Maryland's Thoroughbred Racing Board, by a 3-1 vote, denied today a request by the owners of Genuine Risk to disqualify Codex as the winner of the Preakness Stakes on May 17.
In doing so, the board upheld the decision of the Pimlico track stewards that disallowed a foul claim by Jacinto Vasquez, Genuine Risk's jockey, saying the board would not interfere in the stewards' decision.
After an hour of closed deliberations that followed 2 1/2 days of testimony here, Robet W. Banning, board chairman, said the panel had found "no convincing evidence of no information that would make us change the stewards' decision."
Henry Lord, lawyer for Genuine Risk owners Bertram and Diana Firestone, said "There is some possibility there will be an appeal" of the board's decision. He said he would discuss the matter with the Firestones. If there is an appeal, the route would be through the Baltimore courts.
Dissenting from the board's decision was J. Neil McCardell. "I've seen 1,000 races a year for the last 20 years," McCardell said. "I know what a foul is. I don't feel right in the voting with my colleagues but I have to vote my conscience."
The fifth member of the panel, Robert W. Furtick, disqualified himself from hearing the case after statements attributed to him that appeared to be sympathetic to Genuine Risk's appeal appeared in newspapers. Furtick said he was misquoted.
The 2 1/2 days of testimony and film viewing focused on an incident that took no longer than one or two seconds, as the horses rounded the final turn into the homestretch.
In that short time, charged Genuine Risk's jockey, Jacinto Vasquez, Angel Cordero Jr., the rider of winner Codex, interfered with the filly, forcing her to run wide on the turn just as Genuine Risk was making her bid for the lead.
Vasquez also said Cordero bumped his horse, causing her to break stride, and hit her in the face with his whip.
After 10 minutes of deliberations and reviewing of films after the race, the three stewards -- J. Fred Colwill, Clinton Pitts Jr. and Edward Litzenberger -- disallowed the claim and declared Codex the winner, Genuine Risk, winner of the Kentucky Derby two weeks earlier, finished second. Both horses will meet again Saturday in the Belmont Stakes, the third jewel in horse racing's Triple Crown.
Expanding on the board's decision, Kenneth C. Proctor, a retired Baltimore county judge, said, "We start off with a presumption that the stewards' decision is correct. If there were not such a presumption, there would be no stability in racing."
This presumption, Proctor said, "places a burden on the appellants, in this case the Firestones, to convince us that the decision of the stewards was clearly and convincingly in error."
Neither the ABC television films of the race nor the testimony of the witnesses "do anything to upset the decision of the stewards," Proctor said. He added that because of the angle and the distance of the ABC cameras, that film of the race "is distorted particularly at the disputed point -- at the quarter-mile pole."
There is no question that Genuine Risk was carried wide on the turn, Proctor said. Whether the filly was carried wide enough to warrant disqualification, he said, "was a judgment call as far as the stewards were concerned. In my opinion we have no power or authority to upset a judgment call by the stewards."
The board's decision this afternoon followed a morning of testimony that disputed the foul claim.
D. Wayne Lukas, Codex's trainer, said he had breakfast with jockey Cordero the morning of the race and had told him that Codex "likes to run wide."
"This horse likes to run his own race," Lukas said he told Cordero, who rode Codex for the first time in the Preakness. "Get him running from the gate and in the stretch work you way outside. Go wide with him and let him run."
Cordero then told the panel, "I was ordered to run on the outside and I rode according to my orders." He denied forcing the filly wide at the turn and told the board that Codex was already running as wide as he would go in the race when Genuine Risk came abreast of him as she made her bid for the lead.
The closest Genuine Risk came, Cordero testified, was "when her head came up to my boot."
He never was hit the filly with his crop. Cordero said, and he never bumped her. Movement of his whip on the final turn, he said, came only when "I am hitting my horse on the shoulder with my whip in my right hand."
In reaching its decision, the board rejected Lord's argument that horse racing as an industry and a sport would be "seriously damaged by tolerating the violaitons of the rules that occurred in the Preakness." "The ruling of the stewards was clearly erroneous," Lord said. "Cordero used his whip to prevent the filly from getting by because we all know what happend once a horse is passed. He is usually no good anymore."
But Glenn E. Bushel, one of the lawyers for Mr. and Mrs. James Binger, the owners of Codex, told the board that "this case aptly demonstrates why lawyers and even racing commissioners have no business judging foul claims in a race.
"These are purely matters of judgment and there will always be differences of opinion," said Bushel. "That has always been part of the game and that is what made racing what it is."
The Firestones were not available to comment on the decision.