Time to Rewrite the Rules

By Ned Bonnie

Ned Bonnie is a retired equine attorney with Frost Brown Todd and a member of the Kentucky Horse Racing Commission.

Thirty-eight separate racing commissions with limited budgets, staff, and experienced attorneys have resulted in poor drug enforcement in racing. When there is money to be made in any industry and there are few rules and limited investigatory staff with no skilled and experienced prosecutors, the system is ripe for manipulation and corruptive influences.

I’ve been on most, if not all, the drug testing and control committees for the past 20 years. The testing laboratories have improved greatly during these years, but they look for known drugs. They are paid to test for these drugs. Because labs are often bidding for testing contracts, the cheapest testing bids win. Few, if any, of these contracts include a research component. Time and time again an illegal drug has been in use for years (reserpine, cobra venom, dermorphin) before a test is developed. Laboratories protect their reputations and contracts by being very careful not to declare false positives.

Statistics are offered by defenders of the present system of post-race testing and prosecution of offenders to justify the status quo. The great majority of these cases involve the misuse of therapeutic drugs and result in minimum fines and suspensions of the trainers. What about loss of purse and suspension of the horse involved? How about suspending the veterinarians and drug salesmen who peddle the illegal drugs? What about the drugs that get by the testing laboratories?

More and better personnel require more money and leadership. We need innovative rule writing, such as licensing drug companies that manufacture and sell products to horsemen so if needed we can subpoena the records of these companies to identify the offending drugs and prosecute persons and corporations.

Who should run this operation? We need a national organization to rewrite our rules and broaden their scope. We need to employ an experienced investigatory staff (not try to replicate these ideas in 38 different states) to infiltrate the groups that manufacture and sell the drugs to the racing industry. Then we need to hire experienced and skilled attorneys to prosecute these cases. This prosecutorial staff would be on-call to go anywhere in the States to prosecute. The IRS has used this prosecutorial technique for years after experiencing too many losses at trial by earnest, but inexperienced, district attorneys facing highly experienced, specialized defending attorneys.

The United States Equestrian Federation wrote a national drug rule, employed one laboratory of the highest caliber, wrote due process rules to protect the interests of all participants, and employed experienced, skilled attorneys who have special skills needed to prosecute successfully often complicated chemical and veterinary issues. Does the racing industry deserve less?

The industry has been successful in persuading the federal government to stay out of the racing business on these issues. However, the New York Times, The Jockey Club, the Thoroughbred Owners and Breeders Association (TOBA), and other groups have increased the pressure on the industry to make positive changes. The result is that the threat of federal legislation, which is both punitive and aggressive, is on the horizon.

U.S. Sen. Tom Udall and U.S. Rep. Ed Whitfield appear to be serious about changing the landscape. In this election year neither the Federal Trade Commission nor the Department of Agriculture (federal agencies mentioned in the hallways) has the money to take on an oversight of racing. Furthermore, ensuring racing integrity and protecting the horses and jockeys are not high on the budget-constrained list of federal priorities. However, the racing industry could finance the infrastructure and ongoing costs. While running a federal program was estimated at $30 million and the annual drug testing and prosecution at $40 million in 1980, the industry has the resources today to fund these initiatives. How about assessing owners a few dollars per start? No owner I’ve talked with would object to paying $20 per start when he is paying $20 to $30 to have his horse ponied to the post. The money could be supplemented by fees from each racing state and the racetracks. This agreement would be a part of the federal regulatory process.

The creation of this national group will cause considerable angst. It will be difficult to work out the drug rules and the relationship with 38 states on, but not limited to, enforcement, investigation, hearings, procedures, etc. Fortunately, it has been done before, not only in the U.S. but in other countries, and can be done again.

Why should the industry try it? If we do not, the rule writers for the federal statute will impose their bill and their views on our industry. That threat should be enough to make us successful this time around.

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