The worst part of the New York takeout fiasco revealed last week  is not the failure of so many agencies to catch an honest mistake, but  that a short-term remedy to the situation may pre-empt a more serious  and overdue discussion about takeout reduction.
A routine audit of the state breeding fund in early December turned  up the colossal “oops” – that the New York Racing Association had been  erroneously paying out 74 percent rather than 75 percent of its  “super-exotic” (three or more horses) betting pools for the last 15  months. Every single racing and regulatory body in the state, not to  mention those in the dozens of other states and foreign countries that  bet into these NYRA pools, flat out forgot that the takeout rate on  these bets was supposed to revert from 26 to 25 percent in September  2010. That was when a one-point takeout increase, hurriedly added to the  2008 NYRA franchise-renewal legislation as a sop to the state’s  offtrack betting corporations, was supposed to expire.
You would think someone – anyone – would have had the expiration date  circled on his calendar, but no one did. NYRA can be blamed for the  oversight but no more so than the state Racing and Wagering Board, the  Franchise Oversight Board, the state Department of Taxation and Finance,  and anyone else charged with enforcing the racing laws of the state, or  at least figuring out the current status of those laws. Takeout  increases don’t usually have sunset provisions; this one did, but  everyone forgot about it until the breeding-fund auditors stumbled on  it.
At that point. FOB and SRWB officials angrily wagged their fingers at  NYRA while neglecting to address why regulators had been equally  negligent in overlooking the statute, and early reaction accused NYRA of  knowingly keeping the extra money for itself. Then cooler heads pointed  out that the primary beneficiary of the mistake was not NYRA, which  only benefits from a higher takeout on the 15 percent of the handle bet  directly through it ontrack or through its NYRA Rewards account-wagering  system. For the 85 percent of the handle that is bet through OTB’s,  simulcast outlets, and national-account wagering companies, NYRA gets  the same negotiated percentage of handle regardless of the takeout rate.  NYRA itself kept about $1 million more than the correct statutory rate,  but over $7 million went straight into the profit margins of other  bet-takers .
Few of those outlets have addressed whether they will try to track  down and compensate the shortchanged bettors, whereas NYRA at least has  agreed to make up the shortfall to NYRA Rewards customers, whose bets  can be tracked. It also agreed to make up for the 15 months of  overcharging with a remedial 15 months of undercharging – since the rate  was applied at 26 rather than 25 percent, it will now be charged at 24  rather than 25 percent for at least an equal period of time.
This is a makeup, however, not the sort of forward-thinking takeout  reform NYRA portrayed it as when it first addressed the issue with a  press release misleadingly titled “NYRA Announces Takeout Reduction.”  This was a little bit like someone being fined and sentenced to perform  community service and then announcing that he has decided to take a more  active role in community affairs.
NYRA also erred in saying it would not make up the overcharging on  pick-six bets, citing an obscure statutory provision that actually  allows takeout of as high as 36 percent in that pool. But no one had  ever proposed or applied for such a rate, and it seems clear that the  increase from 25 to 26 percent in the pick six was supposed to expire in  September 2010 along with the increase on other super-exotics.
NYRA subsequently announced it will continue the new 24 percent rate  past the 15-month makeup period, a positive gesture but still not  enough. A 24 percent super-exotic rate is still higher than in most  other major jurisdictions (including 19 percent in Kentucky). NYRA’s  position has long been that it supports lower takeout, and it has  opposed previous increases, including the 2008 one. After decades of  losing that argument, however, NYRA is now positioned as never before to  implement real and meaningful takeout reform.
The new Aqueduct racino is providing NYRA with as much as $100  million a year for purses and capital improvements, and some slice of  that should be redirected to the public in the form of lower takeout.  NYRA can finally afford it, and the crumbling of the state’s OTB system  removes a major impediment to enacting it.
A short-term remedy to an error should not be mistaken for long-term reform.
 
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