Day At The Track

Pena lawyers up, and his owner speaks out

03:41 AM 17 Jun 2010 NZST
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Andrew Cohen
Andrew Cohen

Trainer Lou Pena and his attorney, Jeff Pocaro, met privately Tuesday for three-and-one-half hours with United States Trotting Association Investigator Jim Brennan. It is unclear whether the meeting had to do with Pena's nearly-expired trainer's license from the USTA or the recent out-of-competition testing performed by the New Jersey Racing Commission upon 60 Pena-trained horses at his Gaitway Farm operation.

The USTA won't comment. And neither will the NJRC. Whatever the case, it is clear that regulators and other harness officials are pushing on with their investigation into suspicious racing out of Pena's barn.

In the meantime, contrary to some of the wilder rumors circulating Wednesday, Pena has not been "arrested by anybody," Pocaro told me. "He is not in custody" and has not been in custody, Pocaro said. The rumor started, Pocaro believes, because one of Pena's horse's was scratched from a race at Harrah's Chester amid remarks about Pena's meeting with Brennan. Right now, Pocaro told me, his client Pena "is eating at the Cheescake Factory in Freehold." Memorably, Pocaro also said: "If I owned 100 percent of a harness race horse right now I would give it to Lou Pena to train." Now, that's client service.

Pocaro told me that he's told his client not to talk with anyone about what the lawyer characterizes as an "ongoing investigation" by regulators. But I gave Pocaro the opportunity to offer a preview of the narrative we are likely to continue to hear from Team Pena for at least as long as the investigation continues. "I want to talk about him as a trainer," Pocaro said. "If you take the Meadowlands program and draw a yellow magic marker line through the top 14 trainers names 13 of those 14 have had positive tests in their career. The only person that has not had a positive test in New Jersey is Lou Pena." Can this really be Pena's defense? Everyone else at the top of the Big cheats but not me?! I wonder how that's going to go over on the backstretch this weekend.

While the investigation proceeds, with Peter Kleinhans working on his next batch of statistical research, and with Pena now lawyered up, its time perhaps to focus upon some of Pena's owners to gauge their reactions and views on racing integrity. I reached out first to Glenn Berger of Lightning Stable to see how the Pena scandal has impacted his own views of racing integrity. Berger has recently transferred several horses from other trainers to Pena. Lightning Stable owns, for example, Mega Lightning, Valentino, Lightning Elvis-horses whose performances lately have caught the attention of many harness insiders.

I spoke by telephone Wednesday afternoon with Berger. He says that he has not been contacted by any racing regulators or track officials about Pena's sudden success. "I don't know what to say," Berger told me. "It's uncomfortable to know that there is something hanging over your trainer's head." I asked Berger if he had ever asked Pena if he were doing anything untoward and Pena's response, according to Berger, is telling. "I have asked [Pena]," Berger said to me, "and he said ‘absolutely not. I promise you that I am not breaking the rules. I am not doing anything that is going to be positive.'"

"I am not on top of him all the time," Berger said of Pena, whom he says he transferred horses to "partially because of his performance" since returning to the East Coast. "There are a lot of people who do things," Berger said of certain trainers in the harness business, and some "who do things to an extreme." Pena, he said, "maybe is more blatant" than the others in his methods. At that point, Berger was quick to reiterate to me that he did not believe his trainer was cheating.

I also reached out to several other owners who have given horses to Pena, including the venerable Lloyd Arnold out in California. Arnold owes a mare named Delightful Diva whose Pena-induced performances over the past month have been startling. If I hear back from some of these folks with their perspectives on the situation I'll make sure to mention it here. In the meantime, decide for yourself whether you believe Berger or not. Or more broadly, do you believe that-- by that conversation with Pena alone-- he has fulfilled his obligations as an owner to ensure racing integrity?

When it comes to ownership responsibility rules, there are at least two bad incentives in place. First, there is no meaningful standard to hold owners responsible for the conduct of their trainers. It is virtually impossible for a regulator to prove an owner knows about his trainer's dirty work unless one of them, the trainer or the owner, is willing to confess. But what if the legal/administrative standard were changed to make owners liable for the doping of their own horses if they "knew or reasonably should have known" that their trainer were using illegal substances? How many owners would be able to pass muster under that much broader standard? Not all.

The other bad incentive under the current scheme is purse distribution. Nowhere else in the world does the prime beneficiary of unlawful conduct become exempt from any punishment for it. Yet the lucky and naïve harness owner whose trainer is caught cheating gets to pocket the ill-gotten purse money-in civil court it's called "unjust enrichment"-- and then plead ignorance or due process when the trainer goes down. Make owners and trainers jointly liable for any drug offenses, make the penalty the recoupment of all purse money earned, and you'll see how quickly owners turn away from bad operators in our sport. Sure, some existing owners will leave because they won't want the potential exposure. But a lot of new money would come into the sport once it was clear that it had cleaned itself up.

Discuss!

Andrew Cohen is a Standardbred owner, breeder and writer

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