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Viera v. Illinois Racing Bd.

OPINION FILED OCTOBER 12, 1978.

HECTOR VIERA, PLAINTIFF-APPELLEE,

v.

THE ILLINOIS RACING BOARD ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

The plaintiff, Hector Viera, a thoroughbred jockey, was suspended for 10 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, par. 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 ...


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