Mott To Contest Suspension in Court

By Perry Lefko 

The lawyer for Hall of Fame trainer Bill Mott says his client is going to Federal court claiming the New York State Gaming Commission violated his constitutional rights without due process of law in regards to an alleged positive test last year. 
Drew Mollica told Thoroughbred Daily News the actions of the Commission against Mott violate the 14th Amendment of the United States Constitution and have affected his client’s business. 

At issue is what Mollica says is the State’s failure to provide a split, or B sample, which is standard procedure in most jurisdictions in a drug positive. Mollica says that Mott was told that the lab had used all of the blood in testing the first sample, and there was none left to check it against. 

“Bill Mott’s?civil rights are being violated,” Mollica said. “It’s a bold and drastic statement because he feels he’s been violated. Bill Mott doesn’t want to go to Federal court.?Bill Mott doesn’t want any of this. He feels his civil rights have been violated. He’s not fighting for himself, he’s fighting for all horsemen here.” 

Earlier this week, Mott filed a claim in the United States District Court, Eastern District of New York, seeking “injunctive and declatory relief” for a $1,000 fine and 15-day suspension resulting from alleged overages of the anti-inflammatory drug Flunixin and the diuretic Lasix following a post-race test on Saratoga Snacks Sept. 20, 2014 at Belmont Park. The horse finished last in the race. 

The post-race test revealed overages 10 times the legal limit, and because Mott chose to appeal the original seven-day suspension, it was increased to 15 days. Listed as defendants in the lawsuit are: New York State Attorney General Eric T. Schneiderman; the New York State Gaming Commission; NYSGC Chairman Mark Gearan; NYSGC members John Crotty, Peter J. Moschetti Jr., John J. Poklemba, Barry Sample and Todd R. Snyder; NYSGC Executive Director Rob Williams; NYSGC Co-ordinator John J. Googas; New York Racing Association Steward Stephen Lewandowski; NYSGC Hearing Officer Lewis Melendez; New York Drug Testing And Research Program at SUNY Morrisville and its Program Director Dr. George Maylin. 

Mott is seeking “injunctive and declaratory relief,” feeling the actions of the defendants unlawfully deprived him of his “constitutionally protective property interests” and his right to rely upon and use his racing license without limitations by the Commission. In his statement of claim, Mott says he “vehemently denies any violation, intentional, negligent or otherwise” of the medication rules of the Commission. 

The statement of claim says Mott sought and paid to have a split (referee) sample of the blood sample sent to a Commission-approved independent referee laboratory. The claim further states that rather than send a blood sample to the referee laboratory, the Commission officials forwarded only a urine sample. 

It is Mott’s contention the urine sample was “completely useless” to serve as a referee sample given that only the quantitative levels allegedly found in the post-race blood sample served as the basis upon which he received his violation. 

The claim says the analysis of urine can only exhibit the presence of the legitimate therapeutic medications in the horse on race day, not the levels of those medications. 

It is also Mott’s contention that the denial of a split blood sample for referee analysis “eliminates any possibility” for him to exonerate himself” and otherwise denies him the “substantive right to due process in his appeal.” 

Lee Park, the Director of Communications for the New York State Gaming Commission, would not comment on the matter. 

Mollica cited the example of the case Barry versus Barchi, which was argued by Joseph A. Faraldo in Supreme Court, as the “seminal case” that will be used to declare the violation of Mott’s rights. 

“It says you have a property interest in your license,” Mollica says. “It can’t be taken away without due process, and without the ability to get a split sample, you cannot have due process. When you?look at the facts of the case, the test is so out of line, and when?you look at the fact that we paid for a split sample that is unavailable, it’s unbelievable. And they said there’s no blood, that they used it all. 

“Let me tell you where the other states fall on this,” Mollica continued. “They take an?A sample and a B sample. The?B sample goes into the fridge. The?A goes to the lab. If something comes up off in the A sample, you have 10 days to send sample B to the lab, and?now you have a valid test. Not in New York. In?New York, they do not take a split. They send all the blood to Dr. Maylin.” 

Mollica said Mott could serve the seven-day suspension, but he’s fighting the matter on principle. 

“He’s run 25,000 horses in his career, he’s had two therapeutic positives, and in this one, [he didn’t] administer the Lasix, the New York Racing Association does. The therapeutic threshold for Lasix is measured on a 10cc dose. Bill’s horse?got three. They say someone had to?have come in and given him more. If he’d have wanted more, he could have given him more in the first place. If he had come in over on one or more therapeutic, okay, but two on the same horse on the same day? It’s like getting two solar eclipses in the same day.” 

Mollica said during the discovery process that he repeatedly asked the Commission for its protocols for the saving of blood and was told by the Commission it didn’t have to give it to him. 

“This is due process?” he asked. “If it can happen to Mott, who’s next Graham Motion? Shug McGaughey? If you go to the doctor and your cholesterol comes up 1000, wouldn’t you say, ‘Come on, maybe I’ll take the test again.’ This (case) is crazy.” 

Mollica also questioned why the New York Thoroughbred Horsemen’s Association (NYTHA) hadn’t addressed this problem with the New York lab in the past. “Where has the horseman’s organization been for all these years?” Mollica said. “Because this is systematic.”