Trainers should be held criminally liable when racehorses break down under the New York anti-cruelty statute, Agriculture and Markets Law § 353. This section prohibits anyone from unjustifiably overdriving, torturing, injuring, or killing animals. By racing unfit horses, the trainers are not only withholding medical care, but are causing pain and further injury to the horses, which is cruel under the statute. Knowingly racing an unfit horse meets the definition of “cruelty” under § 353, and a guilty trainer should be held to account.
With flowing tail and flying mane,
With nostrils never stretch’d by pain,
Mouths bloodless to the bit or rein;
And feet that iron never shod,
And flanks unscar’d by spur or rod,
A thousand horse-the wild-the free–
Like waves that follow o’er the sea–
Came thickly thundering on.
- Excerpt from “Mazeppa” by Lord Byron.
I. INTRODUCTION
Thoroughbred horse racing is a controversial sport. Each year, hundreds of Thoroughbreds die on North American racetracks from such injuries as broken ankles, ruptured tendons, splintered forelegs and fractured skulls, necks and shoulders. [ 1] According to Jerry Pack, track veterinarian at Penn National Race Course, "On any track, on any given day, you'll see a catastrophic breakdown." [2 ] One study concluded that one horse in every 22 races suffers an injury that prevents it from finishing the race. [ 3] For every 1,000 times that horses start a race, an average of one to two will break down and have to be destroyed. [ 4 ] That equates to about 730 horses dying each year, or two per day. [5 ] Sadly, the numbers may be even greater than these staggering figures suggest. Because industry defines a “breakdown” as being followed by euthanasia within 24 hours, racetrack breakdown reports do not include Thoroughbreds destroyed several days after an injury. [ 6] Unfortunately, there are currently no uniformly recognized statistics for on-track deaths. [ 7]
Over the past two years, four horses have suffered fatal injuries in high profile horse races. [8 ] In 2006, Barbaro broke down in the Preakness Stakes and Pine Island broke down in the Breeders Cup. [9] George Washington also broke down in the 2007 Breeders Cup. [ 10 ] Eight Belles broke down in the 2008 Kentucky Derby. [ 11 ] Such breakdowns have escalated claims of cruelty in the sport. [ 12] The American Society for the Prevention of Cruelty to Animals (ASPCA) called Eight Belles' injury and on-track death “sad proof of the stress and rigors equines are forced to undergo in the racing industry.” [13 ] People for the Ethical Treatment of Animals (PETA) demonstrated in Baltimore to protest the May 17, 2008 Preakness Stakes. [ 14 ] A New York Times column likened horse racing to dog fighting, and message boards were replete with negative comments about the sport. [ 15 ] The United States House Subcommittee on Commerce, Trade, and Consumer Protection is focusing its attention on racehorse fatalities, and is demanding information from the Association of Racing Commissioners International about breakdowns and drug use in racehorses. [ 16 ]
This paper argues that trainers should be held criminally liable when racehorses break down under the New York anti-cruelty statute, Agriculture and Markets Law § 353 . This section prohibits anyone from unjustifiably overdriving, torturing, injuring, or killing animals. [ 17] By racing unfit horses, the trainers are not only withholding medical care, but are causing pain and further injury to the horses, which is cruel under the statute. Knowingly racing an unfit horse meets the definition of “cruelty” under § 353 , and a guilty trainer should be held to account. Part I of this paper gives a brief history of some of the high-profile breakdowns that have occurred in Thoroughbred racing. Part II outlines the requirements for becoming a trainer in New York state. Part III discusses the New York rules allowing the use of drugs in racehorses, and how their use contributes to breakdowns. Part IV concludes with an examination of § 353 , and argues that working an unfit horse and causing it to break down is cruel, and that trainers should be held criminally liable.
II. HORSE-RACING’S TRAGIC HISTORY OF BREAKDOWNS
On May 11, 2008, Eight Belles broke down right after placing second in the Kentucky Derby. [ 18 ] About a quarter of a mile past the finish line, both of the filly’s front cannon bones suddenly snapped, with one bone breaking through the skin and opening up the wound to contamination. [ 19 ] Eight Belles was destroyed on the track. [ 20 ]
Eight Belles’ breakdown was painfully reminiscent of Barbaro’s injury just two years earlier in the Preakness Stakes. On May 20, 2006, the dark bay colt who had charged ahead by 6½ lengths to win the Kentucky Derby, broke down just out of the gate, his right hind leg fractured before a shocked crowd at Pimlico Race Course and millions of TV viewers. [21 ] Barbaro’s veterinarian tried to repair the beloved horse’s injuries, which included a broken cannon bone, snapped sesamoid bone, a dislocated ankle, and shattered long pastern bone, but they ultimately proved fatal. [ 22 ]
Barbaro's breakdown, in turn, conjured up images of the famous filly, Ruffian, whose breakdown first focused the general public’s attention on catastrophic racehorse breakdowns. [ 23] On July 6, 1975, Ruffian was pitted in a match race against the reigning Kentucky Derby champion, Foolish Pleasure. [ 24 ] Ruffian charged up on the inside to take the lead, when, suddenly, she shattered the sesamoid bones and ruptured the tendons and ligaments in her right front ankle. [ 25 ] Ruffian kept running on her injured leg, until her jockey was able to pull her up. [ 26] Ruffian’s right leg nearly broke in two, with bones protruding through the torn skin. [ 27 ] After hours of complicated surgery, she re-injured herself when she came out of the anesthesia, and had to be put down. [ 28 ]
Other notable racehorses have died on the track. The champion filly, Go for Wand, broke down during the 1990 Breeders' Cup as she raced towards the finish line at Belmont Park. [ 29 ] Union City broke down on the backstretch of Pimlico during the 1993 Preakness Stakes. [ 30 ] Three weeks later, Prairie Bayou broke down on the backstretch of Belmont Park during the Belmont Stakes. [ 31 ] Dha Pog, Pennsylvania's racehorse of the year for 2000, was put down after his right leg was fractured. [32]
The number of racehorse fatalities has led many people to wonder who is ultimately responsible when a racehorse suffers a catastrophic injury. Because trainers are responsible for the physical condition of their horses, [ 33 ] they should be held accountable when a horse in their training breaks down.
III. TRAINER REQUIREMENTS IN NEW YORK
Racehorse trainers come from a variety of backgrounds, but most have had experience working with horses prior to training racehorses. For example, Ruffian’s trainer, Frank Whiteley Jr., was raised on a farm, and rode horses at shows and fairs before he started training racehorses in 1936. [34 ] He was inducted into the National Museum of Racing and Hall of Fame in 1978. [ 35 ] Michael Matz, Barbaro’s trainer, had a successful national and international show-jumping career prior to training racehorses, including a team silver medal at the 1996 Olympic Games. [ 36 ] His wife, D.D. Matz is the granddaughter of Robert Kleberg, who raced the 1946 Triple Crown winner, Assault. [ 37 ] Eight Belles’ trainer, Larry Jones, was a commercial farmer who got experience working with horses on his ranch before switching careers to train racehorses in 1980. [ 38 ]
In New York state, a trainer or assistant trainer must have a license from the state Racing and Wagering Board. [ 39 ] The Board considers the applicant’s experience, character and general fitness to determine if granting a license to that person is in the best interest of racing. [ 40 ]
A trainer’s license may be granted to an applicant who has been employed 12 months as a licensed assistant trainer in New York. [ 41] If the applicant has been a licensed trainer in another jurisdiction for one year, that person may be granted a license if he or she presents a certificate from track stewards in that state that he or she is a competent and qualified trainer. [ 42 ]
Another type of license is a private trainer's license, which allows a person to train horses in which he or she has an ownership or lease interest of more than 50 percent. [ 43 ] This option is available to applicants who have been licensed as an owner in New York or another jurisdiction for at least one year, who can show three years of experience in the care and training of Thoroughbred race horses, and who pass the written and practical tests given to assistant trainers. [44 ]
An assistant trainer’s license may be issued to an applicant who is at least 18 years old, has at least three years experience caring for horses at a track or farm, [45 ] is vouched for [46 ] by the licensed trainer by whom he will be employed, passes a written or oral test, and passes a practical examination. [47 ] The written or oral test may include questions on horse anatomy, disease, medication, applicable rules, regulations and training conditions of racing, stable business management, training procedures and equipment. [ 48 ] The practical examination may include questions on anatomy, lameness/disease and care of horses, and demonstrations of bandaging, saddling and other standard practices. [49 ]
The trainer’s background and experience make him or her an expert in racehorse care and maintenance. One might think that the trainer’s professional responsibility would be to safeguard the horses’ health, but unfortunately, the commercial pressure to run sore horses has led many trainers to use drugs to keep their horses ready to race. The use of drugs has been found to be a contributing factor in breakdowns. [50 ]
IV. USE OF DRUGS IN RACEHORSES IN NEW YORK
Although trainers are primarily responsible for the welfare of the horses in their care, many bow to pressure, and give unfit horses medicine to keep them running so that they can make money. [ 51 ]
The use of drugs in racehorses is controversial. Proponents of the drug policy claim that drugs help horses cope with normal aches and pains, and run more often. [ 52] Opponents, however, feel that horses that need drugs should not be racing in the first place. [ 53 ] The chairman of the Thoroughbred Owners and Breeders Association, Gary Biszant, [ 54 ] "...believe[s] that permissive and injudicious use of medications get[s] you to the next race, with less pain, but the long-term results are generally disastrous for the horse.” [ 55 ]
Generally speaking, horses may race at North American tracks 24 hours after being given some types of therapeutic drugs, such as phenylbutazone. [56 ] Which drugs are legal varies from state to state. [ 57]
A. Types of Drugs Allowed in New York
New York is a major horse-racing state that permits the use of drugs in racehorses. The New York rules seem to be fairly typical. [ 58]
The regulations allow phenylbutazone or flunixin to be given to a horse up to 24 hours before post time of a race. [59 ] These drugs are non-steroidal anti-inflammatory drugs [60] (NSAID’s) [61 ] that are used to treat pain, fever, and inflammation. [62 ] A horse that is lame from soft tissue injuries, muscle soreness, or bone or joint problems may be given one of these drugs. [ 63 ]
Aspirin or sodium thiosalicylate, orgotein, sarapin, meclofenamic acid, naproxen, or ketoprofen may be given to a horse up to 48 hours before post time. [ 64] These drugs are also NSAID’s used to treat pain, fever, and inflammation. [ 65 ] A horse that is suffering from a soft tissue injury or a bone and/or joint problem may be given one of these drugs. [ 66 ]
Steroids are also permitted to be given to a horse up to 48 hours before post time. [67] A horse with sore muscles [ 68 ] might be given corticosteroids, which are commonly used to treat pain and inflammation. [ 69 ]
Ketamine hydrochloride and pentazocine are drugs that can be given to a racehorse up to 72 hours before post time. [ 70] Ketamine hydrochloride is an anesthetic that numbs the body. [ 71 ] Pentazocine is a morphine-like [ 72 ] narcotic analgesic. [ 73] A horse that is suffering from moderate to severe pain might be given one of these two drugs. [ 74]
Even stronger pain-killers are permitted up to 96 hours before post time. [ 75 ] For example. butorphanol [ 76 ] is an opioid that acts on the central nervous system to decrease pain, [ 77] as does Xylazine (or zylazine). [ 78 ] Lidocaine [ 79 ] and mepivicaine [ 80 ] are local anesthetics that desensitize areas. [81] These drugs might be given to a horse in more severe pain. [82 ]
B. The Use of Drugs May Contribute to Breakdowns
Breakdowns may be a multifaceted problem in that racehorses weigh at least 1,000 pounds, have legs that are supported by ankles the size of a human’s, are forced to run at speeds close to 35 mph while carrying 125 pounds on their backs, and strike the ground at an impact level of 5,500 pounds per square inch. [ 83 ] However, experts have pointed to the widespread use of drugs as a contributing factor in breakdowns. [ 84 ] Dr. Gregory L. Ferraro, a veterinary surgeon, has noted a connection between an increasing number of racehorses dying from catastrophic breakdowns and the abuse of equine drugs by their trainers and owners. [ 85]
Pain medications "mask" the pain of an injury, i.e. they numb pain. Drugs that mask pain contribute to breakdowns [ 86 ] because pain warns both the horse and the trainer that there is an injury. [ 87] Pain-blocking drugs are dangerous because the horse cannot feel the pain of an injury and can seriously hurt itself. [ 88 ] California trainer, Dan MacFarlane, agrees that "...if you are blocking the pain, a horse could get seriously hurt." [89 ] This is because pain medications alleviate the pain, but do not cure the under-lying problem. [ 90] An injury could be made much worse if the horse continues working. [ 91] According to Kevin Greely, [ 92 ] Arlington Park's director of racing, “When you give a horse Bute [phenylbutazone], it takes away inflammation and reduces pain. If you don't give a horse Bute, he'll feel the pain and the trainer will notice the inflammation and the heat and won't race him." [93 ] Mr. Greely noted that he "saw very, very few breakdowns in Dubai ... because there is no medication.” [ 94 ]
Using drugs can harm the horse in other ways as well. The pain that accompanies an injury aids healing by forcing the horse to unload and rest the injured limb while the cells repair themselves. [ 95 ] In addition, the drugs can weaken the tissue or even hinder healing. For example, a 2002 Ohio State University study reported that bute suppressed healing and bone formation. [96 ] Drugs that shut down inflammation hinder the body’s ability to heal because inflammation is part of the healing process. [97 ] Serial injections of corticosteroids can seriously weaken the soft tissue in the racehorse’s joints. [98 ] Corticosteroids have also been associated with the development of laminitis. [99 ]
The legal use of drugs is controversial, but even more controversial is the alleged use by some trainers of illegal pain-killers. Such drugs include mepivacaine, which deadens the injured area, and morphine, which will keep a horse from feeling any pain from an injury. [100 ] The use of morphine was suspected in the case of Be My Royal, who won a race while limping. [ 101 ]
Although the reason for breakdowns may be complex, at the heart of the problem is that trainers are medicating horses they know to be lame, and racing them despite their injuries. Because trainers are ultimately responsible for the health of the horses, they should be held to account when racehorses break down. [ 102 ]
V. CRIMINAL LIABILITY OF TRAINER UNDER NEW YORK CRUELTY STATUTE
A. New York Cruelty Statute Forbids Working an Unfit Horse
Working or racing a horse that is unfit for labor and causing it to break down is cruel under the New York anti-cruelty statute, Agriculture and Markets Law § 353 . [103 ] This section seeks to protect animals by preventing overdriving, torturing, and injuring them. [104 ] § 353 states:
A person who overdrives, ... tortures or ... unjustifiably injures, ... or kills any animal, ..., or causes, ... or permits any animal to be overdriven, ..., tortured, ..., or unjustifiably injured, ... or killed, ..., or who willfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a class A misdemeanor .... [ 105 ]
Animal cruelty under § 353 encompasses a broad range of acts and omissions. [ 106] § 350 defines "torture" or "cruelty" as "every act, omission, or neglect whereby unjustifiable physical pain, suffering or death is caused or permitted." [ 107 ] “Overdriving or overloading work animals, or working an animal unfit for labor, may constitute cruelty” under § 353 . [ 108 ] The owner or bailee [ 109 ] of an animal may be convicted of cruelty on evidence that it was worked with his or her knowledge and consent when it was unfit for labor. [110 ] In order to convict under § 353 , the defendant must have a culpable state of mind, but it is not necessary to show malice. [ 111 ] The question is whether the defendant willfully drove or worked a horse he or she knew to be unfit. [ 112]
The test for cruelty is the justifiability of the act or omission. [ 113 ] What is "unjustifiable" is “what is not reasonable, defensible, right, unavoidable or excusable.” [ 114] For instance, driving a horse that is sick, sore or lame, or otherwise unfit for work, may constitute torture which is punishable under § 353 , but it is not per se torture. [ 115 ] It would not be a violation to drive a horse that has become lame back to the stable, to drive it for exercise, or to drive it “in a manner carefully proportioned to its condition.” [ 116 ] However, it would be a violation to work a horse in a manner that is not “carefully proportioned to its condition.” Because racing is not “carefully proportioned to its condition,” racing an unfit horse is a violation of § 353 . Case law supports this conclusion.
In People v. O'Rourke (1975), the defendant horse owner was convicted of cruelty under the forerunner of § 353 . [117 ] The defendant knew that "Mabel" was limping and should not have been worked. [ 118] However, he permitted her to work pulling a hansom cab, which caused her pain. [119 ] The court found this to be torture. [ 120] The court also found that permitting a limping horse to continue to work without supplying necessary medical attention was neglect under the statute. [121 ] Upon receiving notice of “Mabel's" lameness, the defendant was obligated to call a veterinarian so that she might receive proper medical care. [ 122 ]
In the 1939 case, People v. Koogan , [ 123] the defendant’s conviction for cruelty to animals [ 124] was unanimously affirmed when it was proven that the defendant knew that a horse was suffering from open sores, but let it be hired out despite its poor condition. The court found this to be torture to the horse.
In People v Brunell, [ 125 ] the defendants were convicted of cruelty for driving a horse that they knew had two injured knees. [ 126 ] There was no evidence that the defendants drove the horse maliciously or for the purpose of torturing or giving pain to it. [127 ] However, because the defendants knew about the horse's condition, they were presumed to have known that the horse would suffer if they worked it. [ 128 ]
Although one might argue that the cases do not directly address horse racing, the trainers’ conduct comes within the purview of the statute. § 353 states that it is a violation for any person to cause, permit, set on foot, instigate, engage in, or further any act that causes any animal to be overdriven, tortured, or unjustifiably injured, or killed. [ 129] These trainers are working unfit horses, and thus, causing them to be overdriven, tortured, injured, and even killed.
Case law also supports applying § 353 to racehorses. In Ricco v. Corbisiero , [130 ] (1991) a harness catch driver racing trotting horses successfully defended himself against a suspension imposed on him by the Racing and Wagering Board. The board had suspended him for failing to drive his horse to the finish, which was a violation of 9 NYCRR § 4117.1. However, the court overturned the suspension, in part, because it would have been a violation of § 353 to overdrive the horse. [ 131 ] The court quipped that “to overdrive ... any animal... might make the cliche ‘to beat a dead horse’ too realistic.” [132 ]
One important difference from the above cases that sets the trainers apart from the above situations is that the trainers are deliberately attempting to hide the horses’ injuries by administering pain-masking drugs. This is especially egregious, because the trainers are very knowledgeable about horse care and medication, which is evidenced by the fact that the state has granted them a trainer’s license. The owners in the above cases may have had less knowledge about horse care than a licensed trainer, yet § 353 was applied to them, and they were convicted of cruelty. The racehorse trainers are intentionally racing unfit horses, masking the pain of injury with drugs, and causing the horses to break down. They should be held at least to the same standard as the owners in the above cases, if not to a higher one because of their superior knowledge and experience. There is no reason not to apply § 353 to trainers. The statute encompasses their conduct, and it should apply to them when they race an unfit horse and cause it to break down.
B. Trainer Could Be Guilty of Cruelty for Racing an Unfit Horse
The owner or bailee of a horse may be convicted of cruelty if an unfit horse is worked with his or her knowledge and consent. [ 133] Trainers are primarily responsible for the care, condition, and health of their horses, [134 ] The trainer is the one who decides the horse’s training regimen and which drugs to administer, and it is the trainer who is held responsible for any drugs in a horse’s system. [135 ] Therefore, the trainer should be the main target of a cruelty investigation.
Trainers are charged with the responsibility for the horses’ welfare, but sadly, "...not all trainers put the welfare of the horse first," according to trainer Christine Janks. [ 136 ] Indeed, the trainer can be part of the problem when horses break down. [ 137 ] Some experts, such as Dr. J. G. Peloso, have suggested that almost all horses that suffer a catastrophic breakdown have shown signs of lameness prior to the race. [ 138 ] Unfortunately, when a horse develops physical problems, the trainer is more likely to give it a shot of cortisone as a short-term fix than to allow the horse to rest. [ 139 ] The racehorses are pushed too hard when a slight injury makes them more vulnerable to increased injury if raced. [ 140 ] Ms. Janks explains that the business plan of many trainers is to “[g]et one more race out of them, drop them down [in claiming price], and get them claimed.” [ 141] When the problems get worse, the trainer will continue to race the horse and drop him in class, hoping that someone else will claim the horse and inherit the problems. [ 142 ] As a result, horses with physical problems often do not get the care they need. [ 143] In Barbaro’s case, for instance, the “bad step” that led to his catastrophic injuries was probably just the final straw in a series of events that put his leg at great risk to be fractured. [ 144]
The Agriculture and Markets Law states that no one may commit an act of cruelty to an animal. [ 145] § 353 imposes criminal liability upon a person whose neglect causes unjustifiable injury to an animal, regardless of his relationship to the animal. [ 146 ] In People v. Arcidicono [147 ] (1974) a horse, which was in defendant’s custody and care, had to be destroyed due to malnutrition. The defendant was in charge of feeding the gelding, and was aware of its loss of weight. He knew the diet was inadequate but failed to provide more food. Therefore, the defendant was guilty of violating § 353 for failure to provide proper sustenance to the horse.
Trainers should be held criminally liable under § 353 when racehorses in their care break down. The trainer is the bailee of a racehorse, i.e. he or she has taken a horse into his care and custody for compensation, and has thus assumed responsibility for the horse’s well-being. Unfortunately, trainers frequently administer drugs to injured or otherwise unfit horses so that they can keep racing. The trainer knows that the horse is injured, but gives it pain medicine so that it will not look or feel lame. This puts the horse at great risk of suffering a catastrophic and/or fatal injury. Working or racing a horse that is sore or lame, or otherwise unfit for work, violates § 353 . [ 148 ] Such a situation amounts to torture by causing pain or injury to the horse, or neglect by continuing to work a horse rather than providing it with medical care. [ 149 ] When a trainer works or races a horse that he or she knows to be unfit, the trainer should be held criminally liable for cruelty under § 353 . [ 150]
VI. CONCLUSION
Tragically, anywhere from 700 to 800 Thoroughbreds have to be destroyed each year because of broken bones or ruptured tendons they have suffered while racing [ 151] Although the reason for breakdowns may be complex, at the heart of the problem is that trainers are bowing to pressure to race lame horses for financial reasons. Trainers are ultimately responsible for the horses in their care, yet many seem to put making money in front of the horses’ welfare. Many trainers medicate lame horses so that they will not feel any pain, and then race them despite their poor condition. This is an attempt to deliberately conceal the horses’ lameness, and oftentimes results in a fatal or career-ending breakdown.
When trainers knowingly race unfit horses, they should be held criminally liable under the New York anti-cruelty statute, Agriculture and Markets Law § 353 . This statute makes it illegal for any person to cause or permit any act that causes any animal to be overdriven, tortured, unjustifiably injured, or killed. Any act, omission, or neglect that causes unjustifiable physical pain, suffering or death is considered to be “torture” or “cruelty.” Such an act is "unjustifiable" if it is avoidable, yet is done nonetheless. Racing an unfit horse is avoidable, and therefore, is unjustifiable. Withholding the necessary medical care from an unfit horse and forcing it to race instead of allowing it to rest is also unjustifiable neglect, and is cruel. The act of administering pain-killers to a horse betrays knowledge of the horses’ unfitness. In previous cases, owners were convicted of cruelty under § 353 for working horses they knew were injured. The statute should be applied equally to racehorses trainers who also commit cruelty when they race horses they know to be lame or otherwise unfit.
[1] Bill Toland, “ Horse racing has grim underside,” Pittsburgh Post-Gazette, June 10, 2006. http://www.post-gazette.com/pg/06161/697183-139.stm .
[2] Jerry Pack has worked at Penn National for 10 years, and has seen at least 262 deadly breakdowns. Id.
[3] Ted Miller, “Six Recent Horse Deaths at Emerald Downs Spark Concern,” Seattle Post-Intelligencer 8 May 2001.
[4] Carlos Frias, “Veterinarian tries to get facts on number of thoroughbreds breaking down,” Cox News Service, May 8, 2008. http://www.palmbeachpost.com/localnews/content/shared/sports/stories/2008/05/RAC_DERBY_0508_COX.html?cxntlid=inform_artr ; Toland, “ Horse racing has grim underside.” The national breakdown average is between 1.6 and 2.2 for every 1,000 starters. John Grupp, “Horse racing deaths spark debate in industry,” Pittsburgh Tribune Review Sunday, May 11, 2008 http://www.pittsburghlive.com/x/pittsburghtrib/sports/s_566948.html ; One race, with 15 horses, equals 15 starters. Toland, “ Horse racing has grim underside.”
[7] Bill Dwyre, “Racing can't run from high-profile deaths, Chicago Tribune, May 16, 2008. http://chicagosports.chicagotribune.com/sports/horseracing/cs-080515-horse-racing-deaths,1,4223352.story . [article gone]
[14] “PETA protests horse racing before Preakness,” Associated Press, May 17, 2008. http://nbcsports.msnbc.com/id/24683252/ .
[16] “Congress Wants Info on Breakdowns, Drugs,” The Associated Press, May 24, 2008. http://news.bloodhorse.com/article/45380.htm
[17] NY CLS Agr & M § 353 .
[19] Bill Dwyre, “For horse racing, death has no easy answers,” Los Angeles Times, May 6, 2008 http://www.latimes.com/sports/la-sp-dwyre6-2008may06,0,3949304.column ; Bob Lentz, “Eight Belles' trainer denies fallen filly was on steroids,” Associated Press. http://www.palmbeachpost.com/localnews/content/shared-gen/ap/Other_Sports/RAC_Kentucky_Derby_Eight_Belles.html?cxntlid=inform_artr .
[20] Hal Habib, “Jockey Club CEO to head committee on thoroughbred safety,” Palm Beach Post, May 8, 2008. http://www.palmbeachpost.com/localnews/content/sports/epaper/2008/05/08/a6c_horses_0509.html?cxntlid=inform_artr .
[21] “Veterinarian: Barbaro's right hind leg healing well,” Associated Press, August 1, 2006, http://sports.espn.go.com/sports/horse/news/story?id=2536511 ; “Barbaro’s doctor as blunt as his crewcut hair,” Associated Press, June 2, 2006. http://nbcsports.msnbc.com/id/13101938/ .
[22] Barbaro’s long pastern bone was shattered into more than 20 pieces. Id.; Habib, “Jockey Club CEO to head committee on thoroughbred safety.”
[23] William E. Jones, D.V.M., “Racetrack Breakdowns,” The American Quarter Horse Racing Journal, 12, July 2006. http://www.aqha.com/magazines/aqhrj/content/2006content/06july/racetrackbreakdown.pdf .
[24] Jane Schwartz, “We Care. But Why Do We Care So Much?”, New York Times, May 22, 2006. http://www.nytimes.com/2006/05/22/sports/othersports/22ruffian.html?ex=1305950400&en=9aaf96f406181202&ei=5090&partner=rssuserland&emc=rss ; Jones, “Racetrack Breakdowns.”
[25] Beth Harris, “ 'Ruffian' movie recalls pre-Barbaro racing tragedy.” http://www.usatoday.com/sports/horses/2007-06-07-491178185_x.htm ; Schwartz, “We Care. But Why Do We Care So Much?”
[29] Joseph Durso, “On Horse Racing: Unforeseen Stresses of Business,” New York Times, February 14, 1995.
[33] Bennett Liebman, “The Trainer Responsibility Rule in Horse Racing,” 7 Va. Sports & Ent. L.J. 1, 2 (Fall 2007).
[34] Richard Goldstein, “Frank Whiteley Jr.; horse racing Hall of Famer, Ruffian trainer; 93,” May 8, 2008. http://www.signonsandiego.com/uniontrib/20080508/news_1m8whiteley.html
[35] Id.
[36] “It’s Kentucky Derby Day – Tomorrow the Rolex Kentucky Three-Day Event on NBC,” Dressage Daily, May 6, 2006. http://www.dressagedaily.com/2006/dd_200605/dd_20060506.html .
[37] “Michael Matz,” National Thoroughbred Racing Association. http://www.ntra.com/stats_bios.aspx?id=17713
[38] “ Larry Jones,” Breeder’s Cup Bios. http://www.breederscup.com/bio.aspx?id=7057 ; “ Larry Jones.” http://www.gohorsebetting.com/horseracing/trainer?name=Larry+Jones
[39] See 9 NYCRR § 4002.1 (b); see also NY CLS Racing & Wagering § 220 (1).
[40] NY CLS Racing & Wagering § 220 (2). See also 9 NYCRR § 4002.8 .
[41] 9 NYCRR § 4002.22 (a ).
[42] 9 NYCRR § 4002.22 (b).
[43] 9 NYCRR § 4002.23 .
[44] 9 NYCRR § 4002.23 (a), (b), (c).
[45] At least two full years of which is as a gainfully employed licensed groom or licensed exercise person. 9 NYCRR § 4002.21 (a)(2).
[46] Trainer must vouch for them in writing. 9 NYCRR § 4002.21 (a)(3).
[47] 9 NYCRR § 4002.21 (a)(1)-(5). The tests are administered by the board. 9 NYCRR § 4002.21 (a)(4), (5). The board may waive the testing requirements herein if the applicant has been licensed as an assistant trainer in another jurisdiction for at least one year and otherwise satisfies the board as to experience and competence. 9 NYCRR § 4002.21 (b).
[48] 9 NYCRR § 4002.21 (a)(4).
[49] 9 NYCRR § 4002.21 (a)(5).
[50] Dwyre, “Racing can't run from high-profile deaths”; John Severance, “Commentary: Sport needs policing; ending it goes too far,” May 5, 2008. http://www.palmbeachpost.com/sports/content/sports/epaper/2008/05/05/0505severance.html .
[51] Dwyre, “Racing can't run from high-profile deaths”; John Severance, “Commentary: Sport needs policing; ending it goes too far,” May 5, 2008. http://www.palmbeachpost.com/sports/content/sports/epaper/2008/05/05/0505severance.html .
[52] Neil Schmidt, Horse of a different color, The Cincinnati Enquirer, May 1, 2004. http://www.enquirer.com/editions/2004/05/01/spt_sptderby1horses.html .
[56] Dwyre, “Racing can't run from high-profile deaths”; Max Watman, “So Far, So Good for Barbaro,” The New York Sun, May 21, 2006. http://www.nysun.com/sports/so-far-so-good-for-barbaro/33099/ .
[57] Kentucky has the reputation for being the most lenient state. Janet Patton, “HBPA Proposes Uniform Policy on Drugs in Racing; Horsemen’s Group Targets Maze of State Rules,” The Lexington Herald-Leader, Oct. 17, 2001.
[58] See California regulations 4 CCR 1843.5(g), 4 CCR 1844; Maryland COMAR 09.10.03.04, COMAR 09.10.03.01.
[59] 9 NYCRR § 4043.2(d)(1-2).
[60] C. Wayne McIlwraith, BVSc, PhD, “Traumatic Joint Injuries and Disease,” Colorado State University, Orthopaedic Research Center. http://www.equineortho.colostate.edu/questions/tjd.htm#nsaid .
[61] “Nonsteroidal Anti-inflammatory Drugs.” http://www.med.nyu.edu/patientcare/library/article.html?ChunkIID=21396 .
[63] Barbara Forney, VMD, “Phenylbutazone For Veterinary Use.” http://www.wedgewoodpharmacy.com/monographs/phenylbutazone.asp .
[64] 9 NYCRR § 4043.2 (e)(3), (14), (15), (17).
[65] “Nonsteroidal Anti-inflammatory Drugs” http://www.med.nyu.edu/patientcare/library/article.html?ChunkIID=21396 ; see also Kim and Kari Baker, “Drugs and Competition,” Blood Horse Publications, June 1, 2003 http://www.thehorse.com/ViewArticle.aspx?ID=4404&kw=meclofenamic+acid ; "orgotein." The Veterinary Dictionary. Elsevier, 2007. Answers.com. May 25, 2008. http://www.answers.com/topic/orgotein .
[66] Kim and Kari Baker, “Practical Equine Medications,” Blood-Horse Publications, January 1, 2003, http://www.thehorse.com/ViewArticle.aspx?ID=4029 . Sarapin is a plant extract distilled from Sarracena purpurea, better known as the pitcher plant. Barbara Forney, VMD, “Ketoprofen For Veterinary Use.” http://www.wedgewoodpharmacy.com/monographs/ketoprofen.asp .
[67] 9 NYCRR § 4043.2(e)(14 ).
[68] Kim A. Sprayberry, DVM, Dipl. ACVIM, “ Non-Steroidal Anti-Inflammatory Drugs (NSAIDs),” Blood Horse Publications, April 1, 2007. http://www.thehorse.com/ViewArticle.aspx?ID=9306&kw=naproxen
[70] 9 NYCRR § 4043.2 (f)(3),(5).
[71] “Ketamine,” Palo Alto Medical Foundation. http://www.pamf.org/teen/risk/drugs/daterape/ketamine.html .
[72] “Pentazocine,” US Drug Enforcement Administration. http://www.usdoj.gov/dea/concern/pentazocine.html .
[73] “naloxone-pentazocine,” MedHelp. http://www.medhelp.org/drugs/show/4557
[74] “Pentazocine,” University of Maryland Medical Center. http://www.umm.edu/altmed/drugs/pentazocine-098300.htm .
[75] See 9 NYCRR § 4043.2 (g).
[76] 9 NYCRR § 4043.2(g)(4 ).
[77] Christy West, “Pain Medications for Horses,” The Blood Horse Publications March 11, 2008. http://www.thehorse.com/ViewArticle.aspx?ID=11468&kw=butorphanol
[78] 9 NYCRR § 4043.2(g)(16). Michael Ball, DVM, “Pain In Horses,” Blood-Horse Publications, January 1, 1997; http://www.thehorse.com/ViewArticle.aspx?ID=753&kw=pentazocine . Xylazine is an alpha-2 agonist, which is an analgesic of short duration. Christy West, “Pain Medications for Horses,” The Blood Horse Publications March 11, 2008. http://www.thehorse.com/ViewArticle.aspx?ID=11468&kw=butorphanol .
[79] 9 NYCRR § 4043.2(g)(11 ).
[80] 9 NYCRR § 4043.2(g)(12 ).
[82] Id.; Opiods are often chosen for cases of severe pain. West, “Pain Medications for Horses,” supra.
[83] Andrew Beyer, “For Run of Fatal Breakdowns, No Easy Place to Fix Blame,” Washington Post, Aug. 2, 2006; Page E03 http://www.washingtonpost.com/wp-dyn/content/article/2006/08/01/AR2006080101260.html?nav=rss_sports ; Miller, “Six Recent Horse Deaths at Emerald Downs Spark Concern”; Dwyre, “For horse racing, death has no easy answers.”
[84] Matt Hegarty, “Panel urges ban on steroids,” Daily Racing Form, Dec. 7, 2006. http://horseracing.sportsline.com/cbs/headlines/showarticle.aspx?articleId=15149 .
[85] William Nack and Lester Munson, “The Breaking Point: A Rising Toll of Racetrack Breakdowns Has Shaken Public Confidence and Put The Thoroughbred Industry at a Crossroads,” Sports Illustrated, Nov. 1, 1993, at 76.
[88] See “Ketamine,” Palo Alto Medical Foundation. http://www.pamf.org/teen/risk/drugs/daterape/ketamine.html .
[89] Jack Shinar, “CHRB Tables 'Heel Nerving' Ban.” http://news.bloodhorse.com/article/39846.htm .
[91] Kim and Kari Baker, “ Drugs and Competition,” supra .
[92] Kevin Greely worked as racing secretary of the Emirates Racing Association for 11 years before becoming Arlington Park's director of racing and racing secretary in 2005. Neil Milbert, “Changes in horse racing landscape cause more breakdowns,” Chicago Tribune, May 10, 2008. http://chicagosports.chicagotribune.com/sports/horseracing/cs-080510-horse-racing-medication-breakdowns,1,378351.story .
[95] Sprayberry, “ Non-Steroidal Anti-Inflammatory Drugs (NSAIDs),” supra.
[97] Sprayberry, “ Non-Steroidal Anti-Inflammatory Drugs (NSAIDs).”
[99] Sprayberry, “ Non-Steroidal Anti-Inflammatory Drugs (NSAIDs)” ; Laminitis used to be defined as inflammation or edema of the sensitive laminae of the hoof, but is now thought to be a transient ischemia associated with coagulopathy that leads to breakdown and degeneration of the union between the horny and sensitive laminae. “Laminitis (Founder, Fever in the Feet).” http://www.merckvetmanual.com/mvm/index.jsp?cfile=htm/bc/90722.htm .
[100] Dwyre, “Racing can't run from high-profile deaths”; Peat Bee, “Cut the Poppycock and Treat Drugs With Horse Sense,” The Guardian, Jan. 13, 2003.
[102] This paper mainly focuses on criminal liability. However, the trainer may be civilly liable as well. For example, the owner of a racehorse that is injured or killed may have several tort causes of action against a trainer, such as breach of bailment, trespass to chattels, conversion, or lack of informed consent.
[104] People v. Arcidicono, 79 Misc. 2d 242, 243 (N.Y. Misc. 1974 ) ; “Overdriving” encompasses over-working. See Ricco v. Corbisiero, 165 A.D.2d 3 (N.Y. App. Div. 1st Dep't 1991) ; O'Rourke at 176 .
[105] NY CLS Agr & M § 353 .
[107] O'Rourke at 178 ; see also NY CLS Agr & M § 350(2).
[108] O'Rourke at 178 .
[109] A bailee is a person who receives personal property from another as a bailment. Black's Law Dictionary (8th ed. 2004). A bailment is the delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose under an express or implied-in-fact contract. Id. Unlike a sale or gift of personal property, a bailment involves a change in possession but not in title. Id. A racehorse trainer is acting as a bailee for hire, in that he or she is taking the horse into his care and custody for compensation. A bailment for hire is a bailment for which the bailee is compensated. Black's Law Dictionary (8th ed. 2004). The trainer is responsible for the physical condition of his or her horse. Bennett Liebman, “The Trainer Responsibility Rule in Horse Racing,” 7 Va. Sports & Ent. L.J. 1, 2 (Fall 2007).
[110] O'Rourke at 178 .
[111] Id. at 179.
[112] Id. at 180 .
[113] Id. at 178 .
[115] Limping is evidence of pain. O'Rourke at 177 , 179.
[116] Id.
[117] Section 185 of the Penal Law of 1909. 83 Misc. People v. O'Rourke , 2d 175 (N.Y. City Crim. Ct. 1975).
[118] Id. at 180.
[119] Id.
[120] Id. at 179 .
[121] Id. at 178-79.
[122] Id. at 180 .
[123] 256 A.D. 1078 (N.Y. App. Div. 1939 ).
[124] A violation of section 185 of the Penal Law. People v. Koogan, 256 A.D. 1078, 1078 .
[125] 48 How Prac 435. Discussed in O'Rourke, 83 Misc. 2d at 179 .
[126] O'Rourke at 179-180.
[127] Id.
[128] Id. at 180 .
[129] NY CLS Agr & M § 353 .
[133] O'Rourke at 178 .
[135] See Bennett Liebman, “The Trainer Responsibility Rule in Horse Racing,” 7 Va. Sports & Ent. L.J. 1, 21 (Fall 2007).
[146] Arcidicono, 79 Misc. 2d at 243 .
[147] 79 Misc. 2d 242 (N.Y. Misc. 1974 ).
[148] O'Rourke, 83 Misc. 2d at 179 .
[149] See Id. at 178-180.
[150] Id. at 178.
[151] Bill Toland, “ Horse racing has grim underside,” Pittsburgh Post-Gazette, June 10, 2006. http://www.post-gazette.com/pg/06161/697183-139.stm .