Administrative Rule of the Month - Scratches

As a trainer, Chicago area owner/trainer James DiVito has almost 6,000 starts to his credit. On May 25, 2011, he brought his own horse, Jimmy Got Even, from his base in Chicago to Indiana Downs. Jimmy Got Even was entered in race one which was a $7,500 claiming non-winners of three lifetime. After race day medications were administered, and shortly before the post, Mr. DiVito was told that Jimmy Got Even was scratched from the race by the stewards. Mr. DiVito received no credible explanation for the scratch. After returning to Chicago, Mr. DiVito had his attorney write a letter to the Indiana Horse Racing Commission (IHRC) requesting an explanation. In this May 26, 2011 letter, attorney Arthur Engelland stated, “My client is unaware of any valid reason to scratch this horse prior to post.” He also mentioned that his client incurred $1,000 of costs associated with his round-trip to Indiana Downs.

A scratch is defined by 71 IAC 7.5-2-2(a) for thoroughbreds and quarter horses as “A scratch is the act of withdrawing an entered horse from a contest after the closing of entries.” As with any racing jurisdiction, the Indiana stewards have the statutory authority to scratch horses from a race if a horse is ineligible to run. But, what made Jimmy Got Even ineligible to run?

Almost two months after Mr. Engelland’s inquiry, IHRC Executive Director Joe Gorajec responded with his own letter dated July 18, 2011. The letter states, “I have learned that Mr. DiVito’s horse was mistakenly scratched on May 25, 2011. My review of the incident in question revealed there was a ‘mix up’ in communications.” To add insult to injury, Mr. Gorajec stated, “The Indiana Horse Racing Commission does not reimburse license fees or any expenses when a horse is scratched, regardless of the reason nor, as advised by commission staff counsel, is it legally required to do so.” This letter was closed with, “I hope this unfortunate incident will not detract from Mr. DiVito’s participation in any future races in Indiana.”

Our review of the incident in question revealed that the “mix up” was that a horse named Even Wilder was supposed to be scratched from the race at the request of his trainer. Yet, Jimmy Got Even was scratched in error instead. Having the word “even” in the name obviously created some confusion. In reviewing the official race chart, where the field was scratched down to five horses, Even Wilder listed as a trainer scratch with Jimmy Got Even listed as a steward scratch. According to 71 IAC 7.5-2-2(d), “No horse may be scratched from an overnight race without approval of the stewards.” The net result was that this mistake cost the owner $1,000 and denied him the opportunity to earn a portion of the $11,200 purse.

So, can a scratched horse be ‘unscratched,’ to coin a phrase? Indiana’s standardbred rule book has a pretty specific answer to this question with:

71 IAC 7-1-27 Scratch irrevocable
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 27. A scratch of a horse out of a race is irrevocable. (Indiana Horse Racing Commission; 71 IAC 7-1-27; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1155; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31a.m.: 20070404-IR-071070030RFA)

In searching the flat racing breeds rule book, there isn’t a similar rule. Of course, there are many rules that if violated requires your horse be scratched from a race. Yet, there is no specific rule that allows for a horse scratched erroneously to be reinstated to the field.

Fast forward just a mere two days later to race 11 at Indiana Downs for another apparent “mix up” with a scratched horse. A quarter horse named Dancing With Ducks, co-owned by the Quarter Horse Racing Association of Indiana’s Executive Director, Michelle Collins, was listed as a scratch by Equibase just after noon on May 27th. Now, imagine being alive in a pick three or a daily double going into race 11 only to see Dancing With Ducks jogging down the track in the post parade! While Equibase listed Dancing With Ducks as a veterinary scratch at 12:16 PM another entry at 6:29 PM states, "Will Run (Previously Reported as scratched)." Allowing this horse to run in the race, after being scratched, is the complete opposite of what happen to Jimmy Got Even two days earlier.

So, where is the integrity in the decision to ‘unscratch’ a horse? We actually have copies of handicapping products for race 11 on May 27th at Indiana Downs that do not include Dancing With Ducks as a participant in the race. Yet, Dancing With Ducks did run in the race which had a purse of $23,000. Why wasn’t the wagering public protected?

From these two scenarios, we would hope that decisions in Indiana are not made based upon who owned a horse and are made based upon stated rules. However, if the stewards were correcting an error in the May 27th race, they defrauded portions of the wagering public. The integrity of the sport requires a very high ethical standard so that the wagering public has confidence in the product. Reinstating this scratched horse was simply disrespectful to the wagering public. It was also inconsistent with what happened on May 25th.

If the stewards can decide to correct an error with a scratched horse, then why wasn’t a correction done with Mr. DiVito’s horse two days earlier? Executive Director Joe Gorajec was made aware of both of these scenarios. In fact, an official complaint was filed regarding the reinstatement of Dancing With Ducks in the May 27th race. To date, the IHRC has chosen not to respond to the complaint so there is no official stance on this apparent double standard of a ‘mix up.’

One of IBOP’s key tenets is the Protection of Owner’s Rights. We recognize that mistakes can and will happen with information management at a race track. Given these two inconsistent examples, we also believe that there is a very simple way to maintain the integrity of wagering in Indiana while protecting an owner’s rights at the same time. The IHRC should adopt a change to the scratch rules to allow for horses erroneously scratched to be reinstated for purse money only. By eliminating such a ‘scratched’ horse from the pari-mutuel wagering, the wagering public is protected. At the same time, being able to run for the purse money protects an owner’s interests and their opportunity. Plus, this rule change would eliminate any appearance of impropriety as to who is involved with having decisions solely based upon a specific rule.

After being advised of these two examples, a responsive regulatory body would have recognized the need for such a rule change. A rule change of this nature would avoid these kinds of “mix ups” in the future.