A Pause for Thought After Findlay Appeal

Thu, Jul 15, 2010

Betting News

Ever since Harry Findlay was initially disqualified from racing for 6 months by a BHA Disciplinary Panel the debate that has raged has been colourful, passionate and at times not altogether rational.

Now that an Appeal Board has rescinded the initial ban and replaced it with a £4,500 fine, on top of the month of disqualification already served, it would be sensible I think to draw breath and to pause before jumping to further conclusions.

My fear is that, just as there was a knee jerk reaction from many bemoaning the unfairness of the initial penalty, there will now be a knee jerk reaction demanding the repeal of the rule that forbids owners from laying, even if they are net backers. The Appeal Board found that the penalty was not appropriate. I wouldn’t disagree with that finding and the reasons they give are both sensible and credible.  That is not the same thing as saying that the rule is necessarily wrong in itself.

The appeal process has done exactly what it is intended to do which is to offer a second opinion, and a second chance, in order to allow corrections to be made where appropriate. The Appeal Board pointed particurlary to the fact that Harry Findlay’s offence was not really the kind of offence that the rule was intended to police. The BHA themselves would probably concede as much. The BHA have also stressed that they accept fully the ruling of the Appeal Board.

It should be remembered that it was the BHA, in the absence of any legal representation for Harry Findlay, that advised the original Disciplinary Panel that it had the discretion to give a penalty from outside of the guidelines if that was appropriate, as had happened in previous cases. It was the BHA in other words that advised the original panel that a disqualification was not necessarily the appropriate penalty in this particular case.

Many will argue that this is a contradiction. It is not. Policing an area like this is complex and imperfect. The BHA has elected to adopt a zero tolerance approach to laying of horses by owners of those horses. They have elected to avoid getting into more detailed negotiation of when and where it may or may not be more or less acceptable for owners to be layers of their horses. They have chosen not to try to anticipate not just every development in terms of betting technology but also every turn in gambling ingenuity.

There is a downside to a zero tolerance approach and we have witnessed that with this case. A sledgehammer was arguably used to crack a nut but in the end the right implement has been employed and what has effectively been a month of disqualification topped up with a £4,500 fine has been adminstered on appeal.

Before rushing to condemn the original rule and its application it would be very wise I think to consider the alternatives to the current rule and also to reflect on the fact that a rule was after all knowingly and deliberately broken on this occasion.

So far as alternatives are concerned many have argued that laying should be allowed provided that the owner ends up as a net backer. It sounds beguilingly simple but even the Appeal Board (who were clearly mindful of the shortcomings of the current system) acknowlede that ‘it would be difficult to anticipate every situation that may arise or strategy that might be employed and the only practicable course maybe a simple ban on certain conduct leaving the question of penalty to be dealt with on a case by case basis depending on the precise circumstances’.

Policing a net back position could become ridiculously complex. What if I’ve backed my horse with Chandler on Gibraltar in the morning, or with Betsson in Sweden before laying it with Betfair? Where’s the audit trail? How do I prove I’m a net backer. What if I lay with an intention to back but my back bets don’t get matched as the market moves against me suddenly? Or my internet connection is unexpetedly interrupted? Is it really sensible to ask the BHA to be arbiter of what an individual owner’s tactics or intention may have been in every case?

It’s also important not to lose sight of the central fact here. Harry Findlay has never denied that he broke the rule. He has always been entirely open about this. He has clearly been extremely upset by the whole process and especially by the stigma that attaches to being ‘warned off’. I have great sympathy for him in that regard.

Nonetheless, the rules themselves are clear. The penalties are clearly defined and were well publicised at the time that they were updated. For anyone who is a professional gambler and an owner of tens of horses with many different trainers, a knowledge of the rules as they apply to owners betting is an absolutely basic requirement.

Owners contribute to the sport in many ways but they also have a position of some influence over both jockeys and trainers, whose wages they pay. For that reason it is essential that the integrity of the sport is safeguarded through rigorous rules on how owners behave. It should also be remembered that a warning off for an owner, whilst doubtless stressful and unpleasant, does not have the same financial impact as a warning off for a jockey or trainer.

I have argued before that the original disqualification was reasonable in the light of the penalties and guidelines as they exist. There are though precedents that would have supported a shorter ban, or even a fine. We have got there in the end I suppose and I reckon we’d have got there the first time if the lawyer that Harry used for appeal had been with him at the original hearing.

I have sympathy as I say for Findlay as he’s clearly found the whole episode traumatic. I also have some sympathy with a ruling body that is trying to frame rules in such a way that the sport is protected from corruption.

I would anticipate that many of the headlines and the opinion pieces tomorrow will attack the BHA and demand changes to the rules. I’d be against any kneejerk reaction in that regard. It might be that ironically enough this whole sorry episode serves a valuable purpose. If the BHA stands its ground, as it says it intends to, and makes no changes to its rules then no owner can ever claim ignorance of the rule in future. The Appeal Board finding may hint at a precedent that others will point to but I would guess that future transgressors would be looking at at least the same kind of punishment as Findlay has endured and that may well mean a ban and a fine.

As it is we are, as a sport, asking that owners forego the chance to hedge or otherwise improve their position in order to help safeguard the overall security, reputation and integrity of the sport. I’m not an owner of course but I’d say it’s a pretty small price to pay. I’d also argue that there is no realistic half way house between this position and a free for all and faced with that choice the zero tolerance approach gets my vote.

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11 Responses to “A Pause for Thought After Findlay Appeal”

  1. Santiburi Says:

    Sean, I saw your original posting and have no reason to change my response although I have read your update and understand your concern about kneejerk reactions.
    However, from my previous posts, you probably won’t be surprised that I don’t agree with you and the BHA. IMHO, the least the BHA has to do is revise its existing set of rules to reflect reality. However, before doing that, if they really want a clean sport, they need to ensure that they can accurately trace the owner(s) of each horse; that they clearly know the ‘connections’ of each horse and that they state clearly what the rules are, for instance, where a recognised owner gets involved in trades associated with a horse with which it might be implied that that he/she is connected: the example being Findlay laying horses trained by the same man who trains his horses.
    Having a ‘grey rule’ that needs to be interpreted by people who, in the main, don’t understand the nature of the betting opportunities that are open to punters is almost pointless.
    I suspect that Findlay’s current unhappiness is linked to the minimal amount of information that has actually been made public and the clear (to me) attempt that the independent (sic) Panel has made to try to protect the reputation of the BHA.
    Racing has a major battle ahead to retain its rightful status as a major sport. The announcements of Hood leaving William Hill and VC dropping Wilkins plus the update this morning on the reduced Levy budget are further proof of the difficult problems facing Racing. I hope a champion is going to step into the mix soon as the sport can’t be left in the hands of the BHA as they’re just not creditable in the 21st century.

  2. seanboyce Says:

    The rule is totally clear. Owners are not allowed to lay their own horses under any circumstances. Couldn’t be clearer.
    It doesn’t require interpretation.
    The severity of the offence and the degree of punishment are administered by the independent Disciplinary Panels. I don’t see how that panel, or the subsequent Appeal Board have shown any degree of partiality towards the BHA, nor do I see any evidence that either body attempted to ‘protect the reputation of the BHA’.
    It was the BHA that counseled the original panel that it could use a fine rather than a ban by going outside the guidelines if it saw fit.
    The BHA was alerted to the fact that an owner had laid his own horse. What were they supposed to do with this info? They investigated and the owner admitted the offence. The BHA then charged him and let the panel determine both his guilt and the penalty. HF then appealed successfully regarding the penalty (not the offence). That’s what appeals are for.
    Exactly the same process took place with Nicky Henderson. He was charged, subsequently penalised, then appealed. Same process but with a different outcome.
    The process has worked fine. People can of course go on now to argue about whether the rule is a good one to have or not. My view is that you either have it or you don’t. It’s all or nothing. Impossible to police in ‘grey’ as you rightly point out. Either no laying by owners or a free for all. It’s no great infringement of anybody’s human rights as far as I can see. No footballer (indeed no member of the FA) is allowed to bet on football. That’s any match, anywhere. No cricketer is allowed any kind of betting interest on any cricket match. Plenty of other sports have the same rule. Not laying is a small price to pay for owners it seems to me. Looks like we’ll agree to differ on this one and I fully expect to be in a tiny minority within the media field on this one.

  3. Santiburi Says:

    Sean, I have no problem at all with there being rules to prevent corruption in racing. I love the sport and want it to be clean.
    However, I don’t believe that owners are the only ‘connections’ that should be included in the rules that seek to punish acts that would do harm to the sport and the specific point I want to see clarified is: what’s the BHA’s definition of ‘owner’?
    As I have stated previously, to truly stand any chance of eliminating the problems that people believe are damaging the sport, one needs to get to where very bet can be traced to an individual. Issues: who is going to pay and who is going to police?
    A more acceptable compromise on not being able to get to an ideal situation is for the sport (i.e. racing) to be specific about the definition of an owner and to be able to name everyone within that definition for each horse. Have a look at how many horses are in the ownership of racing clubs, partnerships, societies, private companies, syndicates, etc. etc. Which person or persons in such groupings does the BHA see as the owner and why do they feel comfortable that only that person that they consider to be the owner is the one that’s likely to break their rule?
    When a registered owner that’s a grouping of some sort issues their owner’s badges for the day to whoever so that, in actual fact, the people in the ring with the horse, the jockey and whoever are totally unknown to the BHA and may or may not be the owner, what obligations do they have and how will they know that?
    Does anyone really think that a thinking cheat, i.e. someone with inside knowledge deliberately laying a horse, is going to put themselves down as a named owner? Sorry, let’s wake up and smell the roses.
    I’m sorry Sean but the existing rule has little or no value in my eyes but, more importantly, is indicating that the rules writers really aren’t thinking about the problem.

  4. seanboyce Says:

    Definition of an owner is not a factor though in this case. Findlay’s horses run under his mother’s name but are under his control. Something he has made clear throughout.
    Owners are not the only connections covered. All connections are covered and specified and the list extends to those providing services in stables – vets, farriers etc.
    As for syndicates, the greater the number of members the less the individual influence of a single member and that would be taken into account in assessing any breach. A single member with Elite Racing Club laying a horse would be considered in a different light to Harry Herbert laying a Highclere horse.
    The onus is on owners to understand the rules that apply when they register as owners. In the case of syndicates large or small the syndicate manager would surely be responsible for informing members of both their rights and also their responsibilities.
    As for those deliberately avoiding being traceable the BHA can only do their best, as is apparent from the recent charges brought re the Sabre Light case they will act when they can.
    Of course it’s not easy to police. It’s not easy to establish who was driving a car when it gets flashed by a speed camera. Doesn’t mean we scrap speed limits.
    I fully agree the rules are not perfect but framing perfect rules is impossible and the BHA haven’t laid any horses here but a licensed owner has and that’s a breach of the rules. What we may think of the rules is academic, the breach is material.
    If owners don’t like the rules or feel they are discriminatory, they have representation through the ROA and can lobby to have them changed just as you and I can lobby to change speed limits but in the meantime we can expect a ticket if we want to hold a driving licence and break the speeed limit.

  5. fawwon Says:

    The whole affair does not make semse and Sean’s orinal question of who shot Harry still remains unanswered. Take this from Jim mcGrath in the Telegraph.

    But there have been other questions that have come to light in press coverage so far. They need answers. One report suggested Findlay had been betting on credit with Betfair, another was that he had had a special arrangement whereby he could lay horses in stables in which he or his mother (Maggie Findlay) owned horses. Even more recently, there have been suggestions that quotes attributed to Paul Nicholls that appeared in the Racing Post had not been made by the trainer.

    I can’t believe that someone isn’t going to ask Mr media friendly Findlay about all this? Maybe you will Sean. At the same time maybe you could ask Harry why he has Betfair so actively trying to discourage discussions about him on their forum?

    I think what McGrath has said about the Paul Nicholls quotes sounds astonishing if it’s true.

  6. Santiburi Says:

    Sean, all the points you make are perfectly valid and I agree with you. Today, with the technology and resources readily available, it is impossible to get a perfect system. I think the difference between our views is that you seem to believe that the BHA is doing everything they can to manage the sport well as regards its integrity. I, however, struggle to find a good word to say about the BHA as I’ve yet to meet or hear anyone from the organisation in whom I have confidence that they even understand the component elements of the sport.
    For my sins, I’ve been involved in the sport for a long time and find myself becoming more and more removed as time goes by from all aspects other than betting. The factions within the sport continue to fight amongst themselves to get more control when they need to unite to actually save the sport. One of them might ‘win’ soon and find they’ve actually got nothing left to manage.
    I’m content with the Findlay case outcome as regards the Panel’s final decision and he too should be content with the outcome. However, to me, all the loose ends around the borders of it just serve as another reminder of how divisive and remote the authorities are.

  7. fawwon Says:

    Findlay has completely outfoxed them here. Harry versus the BHA and all their resources really was no match. The BHA are being put in their place very quickly now. Nic Coward will no doubt get another bonus and if racing closed down tomorrow he would still have done very nicely out of it. Buffham was right and so was his successor about “the backbone being not very strong”.

  8. Santiburi Says:

    fawwon, I think using a term like ‘outfoxed’ suggests that Findlay got away with something. I don’t feel that is the case. I suspect that if he’d gone into the first hearing with the legal team that represented him in the Appeal then there would have been a fine imposed the first time around and Findlay would have found himself with no time out of racing.
    On your point re: the BHA, I’ve made my feelings clear previously but can’t help reflecting on the statement by Paul Struthers from the BHA after the appeal.
    With the appeal being upheld, there was a perfect opportunity to try and win friends and influence people as I can’t believe anyone wants to see anything other than a clean sport.
    Findlay had had his appeal upheld. The Panel had clearly stated that there were a rule that had been broken. Struthers statement therefore, IMHO, should have been magnanimous in accepting that the BHA would take the decision as good reason to re-look at the specific rule to ensure that it captured the essence of what was intended by it, so that there’d be no further cases where there needed to be debate as to whether an individual should be charged or the clarity of the rule questioned.
    He could have made this statement knowing that, in actual fact, the BHA had no intention of changing the rule but, instead, chose to labour the point that the BHA ‘was absolutely right to charge Findlay’ and so alienated the BHA further in the eyes of a number of people including, for example, a significant number of trainers.
    No one would have minded if Struthers re-iterated the words of the Panel regarding the fact that the intent of the rule ought to be clear so no one should expect any leniency in future. That would have been perfectly valid yet, as usual sadly, in declaring the BHA holier than thou and, in my view, coming across as condescending, he has ensured a debate continuing that could have been quelled.
    Like most other people who love racing, I am powerless to affect any change but I hope there’s someone in a position of authority who is going to see the situation for what it is and start to shake things up. If the old guard is allowed to remain in situ and to keep employing more of the same type as themselves then racing as a populist sport will continue on its decline.

  9. seanboyce Says:

    That’s a very interesting point I think. I would agree that there is potentially a missed PR opportunity there.
    I think the statement is defensive in tone on the basis that the BHA would have been anticipating significant criticism of their decision to charge, of the rule itself, of the original penalty and so on.
    You’re absolutely right I think that such defensiveness could be counter productive.
    I’m mindful of the fact that the BHA’s initial investigation was praised by Findlay himself and also mindful that it was the BHA that counselled the original panel to consider a penalty other than disqualification. Something that was again communicated by the BHA to the Appeal Board too.
    I think the tone of the final statement reflects as I say a defensiveness on the part of the BHA. I think (and this is purely my own guess) that this is partly due to their awareness of the shortcomings of both the rule definitions and the disciplinary process. But I also think it would reflect an anticipated media backlash amongst the very large number of journalists and punters that were already supportive of HF and/or critical of the BHA. Also (and again pure guesswork on my part) it might reflect an exasperation at the campaign waged through the press in the run up to the appeal.
    A more magnanimous approach might have been a smarter move. Struthers is certainly capable of such nuanced comment and indeed the initial briefings received on this case suggested a fairly cordial relationship between those involved and an anticipation of a fairly moderate penalty. Something seems to have soured significantly after that point though in the wake of the penalty being harsher than anticipated by pretty much everyone involved.
    Like much of what’s gone on here, not ideal but perhaps understandable.
    I cannot agree though that the BHA now is anything like the bodies it replaced. In terms of the conduct of security and integrity and also in terms of communications this body is light years away from the shambles that was so brutally exposed on TV some years back. It’s not perfect for sure but the idea that someone like Struthers can be traced to the ’same type’ as his predecessors is, imvho, plainly wrong.

  10. Santiburi Says:

    Sean, I’ll take your word on Paul Struthers. I don’t know him at all and don’t think I would even recognise him if I saw him. I knew a number of the previous administration and was merely reflecting a likeness based on the tone and sentiment of the post-appeal statement. Possibly, some of the Racing for Change budget should be spent on communications training or a PR agency to help with some of the messages?

  11. seanboyce Says:

    Yes, maybe. Although I think counting to ten, taking some deep breaths and giving themselves more room for reflections before reacting might have also been smart! You’re spot on I think that it was a missed opportunity actually. I hadn’t looked at it that way and it is s difficult line to get right but I think you’re right regarding how their statement would play to many.

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