NYSGC Provides Forte Timeline

In response to comments from Forte’s connections on a conference call last Thursday, May 11 accusing the New York State Gaming Commission of unprofessional handling of the Forte meloxicam overage in the Sept. 5, 2022 Hopeful Stakes, the commission’s spokesman, Brad Maione, has issued a timeline of the eight months between the positive test and the stewards’ hearing to discuss the results. At that hearing May 10, Forte was disqualified from the Hopeful Stakes win, Todd Pletcher was fined $1,000 and suspended for 10 days. The connections said they would appeal.

That timeline appears in its entirety here:

The RMTC split sample program was announced in 2017. At that time, the New York Thoroughbred Horsemen’s Association notified its members, which includes Mr. Pletcher, of the program. As a courtesy, in the fall of 2022, the Gaming Commission worked with the trainer’s counsel to help identify a RMTC-approved lab to test the split sample at issue. A list of such labs is readily available on the RMTC website.

Below is a timeline of communications between the Gaming Commission and the trainer’s representative between the September 5, 2022 Hopeful Grade 1 Stakes at Saratoga Race Course and the May 10, 2023 “Stewards’ Hearing:”

September 5, 2022: Saratoga Race Course: Hopeful Stakes G1; horse FORTE finished 1st; sample collected & shipped to New York Equine Drug Testing & Research Laboratory (Lab) in Ithaca, NY.

September 23, 2022: The Lab notified the Commission of a positive finding. The Commission immediately notified the State Steward, who then matched the sample’s identifying numbers to the previously locked documentation of collected samples. An investigation began. The remaining dates and events are what led the “Steward’s Hearing” on May 11, 2023.

September 29, 2022: The trainer’s counsel was notified of the positive finding.

October 3, 2022: The trainer’s counsel asked for the “laboratory finding” and “underlying data,” incorrectly claiming that providing such during an investigation has been “long standing practice.”

October 5, 2022: The Commission denied the trainer’s counsel’s request, noting: “a licensee being investigated for potential discipline is not entitled to evidence until such time as the Commission’s adjudication rules require disclosure of the same. This position applies to any request for such disclosure, whether related to potential residual sample testing, or any other subject matter.”

October 7, 2022: The trainer’s counsel protested and incorrectly reasoned that by not providing such findings at that time (before a ruling is even issued), there must have been a “change in that protocol.” The trainer’s counsel then requested materials that led to this non-existent change in procedure.

October 11, 2022: The trainer’s counsel complained via email that the copies of the aforementioned provided to her as a courtesy was inaccurate and that the labs they contacted were unable to conduct the requisite testing.

October 14, 2022: The trainer’s counsel again complained about the aforementioned courtesy-provided lists of labs, falsely claiming that because the Commission would not permit disclosure of the Lab’s report (NOTE: permitting as much during an investigation would be unprecedented), “We are unable to proceed with our election for split sample testing.”

November 16, 2022: Again, as a courtesy and convenience, the Commission sent the trainer’s counsel an updated published list of lab options for split sample testing (downloaded from RMTC’s website), and even pre-filled the split-sample request form. The Commission advised that, “As soon as the Commission is notified by the laboratory that you select, indicating that they have received your requests and the fee for performing the tests, we will ship the blood to that laboratory for analysis.”

November 23, 2022: Texas A&M’s laboratory agrees to conduct the split-sample testing.

December 8-16, 2022: the Commission coordinates the trainer’s payment of and shipment of the split sample to be tested at the Texas A&M Lab:

December 21, 2022: Texas A&M receives the sample for split-sample testing

January 28, 2023: Texas A&M confirms finding in split sample to the Commission, which then informs State Steward of the confirmation.

February 3, 2023: Test results of split-sample are sent to trainer’s counsel and Commission.

February 22, 2023: State Steward advises trainer’s counsel of March 2, 2023 Steward’s Hearing, stating: “Please let your client know he can be available by phone.”

The trainer’s counsel informed the State Steward that March 2 was not possible due to a prior scheduled obligation and that they expect to attend in person.

February 23, 2023: The State Steward offered March 22, 23, or 29 as possibilities for the “Stewards Hearing.”

March 1, 2023: The trainer’s counsel asked for the “Stewards Hearing” to take place on March 23.

March 8, 2023: The State Steward clarified the purpose of the “Stewards’ Hearing,” as:

“…not an adjudicatory proceeding … but …a meeting to provide your client, a licensee, with an opportunity to be heard before I consider potential regulatory action. …  a licensee may have counsel … to provide counsel/advice to the licensee. As the meeting’s purpose is to provide a licensee with an opportunity to be heard, however, a licensee’s counsel is otherwise only able to attend the meeting as an observer, and is not able to ask the stewards questions or to elicit any type of testimony or evidence… If some sanction of the licensee results, there would be a later opportunity for the licensee to request a de novo adjudicatory hearing, at which time the types of hearing procedures you suggest may be available pursuant to SAPA and Commission regulations.”

Despite this and prior explanations, the trainer’s counsel again requested “hearing ‘guidelines,’” the New York Lab test results, a confirmation of certain of witnesses and more records with an artificial one-day deadline of March 9, stating: “if it is not met, we will have to adjourn without date.”

March 13, 2023: The trainer’s counsel and the owner of the horse proposed an inappropriate “conference in advance of the March 23 “Stewards Hearing,” stating that the horse’s owner “believes this discussion of preliminaries will be in all parties’ interest as well as in the best interest of the sport.”

Further complicating the scheduling of an already-postponed “Stewards’ Hearing,” the Trainer’s counsel represented that the owner “might find that his formal appearance is mandatory to ensure the integrity of the sport and that the process is conducted in a fair manner.”

March 14, 2023: The Commission Steward responded to the trainer’s counsel, reiterating that the “Steward’s Hearing will move forward as previously described to provide Mr. Pletcher an opportunity to be heard. As it is an opportunity for a licensee to provide the stewards with any additional information or evidence that the licensee wants the stewards to consider prior to my implementing a decision as the State Steward, Mr. Pletcher may present witnesses to provide such additional information at that time.”

March 16, 2023: The trainer’s counsel responded with a list of 17 witnesses – in addition to the trainer – they wished to speak at the “Stewards’ Hearing” and asked for a confirmation by end of the day.

March 18, 2023: The Commission responded to the trainer’s counsel:

“…the Stewards Hearing is an opportunity for Mr. Pletcher to be heard. If Mr. Pletcher wants to present witnesses (to appear and provide information voluntarily), he may do so.”

March 20, 2023: The trainer’s counsel responded to Commission:

“…While we appreciate the ability to present witnesses, your failure of a timely response leaves us with insufficient time to contact and prepare our witnesses.  …Consequently, we are respectfully postponing the Thursday Hearing.  Once we have reached out to everyone and secured time on their schedules, I will get back to you with dates.

March 22, 2023: The Commission Steward grants another the postponement of the “Stewards’ Hearing” and offers March 30, April 12, April 19, May 3, or May 10, noting:

“… if the Stewards Hearing does not take place on or before May 10, 2023, no further dates will be offered, and Mr. Pletcher will be deemed to have declined the opportunity.”

March 23, 2023: The trainer’s counsel selects the May 10, 2023 date.

May 8, 2023: The trainer’s counsel writes to the Commission Steward:

“An unforeseen circumstance has caused Mr. Pletcher to remain in Kentucky and, thus, he is unable to be present on Wednesday for the ‘Stewards Hearing.’ Accordingly, he respectfully requests an adjournment without date at this time.”

The Commission Steward responds to the trainer’s counsel:

“As you will recall, on March 22, 2023, I advised that if the Stewards Hearing does not take place on or before May 10, 2023, no further dates will be offered, and Mr. Pletcher will be deemed to have declined the opportunity. In light of your email of May 8, 2023, we offer that Mr. Pletcher may appear at the May 10, 2023, Stewards Hearing via videoconference, in order to take part in a Stewards Hearing. Please advise as soon as possible so that we may set up the videoconference. Otherwise, we will note that Mr. Pletcher has declined the opportunity to participate in a Stewards Hearing and proceed accordingly.”

May 9, 2023: The trainer’s counsel writes to the Commission Steward:

“…we are at this very moment showcasing the entire racing Industry on a National stage. And in doing so, the subject of extraordinary and appropriate scrutiny (on that point, I have been contacted by a prominent reporter of a national New York publication who can not be called a friend of racing concerning the subject at hand). The misfortune of the tragedies at Churchill Downs will only be wrongfully amplified should the Board of Stewards proceed at this time. As such, we respectfully renew our request that tomorrow’s Stewards Hearing be adjourned until after the completion of the Triple Crown — an action that is certainly in the best interests of our entire racing community. …Second, as is always the case, the health and welfare of the horse must come first and there will be no exception here. The “unforeseen circumstance” mentioned above is the scratching of the Kentucky Derby favorite Forte and then having him placed on Kentucky’s veterinary list. This requires Mr. Pletcher’s complete attention as he will be monitoring him on a daily basis. In full transparency, tomorrow morning Forte is scheduled for testing at which both Mr. Pletcher and his owner will be in attendance. Mr. Pletcher, therefore, is unable to participate, even remotely, in the Stewards Hearing at that same time. …Because of the urgency of this matter, we expect to hear back from you at your earliest convenience or no later that 8 AM tomorrow morning.”

The Commission Steward responds to trainer’s counsel:

“…we have repeatedly have offered and will again offer that Mr. Pletcher may appear at the May 10, 2023 Stewards Hearing via videoconference, in order to take part in the Stewards Hearing. In light of his schedule in the morning, we are able to reschedule the Stewards Hearing for a later time tomorrow, at 1:00 p.m. Please advise as early as possible if Mr. Pletcher wants to proceed tomorrow, so we may set up the video conference. Otherwise, we will note that Mr. Pletcher has declined the opportunity to participate in a Stewards Hearing and proceed accordingly.

5:33 p.m.: Forte’s Owner to Commission Steward: “We both look forward to the hearing!!!!!”

May 10, 2023: The “Stewards Hearing” took place.

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