1. On 9 June 2010, the Disciplinary Panel held an enquiry into allegations that Harry Findlay, a registered owner, was in breach of the Rules of Racing for lay betting against GULLIBLE GORDON (IRE) in two races: the first at Exeter on 21 October 2008 and the second at Chepstow on 10 October 2009.
2. The first occasion was alleged to be a breach of Rule 247 of the Rules of Racing; the second was said to be a breach of the modern equivalents in the new Rule Book either Rule (A)35.4 or Rule (E)92.2. Put summarily, these provisions all outlaw lay betting against a horse whether by an owner of that horse, or by a person who plays an active part in managing it if in joint ownership, or by a “service provider” to its owner.
3. Mr Findlay, who represented himself at the hearing, admitted the breaches of the Rules alleged. Though there was no exploration at the hearing of the basis on which he made this admission in relation to GULLIBLE GORDON (IRE), for which his mother Margaret is in fact registered as half owner, the Panel was content to accept that he was right to do so at least on the basis that he was actively engaged in managing it. It is likely that he is also the effective owner of his mother’s share of the horse. Either way, he is subject to the Rule which debars an owner from laying his horse to lose.
Lay betting – the Exeter race
4. On 26 October 2009, when Mr Findlay was being interviewed by BHA investigators about a number of matters, he was initially asked about the more recent GULLIBLE GORDON (IRE) run at Chepstow. He responded by volunteering that he was responsible for lay betting against that horse at an earlier race – the novice hurdle at Exeter on 21 October 2008. He said that he had been at Exeter for the race and when he heard the trainer Paul Nicholls’ instructions to the jockey to hold it up, he got in touch with his associate Glenn Gill, who usually carries out horserace betting transactions for Mr Findlay, and told him to reduce the size of his win bet exposure by laying it. Mr Findlay said he did this because he disagreed with the riding tactics. The Panel was told by the BHA that the horse was “initially backed to the sum of around £80,000 and was subsequently laid to the sum of around £17,638”.
5. In order to check this explanation, the Panel asked to see the Betfair records of bets for this race, which was due off at 14:10 hours and which is recorded as actually off at 14:11 hours. They disclose a quite different picture. The first bet on Mr Findlay’s account was placed at 14:04 hours and was the lay bet to win £17,683 at a price of 1.46. This is followed by back bets timed between 14:04 hours and 14:12 hours for which a total of £80,004 was staked. The first price taken was 1.45 and the last pre-race price was 1.37. (All the prices taken fell within that bracket).There was a relatively small (by Findlay standards) back bet just after the start of the race of £1,753 at 1.4. His overall position on the race was that he stood to win £23,755 if the horse won. However it was beaten, so he lost £62,321.
6. It follows that Mr Findlay’s original explanation to the investigators that he was trading out of back bets on the basis of inside information about riding instructions was wrong. When asked to explain the betting at the hearing, Mr Findlay told the Panel that the lay bet must have been a mistake. This is a possible explanation – that his experienced associate Mr Gill pressed the lay rather than back button. Another explanation was canvassed – that Mr Gill was trying to move the market to make it more favourable for the intended back betting to come. Mr Findlay’s riposte was that the lay bet was too late to have that sort of effect. He may be right or wrong about that – there were no figures available for the overall size and movement of the market on this race. In any event, if that had been the intention, it didn’t work. There may indeed be other explanations for the lay bet about which it is wrong to speculate because not enough is yet known of the surrounding facts. Though the BHA submitted, in endorsement of Mr Findlay’s new explanation, that the Panel should approach this instance of lay betting as a mistake, the Panel felt unable to come to a conclusion on this one way or another on the present limited information. If it had been a mistake, it is surprising that no such explanation was given in interview in October 2009. It is also disappointing to note that nothing was done, seemingly, to rectify this “mistake” after the race by asking Betfair to reverse the transaction and credit the accounts of those who were on the other side of the successful lay bet. It may of course be possible still to do this.
7. Finally, it should be noted in Mr Findlay’s favour that his original explanation for the lay bet, if true, would have led the Panel to take a more serious view of the situation than may turn out to be the case if it really was a mistake.
Lay betting – the Chepstow race
8. On this occasion, the betting records produced at the hearing show a total of £64,000 was staked at prices from 1.89 down to 1.66 before the race. The vast majority of this (£56,000) was bet in the three minutes before the race was off at 15:00 hours. Then, four lay bets were matched in running risking a total of £9,223 for a potential win of £32,034. The first three of these lays were placed at a price of 1.53; the last at 1.10. GULLIBLE GORDON (IRE) led from the start of this 3 mile novice chase, was never headed and won easily. So the net result for Mr Findlay was a win of £35,245; if the horse had been beaten, he would have lost £31,966.
9. The bets were in fact placed again by Mr Gill, because Mr Findlay was at Chepstow. The account used belonged to Eamonn Wilmott, a friend of Mr Findlay from childhood days. He allowed Mr Findlay to use it (and through him Mr Gill for Mr Findlay) around this period because Mr Findlay was in financial difficulty and unable to use his own Betfair account. This arrangement was cleared with Betfair in advance, so there can be no suggestion of concealment by Mr Findlay of his activity through the use of an account in someone else’s name. Likewise it is right to say that Mr Wilmott took no part in the betting activity while Mr Findlay was using his account: he just agreed to take 3% of wins and losses.
10. Nevertheless, it remains a breach of the Rules for Mr Findlay to have placed any lay bets, even though he was a net backer and even though the lay bets were placed in running, as his admission of breach recognised. Though he sought to suggest that he was unaware that this was a breach until this was pointed out to him in his interview with investigators a couple of weeks later, the Panel had no doubt that he was fully aware at the time that lay betting of any sort against this horse was not allowed. Even if he had been unaware at the time that what he was doing was wrong, the Panel would not have seen that as mitigation.
11. He explained at the hearing that he and Mr Gill had been planning to do this “for months”. However, he also said it was a “spur of the moment” decision. Whether it was a plan long thought about or decided on the day of the race, it was planned nevertheless. The idea was to back it for more than they would otherwise have done (in the event staking £64,000 rather than about £40,000), in the expectation that the horse would lead from the off and that it could then be layed at shorter prices than it had been backed. That expectation proved to be right. By the combination of backs and lays actually placed, Findlay was better off by £4,437 than he would have been if he had just placed the first £40,000 of back bets. In taking this course, Findlay was relying on his private knowledge and expectation that on the occasion of this race the horse would make the running.
12. Against that, the Panel recognised that lay betting in running is to some extent to be treated as less serious breach of the Rule than lay betting before the start, because the running of the race is public, and punters can take their own view of what they see. But the plan to do this was informed by inside information about the riding tactics to be followed.
13. This is not, therefore, to be seen as a “technical” breach of the Rules as Mr Findlay said more than once. It was a real breach, and it was a planned one. It produced a better result for him by £4,437 than he would have achieved by just staking £40,000 in the win market. Of course, it is not necessary to consider here the position of those on the other side of his lay bets, because those gamblers were successful. The Panel considered what if anything was called for in respect of those on the other side of the last £24,000 of his successful back bets. It concluded that nothing was required to compensate them. They layed those bets at a time when Mr Findlay was doing nothing wrong: he was entitled to back his own horse. If his expectation that the price would continue to shorten in running had not been correct, it seems obvious that Mr Gill would not have placed the lay bets, and there would never have been a breach of the Rules. Though a breach did later come about, it does not follow that the earlier layers matched to Mr Findlay’s last back bets have been victims in any real sense.
14. The current edition of the Guide to Procedures and Penalties prescribes a penalty range of 3 months to 10 years with an entry point of 18 months’ disqualification. This seemed to come as a surprise to Mr Findlay, and he pointed out, with justification, that the stance taken on behalf of the BHA in submissions to the Panel was “that the people charging me don’t want me to be charged”. The Panel’s attention was drawn by the BHA to paragraph 2 of the general guidance on the approach to penalties given at page 49 of the Guide, which reminds the Panel that it can go outside the penalty range altogether, impliedly suggesting that something other than disqualification might be appropriate here.
15. But as already pointed out above, the Panel was not able to decide, one way or the other, whether the first breach (the Exeter race in October 2008) was just a mistake as Mr Findlay said and as the BHA was disposed to accept. At this stage, no penalty is imposed in relation to this.
16. As for the second breach (the Chepstow race in October 2009), it was planned, it was based to some extent on inside information, and it was designed to produce and did produce a better outcome for Mr Findlay than simply backing the horse for a lower stake, at a time when he was evidently under considerable financial pressure. Against that in Mr Findlay’s favour it is necessary to set the fact that the breach can be treated as less serious because the lay bets were placed in running, and the race was public for those who were on the other side of his lay bets. He was also a net backer. Further, these lay bets led to profit, rather than loss, for those on the other side of them. But the limits of these points must be recognised. Just because he was a net backer will be no consolation for anyone who is on the other side of an improper lay bet by Mr Findlay. Though such people did not lose on this occasion, the real vice was the placing of lay bets by him.
17. There is one further important matter which the Panel took strongly in Mr Findlay’s favour. He was open with BHA Investigators during interview, and he drew the Exeter race to their attention. He asked the BHA to investigate his betting records.
18. Mr Findlay also told the Panel that a disqualification would be a catastrophe for him and also for racing because of the prominent public profile he enjoys. And he rightly pointed out that no suspicion can exist about the merits of the runs by GULLIBLE GORDON (IRE) in both races. The Panel recognises the seriousness for Mr Findlay of disqualification, but did not feel that his high profile could be seen as a reason for treating his breach of the Rules more gently than might otherwise be called for.
19. Balancing all these considerations, the Panel decided that this was not a case where it was appropriate to take some course short of disqualification. It is right to drop substantially below the entry point of 18 months because of the nature and circumstances of the lay betting for the Chepstow race, and because of Mr Findlay’s open co-operation with the investigation.
20. The Panel imposes a disqualification of 6 months to come into effect on Friday 11 June 2010 until 10 December 2010 inclusive. The effect of this decision, in the light of Mr Findlay’s admitted direct involvement in the ownership of the horses currently registered in his mother’s ownership, is that horses registered in his mother’s name cannot race while she remains owner or part owner. Administrative arrangements for transfers of interest will need to be agreed by the Findlays with the BHA.