- Appeal upheld, penalty reduced to £4,500 fine, taking into consideration partial penalty served
On 9 June 2010 Mr Harry Findlay appeared before a Disciplinary Panel (the Panel) and admitted two breaches of the Rules of Racing in respect of owners placing lay bets on their own horses. He was disqualified for 6 months and now appeals.
On each occasion the bets were placed by an associate of Mr Findlay’s on an account with Betfair and were part of an overall and larger back bet position. Thus on each occasion Mr Findlay stood to win significantly if his horse GULLIBLE GORDON (IRE) won and lose significantly if it lost. It should be noted, in fairness to Mr Findlay, that there has never been any suggestion that GULLIBLE GORDON (IRE) did not run on its merits or, to be more blunt, that there was foul play on anyone’s part.
On the first occasion at Exeter GULLIBLE GORDON (IRE) lost and so did Mr Findlay, to the tune of some £60,000. On the second occasion, at Chepstow, it won and Mr Findlay collected about £35,000. For reasons which will appear we are concerned solely with the Chepstow race.
It is only necessary for this Appeal Board to deal with the broad issues that arise, we do not repeat the details which are so clearly set out in the Panel’s Reasons dated 10 June 2010 and which are available to anyone interested.
Mr Oliver Codrington, on behalf of the British Horseracing Authority (BHA) presented the matter to the Panel on the basis that he accepted the lay bet at Exeter, which was the first bet placed, was a mistake as Mr Findlay suggested; it was overtaken very quickly by the larger back bets. Further, the BHA had no evidence to suggest that the object behind it was an attempt to manipulate the market and Mr Findlay strongly denied any such intention.
As for the second occasion concerning the race at Chepstow when large back bets were placed first, followed by smaller lay bets in running, Mr Codrington submitted that although the lay bets were part of an overall back bet strategy, they were clearly in breach of the Rules as Mr Findlay must have known. The strategy had been planned with his associate as Mr Findlay explained. Since he knew that the riding tactics were to set off and make the running he believed, rightly as it turned out, that lay bets could be placed at odds more favourable to him. The plan was to reduce his overall exposure to the level he deemed appropriate whilst producing a better financial result than simply placing a smaller back bet. The strategy worked and produced a better result by almost £4,500.
Thus in respect of the Chepstow race Mr Codrington fairly accepted the Panel could consider in mitigation the fact that the lay bets were placed as described and also Mr Findlay had been “more than co-operative ..... throughout the course of our investigation.” However, in aggravation Mr Codrington maintained that Mr Findlay knew he was not entitled to lay his own horses.
Mr Findlay stressed what he regarded as the somewhat technical nature of his transgression, the fact that no-one had been deceived or lost unfairly, his overall position in racing and his integrity. He appears from the transcript to have maintained that he did not realise that the strategy in question involved a breach of the Rules and promised that it would not occur again.
The Panel felt unable to decide on the available evidence whether the Exeter lay bet was indeed a mistake. They therefore imposed no penalty in respect of it and hence, as stated, our sole concern is the Chepstow race.
The Panel inevitably accepted that those on the other side of the Chepstow lay bets had not lost and Mr Findlay was entitled to place the back bets when he did. They accepted in mitigation Mr Findlay’s full co-operation and that lay bets in running were less serious than if placed before a race. They noted, what they described, as Mr Codrington’s implied suggestion that a penalty other than disqualification might be appropriate. However, proceeding on the basis that the Chepstow lay bets were planned, that the overall strategy was based to some extent on inside information, produced a better overall result and that they were in no doubt that Mr Findlay was fully aware that lay betting of any sort on his own horse was not allowed, proceeded to disqualify him.
We hope it may be helpful if we outline briefly our approach to the overall scheme of penalties under the Rules. The Rules, inevitably identify a host of possible transgressions and a scale of penalties ranging from Stewards simply “noting” an explanation or “cautioning”, through various levels of fines, withdrawal of licenses or permissions, suspensions and ultimately disqualification. The seriousness of any disqualification may be gauged from its effect, which is wholly to exclude the disqualified party from racing and any licensed premises with, in most cases, the inevitable interruption or termination of a chosen career. It is also an offence under the Rules for any licensed person to associate with one disqualified. It is the modern equivalent of “warning off” and continues to carry with it a considerable stigma, and rightly so, for it is usually the consequence of proved dishonesty or general corruption in connection with racing. It maybe imposed in other very serious cases, but it remains the ultimate penalty identified in the Rules by those responsible for the proper and safe administration of racing and the protection of its reputation.
Turning to the Rule against lay betting by owners and certain others concerned with the horse in question, it is relevant to identify the real object of the Rule and the vice at which it is aimed. Manifestly it is an attempt to remove temptation and prevent corruption in and around the running of a horse. Those intimately connected with a horse in training inevitably know more of its condition and general well being than the betting public. Sadly, it has on occasions proved but a short step to the deliberate manipulation of those matters for the purposes of betting. The Rule is one weapon against such practices. Those drafting the Rules of Racing had an extremely difficult task and we are sure were concerned to keep them as simple as may be. In many cases a Rule or Rules cover various shades of turpitude. Given the ingenuity of gamblers 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. We doubt, for example, whether those who drafted the original version of the Rule in question anticipated the betting strategy Mr Findlay adopted here. It became desirable to clarify the Rule to cover that type of betting.
The BHA keeps the Rules under review as we all know and is prepared to consider sensible suggestions. Sometimes a well intentioned amendment aimed at identifying some exception or other exclusion from a Rule can lead to great difficulty in monitoring compliance or ascertaining a breach. The alternative is to maintain the Rule in question and rely upon flexibility of penalty. We intend no comment upon the Rule in question here, that is not our role, but we do feel that in principle a clear distinction needs to be drawn between a lay bet placed as part of a corrupt practice or even conspiracy and a betting strategy which has not interfered in any way with the integrity of the race and in particular the running of the horse in question.
Having said that the Rule is a very serious one for the reasons we have given and thus any breach is potentially serious. We also recognise the real difficulty in practice that may arise in ascertaining in a particular case what really lay behind the lay betting. We are certainly not seeking to restrict the discretion of Panels who will be concerned to get at the truth and will use their good judgement and experience.
As a result of the clarification of the Rule which makes plain that any lay betting by those covered by it is outlawed and also this case which has attracted so much publicity, it is hard to envisage any valid excuses for its breach in future. Depending on the particular circumstances of any similar future case, should one arise, a Panel may well feel obliged to use the ultimate penalty of disqualification.
However, this remains, in our view, an exceptional example. It was not presented as other than a deliberate betting strategy in which the lay bets were a relatively small part of an overall back bet and in which no-one lost unfairly. The Panel proceeded on that basis. There was no suggestion that the integrity of the race or GULLIBLE GORDON (IRE)’s running in it was in jeopardy. It is clear that Mr Findlay’s best financial interests lay in the horse winning. There was also the mitigation already mentioned, in particular, Mr Findlay’s full co-operation and the fact that it was Mr Findlay himself who drew the BHA’s attention to the Exeter race when interviewed concerning the Chepstow betting.
We feel the Panel did not or not sufficiently take into consideration the principle we have mentioned. Clearly they must have had in mind that the case did not involve corruption but the Reasons do not acknowledge that that fact took it outside the real object of the Rule. Maybe they felt constrained by the Guide to Penalties which only mentions disqualification in this context, albeit elsewhere stating that Panels have discretion to impose different penalties from those suggested.
We are conscious that our jurisdiction under the Rules is limited to a review of the Panel’s decision as opposed to a rehearing, but in the circumstances outlined here, in particular that the Panel did not appear to have regarded the matters mentioned above as significantly material to their decision, we feel justified in expressing our own clear view that Mr Findlay should not have been disqualified. To that extent we allow the appeal.
As to the appropriate penalty, our starting point would have been that the £4,500 by which Mr Findlay improved his position should be removed from him and a further fine imposed which was significant in the context of the very large stakes involved. The result could have been a substantial overall fine. However, we cannot undo the fact that Mr Findlay has suffered disqualification and the indignity of it for over a month now. That will remain with him and we regard it as a serious penalty in itself. He was, for example, prevented from attending Royal Ascot where he would have seen one of his horses win and generally lost every aspect of an owner’s participation in racing during the last month. We consider that a fine, removing the extra profit made from the Chepstow affair, namely £4,500, will suffice in the particular circumstances of this case which obviously should not be regarded as a precedent by anyone covered by the Rule, contemplating a betting strategy involving lay betting.
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