May 22, 2012

A Kentucky Derby-winning thoroughbred trainer urged a court Tuesday to reject his 10-year ban from the sport, arguing that a top New York racing official appeared biased as a member of the industry organization that first suggested revoking his license.

Trainer Rick Dutrow Jr.'s license was revoked by the New York Racing and Wagering Board in October, although he is currently working under a court-ordered stay.

The three-member board cited infractions including syringes containing an analgesic and sedative found in Dutrow's desk and an analgesic found in the urine of his horse Fastus Cactus in November 2010 after it won at Aqueduct Racetrack. The board also fined him $50,000.

Attorney Michael Koenig told the five Appellate Division justices that the unprecedented punishment is unfair and fundamentally tainted by Board Chairman John Sabini's position in the Association of Racing Commissioners International.

Koenig said his outspoken client's due process rights had been violated. Dutrow initially faced a 90-day suspension that he appealed, and the case escalated from there despite no new issues, Koenig said.

"We don't believe there's enough evidence in the record to support the allegations," Koenig said.

Dutrow told a hearing officer he didn't know how the syringes got into his desk. A blood test of Fastus Cactus didn't show any butorphanol, and Dutrow's expert witness theorized that the urine test may have been contaminated.

The board disagreed and said those were part of a string of drug violations, also citing his brief suspensions in 2003, 2004 and 2008.

Koenig, however, argued that the fundamental issue is that Sabini declined to recuse himself from Dutrow's case, even though he was an officer of the international association. Its president, Ed Martin, wrote to the board in February 2011, citing Dutrow's 64 sanctions in nine states for rule violations at 15 tracks since 1979. Martin urged the New York board to consider revoking his license, and it subsequently did. At the time, Sabini was the association's chairman-elect.

"In addition to the undeniable conflict of interest that permeated both the process and its ultimate outcome, the decision even to seek revocation was retaliatory," Koenig argued in his brief. "Specifically, it was only after Mr. Dutrow appealed a 90-day suspension arising from two alleged violations that he was met with the revocation proceeding."

Assistant Attorney General Kathleen Arnold told the court that Dutrow's rights to a fair proceeding weren't violated, that the decision of an officer like Sabini not to recuse from a case "is a matter of personal conscience," and Sabini wasn't involved in the investigation until the case was before him. That his name was on the letterhead of the association "is simply not enough" to overturn the board, she said, noting the decision was unanimous.

New York tracks test the first three race finishers with urine and blood tests, as well as horses that break down on the track and sometimes others, board spokesman Lee Park said. With fees paid for more than 28,000 thoroughbred starts in the state last year, post-race testing showed 11 instances of banned drugs, while pre-race testing identified one.

Dutrow, who trained Big Brown to Derby and Preakness wins in 2008, was refused a license to race in Kentucky last year.

Kentucky officials cited a half-dozen concerns about Dutrow, whose license was suspended for 30 days in 2009 after one of his horses tested positive for a breathing stimulant.

Big Brown never violated a drug rule, but Dutrow was widely criticized when he acknowledged the horse had the then-legal steroid stanozolol in his bloodstream during his Derby and Preakness victories. Kentucky and most other states have since banned stanozolol and other anabolic steroids.

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