Bad Bet: Who Can Gamblers Sue For Losing Money On A Doped Horse?

 

30 thoughts on “Bad Bet: Who Can Gamblers Sue For Losing Money On A Doped Horse?”

  1. Indiana 49D01-1506-MI-019713
    Capt’n Jack Racing Stable LLC, Petitioner v. Indiana Horse Racing Commission, Respondents
    Judge Heather Welch
    Trainers were caught unauthorized pre-race injection. Horse finished second. Track stewards had a hearing. Fined trainers. Ordered owner (Capt’n Jack) to return purse, even though owner was never informed of the hearing. ALJ upheld and added penalties to trainers. Capt’n Jack moved to intervene given requirement to return purse. ALJ denied. This appeal to trial court followed. Welch ruled “An unearned purse is not a “legal interest””

  2. Good point, Mr. Turley. People who place money on a rigged race should get their money back. Who’s going to give all the Trump and RNC donors our money back,
    not just the campaign donations but the money we will lose with the devaluation of the currency and the country going to hell in a handbasket ? You?

  3. The problem with such lawsuit is the Economic Loss Rule, which applies in nearly every state. You can sue in negligence for damage to your person or property, but not for purely economic loss.

  4. First of all, at 12 picograms, the horse was not “doped” or “drugged.” This is at such an incredibly small level that it falls under the “zero tolerance” rule. The rules is no detectible level, not any indication of athletic advantage. Those who claim such a trace could still be performance enhancing argue that the exposure to the drug was for a joint injection, in which case the drug created a lasting benefit to the joint that would be felt long after the drug reduced trace levels.

    How the betamethasone got into Medina’s system may mean the difference between taking away an earned win from an athlete who used an OTC corticosteroid for a bug bite, and an athlete who received an injection to a joint too close to the 72-hour period to clear from the system.

    Here is the gist of the battle raging about the betamethasone. It’s an anti-inflammatory, which can be used in anything from creams for skin irritations caused by fungal or yeast infections, all the way up to joint injections for horses suffering from arthritis.

    Since some racehorses receive joint injections with betamethasone to help treat inflammation, the substance is banned at any detectible level.

    Trainer Bob Baffert issued a statement that the vet prescribed Otomax daily to treat dermatitis on Medina’s hind quarters. Photos confirm that Medina does in fact suffer from dermatitis, a common problem in humid areas, especially for thin-skinned, sensitive Thoroughbreds. Otomax is a drug used to treat canine ear infections, but it’s regularly used for horses. Baffert claims that he only just now found out that Otomax contains betamethasone.

    There are only a limited number of explanations:

    -The horse was exposed to betamethasone through the topical use of Otomax
    – Baffert is lying, and the horse received joint injections or some other illegal application, too close to the 72-hour clearing period
    – Cross contamination from brushes used on other horses who received topical betamethasone. I don’t know of any oral use of the drug in pill or powder form, but if it is given in such a manner, then feed buckets can be contaminated.

    The rules state that any amount of betamethasone is grounds for disqualification. If the second test comes back positive, Medina will be disqualified. Baffert can make legitimate arguments about the absurdity of the zero tolerance rule, as the amount was infinitesimally small. But such arguments would apply to changing the rules in the future.

    If this positive test was the result of the prescribed use of Otomax, and the vet did not disclose to the trainer that this skin ointment was not race legal, then God help that vet. He’s going to be sued, where they will quarrel over whose job it was to know this contained a prohibited substance.

    And God help that trainer for not being intimately familiar with every single ingredient in every single salve, medication, or feed given to the horses in his barn. Baffert unequivocally stated that Medina was not being treated with betamethasone, only to reverse himself and say he just found out it was an ingredient in an anti fungal ointment.

    In my personal opinion, based on what little we know to date, that horse won the Derby. He did not have an advantage with such a trace of betamethasone in his system. His trainer and his vet let him down. That horse worked so hard, trained hard, and ran his heart out, only for a severe failure in management to snatch his win.

    The horse might not care about whether he wins a race or not, but his racing career has a strong influence on his chances later in life. He’s just a 3 year old colt. Will he be used for breeding, gelded, have a second career in eventing…People have no idea of the factory churning out thoroughbreds for the express purpose of a brief career at the track, and then incredibly vulnerable as to what’s next.

    I bought my favorite horse I ever had from a dealer, 2 weeks after his last win at the track, with less than a week to go to sell as a bolting riding horse gelding before he would have been sold to slaughter.

    He has been cleared to run in the Preakness. I wish that horse well, and shame on whoever put him in this position.

    1. Baffert doesn’t own Medina. The horse’s owner might sue Baffert, and the vet, for carelessly applying an ointment with small amounts of a banned substance.

      Imagine, losing the Kentucky Derby because your horse was being treated with an ointment for dermatitis, an itchy, inflammatory skin condition, on his hindquarters.

      An itchy, irritated horse’s butt and its treatment allegedly cost the Derby.

  5. Courts speak of “opening the flood gates” when a wrong is allowed to be redressed, but how often are horses drugged since they started doing post-race urinalysis? Are there really going to be floods of cases, and if so, then maybe gambling should be outlawed altogether if the doping can’t be detected until after the race and people who had no way of knowing will get cheated out of their money. I do know one serious gambler. He follows the lineage of race horses, their trainers, their track records and makes educated guesses armed with this information. He’s right far more often than not, which is why he keeps doing it. That’s gambling, not guesswork, but when the added unknowable factor of drugging is involved, all of that analysis is useless. Might as well put the names on a dart board and throw darts. Since when is it OK to win by cheating? (a rhetorical question for Trumpsters). But, in the context of high-stakes betting on horses or things like bicycle races and the glory, prizes, and lucrative endorsements that can follow (Lance Armstrong), cheating can’t be allowed, and when it is discovered, something must be done to make it right. Yes, there is the matter of how to calculate damages, but in tort law, mere uncertainty as to how damages should be calculated is not a bar to recovery–it is a factual question to be resolved by the fact-finder. IMHO, the penalties should be so severe, not just financial, but also criminal, that those tempted to cheat will be deterred.

  6. It seems that some betters are out of luck. I once bet on a horse. It came out of the gate, made a hard right turn and headed for the stables. Lesson learned.

  7. The horse’s name was Mister Ed.
    A horse is a horse. Is a horse of course. His name is Mister Ed.
    Not Fred.
    Not Donkey
    Not Jack Mehoff.

  8. This is the idocy of “zero tollerance”.

    From what little I have read, the detection level and the effective level or so far apart as to almost be opposites. There is no single person of knowledge of the facts thinks the detection level effected the performance of the animal.
    I have seen (on the internet) that detection limits for this “drug” screen is down the picagram level

    That would be 1/trillionth of a gram.

    Dose defines to poison.
    Dose also defines if a molecule is a performance enhancing drug

  9. Agreed, Turley. This is a fascinating dilemma. The reach into medicine in particular because, at some level, all treatments are based on gaming theory. Drug therapy. Surgery. All of it. Never going to escape the fact even if odds are 90/10, if you find yourself in that ten percent you are there one hundred percent of the time, personally speaking. Individual versus group dynamics, public health vs. individual rights, we have much work to do there as these disagreements animate every multi factored causative from Covid to gun policy to climate change…

    But yeah, those wagerers got ripped off. And the horse did nothing wrong, but the trainer didn’t dot his I’s — that’s for sure.

    EB

  10. It will be interesting to see if there are lawsuits filed. It is a great question on what happens to an honest bet lost to dishonest actions.

  11. The speculative nature of such a case is too preposterous to make good law. Think about it. Horse #1 wins and is disqualified. You bet on horse #2 who finished second. You first have to prove that the drug caused horse #1 to win, a very dubious proposition. Then and only if you can get over this long shot, you would have to prove that your second choice would have been your second choice if you knew that horse #1 was drugged. Or maybe if horse #1 had not been drugged, he would have run a different race and forced your horse to do the same and finish at the back of the pack. If your claim is that you would have won a daily double or exotic bet, then the proof becomes exponentially more remote.

    1. If the drugging didn’t and couldn’t make any difference, then drugging wouldn’t be done and wouldn’t be outlawed. In the Lance Armstrong scandal, it was discovered that competitive bicyclists got blood transfusions and took drugs intended to alleviate anemia by increasing red cell production, which would increase the capacity of their blood to carry oxygen. These things aren’t easily detected, but are still cheating because they confer an unfair advantage. What would have been the outcome without these measures, and who can say? Armstrong finally admitted that most of his “wins” were due to cheating and he was stripped of his titles and awards. You say it is “dubious” that the drug could make a difference, but once someone has broken the rules, why should the victim be required to prove how the outcome would have changed, which would admittedly be difficult or possibly impossible?

      There is a concept in tort law called “res ipsa loquitur”, which Turley uses as the name for his blog, and which means “the thing speaks for itself”. The concept arose in England in the case of Bryne v. Bodle, in which a man was walking down the street, minding his own business, and when passing by a bakery, a barrel of flour fell from a second-story window above the bakery and struck him, causing injuries. At trial, everyone working at the bakery denied dropping the barrel and denied knowing who did. The theory was that the victim couldn’t prove who did it, so he gets no recovery. Everyone knows that barrels of flour can’t jump out of windows on their own, so some intentional or negligent human instrumentality was involved. Ultimately, the court said that when an incident happens that does not ordinarily happen if proper care is used and when the instrumentality of the victim’s injury was under the exclusive control of the defendant, this is all that the victim needs to prove in order to meet his burden of proof. Such facts create an inference of negligence. A similar theory could apply here even more because the conduct was intentional. There could be an inference that those who lost money were cheated and entitled to damages without needing to prove specifically how the outcome would have been different if cheating wasn’t involved. Those who cheat shouldn’t be able to take advantage of the uncertainty of what the results would have been but for their cheating.

      1. The horse had dermatitis, and was being treated with Otomax, and anti fungal skin cream. The trainer said he only just found out one of the ingredients was betamethasone. One can’t conclude, yet, that the presence of the drug was due to doping, rather than an innocent mistake in a skin cream.

        If Otomax turns out to be the source of the presence of this drug, then it was an incredibly careless mistake, in both the vet who prescribed it, and the trainer. The trainer must know the ingredient of every single supplement or medication, even topical, that a horse in his barn receives. He must know every possible source of contamination.

        If the same brush was used on Medina, as all the other horses in the barn, then the grooms have been spreading traces of this topical medication to all the other horses in the barn, at least if the colt was groomed while his hindquarters were still greasy from the Otomax. Plus there are the babysitter pony horses horses that are so often used to get these runners from point A to B. They are so named, not for their size, which is usually that of a horse, but because leading another horse with a lead rope while mounted on a horse is called “ponying.” If a track pony horse had a topical ointment for a fungal infection or rain rot, and brushed up against a race horse, it could also be a means to contaminate it.

        Another possibility is that Baffert is lying, and the horse had joint injections too late to fully clear from the system.

        While Baffert has a point that the threshold of no detectible level of betamethasone at all is unfair, due to the many innocent ways that the merest trace could be present, the rules were what they were at the time of the race. His arguments would possibly impact changing the rules in the future.

          1. Nat, Karen S.could post while being in a coma and still have more credibility than you!

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