The Big Picture Presented By Excel Equine: Is HISA's Whip Rule The Answer?

According to HISA, “A jockey or exercise rider can only use a riding crop in a race or workout: to maintain the horse’s focus and concentration for the safety of both horse and rider; for encouragement to achieve optimal performance.” The latter consideration of “encouragement” has been a divisive one.

In 2019, the California Horse Racing Board voted unanimously to limit the use of the whip only to “when necessary to control the horse for safety of the horse or rider.” The Jockeys’ Guild opposed limiting use of the whip to safety situations only.

In response, the California Horse Racing Board ended up adopting what chairman Dr. Gregory Ferraro described as “the most restrictive whip rule in North America, maybe the world.” It allowed up to six strikes during a race. Jockeys would be fined and suspended for more, although they would not be penalized if the additional strikes were considered necessary for the safety of horse or rider. Also within the six-strike limit was the stipulation that a jockey couldn’t hit more than two times in a row before a horse had a chance to respond.

The Kentucky Horse Racing Commission then followed California’s example and set a six-strike limit. Initially, the Thoroughbred Safety Coalition proposed five, and six represented a compromise after feedback from the Jockeys’ Guild.

“I was involved in the crop rule being changed in Kentucky prior to me coming to HISA,” Guilfoil said. “We worked on it for two years with the Jockeys’ Guild and got everybody at the table and came up with a very similar rule to what HISA has. Now, HISA, obviously being the law of the land, that’s the rule that takes precedent.”

HISA’s federal regulations now follow the state regulations that came before: a six-strike limit on the horse’s hindquarters with no more than two in a row without giving the horse a chance to respond for at least two strides. Jockeys are allowed to tap the horse on the shoulder if they are holding the reins in both hands as well. HISA also has regulations about the size and material that can be used for a riding crop. It cannot leave marks on or injure the horse.

At the end of the day, regulating the use of the whip—as well as referring to it as a “crop” within the rules in an effort to rebrand it—has been positive for horse racing’s image and addressing its social license to operate. As a standard, jockeys are now no longer pounding away at tiring horses in mid-pack through the homestretch.

“I’ve talked to a lot of stewards throughout the United States, and several of them have told me – it’s anecdotally – but they notice that the stretch runs are a lot cleaner, that riders are actually concentrating on riding the horse instead of having their head ducked down and knocking and banging,” Guilfoil said.

However, the black-and-white, quantitative approach to the whip rule also leaves an unsatisfying gray area when it comes to the messaging when the rule is not followed and penalties are enforced as a consequence.

Ryan Moore had a “perfect ride,” as described by NBC Sports announcer Larry Collmus, aboard Auguste Rodin to win the 2023 Breeders’ Cup Turf. After stewards reviewed the replay a day later, they fined Moore $20,800, the equivalent of 10 percent of his earnings as the winning rider, and suspended him for one day for hitting Auguste Rodin one time more than the allowed six strikes.

“I think it’s both; he is praiseworthy and it was a superior ride, but he did break the regulation,” Guilfoil said. “The stewards called that race the same as they would call a race on a Thursday afternoon. It was one strike over, and that’s what he had. He did make the argument that it was for safety. It went before a hearing officer, and he was unsuccessful at that.”

Fair enough. The rule is the rule, and if there’s going to be a cap on the number of allowed strikes, it must be set at some number. But, how did we arrive at that number, and what makes the seventh strike inappropriate?

“It’s sort of difficult to answer,” Guilfoil said. “The short answer of why the seventh one is a bad thing is that you’re outside the rule then.”

HISA’s rule allowing up to six strikes follows Kentucky’s, and Kentucky’s follows California’s. When California arrived at six, Ferraro said during the CHRB meeting on June 11, 2020, “This Board has a mandate from the Governor to make reforms in racing that contribute to the welfare of the horse. We’ve been talking about this crop, and the kind of crops used, for two years. I think it’s time we stop procrastinating and pass a rule. We have a good rule. We’ve worked hard on it.”

In 65 pages of transcript covering 1 hour, 24 minutes of debate and in 50 pages of supporting material to that CHRB meeting that, in retrospect, set the tone for HISA’s whip rule, there is no reason given or study cited for why the number of allowed strikes should be six or any other number for that matter. (For the record, there were studies cited related to the type of crop used.)

Sure, we can agree that an infinite number of strikes – or even the reported 32 by Espinoza on American Pharoah – does not “contribute to the welfare of the horse,” to quote Ferraro’s mandate from California Gov. Gavin Newsom. But without any empirical evidence, anecdotal evidence, or any evidence that anyone can cite, we can’t say that a black-and-white, quantitative whip rule that puts the number at six or seven or 10 or 11 does contribute to the welfare of the horse either.

Instead, whip reform that contributes to the welfare of the horse would consider timing, technique, and how the horse responds to the crop. A horse that shies away from repeated uses of the whip, even if the number of strikes falls within the allowable limit, is worse than a horse that responds positively to the whip used over the allowed number of times and comes out of the race without issue.

Moore’s use of the whip one more time than allowed on Auguste Rodin will ultimately go down as an afterthought in the history of the horse and the Breeders’ Cup, but, pending an appeal to the Federal Trade Commission, that won’t be the case for Alotaluck and the connections of the runner-up of the 2024 Sunland Park Derby.

That’s because jockey Oscar Ceballos crossed a threshold with his use of the whip 11 times that triggered penalties, not just for him as the rider, but also for the horse and his owner. Upon 10 strikes (four over the six-strike limit), a horse is disqualified from purse earnings. A dream scenario for breeder and owner Eleanor Martin and her nephew trainer Ty Garrett with a placing in the first graded stakes race they’ve ever contested has turned into a nightmare.

“This is the best horse I’ve ever had to get points for the Kentucky Derby plus being graded stakes,” Martin said. “It was kind of a milestone, and it helps her mother Colinda [Dawn] be a graded stakes producer. Her foals will be more valuable. It affects a lot of things by getting that graded stakes, and now we’ve lost it.”

From the same race, jockey Christian Ramos also went over the six-strike limit on third-place finisher Lucky Jeremy, but he didn’t get to 10 and is allowed to keep his placing. What is it about the 10th strike that warrants a penalty that disqualifies the horse and fines the owner the entire winnings?

“It’s sort of like if a horse gets a positive test,” Guilfoil said. “The owner pays for that when the horse gets disqualified. If the trainer is found guilty, and he or she did something nefarious that caused the positive test, the owner had nothing to do with it. So, it’s really in the same sense; it’s no different. In order to deter this, there’s got to be a punishment.

It’s fair to assert that the rule is the rule. And, it’s also fair to ask, why is the rule the way it is?

“One size doesn’t fit all,” Martin said. “I don’t know why after nine they penalize the horse.”

It’s worth sending a message to a jockey like Ceballos, who was also under fire for striking Sheriff Brown 11 times when winning the Downs At Albuquerque Handicap in September 2022. That disqualification was overturned a year later when appealed to the Federal Trade Commission and the chief administrative judge ruled that some of Ceballos’ crop strikes fell under the gray area of safety.

“We like black and white as stewards,” Guilfoil said. “It’s a hard, fast rule. Now there is a gray area that comes in whether it’s for safety or not, and that’s where we leave it up to the judgment of the stewards.”

Right now, the black-and-white messaging that a certain number of strikes crosses some threshold of acceptability has become either an afterthought to “a perfect ride” (Auguste Rodin) or crushes the dreams of connections with a horse of a lifetime (Alotaluck), when both horses responded positively to the crop and showed no adverse effects afterwards.

Perhaps the answer, as Guilfoil alludes above but taken to the next step, is to let stewards assess technique and timing. If the jockeys are experienced professionals, they should be held accountable if they continue to hit a horse when it’s not responding favorably but shouldn’t be penalized when the horse is showing a positive response to their technique and timing.

Riders in other equestrian sports like eventing, barrel racing, show jumping, and dressage use a crop as a tool of communication and encouragement for their horses. I put together this video with what I consider to be the most positive use of the crop by a jockey, as well as an eventer, both winning at the highest level of their respective sport.

An equivalent to the quantitative whip rule in another sport is the pitch count rule in baseball. At the start of 2024, 32 organizations followed the detailed guidelines of the Pitch Smart program that represents a collaboration of USA Baseball and Major League Baseball. An advisory committee and numerous published studies about the effects of pitch counts serve as the basis for the program and any updates to the guidelines and thresholds that have been shown, when followed, to reduce injury in players.

However, the challenge to developing research and studies for the whip rule is quantifying the goals of what the whip rule seeks to address. How do you quantify public perception? How do you quantify welfare to horses? Having arrived at the end of this space, this is really where we should be starting if we want to create a whip rule that’s truly in the best interest of the horses.

At its foundation, the whip rule has the potential to have a positive impact on horse racing and the public perception of the sport, but rather than just counting the number of strikes, a more nuanced rule will be the proverbial fertilizer for that tree for the next generation to sit in the shade.