‘Playing favorites’ causes a bit of a stir

by John Berry

A recent Mane Attraction columnabout fairness practices when it comes to penalties assessed in harness racing caused a bit of a stir among our participants, mainly trainers and harness racing’s prime jewels, the owners.

You all know that when the condition sheets come out, there are conditions showing certain preferences for state-breds and/or state-bred owners.

Hearing from those who insist on anonymity fearing retaliation from the higher ups shown in the mastheads of racing programs, this Mane Attraction must give preference to one owner, with vast investment in our industry.

That owner is Rick Berks.

Berks not only refused anonymity, he insisted that his name be brought forth into the light, hoping others, who have suffered from similar circumstances, surface to spur change and national unanimity on this issue of fair practice.

Berks is an owner, breeder, and investor in harness racing, with his latest endeavor investing in the future of our sport with the purchase of a farm in Paris, KY.

His ownership history goes back almost 40 years and covers the alphabet from A to Z — Asylum to Zatta N — and he has become active as a breeder over the last few years, as well.

He’s had some good ones — Doo Wop Hanover and Boston Red Rocks among them.

This year, his 19 starters have produced a scorecard of 43-28-34 in 200 starts, good for purses of $683,294, ranking him 65th among all owners involved in the harness racing boxing ring.

The Mane Attraction corralled Berks for an enlightening chat as to why he is taking up this cause for all concerned participants, but mainly owners.

I and others are very interested in your thoughts on this very sensitive issue. Why has this become such a priority to you? You certainly don’t need the headache of this on your shoulders.

“You are correct, sir, in your assumption that I don’t need this headache but I really believe that there has been a gross injustice done here.

“Something has to get the ball rolling to get a universal set of rules, laws, adjudications, for at least the tracks in the United States, and hopefully, throughout North America to deal with any and all infractions of the medication rules and laws.

“It is ludicrous to have different rules in different states, especially with the different classes of medications — drugs — however they are classified, with, in some cases, adjudications being more severe at the county and state fair tracks than at the pari-mutuel tracks.

“There are situations where appeals have been going on for many months or, even, years and then there are appeals denied when the circumstances hardly deserve a look.

“In this case, a trainer involved who truly believes that this was just an unfortunate error — and I’m stressing, not his error — somewhere along the line resulting in the presumption that he is guilty without due process.”

So, when did this whole deal begin?

“Well, the race in question took place on June 18. This was the first start for my 2-year-old Funky Buddha as he had qualified at Oak Grove a week earlier in [1]:57.3 from off the pace with a sharp last quarter; a last quarter [:27.3] which told me that, ‘Ya know, maybe I got something here!’

“My trainer of the colt, Tony Dinges, was also very high on him after that qualifier and he went on to win a Kentucky Proud event in 1:58 and a piece [1:58.2] and he paced his last half probably a bit under :56 [officially :55.3] from off the pace and then first up.”

This was at Oak Grove, as well?

“Yes. They were having the Western Kentucky State Fair at Oak Grove, so it was a non-betting race.”

Yes, I saw the positive post-race from June 18 with that showing the “positive overage” that was allegedly found on Funky Buddha with Flunixin/Banamine. The Association of Racing Commissioners — the ones that classify drugs for animal sports, designates it as a Class IV medication, with “less potential to affect performance” than Class I, II or III and near the bottom of the list of classifications. So, let me ask, what was this positive overage?

“The Banamine positive was 10 nanogram, which is 0.00001 of a milligram — like 10 one-billionths of a gram — which would have been within normal limits within another hour of testing. It takes 48 hours for clearance.”

I don’t know much about that but it seems pretty minimal, kind of like putting a couple of drops of vodka in an Olympic sized swimming pool.

“It’s one notch above equine jaywalking!

“I mean this is a 2-year-old making his first start in his career [after a qualifier] and I would say that it’s a never ever situation that a 2-year-old would require anything.

“And, even if the situation was with an older horse, the overage is so minimal and had to be administered 47 hours before it was tested to come up with that result.

“Every horseman reading this will understand how ridiculous this is, and every veterinarian, too.

“So, a few days later [five days], he was a close second in a Kentucky Stake and, the following start, he won in 1:52.4. Todd McCarthy drove him in those races. That was a Monday (July 7).

“But here’s the strange part, Funky Buddha raced seven times after that and he was scheduled to race in the $400,000 Kentucky Sire Stakes final, $400,000, and they scratched him.”

Wait a minute, I’m not getting this. He raced twice after being scratched, too. I’m not getting this.

“Okay, let me try and explain. On July 7, at 9:25 a.m. — I have the transcript — I received a call from Casey Larson, the presiding judge at Oak Grove.

“He wanted to speak to me about a horse that raced at the Western Kentucky State Fair, Mr. Funky Buddha.”

Mr. Funky Buddha?

“Yeah, that, too. He went on saying, ‘I have notified Mr. Dinges that there was a medication violation for Banamine, a Class C violation. Please give me a call at xxx-xxx-xxxx.’

“Now the time of the call was 9:25 a.m. on July 7, the same day as the race he won at Oak Grove which went to the gate at around 3:53 in the afternoon.”

So, he wasn’t scratched that day, but was two months later?

“That’s correct! I did call Larson back and was adamant that they had the wrong horse and that a DNA test was requested. Larson acknowledged that we had the right to do this request but he sat on it for two months taking no action.”

Was there any conversation with Dinges about this?

“Yes, Tony called him to inquire about entering horses on Thursday before the finals — not just on my behalf, but on Jerry Glantz’s behalf, as well, as he had two horses eligible, which were life changing opportunities for him.

“Larson never responded and the entries were accepted and programmed.

“Friday afternoon, he received an email from Jamie Eads rescinding his stay of suspension — he had received 10 days — and both Larson and Eads did not have the courtesy of answering phone calls, texts and/or e-mails.”

Didn’t Jamie Eads understand the consequences to the owners here?

“Eads was advised that this would only negatively hurt the owners and that’s exactly when Larson and Eads went completely dark and, like I said, did not return phone calls, emails or texts.”

(Editor’s note: On Monday (Nov. 17), the author did leave messages for both Larson and Eads requesting comment. As of press time five days later, neither person had responded).

Couldn’t you move the horses to another trainer?

“We could have, but we were prevented from doing so when Larson and Eads, also, as I said, went dark on us.

“I had four horses entered in the championship races and Jerry [Glantz] had two.

“After the championship races, they took the DNA sample, which had been over a month since the request.”

So, let me ask you, didn’t Mr. Dinges deserve or get a hearing of some sort about this?

“Of course, and I’ll get to that in a moment. Eads actually compounded the situation by unilaterally rescinding the stay knowing full well that her decision would not have any impact on their penalty or suspension.”

And no attorney was involved on Dinges’ side?

“Tony hired an attorney explaining that the Eads decision would affect many owners — you know, the ones who pay the bills and keep the sport going.

“Let me tell you, this was far from the typical handling of an extremely minor violation and at a fair track that had no pari-mutuel wagering for their races.”

That’s kind of the opposite approach to things, guilty until proven innocent? It’s usually the other way around. And no hearing?

“Not a ‘real’ hearing and no participation from Eads or the commission. Larson and the other two judges were there and they, basically, told him what they decided.

“Again, Tony asked for the DNA test — which they chose to ignore without explanation.

“It’s been four months since my initial conversation with Larson where I made it known that I wanted a DNA sample from ‘Buddha,’ which they granted after Tony’s 10-day suspension

“They finally took the DNA requested about five weeks ago but, still no response.”

Who appoints these folk to “protect” the horsemen and the industry in Kentucky?

“Eads is the governor appointed president of the Kentucky Horse Racing and Gaming Commission and she’s the one, for unknown reasons, who rescinded Tony’s stay without ever calling a board meeting until after the championship races were held.

“Kentucky has done such an amazing job of invigorating harness racing over the past few years and you’d think that the governor would be appalled to hear that his appointee and racing official would conduct themselves in such a blatantly inappropriate manner.

“Is it incompetence? Indifference? Cronyism? Favoritism? Or a combination of all of these things?

“Horse racing in Kentucky, especially with all of the investment in the industry, including real estate, deserves better than this.

“Everyone should get their due process and presumed innocence until proven otherwise.

“This might be the end of our story, but, hopefully, the beginning of another, ushering a change for universal fairness for all, especially the owners!”

May The Horse Be With You!