Viera v. Illinois Racing Bd.

• Decision Date: 12 October 1978
• Docket Number: No. 76-1009,76-1009
• Citation: 382 N.E.2d 462,65 Ill.App.3d 94,22 Ill.Dec. 142
• Parties: , 22 Ill.Dec. 142 Hector VIERA, Plaintiff-Appellee, v. ILLINOIS RACING BOARD, Anthony Scariano, Chairman, Illinois Racing Board, Herbert Channick, Raymond H. Freeark, Ray H. Garrison, Patricia Hewitt, Sidney Hyman, and Lucy Reum, members of the Illinois Racing Board, and Theodore F. Atkinson, Henry Hauer and Arthur Howard, Stewards of the Illinois Racing Board, Defendants- Appellants.
• Court: United States Appellate Court of Illinois

Page 462

382 N.E.2d 462

65 Ill.App.3d 94, 22 Ill.Dec. 142

Hector VIERA, Plaintiff-Appellee, v. ILLINOIS RACING BOARD, Anthony Scariano, Chairman, Illinois

Racing Board, Herbert Channick, Raymond H. Freeark, Ray H.

Garrison, Patricia Hewitt, Sidney Hyman, and Lucy Reum,

members of the Illinois Racing Board, and Theodore F.

Atkinson, Henry Hauer and Arthur Howard, Stewards of the

Illinois Racing Board, Defendants- Appellants.

No. 76-1009.

Appellate Court of Illinois, First District, Fourth Division.

Oct. 12, 1978.

William J. Scott, Atty. Gen., Chicago, John D. Whitenack, Asst. Atty. Gen., of counsel, for defendants-appellants.

Coghlan & Joyce, Chicago, James L. Coghlan and Randall A. Spencer, Chicago, of counsel, for plaintiff-appellee.

LINN, Justice:

The plaintiff, Hector Viera, a thoroughbred jockey, was suspended for ten calendar days by order of the Illinois Racing Board. The suspension was reviewed by the circuit court of Cook County under the Administrative Review Act (Ill.Rev.Stat.1977, ch. 110, pars. 264 Et seq.) and reversed. The circuit court found that the Racing Board's decision was contrary to the manifest weight of the evidence. The Racing Board appeals.

We affirm the trial court.

On September 2, 1975, Viera rode a horse named "Slade's Prospect" in the seventh race at Arlington Park, Illinois. At the beginning of the race, Viera placed Slade's Prospect near the rail directly behind three horses vying for the lead. When the horses reached the start of the clubhouse turn, Slade's Prospect was still laying fourth.

Towards the end of the clubhouse turn, a horse moved up on the outside of Viera and boxed him in. The lead horses stayed tightly bunched together through the turn and the drive down the backstretch and an opening Between them never materialized. It was later claimed: (1) that an opening existed near the rail during the stretch drive; and (2) that Viera unreasonably failed to take advantage of it. In the last sixteenth of the mile race, Viera found some running room on the outside and Slade's Prospect came on strong to finish third.

On September 3, 1975, the day following the race, three stewards, Theodore Atkinson, Henry Hauer and Arthur Howard, suspended Viera 10 calendar days "for an unprofessional indecisive ride" in violation of Rule 234 of the Illinois Racing Board:

"Rule 234 Horse Ridden Out

Every horse in every race must be ridden so as to finish as near as possible to first, and show the best and fastest race it is capable of at that time and shall not be eased up or coasted, even if it has no apparent chance to win first, second, third or fourth prize, so that the record of that race may, as truly as possible, show its real ability."

On September 8, 1975, a De novo hearing on Viera's suspension was commenced before Herbert Channick, a hearing officer of the Illinois Racing Board. After the witnesses viewed a film of the race in question, the following evidence and testimony was presented at the hearing.

The Illinois Racing Board called three witnesses, Theodore Atkinson, Henry Hauer and Arthur Howard, the stewards who had suspended Viera. Atkinson delineated two specific reasons why he and the two other stewards had concluded that Viera's ride violated rule 234. The first reason cited was that at the start of the clubhouse turn, Viera failed to take advantage of an opportunity to move Slade's Prospect outside the three horses in the lead.

Atkinson testified that Viera "could have moved to the outside anywhere on the far (clubhouse) turn until the very last part" when another horse moved up on Viera and closed the outside off. Atkinson asserted that it would have been prudent for Viera to move outside the three horses in the lead in order to ensure that he (Viera) would have racing room down the backstretch. However, in describing a film of the race in question, Atkinson appeared to contradict himself:

"This is the clubhouse turn into the backstretch. We can see that To move up at this time might not be the best thing to do. However, he (Viera) does have the opportunity to do so * * *." (emphasis added)

Atkinson testified on cross-examination that in Most races the horses fighting for the lead fan out across the track as they come out of the clubhouse turn, thereby opening up holes which trailing horses can drive through in the backstretch. Atkinson testified further, that had Viera moved to the outside of the lead horses at the start of the clubhouse turn, he would have been four horses wide on the turn and Slade's Prospect would have covered a lot more ground than those horses nearer the rail. Atkinson then acknowledged that generally it is advantageous for a jockey to stay near the rail and behind the lead horses when going through the clubhouse turn:

"Q. And if a rider was riding a race and had placed his horse on the rail he would be saving the most ground in the race, would he not?

A. Yes, of course.

Q. And he would be running the shortest distance to the finish line; is that right?

A. Yes.

Q. And normally the horses do fan out during the stretch run and it would be to his advantage to save as much ground as possible and reserve his horse for this run?

A. Generally speaking, yes."

The only other testimony elicited from the three stewards with regard to the "reasonableness" of Viera's decision to stay near the rail through the clubhouse turn, occurred on Henry Hauer's cross-examination. Hauer testified that most of the time, Viera's position near the rail is a desirable place to be:

"Q. If I was riding behind the horse on the lead would it be to my advantage to stay as close to that rail as possible and to save the most ground?

A. Yes. It would be to your advantage if the horses break when they come out of the turn.

Q. Do they usually?

A. Sometimes, not always.

Q. Sometimes they do, and sometimes not?

A. Right.

Q. And more times they do, than not, is that correct?

A. I suppose so.

Q. So, the percentages are in my favor if I am sitting on the rail behind the horse on the lead that an opening may come and I can save a lot of distance in ground?

A. It could be."

The second reason cited by Atkinson as to why he and the two other stewards had found Viera's ride violative of rule 234 was that, in the drive down the backstretch, Viera failed to take advantage of an asserted opening near the rail to the left of the lead horse "Davey Dan."

There were only two statements presented by the three stewards on this point. Atkinson simply stated that an opening did exist and that Viera should have taken advantage of it. Hauer testified that Viera "could not make up his mind to go inside or outside" down the backstretch and "he changed courses several times, and in fact, he went out on the horse outside of him and the horse knocked him back in."

Finally, the three stewards testified as to how the trainer of Slade's Prospect, Joseph Rodriguez, reacted to Viera's suspension. Atkinson testified that Rodriguez had come to the stewards' office on September 4, 1975, the day following Viera's suspension, and talked with him and the two other stewards. Atkinson asserted that Rodriguez told him: "I am with you on that Viera ruling." Rodriguez also "said words to the effect that this was the protection that they need."

Atkinson testified that on September 6, 1975, he asked Rodriguez if Rodriguez would testify for the Racing Board in proceedings concerning Viera's suspension. Rodriguez stated he would prefer not to. However, Rodriguez did offer to furnish the stewards with a signed statement concerning his feelings on the matter. The statement, drafted by Atkinson, provides:

"To whom it may concern:

This is to certify that I have told the Arlington Park Stewards that I was very disappointed and dissatisfied with the performance of Jockey Hector Viera on my 'Slade's Prospect' in the seventh race, September 2, 1975."

Steward Howard testified on cross-examination that when Rodriguez appeared in the stewards' office on September 4, the general impression that he received was that Rodriguez was unhappy about the race and the way it was ridden. Howard testified further that he could not recall if Rodriguez said "I'm with you on the Viera ruling" or that "we need protection of this kind." Howard pointed out that Rodriguez speaks with broken English and is very difficult to understand.

Steward Hauer testified that when Rodriguez appeared in the steward's room on September 4, he (Hauer) did not speak to Rodriguez. Rather, Atkinson told Hauer what Rodriguez had to say. When asked why he had not talked to Rodriguez directly, Hauer stated: "because (Rodriguez) is difficult * * * to understand * * *."

Viera called as his first witness, Joseph Rodriguez, the trainer of Slade's Prospect. Rodriguez denied he told Atkinson that he agreed with or was glad about Viera's suspension. Rodriguez asserted that he merely told the stewards that he was "disappointed" with his horse's performance and with Viera's split-second decision to stay near the rail through the clubhouse turn. "(T)o me he gave an honest ride. (T)hey (the jockeys) have a split second to make up their mind as to what to do."

With regard to the statement he signed, Rodriguez testified that he thought he was expressing "dissatisfaction" with his horse's performance and not with Viera's ride. In fact, Rodriguez claimed that, after the race in question, he had asked Viera to ride Slade's Prospect again in an upcoming stake's race. Rodriguez testified that Stanley Conrad, the horse's owner, later determined he wanted a different rider due to the publicity connected with Viera's...