let’s just say the glitches have been ironed out and the RVI rate is up and running smoothly - what’s the expert consensus on the system?
‘Judged on its own two feet’
Chris Wittstruck, a New York-based attorney with expertise in racing law who routinely represents various horsemen’s associations, is concerned about the issue being boiled down to statistics.
“Every catastrophic breakdown, every instance of alleged maltreatment of a horse, has to be judged on its own two feet, whether the guy has five horses or 500,” he said.
That’s not to say ‘objective data’ isn’t important, Wittstruck elaborated. “You tell me what the horseman did, I’ll sit here and listen.” But that data, he added, should be comprehensive and individually tailored to the nuance of each case, not simply a game of numbers.
Part of the reason why, said Wittstruck, is that he’s worried some racetracks might co-opt the RVI rate as a tool to justify exclusion of trainers they’ve targeted on subjective grounds.
“If I’m the racetrack operator, I’m going to do whatever I want because the 500 people protesting outside the gates from PETA will trump the operator's concern for the allegedly ‘bad’ horseman,” Wittstruck said.
“If we start to empiricize this, we justify to some extent the exclusion of somebody solely on a numerical number of incidents,” he added. “That is the slippery slope.”
Nonetheless, Bob Heleringer, an attorney and former racing official, sees no legal obstacle preventing racetrack operators or racing commissions from adopting the RVI, should they desire.
That’s because the enabling statutes upon which individual racing commissions are built are pretty broad, he said. “Kentucky’s is extremely broad,” Heleringer added. “It gives them the plenary power to take what we call forceful action to protect the integrity of the sport.”
But let’s say the RVI identifies an outlier and the track operators or racing commission seeks to remove or suspend the licensee. “These people would have to be given a hearing to discuss the matter,” said Heleringer, pointing to U.S. Supreme Court precedent.
“Employing the [RVI rate] criteria, I don’t see anything wrong with that,” said Heleringer. “But, if they do something with it of a punitive nature, they’re going to have to give the person penalized due process.”
Verlin Jones, a veterinarian and COO of RaceDay Veterinary Services, which conducts pre-race examinations at Turf Paradise, says he doesn’t use a similar formula to identify potentially problematic barns, “but we know, when we go out to do our pre-race exams, we know which barns we probably need to be looking closely at.”
The benefits, Jones said, of the RVI rate is that it provides an objective formula. “Which is good from a legal perspective,” he added. “I don’t see a problem with that.”
The biggest question marks, said Jones, surround he way the rate might be employed, especially if root causes of broader problems aren’t addressed, like a dwindling horse population.
“Years ago, you could ask a trainer to leave with ten or 20 head, and they would just fill them right up with someone who wants those stalls,” Jones said.
“Today, you ask somebody to leave, who are you going to fill that barn up with?” he added. “There’s not enough horses to do anything about it.”