It may not be the same opinion, but just about everyone has an opinion on what Andy Kocher carries (or not) between his reins. Articles in the original source, French website GrandPrix, HorseSport and elsewhere have attracted hundreds of thousands of views and a slew of no-holds-barred comments on social media.
Even before Kocher could deny using electric shock spurs, social media was favouring a life ban (not to mention other imaginative uses of said device), preferably imposed as of yesterday.
That is not how the FEI (or anyone else’s) disciplinary system works, however. Even the FEI, in an official update, said the slow process is unavoidable if justice is to be done and the rider’s right to be heard fulfilled.
Once an allegation of abuse is reported to the FEI, it is difficult to predict how long it will take. There is more to it than firing off an email during your coffee break and feeling you have done your bit.
I know this because I have been there. To date, only seven different members of the public have taken protests about horse abuse all the way to FEI Tribunal. I was the very first, in February 2014, and have lodged two other successful protests since. So while I am no world expert, the editor asked me to outline the system and what might happen next for Kocher.
There is little public understanding about the FEI legal process – hardly surprising. Abuse cases at FEI Tribunal are usually about endurance in the Middle East, and its decisions rarely circulate beyond that niche activity. How many people (and why should they?) noticed last month’s record 18-year ban for abuse in FEI endurance, even though the FEI press release was, for once, used in numerous non-equestrian outlets, such as the Seattle Times?
The journey from allegation to Tribunal can take months or years, depending on complexity and the availability of witnesses and other evidence – let’s face it, 99% of us don’t want to get involved beyond sticking a comment on Facebook. The last paragraph of the FEI statement hints at that, too.
Sometimes potential witnesses fear reprisals. I know of cases that were worked on for months but unavoidably dropped when the witness lost his/her nerve. Do you watch police procedural TV shows like Law & Order and CSI? Well, it’s the same at FEI Tribunal. Knowing something and proving something are different things.
Delays can also be caused by a lawyer’s stalling tactics – that’s part and parcel of doing the best possible job for their client, irksome as it is for opponents.
Last month the FEI Tribunal handed down a record 18-year suspension for abuse (plus two years for doping) to the Emirati sheikh, Abdul Al Qasimi, whose horse broke a foreleg during a FEI endurance ride in France in October 2016. Autopsy showed that serial nerve blocking in training as well as on the day, together with osteoarthritis in the right front fetlock joint, resulted in stress fractures that ultimately caused the catastrophic injury.
That case dragged on for three-and-a-half years due to legal wrangles generated largely by the rider until a few months ago, when Al Q split with his attorneys, decided he did not wish to answer Tribunal questions after all, and declared he was giving up endurance. Tribunal often draws an “adverse inference” – legal-speak for negative conclusion – from this kind of behaviour.
There are three main routes to bringing abuse to the FEI Tribunal. The first is for alleged offences during a competition, which the ground jury reports on to the FEI for further action, especially when sanctions (yellow card, disqualification etc) available on the field of play are insufficient.
The second category involves alleged incidents protested directly to the FEI Secretary-General after the event by members of the public. Article 142 of the General Regulations allows protests about abuse from any person at any time. Only two weeks ago the highest court in world sport, CAS, supported the right of members of the public to intervene in alleged horse abuse.
The third prime category, into which the Kocher allegations fall, results from confidential tip-offs to the FEI’s Equine Community Integrity Unit (ECIU). This unit is provided by a global integrity services operation in London, UK and staffed by former senior police officers, many of them ex-London Metropolitan Police.
One really important aspect of routes two and three is that the protestor/whistleblower need not have been present when the alleged abuse took place. Clear video and/or photographic evidence is often enough.
We now know that ECIU was contacted first by the whistleblower, who then went to Grand Prix with information. (Why a French news outlet was chosen in favor of a North American one, I don’t know.)
The FEI Legal department has already written to Kocher. The significance of this letter should not be underestimated. There is usually no informal preamble from the FEI, so the rider’s initial reply is his big chance to have his say. He will be expected to respond in a detailed and transparent way.
I would strongly recommend not hedging his bets, because the introduction of further evidence later on is extremely limited, for either side.
The rider should also make a quick decision about legal representation. Extra written submissions cannot usually be sent on if counsel is hired further down the line. An oral hearing then becomes the only way to get new arguments before Tribunal.
Tribunal likes, and may give a very small reduction in sanction for, prompt admission of guilt. If you really have abused your horse, showing remorse goes down well, too. In previous Tribunal decision notices, you’ll often see it commenting on the rider’s lack of contrition.
One thing Tribunal really does not like are diversion tactics, such as accusing the protestor of vindictiveness. It doesn’t matter one jot if the protestor/whistleblower is the rider’s disgruntled owner/spurned lover/childhood enemy/nutty stalker/someone whose fender they bent in 1996. Any “motive” behind bringing clear evidence of abuse is of no concern to the Tribunal.
Tribunal has even scolded riders for criticising the person/s bringing the alleged abuse to light. Under FEI endurance rules it has, since January, been an offence to NOT report abuse. I would not be surprised if that rule eventually finds its way into the other FEI disciplines too.
When the FEI Legal department receives the accused rider’s reply, it will draw up its own Opinion and submit this to the Tribunal in a case file along with the evidence, the rider’s submission and sometimes expert opinions from either party.
FEI Legal will suggest an appropriate sanction at this stage. The scale goes from three months suspension to life ban, plus fines and disqualification from the event at question.
We have come nowhere near a life ban yet, though Tribunal can be hard to predict. No-one can have been more surprised than FEI Legal by the 18-year ban for Al Qasimi. Legal itself had requested “at least” two years. Until then, the longest FEI suspension for abuse was two-and-a-half.
Another thing I’ve noticed is rider blind-spots over the FEI definition of abuse. The mere likelihood of causing “unnecessary discomfort” constitutes abuse; yet some continue to devote a chunk of their defence to saying that if there are no wounds or marks on the horse, nothing undue can have happened.
The rider can choose jurisdiction on the basis of all paperwork, or by oral hearing in Lausanne. For abuse cases there is usually a Tribunal panel of three – all active horsemen who happen to be practising or recently retired lawyers.
Many Tribunal hearings were taking place at least partially by video conference before Covid-19, so travel constraints between the US and Switzerland need not hold up that unduly. Sometimes the Tribunal will want to interrogate the rider in person, irrespective of rider preference for a written decision.
If the Kocher allegations are progressed, it will be the first time electric shock devices have been considered by Tribunal. I don’t think the wording of the GRs requires cut-and-dried proof that Kocher activated the alleged device; mere intent could be enough. I’m not a lawyer – that’s just my educated guess. I am sure the FEI will seek out extra evidence and witness testimony, as further validation.
In any event, the protruding black button in so many unphoto-shopped images from unrelated sources will take a lot of explaining.
This could also be the first abuse case spanning multiple occasions. Since Grand Prix first published, further photographs have come to light from other CSIs in North America during 2018 and 2019. On top of any suspension and fine, the more incidents that are proved, the more CSI results must be disqualified. Kocher would then have to return prize-money from all relevant events, on top of the dent to his reputation and livelihood.
Whichever way it drops, its odds-on that Andy Kocher faces a lot of unexpected expense in months to come.