by Joseph A. Faraldo

Editor’s Note: Joseph A. Faraldo is an attorney and president of the Standardbred Owners Association of New York, representing the over 1,000 owners, trainers and drivers regularly competing at Yonkers Raceway, New York. He is a Director and past Chairman of the Board of the United States Trotting Association. He can be reached at 718.544.6800. The views contained in this column are that of the author alone, and do not necessarily represent the opinions or views of the United States Trotting Association.

The USTA reported this past Friday (August 17) that horsemen John Moody, Don Harmon, Rick Ray and Wally McIllmurray, Jr. are suing the Michigan Gaming and Control Board (MGCB). Why? Well, it appears they had their harness racing licenses revoked because, like any other citizen (and we think horsemen are citizens) they chose to invoke their Fifth Amendment privilege against self-incrimination with regard to “alleged” race fixing in Michigan.

First, there are those who would say, “Oh, if these guys weren’t guilty they wouldn’t need the US Constitution or a lawyer.” Folks don’t invoke this Constitutional privilege because they have necessarily done anything wrong. In fact, it’s invoked so that a prosecutor or commission with little or no evidence of what they charge can’t twist the words of the accused in an attempt to make a false allegation stick. Don’t think a Commission would use information voluntarily given by a compliant horseman to create a charge when they have no proof of wrongdoing? Remember: that is exactly what the Lou Pena case in New York is all about.

Regulators now seem to think that they are above the law, including the highest law of the land, the US Constitution, and can disregard basic rights and punish people when they can’t prove violations. How? By telling licensees that if they invoke their rights, or come with a lawyer trained in protecting those rights when they are threatened with criminal prosecution, they will be severely dealt with (i.e., license revocation). It’s not only disgraceful; it’s also illegal.

The U.S. Supreme Court held years ago that a license cannot be suspended because one invokes their privilege against self incrimination. The U.S. Supreme Court also not so strangely found that a harness trainer’s license is a property right like any other occupational license and is likewise entitled to the same protection as is given by the Constitution to other licensees. State courts in NY, NJ and elsewhere have correctly and dutifully followed the mandates of the Federal Constitution. If a racing commission cannot prove a case with its own evidence, then it has no right to say to the accused, “Tell us from your own mouth what we need to prove against you because we are not able to prove anything otherwise.” Is it any wonder then that these horsemen are seeking the restoration of their licenses? Would you sit idle while your livelihood was being taken away from you illegally, and without any proof against you?

Regulators can’t expect respect or cooperation from horsemen when their own conduct is worse than those they seek to target. Unfortunately, this type of nonsense spills over into the so-called medication “integrity” realm as well.

On this score, those regulators and industry members who think paying for “better” labs or a “super” lab will secure us a level playing field are in denial, and simply wish to raise revenue for testing destined to fail. To catch drugging wrongdoers you need to find out what substance or substances he/she is using; get a sample of the substance to a lab; develop a test for it and then nail them. It was done that way years ago with drugs like Clenbuterol and Fenspiride.

More recently, substances in common use, not exotic drugs, like Afrin and Sheep Wormer (Levamisole) have been detected because of good police work, not purported high tech pharmacological advances, as some would have you believe. Admittedly, the same trainers are ahead of the detection curve. Catching them, however, begins not with a test tube, but with the type of investigatory work that takes lots of shoe leather. Hauling in the usual suspects, putting a bright light on them and telling them to spill their guts is interesting stuff for a movie script from the 1940s; but it’s simply an inept Commission’s way of justifying its budget and continued existence.

The horsemen and the industry want clean racing. Neither the horsemen nor the industry, however, are served by violations of people’s rights by Commissions. Neither the horsemen nor the industry are served by selling us all a bill of goods that there is so much to be gained by pouring millions of dollars into drug testing that can’t reasonably be expected to find a drug unless we know exactly what is being used. Drug testing is important. Police work is more important. Truth is more important than storytelling, and pleas for money from other people’s pockets to an industry in need of real solutions and illegal conduct should not be tolerated from anyone, including Commissions.