The racing world in recent weeks has heard a lot about the relative benefits of Category 1 and Category 2 stewarding: Which is better, which is more consistent, which will yield more fair outcomes? A presentation earlier this month at the Saratoga Institute on Equine, Racing and Gaming Law from attorney Bennett Liebman served as a reminder both of how far American racing has come since its original disqualification rules, and how far it still needs to go.
Some of the greatest horses ever have been disqualified at some point, including Secretariat, Dr. Fager, Affirmed, Alysheba, Old Rosebud, Fort Marcy, Equipoise and others. Horses benefitting from disqualifications include Alydar, John Henry, Tim Tam, Flawlessly, and others. Disqualifications have always been a source of debate and discussion, and occasionally literary drama. In fact, one of Equipoise's three career disqualifications turned into the centerpieces in the play, “Three Men On A Horse” which made it onto Broadway.
Rules in the early days of American racing were mostly taken from the British Jockey Club and stated there should be “no crossing, jostling, striking or impeding” – the basic gist of which is still the basis for “interference.” But what happened to horses found guilty of this was quite a bit different. For one thing, the offending horse used to be placed last, regardless of where the offended horses finished. This continued until Equipoise's second career DQ in 1934, which was extremely unpopular and apparently prompted The Jockey Club to give stewards more discretion over where an offender should be demoted. However, Liebman said it didn't change much.
“As a practical matter, at least in New York, no one noticed,” he said. “The rules changed but the stewards didn't. With the spread of parimutuels however, people began to think.”
Before pari-mutuel wagering became a central part of the business, disqualifications were not always made in a timely fashion, either. One of the more unusual American disqualifications came in 1869 in the Saratoga Cup. The second betting choice, Vauxhall, was given a peculiar ride in which the rider claimed to have lost his stirrups for much of the race, failing to urge the horse on, and then regained them in the stretch and charged forward suddenly to finish just behind the wagering favorite.
“The stewards waited until the end of the racing card and then found the jockey had ridden Vauxhall fraudulently,” said Liebman. “Vauxhall was disqualified, the jockey was ruled off the turf and all bets were forfeited. Since, however, they waited until the card was over before making the decision, most of the bets had already been paid so it didn't really help very much.”
It also used to be true that if one horse in a coupled entry was disqualified, his stablemate was also taken down. It was more common 75 or 100 years ago for horses with common ownership, or even common trainers, to be coupled, so innocent horses lost out of better placings more often than they would if that rule was in place today. It wasn't until the 1957 Arlington Futurity, when Alhambra won the race by nine lengths, wire to wire but was disqualified because his entrymate Olymar caused interference, that fan outrage took hold. Illinois changed its rules by the following year, and so did most other states.
But while those, now outlandish elements of disqualification rules have changed, Liebman said American horse racing has not done enough to keep up with the times. While the same or similar language evoking 'jostling, crowding, or impeding' is still found in many state rulebooks, there is no formal definition of those words in those rulebooks. A study by Liebman found that while some states demanded a leading horse be “clear” before changing lanes, there is no agreed-upon definition for what constitutes “clear.” In British language from the 1850s, rules mandated horses be at least two lengths clear of chasers, but in the United States the consensus in practice seems to be that one to one and a half lengths is acceptable.
Although horses are less commonly coupled now in an attempt to provide more betting interests, different states still have different rules on whether horses from the same owner's stable or trainer's barn could be disqualified together if the situation warranted. In some places, they must have common owner, in others they must have common trainer, and states have different rules on whether they actually must be a coupled entry for both to be taken down. This may seem like a purely theoretical issue, except Liebman pointed out there are cases where a horse can cause interference that benefits his stablemate. In the 2016 Sword Dancer, most would say winner Flintshire benefitted from his stablemate Inordinate's use as a rabbit (which was so obvious it was noted in the official chart). Inordinate also jostled with rival Roman Approval, causing traffic for Roman Approval and allowing Flintshire to get running room.
“Everybody is different and for no reason whatsoever,” said Liebman. “We don't know from state to state what the rules are. Rule language matters. What do we mean by 'the outcome of the race'? What do we mean by a 'placing'? If the foul affected a horse that finished seventh, did that alter the outcome of the race? Do you have to posit that the fouled horse has to have finished in the top three to have a DQ? Or should it be in the top four if you have superfectas? What if it could be that the fouled horse could have received a greater share of the purse?”
Only weeks ago, the G1 Haskell featured some contact between Maximum Security and King For A Day, who had previously beaten the fan favorite. King For A Day finished fifth, though he had been making a move before the interference. (After a stewards' inquiry, the order of finish was left unchanged.)
“Without the incident, he likely would have finished fourth, and earned $20,000 more,” said Liebman. “Would that mean it 'altered the outcome' or 'affected the finish'? We just don't know.”
Further, Liebman said he wasn't sure whether the much-discussed potential switch to Category 1 rules would actually improve matters.
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