The Appeals Body (Division 1), Ms. Susan Ahern (in the chair), Mr. Justice Frank Clarke and Mr. N.B. Wachman convened at the Offices of the Irish Horseracing Regulatory Board on 13^th December 2021 to consider the appeal of Mark Fahey against the decision of the Referrals Committee at Fairyhouse on 29^th November 2021 to fine Mr. Fahey €6,000 and suspend Strong Roots for 90 days.  

On the day, the Referrals Committee found Mr. Fahey in breach of Rule 212A(i) in that Strong Roots was deliberately or recklessly run other than on its merits and 212A(ii) in that Strong Roots was not seen to have been the subject of a genuine attempt to obtain from the Horse, timely, real and substantial efforts to achieve the best possible place.

The grounds of appeal lodged by Mr. Fahey were that the Referrals Committee erred in their decision.

At the Appeal Hearing, evidence was heard from Mr. Fahey and the panel also viewed a recording of the race. The Appeal Hearing was then adjourned to allow for the evidence of Mr. Gavin Brouder to be given before the panel. The hearing was concluded via Zoom on 21^st December 2021. 

Having considered the evidence, the Appeals Body dismissed the appeal and issued their written decisions to both parties on 17^th January 2022 which is set out below. 

Background

1. The Appellant brings this appeal in respect of the decision of the Referrals Committee of 29 November 2021 which related to an incident which arose in Limerick on 16 November 2021 of the Fexco Asset Finance Handicap Hurdle (the “Race”) in which Strong Roots, trained by the Appellant, was the subject of a running and riding enquiry under Rule 212A of the Rules of Racing and Irish National Hunt Steeplechase Rules (the “Decision”).
2. The Appeals Body was appointed by the IHRB in December 2021, to consider the appeal.
3. Fahey appealed the Decision on the basis that he had at all times instructed the Rider to win or obtain the best possible place on his horse and that this instruction was not or could not be carried out by the Rider. The sanction imposed by the Decision was a fine of €6,000 and Strong Roots was banned from running for 90 days.
4. Gavin Brouder, the Rider of Strong Roots, did not appeal the Decision against him (being the imposition of a 21 race-day suspension and forfeiture of his riding fee) and he did not attend the hearing on 13 December 2021. He was called and attended the re-convened hearing on 21 December 2021 as a witness.
5. A full pack of documentation was provided to the Appeal Body and Mr. Fahey. This comprised the Appeal Form, Press Release of the Referral Committee Decision, videos of the race, Transcript of the Referral Hearing of 16 November 2021 and the documentation which was put before the Referral Hearing.
6. The Referrals Committee found that it was satisfied that the Appellant had breached Rule 212A(i) and 212A(ii) of the Rules of Racing and Irish National Hunt Steeplechase Rules 2021 (the “Rules”).
7. The appeal of the Decision was submitted in due time.

Relevant Rules

8. Rule 212A (i) and (ii) provide:

“212A. Running and Riding Offences

• Any person involved in the running and/or riding of a horse in a race who deliberately or recklessly causes or permits a horse to run other than on its merits shall be guilty of an offence under this sub-rule;
• Any Rider or other person who either rides a Horse in a Race or causes, contributes to or permits the running and/or riding of a Horse in a Race in such a way that the Horse cannot be seen to have been the subject of a genuine attempt to obtain from the Horse timely, real and substantial efforts to achieve the best possible place shall be guilty of an offence under this sub-rule. In cases involving a Horse other than the winner, it shall not be a defence to an allegation that this sub-rule has been breached to assert that the Horse actually achieved its best possible position in respect of the Horses in front where the Rider has not been seen to make the efforts required by this sub-rule.

Rule 213(ii) provides:

“The Rider, the Trainer or in his absence the Trainer’s Authorised Representative or the Owner shall report in the first instance to the Clerk of the Scales or his assistant or a Stewards’ Secretary or the Veterinary Officer on duty, anything which might have affected the running of their horse in a race. This report should be made as soon as possible after the race and failure to do so prior to any Stewards Enquiry that may be held shall render the person liable to a sanction by the Stewards unless they are satisfied that the report could not have been made earlier.”

Rule 213 (iii) provides:

“Should anything which might have a bearing on the past or future running of the horse come to the notice of the Owner or Trainer after the horse has left the course, it must be reported as soon as possible to a Stewards’ Secretary, the IHRB Veterinary Officer or the Office of the IHRB.”

Rule 148(i) provides:

“A Trainer shall be responsible (except where otherwise provided in these Rules) for everything connected with the welfare, training and running of all Horses under the care of that Trainer and shall be liable to any sanction available to the Stewards, the Referrals Committee, the Licensing Committee or the Appeals Body, as the case may be, unless the Trainer provides a satisfactory explanation. The members of a Training Partnership shall be jointly and severally liable for any such responsibility and liabilities.”

The Hearing and Re-convened Hearing

9. Counsel for the IHRB set out the background to the appeal, the grounds of appeal and addressed some technical matters.
10. Counsel for Mr. Fahey indicated that he had asked and was advised that Mr. Brouder, the Rider of Strong Roots, would attend the hearing as a witness in the matter. This did not transpire, and the Appeal Body made an interim determination to proceed with the hearing, hear the evidence and at the conclusion to re-consider whether the witness testimony of Mr. Brouder would be of assistance in its deliberations.
11. At the conclusion of the hearing, the Appeal Body determined that it would benefit from Mr. Brouder’s testimony and of its own volition in the interests of justice invoked Rule 256(ii) and Rule 25(b) to require the attendance of Mr. Brouder to provide such further oral evidence or information as it would require in this matter at a reconvened hearing by way of video conference. In addition, the Panel asked the IHRB to furnish it and the Appellant with any information they had available concerning betting patterns in relation to the Race.
12. The Directions of the Appeal Body were fully complied with, and a re-convened hearing was held by video conference on 21 December 2022 at which Mr. Brouder gave evidence.
13. The Appeals Body conducted the appeal on a de novo basis in accordance with Rule 256 on the basis of the transcript of the Referrals Committee hearing, the video and documentary evidence and witness testimony.
14. Fahey’s evidence in summary was as follows:

14.1      He was not the first trainer of Strong Roots, a nine-year-old mare, the race at Limerick was her second start for Mr. Fahey having previously raced in Clonmel - Race 2599 in the Form Book read - "Strong Roots, held up in rear, ridden and no impression, in 8th two out, kept on one pace". From the Clonmel race he learned that the horse “can be quite keen…probably limited in ability and her jumping can be sometimes good sometimes could be erratic”. In training they ascertained that if she was schooled from the front she could be “very leery” “keen” and “can be reliant on a lead”.

• His instructions to the Rider were to let Strong Roots settle and relax from behind….. His submission was that at no stage did he instruct the Rider to do anything other than his best in the Race.

14.3      He was dissatisfied and disappointed with the ride, who he expected to finish into the prizemoney, but did not express this to the Rider post-race who was also riding for him in the next race. He submitted he was not completely aware of the detail of the ride until he got home and saw the replay, as from his position in the stands he could not see all the race as there was no big screen and he had no binoculars. Upon reviewing the Race, he submitted that he was “disgusted” with what he saw on the replay as the “though Gavin should have made more of an effort…I was happy with where he was when he jumped off. And then going out on the last lap, Gavin was meant to be trying to put her into the race and he could have put a lot more effort to try and get her into the race.”

14.4     His view was that the Rider could have got the horse “into the race sooner, even like the winner Lake Chad” who made up ground on the back straight. He was in position going into the last lap at which point “he has to go and try and get her into the race. And he didn’t. He didn’t put enough effort into it” and “that was the complete losing of the race”. He was also of the view that a gap opened up on the turn into the final straight and the Rider should have “given her a slap down the shoulder and kicked her on through the gap” but acknowledged that the horse wasn’t going to win her race from the final straight.

• He did not take the opportunity at the Stewards Room in Limerick to explain as he was informed that the enquiry could not proceed as the Rider was injured and it was his understanding that his time to explain was to the postponed enquiry before the Referrals Committee. He was not aware he had an obligation on the day to go to the Stewards and explain that he was not happy with the ride. He further explained that he did not adequately explain himself before the Referrals Committee. This is his first Enquiry either as a Trainer or previously as a Rider across a 17-year career to date.

15. In response to the Appeal Body’s questioning as to whether he was dissatisfied with the Ride when leaving the racecourse, the Appellant explained that he was but was more dissatisfied subsequently having seen the replay of the Race. He also confirmed his agreement with the statements that the riding in the straight did not allow the horse to get into its best possible position, and that the horse could have finished a lot closer had it been more aggressively ridden up the straight.
16. Counsel for Mr. Fahey noted that the Appellant was aware of his reporting obligations under Rule 213(ii) in respect of anything that might affect the running of their horse in a race. However, the Appellant was not aware that he could report dissatisfaction with a Rider and their performance. Further, Counsel was not aware and upon consultation nor were the IHRB of any record of a Trainer ever having reported this type of dissatisfaction to the Stewards and the records show that there have been no disciplinary cases brought against Trainers for failure to report to the Stewards after a race if they are dissatisfied with the manner in which the race was run. The Referrals Committee in his submission placed great store in the fact the Appellant had failed to indicate his displeasure about the ride at the track on the day and that it was an important element of their decision. The Appellant made his dissatisfaction known at the Referrals Committee enquiry and while it may have been the case that he should have been found in breach of Rule 213, he was instead found in breach of the more serious Rule 212A.
17. Counsel for Mr. Fahey submits that there was no evidence that the Appellant was involved in a running and riding issue under Rule 212A, or that he deliberately or recklessly caused or permitted Strong Roots to run other than on its merits. Rather it was the Rider Mr. Brouder who was “the man on the day” who had ridden the horse. Further there was no evidence before the Referrals Committee or the Appeals Body which demonstrated that the Appellant “colluded with or conspired with our sought to prevent his animal from running on its merits. On the contrary. He is dissatisfied and utterly dissatisfied” with the Rider. Further, the Appellant had nothing to gain – the horse was fit and was the favourite.
18. Walsh for the IHRB noted that Strong Roots was the 85/40 favourite on the day. His submissions were that:
    • Based on the evidence of the Appellant that he had not properly seen the entirety of the Race until he returned home, that the Appellant was not in a position to make a report of his dissatisfaction about the Race until after he say the replay – a point largely accepted by Mr. Fahey. He also noted that the Appellant had not raised his dissatisfaction under this Rule 213 (iii) once he had seen the replay of the Race.
    • In the final straight of the Race where a gap emerges, Strong Roots does not take it up. His position, which he put to the Appellant was that the Rider takes a pull and does not fill the gap, that the “animal appears to have been held very tight…The Rider appears to take a pull”. The Appellant conceded the position as being one which is “terrible”, which he did not express on the day of the Referrals Committee hearing and which he could not explain before the Appeals Body.
    • The question of whether the Rider lost his balance after the last hurdle was also explored and ultimately when the question was put to the Appellant as to whether he believed the Rider had lost his balance jumping the last, a point in evidence before the Referrals Committee. The Trainer confirmed he did not believe so – in contrast to his position before the Referrals Committee.
    • That the horse was stopped by the Rider – a point not accepted by the Appellant who rather considered that “it was a very poor, ill-fated ride by Gavin…he was not deliberately stopped”. The submission on behalf of IHRB was, having taken the Hearing through the video of the Race, and on the final straight that the horse Strong Roots was stopped and was not allowed to run on its merits and that is the key issue in this case: “A gap appears to be there. The Rider appears to be taking the animal in the mouth, this 85/40 favourite. He refuses to fill the gap…The gap stays there, doesn’t fill it, pulling out of it, misses the second last, flying down to the last, again doesn’t allow it to jump, lands, takes a pull, clearly takes a pull, and absolutely flies home here.”
19. The IHRB placed considerable emphasis on the importance of Rule 212A concerning running and riding within the sport of Racing. It was central to the integrity of the sport to ensure that every horse is ridden on its merits and was described as “the whole of all rules”. It was noted that from the IHRB records there were only “four other occasions where a breach for permitting a horse to run other than on its merits was arrived at”. The Appeal Body’s attention was also drawn to the responsibilities of a Trainer under Rule 148(i) and Rule 213.
20. Brouder gave evidence that can be summarised as follows:

• It was his first time riding Strong Roots and his instructions for the Race, given to him in the parade ring were, to get into position whenever he felt comfortable that the horse was ready.
• He confirmed that he adopted a conservative position and that on the back straight he did not consider that the horse was travelling as well as he would have liked. He was not happy with the horse throughout the race.
• He conceded he could have been harder on the horse and did slap and squeeze her, but his view was that she was a 9-year-old mare and should not need it, further it was not his style to go straight for the stick. He admitted he could have been harder on her on the back straight but did not feel “she was good. I didn’t want to be hard on her in case she didn’t get home”.
• In relation to the gap at the second last, he gave evidence that he could not go through the gap “in case it closed on her”.
• He reiterated his evidence before the Referrals Committee enquiry including that he lost his balance following the final jump but got “straight in behind her after” and raced to the line.
• He confirmed that he did not appeal his sanction under Rule 212A(i) and (ii) because he wanted to serve it and move on. He admitted that with hindsight he would have done things differently but that is part of the learning curve.

21. Both Parties recognised and appreciated that Rule 212A is one of the cardinal rules of the sport in that it protects the integrity of racing.

Decision

22. In accordance with Rule 271 the standard of proof to be applied to this matter is the balance of probabilities.
23. Rule 148(i) provides that a Trainer is responsible for everything connected with the welfare, training and running of all horses under his/her care including any sanctions that a hearing body may apply “unless the Trainer provides a satisfactory explanation.”
24. The Appeals Body was of the view that a running and riding situation arose in the Race in contravention of Rule 212A (i) and (ii).There were inconsistencies in Mr. Fahey’s account of the Race between the Referrals hearing and the Appeal hearing, and the Appeals Body was not persuaded on the balance of probabilities that he had given a satisfactory explanation for the running and riding of his horse, Strong Roots, which he accepted was not sufficient to meet the requirements of Rule 212A (ii). If Mr. Fahey’s instructions to the Rider were as he outlined at the Appeal hearing, then there was no reason provided as to how, the Rider fell so far short of implementing those instructions. A Trainer plays a key role, recognised by Rule 148(i), in determining the shape of the race their horse will run. The culmination of the component parts of the Race, where Mr. Fahey’s horse had opportunities to perform better led the Appeals Body to reasonably conclude, in the absence of a satisfactory explanation that the horse was intentionally not run on its merits. The Appeals Body determined not to uphold the Appeal.
25. Having heard from the Appellant in relation mitigation including his clean disciplinary record over a long career, the Appeals Body determined that the sanctions imposed by the Referrals Committee at first instance were appropriate and should not be altered – namely a fine of €6,000 on Mr. Fahey and consistent with Rule 212C (d), the suspension of the horse Strong Roots from running for a period of 90 days.
26. The appeal fee shall be retained by the IHRB. A costs application made by the IHRB for the transcript of the Appeals hearing, are considered in the unusual circumstances of the case to have been necessarily obtained as part of the disciplinary procedures and therefore shall be borne by the IHRB. No other costs are awarded.
27. The Appeals Body decision in this matter was conveyed orally to the Parties at the conclusion of the hearing. The reasoned decision of the Appeals Body is as set out herein.

The case was presented by Mr. Michael Daly, IHRB Regulatory Legal Advisor and Mr. Liam Walsh, IHRB Stipendiary Steward and Mr. Fahey was represented by Mr. Andrew Coonan of Coonan Cawley Solicitors, Naas, County Kildare.