COBALT CHARGES - THE LATEST DEVELOPMENTS

By Graham Potter | Tuesday, August 4, 2015

Racing Victoria steward’s decision to freeze percentage prizemoney earnings (in Group and Listed races) of the five trainers in Victoria facing charges related to elevated colbalt with immediate effect, until such time as their individual cases are heard and finalised, has prompted several questions, a sample of which is shared here.

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Do the stewards actually have the power to dictate such a radical, and unusual, course of action before anybody has been found guilty?

Yes they do. As RV Chief Steward Terry Bailey stated when he referred to the relevant rule, ‘in summary, the stewards may suspend any license or make any other direction or order relating to a person being charged with breaching the Australian Rules of Racing and whose continued participation in racing might pose an unacceptable risk to, prejudice or undermine the image, interests or integrity of racing.’

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On the basis of the belief that the multiple cobalt charges issued to each trainer in question were serious enough to consider enacting the rule mentioned above, RV Stewards issued a ‘show cause’ notice to the five trainers (Lee and Shannon Hope, Mark Kavanagh, Danny O’Brien and Peter Moody), seeking oral and written submissions from the trainers as to why they should not be suspended until such time as their case is heard.

Having considered all submissions Bailey announced, ‘the stewards have formed the opinion that the continued participation of each trainer might undermine the image of racing given the serious prohibitive substance charges they are facing and the cases against them are strong.’

The stewards then ordered, ‘that each trainer’s percentage of prizemoney earned in Group and Listed races conducted in Victoria be held by Racing Victoria pending the final determination of these serious charges.’

That outcome amounted to a double discretion act. Activating this particular law is discretionary in the first place. On top of that is the decision on how to action it.

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If it was found that ‘the continued participation of each trainer might undermine the image of racing,’ why is there a freeze on their percentage prizemoney earnings for certain races only and not all races.

In deciding on their course of action Steward took into account that the trainers would all vigorously defend themselves against the charges and that, as Bailey stated, ‘dire consequences would likely follow for them, their business and their employees if they were suspended completely pending a hearing and determination of the charges.’

But, as Bailey clarified, ‘Given the number and profile of trainers involved, it has placed significant global attention on Victorian racing and the image and the conduct of our sport. The stewards consider that racing interests are best served by safeguarding the reputation and image of racing, particularly in races that attract significant national and international attention. The order to retain in trust each trainer’s percentage earned in prizemoney in Group and Listed races in Victoria pending the hearing is necessary to protect the image of racing.

‘The Stewards believe this sends an appropriate message to the wider racing industry and public that trainers will not profit from major races when serious offence charges laid against them are still to be tried.

‘Our view was really all about the Spring Carnival with its major races. We don’t believe it would send a good message for these trainers to be able to profit from the fruits of the carnival ... but they are entitled to keep their business going by way of the day to day business that racing has seven days a week.’

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If these trainers have not been found guilty of anything yet, surely the Stewards ruling would be severely tested in a law court?

The trainers do have the right of appeal if they feel aggrieved by the outcome. Lee and Shannon Hope, the only trainers involved who have a date set for their hearing, have already stated they would not contest the stewards ruling. Mark Kavanagh and Danny O’Brien reportedly are likely to find the situation unacceptable while, at the time of writing, Peter Moody has yet to respond.

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Has the size and high profile of the stables involved had a bearing on the decision of the stewards?

It has long been a contention in racing that different levels of trainer (for example bush trainer compared to metropolitan powerhouse) are treated differently by stewards. That is arguably more perception than reality but there is a definite difference. Top trainers have the means to access top lawyers who in turn have a greater capacity to find loopholes or just have the outright savvy to use the law to their client’s advantage. In many cases there will be mitigating circumstances, as there were here, which are entitled to be taken into account by stewards, as they were here, when formulating their decision.

As Bailey said on an unrelated matter, ‘At the end of the day we are all about a level playing field. Trainers get up at three ‘o clock in the morning seven days a week. They are entitled to go to the races and play on an even playing field and that is what our job is all about?'

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Are the current charges fair when the truth relating to cobalt as a performance enhancing factor has yet to be clearly established?

A brief and concise answer from Bailey: ‘What is clear in our mind is that it is a prohibitive substance under the rules. It is as simple as that.’

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The conclusion: The view has been put forward by Racing Victoria that, ‘the Stewards have struck the right balance between the rights of the individual before the hearings and the issue of protecting the integrity of the sport.

It can easily be argues that once this rarely used rule had been brought into play the decision had to go the whole way or not be actioned at all. In the end, Stewards chose a compromise course of action, which they had already hinted at during the ‘show cause’ hearings.

Whether that decision serves the intended purpose of protecting the image of racing remains to be seen.

Clearly everybody is tip-toeing through a legal minefield.

Stakeholders are all just hoping that it is not racing that gets blown up!