THE ULTIMATE INSURER RULE

A shorter version of this article appeared in the Blood-Horse on March 27, 2010.  Republished by permission.

The various state racing commissions that govern horse racing within their jurisdictions have instituted the doctrine that the trainer of a horse is responsible for the physical condition of said horse. This “ultimate insurer” rule encompasses the principle that if an animal in a trainer’s care tests positive for an illegal medication, the trainer is assumed to be the guilty party. The trainer is accountable even if he or she knows nothing about how the medication got into the horse’s system. For instance, a groom could have inadvertently tainted a bridle bit, a veterinarian could have administered the substance, or another party with sinister motives could have been the perpetrator. The trainer is presumed to be guilty and must prove his or her innocence and, even then, may still be held liable.

Whenever a racing commission suspends a trainer, the horses under his or her care often are turned over to the trainer’s licensed assistant for the period of the suspension. The assistant’s name appears in the racing program as the trainer of record. The owner of the animal that was the reason for the trainer’s suspension is penalized to the extent that the purse in the race in which his or her horse raced with illegal medication is forfeited. However, the owner can continue to race the horse with no hiatus.

How does this compare with sanctions in other business endeavors?

In the corporate world, the chairman of the board and chief executive officer is not typically dismissed or fired for the misconduct of subordinates. Fortune 500 companies have so many employees that a CEO is not expected to monitor the behavior of everyone. Corporations are routinely sued and lose some of the litigation. They pay fines and damages and suffer from negative public relations, but the CEO is not suspended, as with the trainer responsibility rule.

Where criminal conduct is perpetrated by the chairman and CEO, the situation is, of course, different. Dennis Kozlowski was the chairman and CEO of Tyco International when he was found guilty of stealing from the company and sentenced to prison. Sam Waksal was chairman and CEO of ImClone when he was convicted of insider trading and jailed. Martha Stewart was snared in the same scandal and also imprisoned.

Sometimes a company is accused, convicted, and later exonerated, but cannot recover from all of the negative publicity. Arthur Anderson LLP was one of the longtime premier CPA firms in the world. Securities & Exchange Commission obstruction of justice charges against it over its auditing of the Enron fraud led to its conviction in federal court and ultimate demise. The government filed charges against all of the Arthur Anderson partners, in effect saying that they were all ultimate insurers, rather than pursuing only the partners who were involved with Enron. The U. S. Supreme Court ultimately overturned the conviction, but by then it was too late to resurrect Arthur Anderson. The same fate could happen to a trainer who was wrongly accused of running a horse on prohibited medication.

Collegiate athletics has nothing approaching a trainer responsibility rule. In fact, in big-time college football and basketball, a coach can run an outlaw program and walk away with no sanctions whatsoever. A university’s football or basketball team may be severely penalized by the NCAA for violations that occurred under a coach’s tenure, while the coach who was responsible for the mess immediately gets a high-paying job at another university, as though nothing ever happened. He can then damage his new employer’s athletic program, and move on to another job. Under racing’s ultimate insurer rule, the coach would be suspended or banned from plying his winning but unscrupulous ways.

Similarly, in professional sports, the coaches and managers are largely exempted for the actions of players, including substance abuse. If the head coaches in the NFL and NBA and the managers in Major League Baseball were under an ultimate insurer rule, the coaching/manager pool would be thinner.

Compared to the domains of business and college and professional athletics, racing’s trainer responsibility rule is a very strict legally enforceable standard for the person in charge. I do not know of any profession where the CEO is so clearly singled out if anything untoward is carried out by a low-level employee. A trainer with 100-200 horses in training at three or four locations is responsible for the actions of all of his or her employees.

Granted, under the rule, state racing commissions sometimes mete out punishment that is too severe and at other times they let offenders off with a slap on the wrist. But this is true of any system of justice. The ultimate insurer rule is a rigorous attempt to protect the betting public, one that the industry can be proud of. If one modification is needed, it would be to also hold horse owners (and possibly attending veterinarians) responsible when their animals test positive for illegal medications. In so doing, owners would be more cautious in putting their racehorses in the hands of trainers with a history of certified medication violations.

Copyright © 2010 Horse Racing Business