Cuckson Report // Pippa Cuckson

Kocher-Gate: Is There Really a Viable Case?

Debate is still raging about Andrew Kocher’s decision to jump Carollo in the Spruce Meadows Derby the day after he won the Queen Elizabeth II Cup.

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By: Cuckson Report // Pippa Cuckson

Debate is still raging, nearly two weeks on, about Andrew Kocher’s decision to jump Carollo in the onerous Spruce Meadows Derby the day after the same horse won another demanding class, the Queen Elizabeth II Cup (July 6-7.)

As the rest of the world knows from the cringe-inducing video that went viral, Carollo crashed and burned his way to 28 faults.

We know Carollo was Tired because his connections posted a video of a subdued Carollo in his stable, audibly teasing him for being Tired. Heck, they even over-wrote it with the title, “Tired…” with extra dots for emphasis. That own-goal could possibly provide “evidence for the prosecution” if Kocher ends up before the FEI Tribunal – though I don’t think he will.

First, it’s a fundamental of all sports law that you can’t “correct” a judges’ decision or indecision, however daft, once the competition is over. The sanctity of field-of-play jurisdiction has been upheld by the Court of Arbitration for Sport many times. So, while most of us don’t understand why Kocher was not buzzed by the judges and asked to stop, that particular ship sailed on the evening of July 7th.

All that is left for the FEI, at least, is a possible accusation of Abuse, the one field-of-play offence under FEI rules that is not time limited. And that can only happen if either a) FEI HQ pursues an Abuse action against Kocher itself or b) an individual (which can be any member of a public not present on the day) lodges an admissible Protest. Believe me, as I am one of the few people who have ever done it, option b) involves a lot more than just sending a “this is awful!” email to Lausanne.

And what a can of worms that would open. You see over-faced horses ploughing their way, unchallenged, through jumping classes under riders with more ego than sense pretty well every weekend of the year both sides of the pond. After all the compromises equestrian sport has made to send fledging equestrian countries to the Tokyo Olympics next year, are judges seriously going to stop a horse who is not up to it, mid-round? Of course not.

Capping the frequency of demanding athletic efforts could also be tricky where the considerate riding of a tiring horse is actually part of the sporting test – such as eventing and endurance. I also don’t believe Carollo crossed the line from tiredness into exhaustion, the point at which regulatory bodies are more likely to intervene.

The definition of exhaustion was recently tested by the FEI Tribunal in some landmark endurance abuse cases. Even in the instance of Castlebar Nato, who was whipped “at least” 18 times yet continued to drop in speed before keeling over with a fractured cannon bone, the FEI veterinary department did not feel this horse was “exhausted.”

Furthermore, FEI General Regulations Article 142.1 define “Abuse” as “an action or omission which causes or is likely to cause pain or unnecessary discomfort to a Horse.” This implies that a degree of “necessary” discomfort is acceptable. Unwittingly or not, we all buy in to “necessary discomfort” the day we clamber aboard any horse, with what we put on its head and in its mouth, and with how much we bang around on its back and niggle on its jawbone depending on our own level of skill. Who wants to start that particular debate or, frankly, has the intellect or energy to argue it through its logical conclusion?

Another reason I think this will go no further is that social media furore is not a reliable barometer of whether Abuse has occurred.

Carollo’s round did not seem to offend the experienced spectators present at Spruce. The arena commentator’s response was of the garden variety “oops, bad luck, you can’t win everything.” There is gasping from the crowd whenever he lowered a fence, but no audible booing, unlike the Bernhard Maier case two seasons ago.

Kocher himself wrote on Facebook next day (July 8th) that he should have pulled up, in hindsight. Still so significant public disquiet. The furore really built from July 12th, when the horse’s former owner/co-owner Roy Wilten criticised Kocher and shared videos from his personal page.

It was then a couple more days before mainstream media asked the FEI for a comment. The FEI said it was proactively investigating – but that investigation did not seem to have been initiated immediately.

If Carollo’s Derby round was not mentioned in the mandatory officials’ reports sent to the FEI after the event, also unlikely, that’s another barrier to bringing any case against the rider. Meanwhile, USEF has stated Kocher made a wrong decision, but seems to be hedging its bets till it sees what, if anything, is done by the FEI.

Kocher certainly does not come over as remorseful. In Wednesday’s update by Horse & Hound he seemed confident he wouldn’t be hearing from the FEI as he “hadn’t broken any rules.”

For sure no rule says “horses may not start in a Derby if they jumped-off at five-star the day before.” But any sport has to start from the premise that participants have common-sense and a basic sense of sportsmanship (remember that quaint concept, anyone?). Otherwise the rule-book would be so thick even fewer people would read it than already do.

In the 40 years I have been writing about equestrian sport, horse-sense at international level has declined. People prefer to blame someone else for their oversights, as in all aspects of 21st century life. In FEI Tribunal disciplinary reports, the accused frequently claim that there should have been X or Y in FEI “small print” to save the rider from himself. No one wants to take responsibility for their own actions any more.

So there is an increased obligation on judges to be decisive and bold when applying Article 142.1. That won’t be easy; no one wants to be a ball-breaker, because invitations from organisers would soon dry up. It’s already difficult enough to recruit and retain judges. We might have had an even smaller pool of accredited officials if the FEI had not enabled good ones to keep going after the traditional retirement age of 70.

Not many of us pay attention to the disciplines we are not personally involved in. I know that endurance is a turn-off for most people, but recommend glancing through this if you genuinely wish to understand how horse abuse is punished in real life cases. Judges might also note the Tribunal’s harsh words for ground juries who do not act on the day.

These decisions will also make salutary reading for those who think Kocher deserves a life ban. Good luck with that – it was a huge leap for the FEI Tribunal to hand down a two-and-a-half year suspension PLUS a fine of around $12,000 in the aforementioned Castlebar Nato case. Previously, the longest the FEI has grounded a rider in any discipline for abuse was six months!

By coincidence, a new, more defined tariff of punishments at Tribunal comes into force in January 2020. Abuse will be categorised as either “low-end” (with a fine of 1,000-1,500 Swiss francs and/or ban of up to three months,) “mid-range” (up to two years), “top-end” (two to five years) and “maximum” (life ban.)

Based on what Tribunal has determined to date, I reckon the Carollo incident would scrape into the low end of “low-end” – mild compared with social media demands!

Sometimes, though, trial by Facebook is more effective than formal sanction, even when the target has the hide of a rhinoceros. Kocher is so unpopular right now it might just be the time to tick that round-the-world cruise off his bucket list.