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Wednesday, August 08, 2007

Notes - Aug 8

- Thanks to reader lawman lawboy for his first hand account of the proceedings at the Albany Law School seminar. And it's true that some of the more interesting comments were not reported in the press. He also came away from Frank Mauro's presentation with a totally different impression than did Steve Crist, who wrote after hearing the same discussion that NYRA's land claim is the kind of arcane legal/legislative issue that could keep 100 lawyers on each side arguing for decades. The clear indications are that the state is not willing to take the risk.

The proposed contract that would make Getnick and Getnick, NYRA's one-time federal monitor, its $125,000-a-month "business integrity" adviser was also a subject of discussion. NYRA is seeking to give the firm the deal without competitive bids. You may recall that its racino contract with MGM Grand was also awarded on a no-bid basis. That action was widely criticized, but apparently that criticism didn't have much of an impression on NYRA. Bennett Liebman, the organizer of the conference, told the AP the other day that the contract raises the question of whether "Getnick & Getnick is being rewarded for writing a favorable report two years ago about the New York Racing Association."

The Saratogian quotes Richard Rifkin as saying: "There is no governor's plan....He has never articulated a plan." I know that he was trying to make the point that we shouldn't assume that the reports leaking out of his office are true, but in doing so, he was likely and unwittingly informing us as to just how little attention the governor has really paid to this whole affair. With less than four weeks until his scheduled announcement, it's hardly reassuring to hear his legal counsel tell us that he has no plan.

And the paper also reports that Gary Pretlow contradicted statements by Rifkin that Spitzer has met with legislatures about the franchise.

"They (Spitzer's office) have not met with the legislature, they have not met with me. Contrary to what Mr. Rifkin just said, there have not been several meetings with the legislature, because I would have been part of them."
"If he (Spitzer) recommends closing Aqueduct it's not going to happen. There will be a lot of contentious debate on that and I'm pretty sure that myself and people who agree with me will win out." [Saratogian]
While I hope that Pretlow is correct about the Big A, I certainly hope he's wrong when he said that he wouldn't be surprised if whoever doesn't get the franchise decides to sue the state. Oh man.

- I haven't used my OTB phone account since I started using NYRA's fine internet account wagering. But I received a mailing from them regarding a new program called OTBPay, by which one can move money from a checking account to the wagering account in minutes, either via the phone, internet, or at some OTB locations. It claims to be "the first OTB in the country to allow the use of electronic funds transfers.." (But you have to get to the back page to learn of the fees, ranging from 4.5 to 6.5%.)

If you click on the 'Funding' tab on the NYRA site, you get a message informing you that "Online funding funcionality is coming soon." That's a big piece that's thus far missing from the NYRA program. And it's also a reminder of the way that OTB competes with NYRA for our betting dollars. I must admit that I plan to enroll for the program in case of tap-out emergencies.

- The Arlington Million is coming up on Saturday, and it, as well as the Beverly D. for fillies and mares, and the Secretariat for three-year olds, are all part of the "win and you're in" Breeders Cup Challenge series. Neil Milbert, writing in the Chicago Tribune, notes that the rise of the two supporting stakes on the Million card have detracted from the big race.
Before the Beverly D. and the Secretariat attained their present stature it was commonplace to see fillies and mares and 3-year-olds running in the Million and acquitting themselves quite well.

A 3-year-old colt from England, Tolomeo, won the third running in 1983 and a 6-year-old mare from California, Estrapade, went to the winner's circle in 1986.

Other noteworthy performances were seconds by 4-year-old filly Royal Heroine in 1984 and 3-year-old filly Lady in Silver in 1989 and thirds by 3-year-old filly Madam Gay in the 1981 inaugural and 3-year-old colt Sunshine Forever in 1988.
No filly, mare or 3-year-old can be found on the list of eight horses pre-entered for Saturday's 25th running. [Chicago Tribune]
A field of eight is expected in the Million, headed by After Market, The Tin Man, and Sunriver.

- George Vecsey's column in the NY Times on Barry Bonds (linked here from the International Herald Tribune, no registration required) is worth a read no matter how you feel about his becoming baseball's all-time home run king. While acknowledging the controversy over his suspected steroid use and possible perjury before a grand jury, Vecsey writes: For one day, let's call a truce..
Nobody - and certainly not some chemist in a white smock - swung the bat for Bonds against objects moving 80 or 90 or 100 mph. He had to do that himself, with the superb reflexes he had as a cocky stripling, and the craft he acquired as a smug and enlarged elder.

No matter what anybody thinks about Bonds as a person, he walked out to home plate with a bat in his hand and some padding on his arms, and goodness knows what in his system, and he propelled baseballs into the briny deep.
So far the [steroid] tests have caught mostly fringe guys trying to earn that million-dollar season that will provide for their families. A lot of the positive tests were by pitchers trying to buy some muscle on their fastball. How many of the 756 home run pitchers were juiced? You think Barry Bonds was picking on innocents? [New York Times]


Anonymous said...

$125k per month for integrity review. I will go on record right now that I bid $25k per month for the same work, and I AM qualified.
Alan knows how to reach me.

What chutzpah from the Nassau OTB ass!

Yeah, its a hell of a lot easier to stay financially afloat when you DO NOT PUT ON THE SHOW, just steal the signal at state mandated below market rates.

You do so well that you can provide a Nassau OTB paid vehicle for all 50,000 executive employees, directors and members of their extend families.

No scandals, guess he forgot that one.

lawboy said...

A couple of points in follow-up to the other day:

MGM's no-bid contract had to be approved after the fact by the state legislature because it violated the bidding laws. So this (Getnick) is not the same type of situation. There’s no way the state legislature is going to save this smelly deal and while Getnick’s payments have to be approved by the bankruptcy court, the other creditors are going to object to him being paid before them and now they will make the point that it likely violates the bidding law.

Steve Crist is witty and entertaining, but when it comes to NYRA he wears blinders so he can't be distracted by the facts. Mauro's presentation was crystal clear and he provided copies of the chapter laws in the program binder, which clearly show legislative intent, i.e., that the state owns the land. Spitzer's lawyers (Pataki's too) bungled the whole land claim/bankruptcy. This is a winnable case and the state shouldn't give in to this blackmail attempt by NYRA.

I’m not a big fan of OTBs either, but the comment that they don’t put on the show and only steal the signal is simplistic at best. 80% of the handle comes in from off-track, while the people who put on the show in NYS are bankrupt and owe hundreds of million of dollars to the state, local governments, horsemen, vendors etc. The new copper roofs and wood floor at the Spa are great, but here’s NYRA taking all the credit for doing maintenance that they put off for years that they are only doing now because they got more taxpayer money.

So to recap – Spitzer’s people don’t know what they are doing, so why should we agree with them that the land claim might be lost? What would they do if they own the land but don’t have the state-granted franchise? Sell it all to developers? Turn Saratoga into a museum for a great sport that they helped drive into the ground?

alan said...

lawboy -

Thanks again for sharing your expertise and clarifications with us.

I have been wondering why the land claim issue has seemingly morphed from a near-lock for the state, to what almost amounts to a conditional surrender. So if I understand you correctly, you're basically saying that Spitzer's lawyers are simply shying away from a case you still believe they can win? Pataki too seemed to blink every time the issue was on the brink of heading to the courts to decide.

Regarding the OTB's, the reader's statement that they merely steal the signal may be simplistic, but personally I don't disagree with that premise. One can argue and apply cause and effect in many ways here, but it just seems to me that the fact that so much of the handle comes from OTB is a major reason that the people who put on the show are bankrupt.

And if NYRA ever lost the franchise but retained the land, certainly they would donate it to charity as the original trustees intended. Right? :)

Anonymous said...

Sorry, George Vecsey, no pass for Bonds despite the old refrain "everybody was doing it"; Vecsey's column is just more of the same sophistry attempting to justify the unjustifiable. Just remember that "everybody" isn't claiming the all-time home run record, arguably the most "sacred" of all American sports records. Interesting to note the sharp differences of opinion on the validity of Bonds' record- like so much else in this country it reflects the cultural divide between us. Let's hope we've heard the last of Bonds and his apologists unless it is news of the big phony's indictment. Paul Simon's unforgettable verse "Where have you gone, Joe DiMaggio, the nation turns it's lonely eyes to you" still says it all. /S/Green Mtn Punter

Anonymous said...

On the matter of title to the real estate being vested with NYRA, my 30+ years'experience in the real estate business tells me that the state is well aware of the difficulty of convincing a court to divest any person or entity of fee simple title without cause (not legislation), especially an entity such as NYRA which has held unchallenged fee simple title to the 3 tracks for 50+ years in addition to paying the real estate taxes assessed during that time. This is well established by common law and by precedent; shouldn't that be reassuring to every property owner that the state just can't come along and one day decide that you no longer have title to your property?! /S/ Green Mtn Punter

Anonymous said...

Green Mountain Punter -

I wish not to denigrate your decades of experience in real estate, but ... the NYRA lands situation is far removed from your typical home sale or business property lease. If you’re experienced in real estate, consider the arrangement similar to a life estate. The hold of the life estate must pay the taxes, maintain the property, etc. When the holder dies, the property passes. Basically put, the state is arguing:

NYRA could not have borrowed to purchase the lands without a long term state franchise. The State awarded them same. As a condition precedent, NYRA had to agree their assets, including the land, had to be distributed by the governor to charity. Not one year after the initial franchise, NYRA couldn’t meet their books and the State gave them additional take-out from the state’s share. In early 1980's NYRA wanted to borrow money for track rehabilitation. They came up with a plan to get the state to bond it. After years of negotiation, the State passed a statute allowing NYRA to borrow from a new entity, the Capital Investment Fund. Now, because the state had not only a vested interest in the land, but mortgages as well, the legislature changed the 1955 law to require the assets be distributed in accordance to applicable law instead of to charity.
NYRA borrowed against the Capital Investment Fund for years, recognizing the new law and new distribution requirements.

The state did not “just ... come along and one day decide that [NYRA] no longer ha[s] title to [their] property”. This was contemplated and accepted by NYRA in 1955 and updated by the legislature and accepted by NYRA in 1983.

The reason there is reluctance is that litigating the case to its conclusion is that NYRA may not act in the best interests of racing, they may just act in their own best interests. This could force a shut down of racing in the State, something no politician or his attorney general want on their watch.

Anonymous said...

NYRA should use the 125k per month to make the backstretch living condition improvements that were suggested by getnick. Instead nyra actually converted a dorm into Thybens saddle shop! They have no conscience. I hope lawboy is right I hate to see these just do as they please with no thought to the workers.