Mauritius: Horseracing Season 2022 - Ready, Get Set... WHAT A MESS!

Yahia Nazroo is a passionate advocate for fairness in, and development of, the sport of horseracing in Mauritius. He is a founder member of the Mauritius Turf Club. The views he expresses in this article are his own personal views and do not bind anyone except himself. It does not constitute advice and is meant to be a constructive discussion about the changes to the landscape of the horseracing industry in Mauritius.

On the 21st January 2022 the coming into force of legislative amendments to the Gambling Regulatory Authority Act 2007 has drastically changed the landscape of the horseracing industry. This article seeks to analyse, in the simplest language, the changes to the law and its impact on the organisation of horseracing in Mauritius after this sport has been organised and controlled for the past 210 years by a non-profit organisation, The Mauritius Turf Club (MTC) and more recently (for racing season 2021) by a public limited company, the MTC Sports and Leisure Ltd (MTCSL).

Background

An industry which generates Rs 6.2 BILLION in GDP, 2170 jobs and Rs 679 MILLION of Government Revenue

The horseracing industry is fundamentally important both for Government and for the population at large.

An independent study finalised in June 2019, "Economic impact assessment of the Mauritian horseracing industry", quantified and captured the economic and social impact of horseracing industry on the Mauritian economy. [1]

The relevant statistics as set out in that report are:

Horseracing and related activities are among the top 15 best things to do in Mauritius as of June 2019 and the most visited sports event on the island with 226,847 racegoers in 2018;

Horseracing is the most viewed event on TV in Mauritius; it reaches 510,000 households;

11 million views on the YouTube Channel for the 2018 season;

In 2018, the industry generated Rs 6.2 BILLION in GDP, 2170 jobs equivalent of Rs 2 billion of labour income and Rs 679 MILLION of Government Revenue (tax revenue 63% from bookmakers and 34% from Tote operators);

Betting tax represented 29% of the total gambling revenue collected by Government;

Rs 2.7 billion of betting tax was paid to the Government over the last 5 years (2013 to 2018);

The largest single share of the industry's contribution to employment comes from the operations of the MTC with 32% of the employment;

Out of 2170 jobs created by the horseracing industry, 766 were full time jobs while 1404 were part-time jobs. MTC makes the biggest contribution to full time employment while tote operators create the highest number of part-time jobs.

The Commission of Inquiry into Horseracing in Mauritius

The recent changes to the horseracing industry stem from the findings of the Commission of Inquiry into Horseracing (COI). The COI made several recommendations to improve an industry that has been struggling for many years for various reasons amongst which were a lack of vision and leadership from those who were in a position of responsibility for the improvement of this industry. The writing has been on the wall for a very long time but nobody took heed.

The industry is on the brink of collapse. Whilst there was a glimmer of hope with a Government announcement that it would implement the recommendations of the COI, the approach that Government adopted is leaving very little hope for the industry to survive. One of the reasons is that Government has been ill-advised in how to revamp this industry and prevent its collapse.

A Horseracing Authority- An Independent Institution

One of the most important recommendations of the COI was to create an 'independent institution', in the form of a Horseracing Authority to overview the horseracing industry and horseracing activities.

The legislative amendments brought to the Gambling Regulatory Authority Act 2007 (GRA Act) seem to have done exactly the contrary of what the COI recommended. The amendments do not provide for the creation of an independent institution; instead a department has been created within the Gambling Regulatory Authority (GRA)- the Horseracing Division (HRD)- to 'control' horseracing activities.

To understand the inter-relationship between the GRA and the HRD, one needs to look at the objects and functions of the GRA and the HRD.

Part II, Section 4(b) of the GRA Act, provides:

4. Objects of Authority

The objects of the Authority shall be to -

(... )

(b) regulate and monitor the organisation of horse-racing;

(c) promote public confidence in the integrity of the gambling industry and the horse-racing industry;

Section 6 of the GRA Act provides:

6. Functions of Board

The Board shall have such functions as are necessary to further most effectively the objects of the Authority and in particular to -

(a) ensure that a horse-racing organiser effectively discharges its responsibilities regarding the organisation of horse-racing in all its aspects, including safety, comfort and standards of hygiene, security, discipline and the prevention of fraud;

(aa) ensure, where a horseracing organiser is paid such amount as the Board may determine by a totalisator operator, a bookmaker, a sweepstakes organiser or an operator of dart games to use its race cards and fixtures, that the horseracing organiser does not prevent the totalisator operator, bookmaker, sweepstakes organiser or operator of dart games from using its race cards and fixtures;

(b) ensure that there is transparency and good governance in the conduct of gambling, lottery games, sweepstakes and lotteries and in the organisation of horse-racing;

Interestingly, section 3 (2) of the GRA Act provides that:

(1) There is established for the purposes of this Act the Gambling Regulatory Authority which shall be a body corporate.

(2) The Authority shall comprise -

(a) the Office of the Chief Executive; and

(b) the Inspectorate Division, the Investigations Division, Internal Audit Division and such other divisions as may be set up by the Board;

(c) the Horseracing Division established under section 15A.

Parliament has made it clear that the body which regulates and monitors the organisation of horseracing is the Board of the GRA. The HRD is nothing more than a department under the direct control and supervision of the Board of the GRA.

The Gambling Regulatory Authority, the Horseracing Committee, the Horseracing Division and the Horseracing Organiser: Who organises and who controls?

The amendments have also created a Horseracing Division (HRD) and Horseracing Committee (HRC).

The Horseracing Division

The opening section 15A (1) of the GRA Act speaks of "... established, within the Authority, a Horseracing Division... " The HRD is therefore nothing else but a department of the GRA under the direct supervision of the Board of the GRA and which "reports to the Chief Executive Officer" of the GRA for "administrative and policy matters."

PART III A - HORSERACING DIVISION (HRD)

15A. Establishment and objects of Horseracing Division

There is established, within the Authority, a Horseracing Division which shall -

regulate, control and monitor the organisation of horseracing activities;

promote public confidence in the integrity of the horseracing industry by ensuring proper standards of conduct and competence;

ensure that horseracing is fair, clean and free from corruption or malpractice;

ensure that there is a clear and transparent framework for access to participation in horseracing;

promote the welfare and leisure of the racegoing public.

Subject to section 10, the Board may delegate to the Horseracing Division such powers and functions as the Board may determine to enable the Division to fulfil its objects.

The Horseracing Division shall, in respect of administrative and policy matters, report to the Chief Executive.

The HRD seems to have more powers than the Board of the GRA. The subtle introduction of the word "control" in Section 15A (1) (a) of the GRA Act gives what seems to be extra power to the HRD, which the Board of the GRA itself does not have.

However, when reading of Section 15A (2) of the GRA Act, it is clear that the powers of the HRD are delegated to it (subject to Section 10 of the GRA Act) by the Board of the GRA. Then, what of the "control" which the HRD has but which the Board of the GRA does not have?

Can a statutory body which does not have the power to "control", delegate to a department within itself, such a power? Would our Courts find that this power of the HRD to "control" is ultra vires the GRA Act?

Place your bets: will there be a subtle introduction of the word "control" within Section 4 (b) of the GRA Act by way of an amendment in the next Finance (Miscellaneous Provisions) Act 2022 (or any other piece of legislation which will provide for an amendment to the GRA Act) to remedy what seems to be a mistake?

The Horseracing Committee

The Horseracing Committee (HRC) has been created under Section 15B of the GRA Act:

15B. Horseracing Committee

The Horseracing Division shall be administered and managed by a Horseracing Committee which shall be appointed by the Board on such terms and conditions as the Board may determine.

The Horseracing Committee shall consist of -

a chairperson, to be known as the Head of the Horseracing Division;

a vice-chairperson, to be known as the Integrity Officer;

a veterinarian;

an operations officer;

an accountant;

a legal officer;

a communication and media officer; and

such other officers as the Board may appoint.

( ... )

The HRC administers the HRD. The HRC is appointed by the Board of the GRA on such terms and conditions as the Board may determine. That appointment process within the hands of the Board of the GRA confirms that the HRC (and the HRD which the HRC administers) is under the direct control and supervision of the Board of GRA.

It is also apposite to note that the Chairperson of the HRC is also the Head of the HRD, one Mr Wayne Wood. Mr Wood is answerable to the Chief Executive Office of the GRA and ultimately to the Board of the GRA.

Is this what the COI recommended? NO, because an independent institution cannot have the person at its head answer to a CEO and a Board.

The functions of the HRC are defined under Section 15C of the GRA Act:

15C. Functions of Horseracing Committee

The Horseracing Committee shall -

ensure that a horseracing organiser effectively discharges its responsibilities regarding the organisation of horseracing in all its aspects, including safety, comfort and standards of hygiene, security, discipline and the prevention of fraud;

ensure that there is transparency and good governance in the organisation of horseracing;

protect the integrity of horseracing;

initiate, develop and implement strategies conducive to the development of horseracing and the protection of the public in relation to risks inherent to horseracing;

coordinate with the Police des Jeux for the prevention of illegal acts in connection with horseracing;

be responsible for horse race planning, including the preparation and publication of the horse race calendar, fixtures lists, nominations and racecards;

conduct disciplinary proceedings that may arise in relation to the conduct of horseracing;

issue personal management licences under section 93B;

set and enforce standards of medical care for jockeys and other participants in horse races;

approve and licence equestrian centres and workout programmes;

approve the importation of racehorses;

set and enforce standards for racecourses;

conduct research and development in equine science and welfare;

issue and enforce the Rules of Racing, other rules and guidelines and directions;

set up panels of racing stewards;

register stables and owners;

register trainers, jockeys, riders and other horseracing professionals;

employ and issue directions to racecourse officials;

issue rules, directions and guidelines to any horseracing organiser to-

provide for veterinary services;

ensure the safety and security of racehorses;

ensure anti-doping measures; and

procure laboratory services for testing of equine blood, urine and other samples;

(... )

The Horseracing Committee may set up such units as may be necessary to conduct such functions as the Committee may determine.

The Minister may make such regulations as he thinks fit for the purpose of enabling the Horseracing Committee in the discharge of its functions.

The new provisions seem to suggest that GRA/HRC/HRD controls the organisation of racing in Mauritius and the horseracing organiser.

The Horseracing Organiser

What then is left for the Horseracing Organiser to do in this new set up?

The legislator has provided for the licensing and the duties of a horseracing organiser under Part VII, Sections 30 and 31 of the GRA Act:

Licensing of horse-racing organiser

No person shall be a horse-racing organiser unless he holds a horse-racing organiser licence.

No horse-racing organiser licence shall be issued unless the appropriate licence fee specified in the Third Schedule is paid to the Authority.

Duties and shareholding of horseracing organiser

A horseracing organiser shall, in respect of a race meeting held at the racecourse it manages -

implement the Rules of Racing, rules, guidelines and directions issued by the Horseracing Division;

arrange, not less than 2 days before the race meeting, for the stabling of all horses on the official racecard at a race meeting in an area monitored by closed circuit television and security officers;

report to the Horseracing Division or chief stipendiary steward for that race meeting, not less than 2 days before the race meeting, the absence of a horse listed on the official racecard;

authorise no person, other than the officers of the Horseracing Division or trainers and their approved representatives, to have access to quarantined horses;

under the supervision of the Horseracing Division, collect, from the horses listed on the official racecard, blood, urine or other sample for immediate remittance to such laboratory as the Horseracing Division may approve;

monitor and record in an official logbook, in the presence of an officer of the Horseracing Division and a security officer of the horseracing organiser, particulars of all care and treatment given to a horse on the official racecard;

ensure the availability and maintenance of equipment required for the race meeting, including starting gates, photo finish, public address system, closed circuit television, race vision, wagering machines, and other electrical equipment;

ensure that the race track is in proper condition by providing for -

a smooth and safe racing surface;

safe and secure running and outside rails;

properly trained starter and barrier handlers;

sanitisation of and, where required, bedding in sample collection and saddling areas; and

an appropriate animal welfare environment;

ensure compliance with applicable health and safety requirements;

ensure that prompt and rapid medical attention is dispensed to injured jockeys, grooms and general staff;

ensure that at least one fully equipped ambulance is available at all times during the race meeting;

maintain an alarm system to notify the presence of any unattended horse on the ground;

provide, at the racecourse, 2 days before and 2 days after the race meeting, the services of an equine veterinarian licensed by the Horseracing Division; -

provide proper infrastructure, including interview rooms, facilities for viewing of race videos from different angles and any other ancillary infrastructure to assist the stipendiary stewards in their duties;

ensure the prompt dissemination of the official results of races to the Horseracing Division, the media and the public;

give fair treatment to all stakeholders, including owners, trainers, riders, patrons, betting operators, dart games operators, food and beverage sellers.

( ... )

All the powers provided to the HRD/HRC/GRA are worthless if there is no horseracing organiser.

One does not become horseracing organiser overnight; it is in the best interests of the industry that the licensor (GRA) (and/or its department/committee/division) has a good and solid working relationship with its licensee, the horseracing organiser.

At the time of writing this article, there was no licensed horseracing organiser in Mauritius. Who then decided that races would start on the 9th April 2022? The next tentative date for races to start is the 23rd April 2022 and this still looks like it will be a false start.

Will the Horseracing Organiser actually organise races?

A close reading of the wording use in Section 31 (1) of the GRA Act, suggests that the horseracing organiser does not "organise" races, it merely 'manages' the racecourse where races are organised.

A horseracing organiser shall, in respect of a race meeting held at the racecourse it manages ...

This is fundamentally different from what the former horseracing organisers did previously.

A horseracing organiser's role has been restricted to managing the race course only. The amendments have stripped the horseracing organiser of all the fundamental functions it had been performing for the past 210 years.

The horseracing organiser will henceforth merely act under the instructions of a department of the GRA (the HRD) which will attempt to perform the following fundamental functions:

horse race planning, including the preparation and publication of the horse race calendar, fixtures lists, nominations and racecards;

conduct disciplinary proceedings that may arise in relation to the conduct of horseracing;

issue and enforce the Rules of Racing, other rules and guidelines and directions;

set up panels of racing stewards;

register stables and owners;

register trainers, jockeys, riders and other horseracing professionals;

employ and issue directions to racecourse officials;

This begs the question: how will the horseracing organiser discharge its duties of implementing the Rules of Racing which is imposed upon it under Section 31 (1) (a) of the GRA Act?

The Rules of Racing

Whose Rules of Racing are they?

The most important tool to control horseracing activities is the Rules of Racing. These Rules of Racing have always been known as the MTC Rules of Racing. The MTC Sports and Leisure Ltd[2], has made use of these same Rules of Racing after they were recast to adapt the changes brought about by the amendments in the GRA Act.

Up until 2021, the definition of the Rules of Racing under Section 2 of the GRA Act was:

"means the Rules of Racing made by a horseracing organiser governing the organisation, conduct, regulation, control, supervision and management of horseracing."

This section was amended by the Finance (Miscellaneous Provisions) Act 2021 and the new definition of the Rules of Racing now reads:

"means the Rules of Racing made by the Horse Racing Division governing the organisation, conduct, regulation, control, supervision and management of horseracing."

With the coming into force of Section 15D of the GRA Act, the Rules of Racing, by the stroke of the pen, now belongs to the HRD/HRC/GRA and are now known as the HRD Rules of Racing.[3]

A close look at these so-called "HRD Rules of Racing" shows that it is largely a reproduction of existing MTC/MTCSL Rules of Racing with some changes to reflect the legislative amendments of 2021.

This is not a simple matter. The Rules of Racing could potentially become the subject matter of a long court battle if the MTC/MTCSL seeks to protect its intellectual property rights in its original work. An application for injunctive relief is one option open to the MTC/MTCSL. Ultimately it will be for our Courts to decide on the matter but if there is such an application, until it is determined, this could become another cause to delay the 2022 racing season.

Implementing the Rules of Racing

Section 15D of the GRA Act has created an obligation upon the horseracing organiser to "implement the Rules of Racing, rules, guidelines and directions issued by the Horse Racing Division":

15D. Rules of racing

A horse racing organiser shall implement the Rules of Racing, as well as any other rule, direction or guideline, issued by the Horse Racing Division, that affect the organisation of horse racing.

The Rules of Racing, any other rule, direction or guideline issued by the Horse Racing Division shall be consistent with -

this Act;

the regulations made under section 164;

the directions given under section 100; and

such international best practices as the Horse Racing Committee may approve.

There are multiple difficulties with this Section but the most important one is how will a horse racing organiser discharge its duties to implement the Rules of Racing when these Rules of Racing are administered by the HRD/HRC/GRA through racing officials and a panel of Racing Stewards that are employed and controlled by the HRD/HRC/GRA?

Previously, all racing officials and the panel of racing stewards were appointed by the horse racing organiser. With the advent of the legislative amendments to the GRA Act, the horse racing organiser,

neither employs nor issues directions to racecourse officials;

it does not set up the panels of racing stewards;

it does not conduct disciplinary proceedings that may arise in relation to the conduct of horse racing;

it does not register stables and owners;

it does not register trainers, jockeys and other horseracing professionals.

All of these above-mentioned functions now rest solely with the HRD/HRC/GRA. It will therefore be challenging for a horseracing organiser to effectively (and practically) "implement the Rules of Racing." And that is only the beginning of the problem.

The assets of the MTC/MTCSL, the former horseracing organiser

We now look at how the MTC/MTCSL will deal with its assets under Section 31 (1) (g) and (n) of the GRA Act if it is licensed as a horseracing organiser in 2022:

A horse racing organiser shall, in respect of a race meeting held at the racecourse it manages -

ensure the availability and maintenance of equipment required for the race meeting, including starting gates, photo finish, public address system, closed circuit television, race vision, wagering machines, and other electrical equipment;

provide proper infrastructure, including interview rooms, facilities for viewing of race videos from different angles and any other ancillary infrastructure to assist the stipendiary stewards in their duties;

If the MTC/MTCSL is not the horseracing organiser for season 2022, it will not have any obligation to provide to the HRD/HRC/GRA any of the above infrastructure/equipment/assets.

The MTC/MTCSL has over the years developed a sophisticated and reliable monitoring system through the equipment it has acquired to ensure a proper and adequate policing of the races in Mauritius. It cannot be disputed that this would have come at a cost and would have involved the training of those who operate the equipment.

It would make sense that the owner of these assets is adequately compensated for any use of such equipment by a third party and/or use of the human resources it employs to operate the equipment. Would the MTC/MTCSL not stand to lose significant income if such equipment and human resources are 'requisitioned' by the HRD/HRC/GRA through the imposition of an obligation upon the horseracing organiser to make these readily available? And that is if and only if the MTC/MTCSL is granted the licence to be the horseracing organiser.

It is worthy to note that the legislative amendment has not (and legally it could not) imposed such an obligation to provide these infrastructure and facilities free of charge. It is likely that the horseracing organiser and the HRD/HRC/GRA would need to establish a mechanism that would cater for the continued use of the equipment and human resource whether through the payment of a rental fee or any other form of compensation for the use of these equipment.

The other assets that belonged to the horse racing organiser (formerly the MTC/MTCSL), are the racecards, the fixtures and the results.

Fixture Lists and Racecards

Under Section 15C (1) (f) of the GRA Act the Horse Racing Committee shall -

"be responsible for horse race planning, including the preparation and publication of the horse race calendar, fixtures lists, nominations and racecards."

The preparation and publication of the fixture lists (also known as fixtures), nominations and racecards have been for years the sole responsibility of the horseracing organiser. Section 15C (1)(f) of the GRA Act has shifted this responsibility over to the HRD/HRC/GRA. This has given rise to the issue of intellectual property rights which subsists in racecards and fixtures; these have been designed, formatted and published by the MTC/MTCSL as part of their racing products for the organisation of horse racing in Mauritius.

Prior to Section 15C (1)(f) GRA Act, the use of racecards and fixtures of the horse racing organiser was governed by Section 33 of the GRA Act:

"(1) A totalisator operator, a bookmaker, a sweepstakes organiser or an operator of dart games shall, to use the race cards and fixtures of a horse racing organiser, pay to the horse racing organiser such amount as the Board may determine.

Where a totalisator operator, a bookmaker, a sweepstakes organiser or an operator of dart games has paid the amount required under subsection (1), the horse racing organiser shall not prevent the totalisator operator, a bookmaker, a sweepstakes organiser or an operator of dart games from using its race cards and fixtures."

The law provided for compensation to the horse racing organiser for use made of its racecards and fixtures because the totalisator operator, a bookmaker, a sweepstakes organiser or an operator of dart games were commercially exploiting the fixtures and racecards by providing these to members of the public for the purpose of placing bets on horse racing as part of the conduct of their business.

Interestingly, the amended Section 33 of the GRA Act still provides for the payment of a fee to the horse racing organiser but fails to state for what:

"A totalisator operator, a bookmaker, a sweepstakes organiser or an operator of dart games shall pay to a horse racing organiser such fees as the Board may, from time to time, determine."

The following words have disappeared from the new section, "to use the racecards and fixtures of a horse racing organiser" which seem to suggest that the horse racing organiser would no longer be able to exploit its legal rights which subsist in the fixtures and race cards as it has done for a number of years; such rights have been taken away through a stroke of the pen.

Ironically, Section 6 (aa) of the GRA Act has not been amended and still provides for payment to a horse racing organiser "to use its racecards and fixtures":

"(aa) ensure, where a horse racing organiser is paid such amount as the Board may determine by a totalisator operator, a bookmaker, a sweepstakes organiser or an operator of dart games to use its race cards and fixtures, that the horse racing organiser does not prevent the totalisator operator, bookmaker, sweepstakes organiser or operator of dart games from using its race cards and fixtures;"

There are two interpretations to give to this section which is still within the law: (a) it is yet another mistake by the drafters of the amendments or (b) the legislators recognise that the horse racing organiser has legal/intellectual property rights in the racecards and fixtures from which it will continue to derive an income for any commercial exploitation made of it by a totalisator operator, a bookmaker, a sweepstakes organiser or an operator of dart games.

Place your bets: will there be a subtle removal of some words in Section 6 (aa) of the GRA Act in an amendment brought within the next Finance (Miscellaneous Provisions) Act 2022 (or any other piece of legislation which will provide for an amendment to the GRA Act)?

We now look at the heart of the races: the panel of racing stewards, which police the races.

The Panel of Racing Stewards set up by the HRC/HRD

Definition of 'Racing Steward'

The definition of a racing steward under Section 2 of the GRA Act is:

"A person to whom responsibility is assigned by a horse-racing organiser for detecting and sanctioning any malpractice in horse racing."

Again, it seems that that the drafters of the amendments to the GRA Act have mistakenly omitted to amend the definition of a racing steward inasmuch as the responsibility no longer rests with the horseracing organiser. It is the HRD/HRC/GRA who sets up the panel of racing stewards.[4]

Role of Racing Stewards

Racing Stewards police the races and ensure that there is a level playing field for all the stakeholders who are bound by the rules of racing. The post of racing steward requires good communication skills to deal with people in tense situations such as during an inquiry or a hearing. Racing Stewards must have a thorough understanding of the Rules of Racing in the jurisdiction they exercise and be able to stay focused and calm in stressful situations when dealing with stakeholders who can be angry or dissatisfied with the manner in which a race has been run. They must also be able to objectively analyse any information brought to them and be able to recognise any betting trends/information that could be suspicious.

It has transpired through report in the local press (and the author has not seen any communique to the contrary issued by the HRD/HRC/GRA) that the stipendiary stewards hired by the HRD/HRC/GRA are foreigners. Common sense would suggest that these stipendiary stewards would not have (or would have very limited) experience of horseracing in our jurisdiction. Although we have seen in the past foreign Chief Stipes chairing the Board of Racing Stewards in Mauritius for the horseracing organiser, they have been greatly assisted in their task by locally experienced racing stewards.

Sufficient understanding of local Rules of Racing

Can we have horse racing in Mauritius with stipendiary stewards who do not have sufficient understanding of local races/local rules of racing? Tricky, one would think. It cannot be disputed that our jurisdiction is one of its kind and has followed certain trends which are different in other racing jurisdictions. Our local rules of racing which contain many similar provisions as other racing jurisdictions, also contain its own very particular rules which only experienced and seasoned racing stewards having worked in Mauritius would understand and know how to apply them.

Consistency in approach of decision-making process by Panel of Racing Stewards

It is essential for any racing jurisdiction to keep a consistent approach every racing season and for this to happen, it is necessary to have racing stewards with sufficient knowledge of how the rules of racing have been applied in past racing seasons in Mauritius for such consistency to prevail. Such knowledge would include being familiar with past decisions taken for example when a horse has interfered with another horse and ought to be disqualified, whether the French or the English approach is applied to decide on such disqualification, what criteria has always been applied and how has it been applied etc. Another example would be, what sanctions to apply to jockeys for careless riding. The understanding of how previous sentencing patterns were applied is essential to ensure such consistency of approach.

Knowledge and Understanding of previous practice in Mauritius

Both examples would require a good understanding of what approach was adopted by previous panels of racing stewards in past years, what the sentencing pattern has been and re-offenders have been sanctioned in the past etc. The only way this will be possible is that the panel consist of sufficiently experience racing stewards with thorough knowledge, experience and understanding of precedents who can assist the foreign stipendiary stewards (including a Chairman of the panel or Chief Stipe) so that the Board of Racing Stewards command respect when dealing with tense situations which are so familiar with in Mauritius. Only then would there be justice done and seen to be done for those who would appear before that panel and be subject to sanctions for breaches of the Rules of Racing. It will further ensure that the decision-making process is not tainted with a lack of understanding of previously applied principles based on strong precedents which have maintained the level of integrity expected of an internationally respected jurisdiction.

Access to data on previous decisions of Racing Stewards

It is also essential for the newly constituted panel of racing stewards appointed by the HRC/HRD/GRA to have access to data which is owned and have been gathered during numerous racing seasons by the horse racing organiser, which had, until this season, the responsibility of policing races. Such data has a value and the owner of that data would be expected to share same at a cost since it carries intellectual property rights which would attract the same protection as would the racecards, the fixtures and the Rules of Racing.

Can a Handicapper be a Racing Steward under Rule 20 of the Rules of Racing?

News has recently been reported in the press about a racing steward who will also hold office as a handicapper. It would unlikely serve the interest and integrity of the horseracing to allow a person to hold both the office of handicapper and that of a racing steward, two roles which ought to remain separate and distinct. The reason is found in Rule 126 (b) of the Rules of Racing where the handicapper is under the supervision of the Chairman of the Stipendiary Steward for weight allocation. There is bound to be situations of conflict between holding the office of racing steward and that of a handicapper in respect of matters pertaining to handicapping which are ultimately resolved by the panel of racing stewards as provided for under the Rules of Racing. In any event, Rule 20 of the Rules of Racing as gazetted on the 5th March 2022 does not allow a person to hold more than one of the offices set out under Rule 18 concurrently.

Appealing the decisions of Racing Stewards

It will come as no surprise that many decisions of the panel of racing stewards of the HRD/HRC/GRA would be appealed against under Rule 287 of the Rules of Racing to the Appeal Committee of the GRA set up under Section 7(1) (ga) of the GRA Act and the Gambling Regulatory Authority Appeal Committee (Decision of Administrators and Racing Stewards) Regulations 2020 ("the Regulations") [Government Notice 293 of 2020]. We now turn to briefly look at how the appointment of the panel of racings stewards by the HRD/HRC/GRA would potentially create a real likelihood of bias when ultimately the decision complained of is determined by an appeal committee appointed by the... GRA itself.

The Appeal Committee of the GRA

Previously the GRA itself complained to the horseracing organiser that it could not appoint the panel of racing stewards and its own appeal committee. The complaint was based on the perception of bias as the horseracing organiser was doing both, employing the racing stewards who took the decision which was then appealed to the horseracing organiser's own appeal board, with members of the MTC (the MTC was at the material time the sole horseracing organiser) appointed to sit on such appeal boards.

Composition of the Appeal Committee of the GRA

Today, the Appeal Committee of the GRA is chaired by (and consists of) members of the MTC (both 'member a vie' and founder members). The point was raised before the Appeal Committee in the appeal of jockey Balkrishna Bhaugeerothee on the ground that:

"There is a real likelihood of a perception of bias inasmuch as two of the members of the Appeal Committee of the GRA as presently constituted, are members of the Mauritius Turf Club, the sole shareholder of the MTC Sports and Leisure Ltd."

In that case, the Appeal Committee of the GRA was chaired by a 'Membre a Vie' of the MTC and one of the Committee members was a founder member of the MTC. In a ruling dated 12 August 2021, the Appeal Committee found that:

"In any event, the Chairman of the Appeal Committee is a nominal member of the MTC and has had no active participation in the affairs of the MTC either as a Racing Steward or as a Steward since 1999. The Chairman has not attended race-meetings (except for one Maiden Race some four years ago at the invitation of a friend). He has had no association with the Administrators of the MTC. He has not responded to invitations to attend any of the dinners or other functions of former stewards of the MTC and has had no association with the MTC since he was an active member in 1999."

Let us add an extra ingredient to this situation for the sake of discussion:

If the 'Membre a Vie' of the MTC, Chairman of the Appeal Committee of the GRA and his fellow appeal committee member, founder member of the MTC, exercised their respective voting rights (in person or by a proxy form), at the AGM[5] of the MTC, the sole shareholder of MTCSL[6], at the election of administrators who were subsequently appointed as Directors of MTCSL, would a fair-minded observer conclude that there is no likelihood of a perception of bias on the part of these two members of the Appeal Committee of the GRA?

Should the GRA be using members of the MTC to adjudicate on appeals where the MTCSL is a party to the appeal? Do these appointments of members of the MTC, the sole shareholder of MTCSL, to hear appeals where the MTCSL is involved as a respondent, comply with the core principles of National Code of Corporate Governance which apply to the Gambling Regulatory Authority[7]?

From MTC to GRA: has anything changed?

What has changed with the amendments brought by Parliament to the GRA Act? Ironically the situation that existed at the MTC has been transposed to now exist at the GRA; let us analyse it.

Section 7 (1) (ga) of the GRA Act provides that:

"(1) The Board shall have such powers as are necessary to enable it to effectively discharge its functions and in particular to -

(ga) on receipt of a complaint, or on its own initiative, set up an appeal committee consisting of such persons as it may determine to review the decisions of a racing steward;"

This section provides to the Board of the GRA the power to set up an appeal committee to review decisions of the panel of racing stewards set up by the HRD/HRC/GRA. Furthermore, Section 4 (2) of the Regulations provides for the remuneration of a member of the appeal committee of the GRA to be decided by the Board of the GRA:

"A member of the appeal committee under paragraph (1) shall be paid such remuneration as the Board may determine."

Section 11 (1) of the Regulations provides:

"An appeal before the appeal committee shall be by way of a rehearing."

A re-hearing as opposed to an appeal entails that the whole case be heard anew with any witnesses heard, to be heard again and their testimony completely reassessed. That necessarily implies that an appeal hearing before the Appeal Committee will be a replica of the hearing held before the panel of racing stewards appointed by the HRD/HRC/GRA.

Blanc Bonnet, Bonnet Blanc

In the changed landscape brought by the amendments to the GRA Act as discussed above, who will henceforth be the "appellant" and who will be the "respondent" in an appeal before the Appeal Committee of the GRA? The "appellant" is likely to be a licensee of the HRD/HRC/GRA and the "respondent" will necessarily be the Panel of Racing Stewards which is appointed by the same HRD/HRC/GRA.

Is this not operating exactly as the MTC was operating for several years and which was claimed to be so wrong by the GRA? Has the situation now become acceptable because it is not controlled by the MTC but rather by the HRD/HRC/GRA?

Good Governance and Integrity of horse racing

The legislator has imposed a legal obligation on the GRA/HRC/HRD under Section 15C (4) (u) and (v) to:

ensure that there is transparency and good governance in the organisation of horse racing;

protect the integrity of horse racing;

That obligation includes a mandatory requirement on the GRA to ensure that the whole process of appeal complies with the principles of good governance to protect the integrity of the industry. Let not the creation of a horse racing committee and a horse racing division deceive the public; the ultimate body in charge of the organisation of horse racing in Mauritius is the Board of the GRA. Good governance necessarily includes the principle of independence and the exercise of independent judgment. Whilst the GRA ought to be an independent institution exercising independent judgment, our Supreme Court has on two occasions since 2018 said it was the "mouthpiece of Government".

The first time was in the case of Stevenhills Ltd v The Gambling Regulatory Authority Sportslepep v The Gambling Regulatory Authority; Automatic Systems Ltd v The Gambling Regulatory Authority [2018 SCJ 177, which was in relation to a judicial review of a decision of the GRA to reduce the number of additional places of outlets operated by a licensee under the GRA Act and not to renew the licences in respect of any surplus outlets. The then Chief Justice said:

"Unfortunately the language in which the letter of the 10 November 2015 was couched seems to indicate that the decision was not that of the respondent (GRA) and the respondent (GRA) was simply the mouthpiece of the Government which in fact took the decision. In fact the decision which ought to have been based on the exercise of independent judgment by the respondent (GRA) was, in view of the express language in which the decision was conveyed, clearly a decision of the Government."

That 2018 decision of the Supreme Court was echoed in the more recent Supreme Court judgment, Armoogum K. v The Gambling Regulatory Authority & Anor (2021 SCJ 428) where the Judges found that the GRA as "a body corporate set up by statute to exercise important regulatory and licensing powers, has, in determining the application made by the applicant for an On-Course licence, acted "under the dictation", or "as a puppet", of Government." The Judges further went on to state that:

"It is regrettable that the respondent does not appear to have paid heed to the strong admonition which it received from this Court in Stevenhills Ltd v The Gambling Regulatory Authority; Sportslepep v The Gambling Regulatory Authority; Automatic Systems Ltd v The Gambling Regulatory Authority [2018 SCJ 177], a case in which the respondent had reduced the number of additional places of business or outlets, and declined to renew licences in respect of surplus outlets, on the basis of a Government decision to that effect. The Court (per Matadeen CJ, as he then was) made the following observation which seems to resonate with equal force in the present case -

"Unfortunately, the language in which the letter (...) was couched seems to indicate that the decision was not that of the respondent and that the respondent was simply the mouthpiece of the Government which in fact took the decision. In fact the decision which ought to have been based on the exercise of independent judgment by the respondent was, in view of the express language in which the decision was conveyed, clearly a decision of the Government. The respondent had surrendered the discretion vested in it by law to the Government. Of course, the respondent may take into account considerations of public policy, but this does not absolve the respondent of exercising its own judgment. The language of the letter (....), in the present case, is indicative of the fact that the decision was not that of the respondent."

We consider that the impugned decision to turn down the applicant's application for a licence "on the basis of" an alleged Government policy cannot be said to be a decision of the respondent exercising its own independent judgment."[8]

Conclusion

No independent Horse Racing Authority as recommended by the COI

The COI report was meant to change the horse racing industry for the better. There is no independent Horse Racing Authority. A department (also called division) has been created within the Gambling Regulatory Authority to 'regulate, control and monitor' horseracing activities. That division is administered and managed by a Horse Racing Committee and the same person heads both, Mr Wayne Wood. The latter as well as all the employees of the Committee/Department/Division (whatever name you call it) are appointed by the Board of the GRA who decides their terms and conditions of employment.

No transitional period

There has been no transitional period catering for the change in the organisational structure of the industry. Overnight, horseracing will be organised by a new controlling body, the HRD/HRC under the ultimate monitoring of the Board of the GRA. This could be one of the causes of delay in starting the 2022 season.

The intellectual property rights of the MTC over its Rules of Racing

The Rules of Racing belong to the MTC and there cannot be any serious challenge to this. They have been used for a number of years and the GRA/HRD/HRC cannot plead ignorance or deny this fact. It belongs to the MTC to protect its rights in these Rules of Racing and more likely than not this will end up in our Courts.

Lack of public confidence

The heart of horseracing- the panel of racing stewards- who, let it be reminded, decides upon the final and official results of every race- rests in the hands of the HRD/HRC/GRA. Whilst no aspersion is being casted on the integrity of the individuals who will form part of this panel, there is reason to believe that the fact they are ultimately accountable to the Board of the GRA, could create a perception that will prevent them from being seen as fully independent and impartial, a critical component for public confidence in the horseracing industry. It further does not help that the Appeal Committee to hear appeals from this panel of racing stewards is also set up by the same GRA.

The issue of reciprocity for sanctions taken by a body other than the horseracing organiser

Decisions/sanctions against jockeys and trainers taken in our jurisdictions by the panel of racing stewards previously appointed by the horseracing organiser have always been recognised through the principle of reciprocity in other jurisdictions affiliated with the International Federation of Horseracing Authorities (IFHA). With the new landscape, it is not clear whether the IFHA will request other member states signatory of the IFHA agreement to continue to recognise such decisions/sanctions. The author of this article has not seen any documentary evidence which would comfort the public to know that should a jockey (for example) be sanctioned under the HRD Rules of Racing, then that jockey will not be able to ride the next day in another jurisdiction (excluding a scenario where he would have appealed the decision/sanction).

Back to basics: What was the purpose of the Gambling Regulatory Authority Act?

The Gambling Regulatory Authority Act was created to: "To amend and consolidate the laws relating to gaming and betting, to provide a legal framework for the regulation of betting on foreign horse-races, football matches and other events or contingencies and of interactive gambling and to make provision to foster responsible gambling in order to minimise harm caused by gambling and for one single regulator for better synergy and enforcement and for related matters"[9]. The GRA (or a department of that statutory body) was never created to ORGANISE and CONTROL horseracing activities in Mauritius. In order to save this industry, the Minister of Finance, Economic Planning and Development should authoritatively exercise his powers under Section 7 (3) of the GRA Act to give such directions in the public interest 'afin d'arracher les mauvaises herbes et sauver la poule aux oeufs d'or.'

WHAT A MESS!

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