The Week in Review: Meaningful Change Never Comes Easy

California's proposed phasing-out of both Lasix and whip usage have dominated the sport over the past week, and the discussion won't end even after the California Horse Racing Board (CHRB) votes on both of those issues at its Thursday meeting.

Not only is there contentious disagreement within the industry over whether there should be any change at all to race-day medication policies and the whipping of horses, but there has been open speculation about the timing and true reasons for these drastic proposals, which were first floated on Mar. 14 by The Stronach Group (TSG) and require official approval by the CHRB before they can be enacted.

TSG is in a “damned if it does, damned if it doesn't” position regarding its ambitious slate of safety and welfare protocols. There is no shortage of critics labeling the Lasix rollback and anti-whipping proposals as public-relations ploys designed to distract attention from the 22 equine deaths at TSG's current Santa Anita Park meet.

Even if you assume there are some spin-doctor threads within the overall fabric, at least TSG is taking assertive steps to address areas of grave fundamental concern that the industry's alphabet-soup collective of conferences, study groups, round tables and coalitions has been unable or unwilling to meet head-on.

Sure, it would have been more altruistic if TSG had announced all of these changes proactively at an earlier point in time instead of when the company was under siege for a gruesome rash of fatalities.

But still, a time frame of two weeks from the announcement of those policies to their potential voting in by one of the more respected racing commissions in the country is a huge deal and a potentially historic feat in an industry where meaningful change creeps along at a glacial pace.

It's quite possible that in a few decades, historians of our sport will point to something called the “Lasix era” that might span 1974-2024.

When New York became the last holdout state to allow race-day Lasix in 1995, the United States foal crop was 31,884. California is making its move to curtail it on the heels of a 2018 crop estimated at 21,500. The number of horses has plummeted, but the basic economic factor that drives the use of Lasix in our sport remains largely unchanged over those 23 years.

In May of 1995, when New York's Racing and Wagering Board voted unanimously to permit race-day Lasix, New York Racing Association president Kenny Noe bluntly told the New York Times, “We're living in a different era in horse racing. We used to race from April 1 to November, running seven races a day. Now, we race around the calendar, nine or 10 or more races a day. There's no point in sticking your head in the sand. Tracks want bigger fields of horses, and every state wants racing to produce more money.”

California's proposed barring of the whip (sorry, but I refuse to call it the “cushion crop” like TSG does in a recent press release) except for safety-related control will likely end up being an easier transition than the Lasix rollback.

Jockeys in general are pretty resourceful and adaptable, and most will be athletically gifted enough to gravitate away from stick work as a primary motivator. The most interesting development will arrive several years from now, when the next generation of riders might eventually decide that carrying a whip essentially for emergency use only isn't worth the bother of not having two hands entirely free at all times.

CHRB executive director Rick Baedeker told TDN colleague Bill Finley last week that if the new rule passes, not only will jockeys be fined and/or suspended should they whip a horse, but the horse they are riding could be disqualified.

You can bet on the inevitability of some initial letter-of-the-law, tone-setting, controversial disqualifications that get winners taken down under circumstances that would never warrant an inquiry under the current system.

But that's fine. Nobody ever said meaningful change comes easy.

Trademark Trouble (Part One)

I spoke to two trademark attorneys last week in the wake of the city of Baltimore's lawsuit against TSG that is attempting to keep the GI Preakness S. in Baltimore by (among other legal threats) seizing the trademark “and other intangible and intellectual property” associated with the middle jewel of the Triple Crown.

Both experts were in agreement on three points: 1) Yes, the city could theoretically seize the Preakness trademark by eminent domain because it's considered property, just like a piece of land; 2) The burden of proof would be quite high, and Baltimore would have to demonstrate an overwhelming public interest in order to do so, and 3) The city likely only filed the lawsuit as an attempt to force TSG to negotiate over keeping the Preakness at Pimlico Race Course.

But one of the attorneys, Michael Kondoudis, brought up the interesting legal subplot of jurisdiction, which caught his eye because TSG is not listed with the United States Patent and Trademark Office (USPTO) as the owner of record for the “Preakness Stakes” trademark.

Instead, the registered owner is “Maryland Jockey Club of Baltimore City,” which he said is important because it establishes that the trademark is something that can be litigated in a Baltimore court.

Kondoudis said if TSG had wanted to at any previous point in time, the company could have amended the USPTO records to reflect that the trademark is owned by the parent company, which has its principal place of business in Canada. The cost for that change, he added, would have been $40.

“But for whatever reason, [TSG] got caught, and that trademark looks like it's in the jurisdiction,” Kondoudis said. “So technically, [the plaintiffs] have jurisdiction right now.”

Kondoudis added that TSG could still try to reassign ownership of the trademark. “It could be enough, but it might not be enough to get out of jurisdictional reach. Those are facts and circumstances that will be litigated during the course of the trial.”

This is not the first time that Baltimore has used the threat of eminent domain to try and keep the Preakness at Pimlico.

A similar scenario played out in 2009, when another Stronach-related firm, the bankrupt Magna, was part-owner of the Maryland Jockey Club tracks. Pimlico and Laurel Park were set to be auctioned, and the Maryland governor signed legislation giving the state eminent domain rights over the Preakness. The auction ended up getting postponed four times, and in 2010 Magna sold the tracks to its parent company, MI Developments. In 2011, those racing and gaming assets were acquired by TSG.

Trademark Trouble (Part Two)

The story that topped TDN's most-read list for a while last week involved announcer Dave Johnson suing the moviemakers of the 2014 film “St. Vincent” for the actor Bill Murray's unauthorized use of Johnson's famous (and trademarked) phrase “And down the stretch they come!”

Federal lawsuits don't generally conjure up images of generosity. But as Johnson's attorney, Andrew Mollica, told TDN, Johnson's vigilant defense of his trademark hardly equates to a “money grab.”

That's because with very little fanfare or notice, for years now, Johnson has donated any money the courts have awarded him as compensation for unauthorized infringement to charitable causes.

“Every penny,” Johnson said when reached via phone on Friday.

Johnson didn't want to get into specifics, but he noted “retired racehorses, disabled jockeys, and two scholarships” among causes that have benefitted from other people uttering those six specific words with Johnson's iconic emphasis on the word “Down!”

“I'm just trying to pay it forward,” he explained

Johnson said he first started using the phrase at Santa Anita in the 1970s in an attempt to punctuate his stretch calls so they could be heard by huge live crowds over a “Marx Brothers”-era sound system. The big gray horse Vigors was then a fan favorite, and Johnson noticed that TV stations often picked up his race calls right when he uttered “And down the stretch they come!”

The rest, he said with a chuckle, is history.